text:
    VISION AVIATION, LLC v. AIRPORT AUTHORITY FOR AIRPORT DISTRICT NO. 1 OF CALCASIEU PARISH, Louisiana. Airport Authority for Airport District No. 1 of Calcasieu Parish, Louisiana v. Vision Aviation, LLC.
    Nos. 09-974, 09-975, 09-1107.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Rudie Ray Soileau, Jr., Lundy, Lundy, Soileau, & South, L.L.P., Attorney at Law, Lake Charles, LA, Jill Anne Gautreaux, David J. Halpern, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant/Appellee, Airport Authority for Airport District No. 1 of Calcasieu Parish, LA.
    Kenneth Michael Wright, Attorney at Law, Lake Charles, LA, for Plaintiff Appellant, Vision Aviation, LLC.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| herein we address the issue of whether the trial court erred in adjudicating the termination of a Lease Agreement and Development Agreement between Vision Aviation, LLC (“Vision”) and the Airport Authority for Airport District No. 1 of Calcasieu Parish Louisiana (“Airport Authority”) without the presence of Whitney National Bank (“Whitney”) as a party to the litigation. We find that the court erred, and we reverse.

FACTS AND PROCEDURAL HISTORY:

This case addresses a business relationship between the Airport Authority and Vision. The two parties reached an agreement involving the development of the Lake Charles Regional Airport and the lease of certain properties there. Among the documents representing this relationship were a Lease Agreement and a Development Agreement wherein the Airport Authority leased hangars one, two, and three to Vision.

For various reasons, the relationship between the parties eventually soured, leading to the current litigation. Legal action commenced when Vision filed a petition seeking declaratory relief in May of 2006. In February of 2007 the Airport Authority filed an Answer and Reconventional Demand seeking to terminate the development and lease agreements with Vision. In March and April of 2009 the 14th Judicial District Court conducted a trial on the merits. This was a bifurcated trial that only addressed the eviction of Vision from the Lake Charles Regional Airport and the termination of the lease and development agreements. The trial court found in favor of the Airport Authority, and a judgment was signed on May 5, 2009.

Following the judgment of the trial court, Vision instituted this appeal and thereafter also filed in the trial court a Peremptory Exception of Failure to Join Parties |2Needed for Just Adjudication. In the exception, Vision alleged that Whitney was a necessary party in that it held a lease hold mortgage over the Development Agreement terminated by the judgment of the trial court. The trial court granted the exception on July 22, 2009, but no judgment had been filed at the time of this appeal.

ASSIGNMENTS OF ERROR:

In summary, Vision alleges that the trial court erred in ruling to terminate the Development Agreement and evict Vision from the Lake Charles Regional Airport without Whitney being joined as a party.

LAW AND DISCUSSION:

At issue before this court is whether the judgment rendered by the trial court in favor of the Airport Authority is an absolute nullity for failure to join Whitney as a party. For the following reasons, we find that it is.

Before addressing the matter before us, we note that the trial court previously granted a Peremptory Exception of Failure to Join Parties Needed for Just Adjudication. However, we give no effect to this ruling as it was issued after the trial court had been divested of jurisdiction over the matter. Louisiana Code of Civil Procedure Article 2088 reads, in pertinent part:

A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal....

Vision initially filed a suspensive appeal, but the action was ultimately converted into a devolutive appeal. Accordingly, the jurisdiction of the trial court came to a close upon the granting of the order of appeal, May 12, 2009. The trial court’s grant of the peremptory exception did not occur until July of 2009, well after Rits jurisdiction had divested.

We further note that Vision did not address the issue of nonjoinder during the trial on the merits. Ordinarily, this court would be prevented from addressing an issue not raised at trial. However, La. Code Civ.P. art. 927(B) affords this court the authority to raise the issue of nonjoin-der on its own motion. We choose to exercise this right. To that end, we now continue our analysis of this matter.

At the heart of this issue is La.Code Civ.P. art. 641. It reads as follows:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

A Collateral Mortgage was granted by Vision to Whitney, securing a one million dollar ($1,000,000.00) collateral mortgage note. The mortgage covers the property known as the Vision Aviation aircraft hangar at 500 Airport Avenue, Lake Charles, LA 70805, together with all of its present and future rights, privileges, and advantages relating to the property. This mortgage is present in the record as of May 5, 2009 — prior to the divestiture of jurisdiction from the trial court on May 12, 2009. Not only does Whitney hold a mortgage on the property that is central to the dispute between the parties, Whitney was also given certain rights as a leasehold Mortgagee in the Development Agreement — leaving little doubt that Whitney had a significant interest in the dispute between Vision and the Airport Authority. The following ^provisions are found in Section 15 of the Development Agreement:

(b) OWNER shall, upon serving DEVELOPER with any notice of default, simultaneously serve a copy of such notice upon the holder(s) of such leasehold Mortgage(s). The leasehold Mortgagee(s) shall thereupon have the same period, after service of such notice upon it, to remedy or cause to be remedied the defaults complained of, and OWNER shall accept such performances by or at the instigation of such leasehold Mortgagee(s) as if the same had been done by DEVELOPER.
(c) Anything therein contained notwithstanding, while such leasehold Mortgage(s) remains unsatisfied of record, or until written notice of satisfaction is given by the holder(s) to OWNER, if any default shall occur which, pursuant to any provision of this Agreement, entitled OWNER to terminate this Agreement, and if before the expiration of thirty (30) days from the date of service of notice of termination upon the leasehold Mortgagee(s) such leasehold Mortgagee(s) shall have notified OWNER of its desire to nullify such notice and shall have paid to OWNER all rent and additional rent and other payments herein provided for, and then in default and shall have complied or shall commence the work of complying with all of the other requirements of this Agreement, except as provided in paragraph (g) of this Section, if any are then in default, and shall prosecute the same to completion with reasonable diligence, then in such event OWNER shall not be entitled to terminate this Agreement and any notice of termination theretofore given shall be void and of no effect;
(d) If OWNER shall elect to terminate this Agreement by reason of any default of DEVELOPER, the leasehold Mortgagee(s) shall not only have the right to nullify any notice of termination buy curing such default, as aforesaid, but shall also have the right to postpone and extend the specified date for the termination or this Agreement as fixed by OWNER in its notice of termination, for a period of not more than six (6) months, provided that such leasehold Mortgagee(s) shall cure or cause to be cured any then existing money defaults and meanwhile pay the rent, additional rent and comply with and perform all of the other terms, conditions and provisions of this Agreement on DEVELOPER’S part to be complied with and performed, other than past non-monetary defaults, and provided further that the leasehold Mortgagee(s) shall | ¡-.forthwith take steps to acquire or sell DEVELOPER’S interest in this Agreement by foreclosure of the Mortgage(s) or otherwise and shall prosecute the same to completion with all due diligence. If at the end of said six (6) month period the leasehold Mortgagee(s) shall be actively engaged in steps to acquire or sell DEVELOPER’S interest herein, the time of said Mortgagee to comply with the provisions of this Section shall be extended for such period as shall be reasonably necessary to complete such steps with reasonable diligence and continuity.

By providing that the Leasehold Mortgagee(s) shall be afforded the opportunity to cure any defaults on the part of Vision, the Development Agreement acknowledges the importance of Whitney’s interest in the property. The value of the collateral that Whitney is holding is directly tied to the agreements between Vision and the Airport Authority. Any judgment, in Whitney’s absence, terminating those agreements and evicting Vision from the property is sure to impair Whitney’s ability to protect that interest.

Richmond v. Board of Commissioners of the Orleans Levee District, 08-774 (La.App. 4 Cir. 11/26/08), 2 So.3d 485, is a recently decided and factually similar case to the matter before us. The case involved a boat slip lease where the lessee brought an action against the lessor seeking to terminate the lease and recoup damages. The trial court granted summary judgment in favor of the lessee. Whitney National Bank held a Leasehold Mortgage over the property subject to the lease but was not joined as a party. On appeal, the court found that Whitney was a necessary party and that the trial court erred in adjudicating the matter in its absence. “Here the trial court adjudicated the rights of the lease with only the debtor, the plaintiff, being represented. The trial court erred in adjudicating the rights to the lease without the creditor’s presence because the termination of the lease rights affects the creditor, i.e. Whitney.” Id. at 488. We find Richmond to be directly on point. Just as Whitney had [ fian interest in the property subject to the boat slip lease, thus making it a party needed for just adjudication, it had the same interest in the property subject to the Development Agreement.

The Airport Authority suggests that the Collateral Mortgage evidencing Whitney’s interest in the property may not have been properly in the record. The claim is made despite the fact that the mortgage was included as part of the record prior to the divestiture of the jurisdiction of the trial court on May, 12 2009. Regardless of the propriety of the mortgage’s inclusion in the record, our decision is rooted in the language of the Development Agreement. It is well-settled law that contracts have the force of law between the parties. La.Civ.Code art. 1983. With that in mind, we look to the Development Agreement and notice the benefits afforded to the leasehold mortgagee in the event of default on the part of Vision. The agreement provides the mortgagee with the right to cure the default, to postpone and extend the date of the agreement’s termination, and it even contemplates the mortgagee acquiring Vision’s interest in the agreement by way of foreclosure on the mortgage. In short, the mortgagee is provided the opportunity to maintain its security. The grant of such benefits to a mortgagee is addressed in La.Civ.Code art. 1978 as a stipulation for a third party. This concept is better known in our jurisprudence as a stipulation pour autrui.

The article provides that when a benefit in a contract is stipulated for a third party, the contract may not be dissolved without the beneficiary’s agreement. There are very few governing rules on third party beneficiary contracts, and determinations on their existence must be made on a ease by case basis. Joseph v. Hosp. Serv. District No. 2 of Parish of St. Mary, 05-2364 (La.10/15/06), 939 So.2d 1206. The |7most basic requirement for determining the existence of such a contract is whether the contract clearly manifests an intent to stipulate a benefit for a third party. Id. As stated above, we find that the intent to manifest a benefit was clear. We also find that it was not necessary that Whitney be mentioned by name in the agreement. “Although a stipulation pour autrui may be for the benefit of ‘undetermined persons,’ those beneficiaries must be determinable on the day in which the agreement is to have effect for their benefit. Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969).” Camellia Place Subdivision-Block 1 Association v. Willet, 491 So.2d 764, 768 (La.App. 3 Cir.1986), writ denied, 496 So.2d 349 (La.1986). Accordingly, Whitney was properly a third party beneficiary under the agreement, despite not being named specifically, because its existence as a mortgagee of the property was determinable at the time of the agreement’s termination.

The Airport Authority urges that Vision should have brought Whitney in as a party at the trial stage. However, the duty to do so is not singularly held by Vision. Rather, it falls on both parties. The rights of the potential third party beneficiary must be protected. Under the clear terms of the contract, the Airport Authority cannot evict Vision to the detriment of the third party beneficiary. It follows that eviction was not proper without either notice to the third party or proof that the Airport Authority was never provided with information suggesting the third party’s existence. Thus, the judgment of the trial court was not proper, even if we do not entertain the evidence before us of Whitney’s interests.

We find that Whitney was a party needed for just adjudication as contemplated by La.Code Civ.P. art. 641 and, at the very least, that there is an absence of evidence showing that the Airport Authority was never notified of Whitney’s existence. For | Sthis reason, we find that the trial court erred in adjudicating the matter. The judgment is an absolute nullity. See Terrebonne Parish School Board v. Bass Enterprises Production Co., 02-2119 (La.App. 1 Cir. 8/8/03), 852 So.2d 541, writ denied, 03-2786 (La.1/9/04), 862 So.2d 984, writ denied, 03-2873 (La.1/9/04), 862 So.2d 985. Accordingly, we reverse the judgment of the trial court.

CONCLUSION:

For the foregoing reasons, we reverse the ruling of the trial court terminating the Development Agreement between Vision and the Airport Authority and evicting Vision from the Lake Charles Regional Airport. We find that Whitney was a party needed for just adjudication and also that there is no evidence indicating that the Airport Authority was not notified of the existence of Whitney. Thus, we find that the judgment of the trial court in Whitney’s absence was an absolute nullity, and the matter is reversed and remanded to the trial court for further proceedings. The costs of this appeal are assessed to the appellee, Airport Authority.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    D.R.S. v. L.E.K. consolidated with L. K. v. D.S.
    Nos. 09-1274, 09-1275.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      David C. Hesser, Alexandria, Louisiana, for Plaintiff/Appellant, D.R.S.
    Susan Ford Fiser, Alexandria, Louisiana, for Defendant/Appellee, L.E.K.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

| ,In this child custody case, the father, D.R.S., appeals the trial court’s judgment awarding the mother, L.E.K., sole custody of the minor child, A.G.K., subject to visitation afforded D.R.S. as set forth in the visitation schedule therein, and decreeing that L.E.K. has the sole authority to decide the religious preference of the child. For the following reasons, we reverse and remand.

FACTS

A.G.K. is the three-year-old child of D.R.S. and L.E.K., who were never married. Two weeks after the birth of the child, D.R.S. filed a Petition to Determine Paternity, Set Shared Custody and Set Child Support. Pursuant to an agreement between the parties, an Interim Judgment on Rule was signed by the trial court in January 2008, ordering joint custody of the child and designating L.E.K. as the domiciliary parent. No specific visitation schedule was included in the interim judgment; instead, it provided that visitation was to “be as the parties can agree and in accordance with the guidance and recommendations of a professional counselor, Dr. R. James Logan.”

Shortly thereafter, in March 2008, D.R.S. filed a Motion and Order for Rule for Contempt; for Sole Custody and Bond to Insure Compliance with Custody Order alleging as follows:

[Bjecause of [L.E.K’s] consistent refusal to allow custody and visitation by [him] and the emotional damage it may do to the Minor Child ..., it is in the best interest of the Minor Child that he be awarded sole care, custody and control of the Minor, subject to reasonable visitation [as set forth] by this Court.

L.E.K. responded with a rule seeking sole custody, subject to visitation by D.R.S. |gAn Interim Order was entered by the trial court setting forth the visitation rights of D.R.S. with the child and appointing Dr. Daniel J. Lonowski as the trial court’s expert to evaluate the parties and make a recommendation as to a custodial arrangement that would be in the best interest of the child.

Thereafter, the parties filed various pleadings containing a plethora of contentious allegations which are indicative of the level of conflict between them. Prior to trial, Gregory N. Wampler was appointed by the trial court as the attorney for the minor child. Additionally, following a pretrial conference, D.R.S. filed a Motion to Recuse the presiding judge, who had been appointed as a result of prior recusals.

The pertinent issues of custody and visitation were heard by the trial court on December 9, 2008. In its Reasons for Judgment, the trial court awarded sole custody to L.E.K. and set forth a restrictive visitation schedule on behalf of D.R.S. for the year 2009. Also, in its Reasons for Judgment, the trial court stated that “if all goes well,” different visitation rights for the years 2010-2012 were to be adhered to by the parties “in all years until the child becomes subject to the school calender[,]” at which time “[tjhey must agree to a standard 9/3 month visitation or return to court.” Additionally, the trial court declared that L.E.K: had “the sole authority to decide the child’s religious preferences.” Further, the trial court devised the visitation schedule such that D.R.S. would not have the minor child on Sunday or Wednesday nights so as “to eliminate any question of whether the child gets taken to any church service.”

A judgment consistent with the trial court’s written reasons was signed January 28, 2009. Thereafter, D.R.S. filed a motion for new trial which the trial court denied on June 24, 2009, and that judgment was signed on August 18, 2009. D.R.S. appeals both the January 28, 2009 and August 18, 2009 judgments.

ASSIGNMENTS OF ERROR

On appeal, D.R.S. sets forth the following assignments of error:

1. The [tjrial [court] erred in denying a hearing on the motion to recuse.
2. The [tjrial [c]ourt was erred [sic] and clearly wrong when it awarded sole custody to [L.E.K.] without clear and convincing evidence.
3. The [t]rial [c]ourt erroneously held that [L.E.K.] had the right to determine the minor child’s religion and cultural upbringing.
4. The trial court erred in creating a visitation schedule designed to keep [D.R.S.] away from the child on religious days.

LAW AND DISCUSSION

Motion to Recuse

Following the pre-trial conference, D.R.S. filed a motion to recuse the presiding judge. On appeal, he contends that the trial court erred in failing to have a hearing on the motion prior to denying same. On this issue, we note that D.R.S. did not seek a review of that ruling prior to trial. Moreover, this court takes judicial notice that this judge has since retired and no longer presides in the Ninth Judicial District Court. However, since we reverse the decision of the trial court and the judge in question has retired, the motion to recuse has been rendered moot.

Sole Custody

D.R.S. asserts on appeal that the award of sole custody to L.E.K. was erroneous. We agree.

The standard of review in child custody matters has been clearly stated by this court:

The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child ^custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.
Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Gremillion v. Gremillion, 07-492, p. 4 (La.App. 3 Cir. 10/3/07), 966 So.2d 1228, 1231-32.

Louisiana Civil Code Article 132 (emphasis added) provides as follows:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

Louisiana Civil Article 132, Comment (b), expressly notes that “[t]his latter provision is intended to strengthen the preference for joint custody provided for in former Civil Code Article 131(A).” The effect of the 1993 revisions were discussed by the second circuit which stated as follows:

La. C.C. arts. 131, 132 and 134, as amended by Act No. 261 of 1993, have as their focus the best interest of the child in any contest over joint or sole custody. Article 132 states that in the absence of an agreement regarding custody, “the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.” Article 134 provides twelve relevant factors for the court to consider in determining the best interests of the child.

The author of a 1994 Louisiana Law Review article discussed the change in the focus brought about by the 1993 amendments, as follows:

Under present Article 132, the focus of the inquiry is not on the joint custody arrangement; it is on sole custody in a particular parent. It must be shown, by clear and convincing evidence, that custody in that parent will serve the best interest of the child. The question changes from|5why joint custody is not in the best interest of the child to why sole custody in a particular parent is in the best interest of the child. Although these issues may overlap, the burden on the parent seeking sole custody is to demonstrate that the granting of custody to that parent alone will be in the best interest of the child.

Kenneth Rigby, 1993 Custody and Child Support Legislation, 55 La. L.Rev. 103, 105 (1994). The author further noted that the test shifted from “a negative to a positive one, from why joint custody to both parents is not in the child’s best interest to why sole custody in a particular parent is in the child’s best interest.” Id. (Emphasis in original).

Harper v. Harper, 33,452, pp. 4-5 (La.App. 2 Cir. 6/21/00), 764 So.2d 1186, 1189-90 (footnote omitted).

In considering an issue of custody, in addition to the presumption in favor of joint custody, the burden of proof of the parent seeking sole custody is also significant. The second circuit, in Harper, 764 So.2d at 1190, elaborated on this heightened evidentiary burden opining as follows:

The “clear and convincing” evidentia-ry standard is a heavier burden of proof than the usual civil case “preponderance of the evidence” standard, but is less burdensome than the “beyond a reasonable doubt” standard of a criminal prosecution. [“] prove a matter by clear and convincing evidence means to demonstrate the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence.” Renter v. Willis-Knighton Medical Center, 28,-589 (La.App.2d Cir.8/23/96), 679 So.2d 603.

The record of these proceedings is replete with caustic and acrimonious accusations by both parties. There have been allegations of infidelity, physical abuse, drug and alcohol abuse, “secreting” of the minor child, harassment, and employment sabotage, to name but a few. In the words of the trial court, “[b]oth parties have engaged in vindictive behavior that greatly affects their own credibility!,]” and which the trial court “ha[d] no hesitation to say ... [was] the most contentious custody dispute she has ever had presented.”

[(¡We have thoroughly reviewed the record of these proceedings, and we purposely refrain from regurgitating the recitations detailed therein. We find it readily apparent that there is culpability to be shared by both parties and that D.R.S. bears more culpability than L.E.K. However, in conducting our appellate review, we remain mindful that the issue before this court is whether the trial court abused its discretion in determining that L.E.K. met her burden of proving, by clear and convincing evidence, that the award of sole custody of A.G.K. to her mother is in the best interest of the minor child. We find that the evidence in the record falls short of proof by clear and convincing evidence that the award of sole custody to L.E.K. is in the best interest of the minor child as required by La.Civ.Code art. 132.

The trial court provided lengthy Reasons for Judgment, noting therein that “[p]art of the problem in this case has been the duration of the dispute.” Additionally, “[t]here have been multiple experts appointed to assist the parties and the court.” The trial court noted the appointment of Dr. Logan to serve as a parenting coordinator to assist the parties in preparing a custody plan, and it also noted the subsequent appointment of Dr. Lonowski. The trial court also made reference to the appointment of an attorney to represent the minor child and to make a recommendation on custody to the trial court.

The opinions of these individuals, which were provided to the trial court, support an award of joint custody. The trial court rejected these opinions as it was free to do; however, as evidenced by the fact that both parties argue same in support of their opposing positions, this evidence was not inconsequential. Most importantly, the trial court does not squarely address the crucial question of why an award of sole custody to L.E.K. is in the best interest of A.G.K. as mandated by La.Civ.Code art. 132. Thus, the trial court’s ruling on sole custody is not supported by the evidence.

|7In the trial court’s Reasons for Judgment, there is considerable discussion regarding the actions of the parents and the continuing animosity between them. After considering all of the evidence, the trial court concluded that “[t]he evidence of continued and unreasonable conflict is clear and convincing evidence that these parents are not able to jointly parent the child.” Again focusing on the conflict between the parents, the trial court expressly noted its “wish[ ] to make clear to the parties that the award of sole custody is because of the ongoing conflict.” The trial court, however, provides no explanation, nor does it reference any particular facts in support of the necessary conclusion that the best interest of A.G.K. would be served by an award of sole custody to L.E.K. Neither the experts nor the attorney appointed to represent A.G.K. presented any clear and convincing evidence that sole custody in favor of L.E.K. was in the best interest of the minor child. In fact, to the contrary, them testimony supported joint custody as opposed to sole custody.

After reviewing the entire record of these proceedings, we find that L.E.K. failed to meet her burden of proving by clear and convincing evidence that an award of sole custody is in the best interest of A.G.K. as required by La.Civ.Code art. 132. Therefore, the evidence presented was insufficient to overcome the statutory preference in favor of joint custody. Consequently, the trial court abused its discretion in awarding sole custody of the minor child to L.E.K. The parties are hereby granted joint custody, with L.E.K. being designated the domiciliary parent and D.R.S. granted specified visitation privileges, particularly, but not limited to, holiday and summertime visitation, to be determined pursuant to a hearing before the trial court on remand.

| ¡¡Religious Preference and Cultural Upbringing

D.R.S. also asserts on appeal that the trial court erred in holding that L.E.K. had the right to determine the minor child’s religious and cultural upbringing. We agree. Though we are reversing the trial court’s award of sole custody to the mother in favor of a joint custody award in accordance with La.Civ.Code art. 132, we find it necessary to address this issue for the sake of clarity since we have designated the mother as the domiciliary parent.

The trial court’s Reasons for Judgment state that “[a]s the party with sole custody, the mother will have the right to determine the child’s spiritual and cultural upbringing.” Additionally, “[a]s the result of the court’s decision that there should be sole custody, the mother has the sole authority to decide the child’s religious preference[,]” and “it is within her authority to decide what belief system is presented to the child in her home and any home in which the child visits or resides.”

D.R.S. argues to this court that this is “particularly disturbing,” considering the Louisiana Children’s Code’s express definition of “[rjesidual parental rights” as “those rights and responsibilities remaining with the parents after the legal transfer of custody of their child, including but not necessarily limited to right of visitation, consent to adoption, right to determine religious affiliation, responsibility of support, and the right of inheritance from the child.” La.Ch.Code art. 116(24) (emphasis added). Additionally, the same definitional article of the Louisiana Children’s Code defines “legal custody” as follows:

the right to have physical custody of the child and to determine where and with whom the child shall reside; to exercise the rights and duty to protect, train, and discipline the child; the authority to consent to major medical, psychiatric, and surgical treatment; and to provide the child 1 awith food, shelter, education, and ordinary medical care, all subject to any residual rights possessed by the child’s parents.

La.Ch.Code art. 116(12) (emphasis added).

In the case of Becnel v. Becnel, 98-598 (La.App. 5 Cir. 3/25/99), 732 So.2d 589, writ denied, 99-1165 (La.6/4/99), 744 So.2d 630, following their divorce, the mother attempted to deny or restrict the father’s visitation rights with his children based upon asserted religious beliefs of the children. In considering this issue, the fifth circuit stated as follows:

The parent who drifts away from his children because of a divorce or separation may be able to improve his damaged relationship with his offspring later in life, but he and they will never be able to re-create their lost time together. For this reason, the fit, noncustodial parent who wants to remain an active force in his children’s lives should be given the utmost encouragement by the courts. Curtailing his visitation, or dictating the character of it, in order to further the religious wishes of a custodial parent is not in harmony with this goal[.]
[C]ourts that treat the visitation and constitutional rights of parents cavalierly or casually serve neither the parties before them nor the cause of justice. Higginbotham, “Mom, Do I Have to Go to Church?”: The Noncustodial Parent’s Obligation to Carry Out the Custodial Parent’s Religious Plans, 31 Fam. L.Q. 585, 596 (1997).

Id. at 595.

Though the custodial or domiciliary parent may raise the child in a legitimate religion of his/her own choosing, that parent may not force that religion or religious affiliation upon the noncustodial parent or preclude the noncustodial parent from | Kipursuing his/her own religious affiliation and sharing same with the child provided doing so does not negatively affect the best interests of the child. There is no statutory nor jurisprudential authority to support the trial court’s ruling that the custodial or domiciliary parent has the sole authority to mandate “what belief system is presented to the child in ... any home in which the child visits or resides.” We, therefore, reverse that portion of trial court’s judgment which grants L.E.K. “the sole authority to decide the child’s religious preference and to determine her spiritual and cultural upbringing.”

Wednesday and Sunday Visitation

In his final assignment of error, D.R.S. asserts that the trial court erred in creating a visitation schedule designed to keep him away from the child on religious days. Specifically, he contends that the trial court erred in refusing to grant him visitation with the child on Sundays and Wednesdays.

However, we note that the June 5, 2009 court minutes reflect a modification of visitation by the parties pursuant to stipulation as set forth in the judgment signed August 18, 2009, making said modification effective July 17, 2009. Though that judgment indicates that the parties were present on June 5, 2008, and stipulated to the Consent Judgment on that date, the minutes of court accurately reflect that the modification was actually made on June 5, 2009. It is further noteworthy that this modification in the Consent Judgment was entered into after the judgment which is the subject of this appeal, but before the August 18, 2009 judgment denying D.R.S.’s Motion for New Trial, which is likewise before us on appeal. In that Consent Judgment, the parties stipulated, among other things, that D.R.S. “shall not object to the relocation of [L.E.K.] and the minor child to Baton Rouge, Louisiana.” |nAdditionally, the judgment contains the stipulation of the parties to alter the visitation schedule of D.R.S. to include “visitation with the minor child from 6:00 p.m. Friday until 6:00 p.m. Sunday and every other weekend thereafter in that manner.”

The Consent Judgment puts this court in the awkward and peculiar position of having to review a trial court judgment on appeal when the parties, via stipulation, have subsequently altered that judgment, coupled with the fact that, presumably, the child and the mother have since relocated to Baton Rouge. We, therefore, find that the Consent Judgment renders this assignment of error moot.

Having found that joint custody is in the best interest of the minor child, with the mother being designated as the domiciliary parent, and taking into consideration the subsequent Consent Judgment and what appears to be the relocation of the mother and child to Baton Rouge, Louisiana, we are compelled to remand this case to the trial court for a hearing on the issue of specified visitation privileges particularly, but not limited to, holiday and summertime visitation. In the interim, D.R.S.’s present visitation privileges, as modified herein, remain in force and effect unless and until modified by the trial court at a hearing relative to visitation privileges pursuant to this remand.

DECREE

The judgment of the trial court awarding sole custody of A.G.K. to L.E.K. is reversed, and L.E.K. and D.R.S. are hereby awarded joint custody of the minor child, A.G.K., with L.E.K. being designated the domiciliary parent. The judgment of the trial court granting L.E.K. the sole authority to decide the child’s religious preference and to determine her spiritual and cultural upbringing is also reversed. Additionally, this matter is hereby remanded to the trial court for a hearing to determine specified [^visitation privileges particularly, but not limited to, holiday and summertime visitation in favor of D.R.S. D.R.S.’s present visitation privileges, as modified herein, remain in force and effect pending the hearing on visitation privileges pursuant to this remand. Costs of this appeal are assessed equally between D.R.S. and L.E.K.

REVERSED AND REMANDED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in these proceedings.

      . L.E.K. also instituted separate proceedings with the filing of a Petition for Protection from Abuse, and the two proceedings were consolidated by the trial court.

      . The particular provisions of the Louisiana Children's Code governing voluntary transfer of custody likewise defines and expressly subjects the rights of a legal custodian with "physical custody” to "any residual parental rights and responsibilities.” La.Ch.Code art. 151 l(l)(c) and (2).


author: PETERS, Judge.

text:
    John TAYLOR and Christine Taylor v. LEGER CONSTRUCTION, LLC, et al.
    No. 10-29.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 2010.

      Eddie J. Lambert, Attorney at Law, Gonzales, LA, for Defendant/Appellee, Post-Tension Slab-General.
    Michael Wayne Adley, Judice and Adley, Lafayette, LA, for Plaintiffs/Appellants, John Taylor, Christine Taylor.
    Susan A. Daigle, John Daniel Rayburn, Jr., Rachal Welch, Daigle, Crawford & Ja-mison, Lafayette, LA, for Defendant/Ap-pellee, Post-Tension Slabs, Inc.
    Timothy Alan Maragos, Lafayette, LA, for Defendant/Appellee, State Farm Fire & Casualty Co.
    Kyle Patrick Polozola, Liskow & Lewis, Lafayette, LA, for Defendant/Appellee, Randy Rivera.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PETERS, Judge.

_JjAfter the lodging of the record in the above captioned appeal, this court issued an order for the plaintiffs-appellants, John and Christine Taylor, to show cause why their appeal should not be dismissed as having been taken from a non-appealable ruling. The plaintiffs have filed their brief in response to this court’s order. For the reasons given below, we dismiss this appeal as premature.

In the course of litigating this suit, the defendant-appellee, Post-Tension Slabs, Inc., filed exceptions of no cause of action and no right of action. The trial court entered judgment on October 2, 2009, stating, in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendant’s Peremptory Exception of No Cause of Action is hereby granted and therefore;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of defendant, POST-TENSION SLABS, INC., and against plaintiffs, JOHN AND CHRISTINE TAYLOR, dismissing with prejudice all claims for damages asserted against defendant, POST-TENSION SLABS, INC., as alleged in the Petition by the Taylors;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiffs, JOHN TAYLOR AND CHRISTINE TAYLOR, have ten (10) days from today’s date to amend their Petition to allege any other claims they may have against defendant, POST-TENSION SLABS, INC.;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs of court associated with the Exception of No Cause of Action be and hereby (sic) assessed to the plaintiffs, with all remaining court costs to be deferred to the trial on the merits.

The appellants designated the record in this appeal. Therefore, this court could not discern from the record presented whether the plaintiffs had amended their petition within ten days of the foregoing order. Furthermore, the record contains no subsequent judgment ordering complete dismissal of the plaintiffs’ action as to Post-Tension Slabs, Inc. Therefore, this court issued an order for the plaintiffs to show cause why their appeal should not be dismissed as premature, citing La.Code Civ.P. 2arts. 934 and 2083, and Hughes v. Energy & Marine Underwriters, 07-490 (La.App. 5 Cir. 3/11/08), 978 So.2d 566, writ denied, 08-957 (La.8/29/08), 989 So.2d 100.

Louisiana Code of Civil Procedure Article 2083 provides that appeals may be taken from final judgments, judgments reformed in accordance with a remittitur or additur, and interlocutory judgments which are made appealable by express law. In Hughes, 978 So.2d 566, the pertinent portion of the judgment appealed was quoted by the fifth circuit as follows, “The judgment ‘ordered that Plaintiffs claims under the Louisiana Wage Payment Act, La. R.S. 23:631, et seq. are dismissed with ;prejudice and Plaintiff has fifteen (15) days to amend his Petition for Unpaid Wages, Penalties, and Attorney’s Fees to assert viable claims and to convert his lawsuit to an ordinary proceeding.’ (Emphasis added.)” 978 So.2d at 567 (emphasis supplied; footnote omitted). The court noted that the plaintiff filed his appeal prior to the expiration of the time set by the trial court for the plaintiff to amend his petition. The fifth circuit proceeded to dismiss this appeal based on the finding that the judgment was interlocutory since the plaintiff was afforded the opportunity to file an amending petition.

In the brief filed in this court by the plaintiffs, the plaintiffs attempt to distinguish the holding in Hughes, 978 So.2d 566, by citing this court to the dispositive language in the judgment appealed herein. Thus, the plaintiffs contend that in the instant case, the trial judge dismissed the plaintiffs’ claims in full with prejudice and permitted amendment of the petition only to assert “any other claims they may have against defendant”. The plaintiffs argue that the judgment, therefore, is clearly appealable as to the dismissal of the claims that the plaintiffs attempted to set forth in their petition.

According to the plaintiffs’ argument, the trial court’s judgment became final |sonce the ten day period passed for amendment and the plaintiffs’ chose not to amend their petition. Thus, the plaintiffs contend that in Hughes, 978 So.2d 566, the judgment was not appealable when the appeal was taken because the motion for appeal was filed before the time period for amending the petition had expired. We find no basis in law for the plaintiffs’ proposition.

We disagree with the plaintiffs’ attempt to distinguish the holding in Hughes, 978 So.2d 566. To the contrary of the plaintiffs’ position, the trial court in Hughes, as in the instant case, used similar language in the judgment granting the exception of no cause of action and dismissing the plaintiffs claims that were originally attempted to be set forth. In the matter sub judice, the plaintiffs want this court to find that since the trial court dismissed the claims originally set forth in the petition and permitted amendment only for the purpose of raising new claims, the judgment is final and appealable as to the original claims.

In Ramey v. DeCaire, 2003-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118, the supreme court stated:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La.1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. 4Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.

Thus, inherent in a decision that a petition fails to state a cause of action is the decision that the plaintiff has failed to set forth operative facts that would afford the plaintiff a right to assert a judicially cognizable action against the defendant. Therefore, any amended petition would necessarily have to state a new claim inasmuch as the original petition has failed to state one. Further, we note that at the conclusion of the supreme court’s opinion in Ramey, 869 So.2d 114, the court ordered that if the plaintiff failed to amend the petition within thirty days of the finality of that court’s decision granting the exception of no cause of action, the trial court was ordered to dismiss the suit.

Finally, comments must be made on the plaintiffs’ contention that the judgment became appealable upon the expiration of the ten day period for amending the petition. Were this court to apply such a legal principle, the result would be a lack of certainty as to the legal delay for seeking an appeal. Moreover, a court in this state has no authority to extend the delays for seeking an appeal. State ex rel. E.A., 2002-996 (La.App. 3 Cir. 10/2/02), 827 So.2d 594. In this case, we find that the appeal is premature until there is a proper final judgment dismissing Post-Tension Slabs, Inc., from this action. Therefore, we dismiss this appeal at plaintiffs’ cost.

APPEAL DISMISSED.


author: THIBODEAUX, Chief Judge.

text:
    Alexander MARSHALL v. Nathan BOYDSTON, et al.
    No. 09-1137.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 2010.

      Charles M. Jarrell, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, Opelousas, LA, for Defendants/Appellees, Nathan Boyd-ston and CIT National Insurance Company.
    Joslyn Renee Alex, Breaux Bridge, LA, for Plaintiff/Appellant, Alexander Marshall.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff, Alexander Marshall, asserts that the trial court erred in this vehicle accident case by allowing the defendant’s expert to testify on issues outside his area of expertise, in finding that Mr. Marshall sustained only soft tissue injuries and awarding damages accordingly, in failing to award all medical expenses, and in failing to award damages for Mr. Marshall’s lost wages. For the following reasons, we affirm the trial court’s judgment, except the award of medical expenses. Because we find that the trial court abused its discretion by denying expenses Mr. Marshall incurred for proper diagnostic procedures, we amend in part this trial court’s judgment and increase the award by $4,690.00 for a total of $17,648.67.

I.

ISSUES

We shall consider whether, in this motor vehicle accident case where the defendant stipulated his liability, the trial court erred by:

(1) allowing a medical doctor specializing in forensic pathology to testify as an expert in this case involving neurology;
(2) finding that the plaintiff sustained only soft tissue injuries and awarding damages accordingly;
(3) failing to award lost wages where the plaintiff did not specifically plead this claim in his petition but asked for any damages that can be proven at trial; and,
(4) failing to reimburse the plaintiffs magnetic resonance imaging (MRI) costs where a neurologist, to whom the plaintiffs primary treating physician referred the plaintiff, consulted these MRIs in diagnosing the plaintiff.

_is.n.

FACTS

On January 10, 2007, Mr. Marshall was involved in a motor vehicle accident with Mr. Nathan Boydston. Mr. Boydston stipulated his liability, and the trial court held a trial on the issues of causation and damages. Dr. Emile Laga, a forensic pathologist, testified as an expert witness for the defense. Mr. Marshall objected to Dr. Laga’s testimony because Dr. Laga was not an expert neurologist and would, therefore, testify outside of his area of expertise regarding Mr. Marshall’s injuries.

After Dr. Laga’s lengthy testimony regarding his education and experience, the trial court qualified Dr. Laga as an expert in forensic pathology, surgical pathology, autopsy pathology, clinical lab work, toxicology, and general medicine. The trial court then allowed Dr. Laga to testify.

Mr. Marshall introduced a deposition of Dr. John Sabow, a neurologist from South Dakota. Mr. Marshall also introduced his medical records that contained information regarding his accident injuries, their treatment, as well as his general state of health.

After a review of the evidence in the case, the trial court concluded that it was undisputed that Mr. Marshall suffered from Type II diabetes which was progressive and virtually uncontrolled. The trial court noted Dr. Laga’s testimony that this type of diabetes could affect heart, vision, kidneys, arteries, and retina functions. Based on a toxicology report, the trial court observed that Mr. Marshall’s kidneys were also in a bad condition. Relying on Dr. Laga’s testimony, the trial court stated that Mr. Marshall’s medical records indicated that, consistent with his diabetes, he had neuropathy and small blood vessel disease in his legs and brain. Mr. Marshall |salso suffered from anemia, gastrointestinal tract problems, and hypertension. The trial court also mentioned medications Mr. Marshall was taking for his various medical conditions. Again, the trial court relied on Dr. Laga’s testimony that these medications produce adverse side effects, including drowsiness and dizziness.

After a lengthy examination of Dr. Sa-bow’s testimony, the trial court discounted it because: (1) Dr. Sabow never examined Mr. Marshall; (2) Mr. Marshall’s medical records did not correlate with Dr. Sabow’s findings and diagnoses; and, (3) the trial court concluded that Dr. Sabow relied on supposition, assumption, and inaccurate review of incomplete medical records.

The trial court found that, as a result of the accident, Mr. Marshall sustained soft tissue injuries that manifested themselves in headaches, shoulder pain, and low back and thigh pain. The trial court relied on Mr. Marshall’s medical records and testimony of Dr. Bryan Lebean who treated and reduced Mr. Marshall’s suffering from the soft tissue injuries. The trial court also held that because of Mr. Marshall’s age and his state of health, he was not able to recover quickly and completely after the accident. The trial court, thus, awarded Mr. Marshall $24,500.00 in general damages and $12,958.67 in medical expenses.

Mr. Marshall claims that the trial court improperly allowed Dr. Laga, who was not a neurologist, to testify in the case involving neurology. Mr. Marshall also claims that the trial court abused its discretion by . awarding only $24,500.00 in general damages. Mr. Marshall argues that his injuries included not only soft tissue injuries, but a closed head injury, a subdural hema-toma, and spine injuries for which the trial court did not compensate him. Mr. Marshall supports his claim for a subdural hematoma with his medical records that indicate its complete resolution two weeks after the accident. To establish causation of his spinal cord injuries, Mr. RMarshall relies on a letter, dated June 26, 2009, from a neurologist, Dr. Wael Karim, to his primary treating physician, Dr. Calvin White. Dr. White referred Mr. Marshall to Dr. Karim for a consultation. In this letter, Dr. Karim acknowledged that Mr. Marshall was involved in a vehicle accident in 2007. Dr. Karim diagnosed Mr. Marshall with disc herniation and spinal disease. Mr. Marshall neither took Dr. Kar-im’s deposition, nor tendered him as an expert witness at trial.

Mr. Marshall also argues that because his petition asked for any damages that could be proven at trial, the trial court erred by not awarding Mr. Marshall his lost wages. Finally, Mr. Marshall claims that the trial court did not award damages for all medical expenses related to the accident. In particular, Mr. Marshall asserts that the $12,958.67 award did not include the bills for MRIs Mr. Marshall underwent in 2007 and in 2009 upon which Dr. Karim relied in making his diagnoses.

III.

STANDARD OF REVIEW

“[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, “where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id. (citing Arceneaux v. Domingue, 865 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973)).

“[T]he trial court has wide discretion in determining whether to allow a witness to testify as an expert, and its judgment will not be disturbed on appeal unless it is clearly erroneous.” Deer Field Hunting Club, Inc. v. Swayze Plantation, L.L.C., 508—313, pp. 7-8 (La.App. 3 Cir. 12/10/08), 998 So.2d 1235, 1240, writ denied, 09-479 (La.5/15/09), 8 So.3d 582 (citing Abshire v. Wilkenson, 01-75 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158).

“The discretion afforded the trier of fact to assess special damages is narrower or more limited than the discretion to assess general damages.” Koehn v. Rhodes, 38,941, p. 8 (La.App. 2 Cir. 9/24/04), 882 So.2d 757, 763 (citing Neloms v. Empire Fire & Marine Ins. Co., 37,786 (La.App. 2 Cir. 10/16/03), 859 So.2d 225; Moody v. Blanchard Place Apartments, 34,587 (La.App. 2 Cir. 6/20/01), 793 So.2d 281, writ denied, 01-2582 (La.12/14/01), 804 So.2d 647; Eddy v. Litton, 586 So.2d 670 (La.App. 2 Cir.1991), writ denied, 590 So.2d 1203 (La.1992)). Special damages include medical expenses. Id.

IV.

LAW AND DISCUSSION

The Expert Testimony

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” La.Code Evid. art. 702. “Generally, the fact that a medical doctor is not a specialist in a particular field applies only to the effect or the weight to be given such testimony, not to its admissibility.” Matter of Aaron, 417 So.2d 105 (La.App. 3 Cir.1982) (citing McCastle v. Woods, 180 So.2d 421 (La.App. 1 Cir.1965); Frye v. Joe Gold Pipe & Supply Co., 50 So.2d 38 (La.App. 2 Cir.1951)).

Here, the trial court, after a very lengthy examination of Dr. Laga’s education and experience, concluded that Dr. Laga was an expert pathologist, | (¡toxicologist, and medical doctor. As Mr. Marshall correctly pointed out, Dr. Laga was not a neurologist. Yet, while we caution a trial court’s reliance on an expert testimony when that expert testifies outside of her or his area of expertise, we do not find that the trial court abused its wide discretion here by allowing Dr. Laga to testify.

Given Dr. Laga’s board certifications in medicine, surgical and forensic pathology, in clinical chemistry and toxicology, and his extensive experience and education, the trial court did not err when it qualified him as an expert pathologist, toxicologist, and medical doctor. The record reveals that the trial court relied on Dr. Laga’s testimony regarding the side effects of Mr. Marshall’s medicines, his diabetes and its effect on Mr. Marshall’s health, and Mr. Marshall’s general state of health as documented in his medical records.

Dr. Laga also testified about neurological tests performed on Mr. Marshall at the LSU Medical Center shortly after the accident and that the records showed no neurological impairment in Mr. Marshall’s extremities. Dr. Laga further testified that the medical records indicated a presence of questionable subdural hematoma but that a Computed Tomography (CT) scan performed two weeks after the accident was normal. Dr. Laga opined that if Mr. Marshall had a hematoma after the accident, it had resolved itself two weeks later. Dr. Laga did not personally review any MRIs or CT scans, and his opinions were based solely on the reports of others.

Clearly, some of Dr. Laga’s testimony was within his area of expertise. On the other hand, testimony involving issues of neurology was outside of Dr. Laga’s expertise. The trial court gave consideration to Dr. Laga’s testimony regarding Mr. Marshall’s diabetes, side effects of his medications, and Mr. Marshall’s general health. It does not appear that the trial court gave weight to Dr. Laga’s neurological ^^conclusions and, instead, based its findings on Mr. Marshall’s medical records described by Dr. Laga. Therefore, while trial courts should be cautious when they allow an expert to testify outside her or his area of expertise, the trial court did not abuse its very wide discretion here by allowing Dr. Laga to testify.

General Damages

“[A] lump sum judgment is presumed to award all items of damages claimed.” Bryan v. City of New Orleans, 98-1263, p. 2 (La.1/20/99), 737 So.2d 696, 697 (citing Reichert v. Bertucci, 96-1213 (La.App. 4 Cir. 12/4/96), 684 So.2d 1041, writ denied, 97-23 (La.2/7/97), 688 So.2d 511; Boutte v. Nissan Motor Corp., 94-1470 (La.App. 3 Cir. 9/13/95), 663 So.2d 154). When it comes to general damages, “[t]he appellant’s burden of proving the fact finder clearly abused its great discretion is more difficult than usual because the intention to award a specific amount for any particular item is not readily ascertainable.” Id. at 698. The trial court abuses its discretion when an appellate court, reviewing the record in the light most favorable to the prevailing party, determines that a rational trier of fact could not have fixed the general damages award at the same level. Scott v. Roberts, 03-435 (La.App. 3 Cir. 10/1/03), 856 So.2d 1258, writ denied, 03-3028 (La.1/30/04), 865 So.2d 80 (citing Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994)). Finally, “[i]n assessing damages in a personal injury case, a court must consider the severity and duration of the injured party’s pain and suffering.” LeBlanc v. Stevenson, 00-157, p. 6 (La.10/17/00), 770 So.2d 766, 772 (citing Duckett v. K-Mart Corp., 92-385 (La.App. 5 Cir. 2/15/95), 650 So.2d 414).

Here, Mr. Marshall claimed that the trial court abused its discretion by awarding him only $24,500.00 in general damages. Specifically, Mr. Marshall |smaintained that the award inadequately compensated Mr. Marshall for the subdural hematoma, spinal injuries, loss of enjoyment of life, and pain and suffering that Mr. Marshall sustained as a result of the accident.

The medical records indicate presence of a subdural hematoma immediately after the accident. Yet, this hematoma was of a very short duration as a brain scan two weeks after the accident revealed its complete resolution.

Furthermore, we find that the trial court did not err by failing to find that Mr. Marshall sustained any spinal injuries as a result of the accident. The trial court did not manifestly err by discounting the testimony of Dr. Sabow, Mr. Marshall’s expert neurologist. Dr. Sabow based his conclusions on an incomplete medical record that was missing pertinent details regarding Mr. Marshall’s diabetic neuropathies. Moreover, the trial court observed that in finding Mr. Marshall sustained a spinal cord injury, Dr. Sabow relied on the information allegedly in Dr. Lebean’s records that those records did not contain.

Mr. Marshall also relied on Dr. Karim’s letter. Dr. Karim was a neurologist who examined Mr. Marshall in 2009 and reviewed his medical records and MRIs. Dr. Karim stated in his June 2009 letter to Mr. Marshall’s treating physician that Mr. Marshall suffered from disc herniation and cervical spinal disease that might require surgical intervention. The letter did not state that these conditions were the result of the accident that occurred in 2007. We, therefore, do not find that the trial court abused its discretion by determining that Mr. Marshall failed to establish that he suffered an injury to his spine as a result of the accident.

Mr. Marshall clearly suffered from headaches, back pain, and other various pains and conditions. He underwent several months of therapy with Dr. Lebean whose medical records indicated that while the pain and headaches did not 19go away completely, the therapy was effective at reducing the pain. Mr. Marshall suffered from various conditions related to his uncontrolled diabetes, hypertension, anemia, and side effects of his medicines that, as the trial court found, could be responsible for Mr. Marshall’s dizziness and headaches. Finally, the trial court also observed that neurological tests, performed shortly after the accident, revealed no deficiencies or impairments.

Based on these considerations, we do not find that the trial court abused its discretion by awarding $24,500.00 for the injuries that required no surgical intervention or involved significant neurological injuries.

Lost Wages

“When items of special damage are claimed, they shall be specifically alleged.” La.Code Civ.P. art. 861. “ ‘Special damages’ are those that can.be fixed to a pecuniary certitude.” Stevens v. Winn-Dixie of La., 95-435, p. 9 (La.App. 1 Cir. 11/9/95), 664 So.2d 1207, 1213 (citing Hernandez v. Cont'l Cas. Ins. Co., 615 So.2d 484, (La.App. 4 Cir.1993), writ denied, 620 So.2d 850 (La.1993)). Lost wages is an item of special damage that must be specifically pled.

Here, Mr. Marshall’s petition did not specifically allege a loss of wages. A petitioner’s request for any damages that can be proven at trial does not satisfy the specificity requirement of La.Code Civ.P. art. 861. Therefore, the trial court committed no error by not considering Mr. Marshall’s claim for lost wages.

Medical Expenses

One may recover medical expenses one incurs as a result of an injury due to the fault of another. Williams v. Enriquez, 41,200 (La.App. 2 Cir. 6/28/06), 935 So.2d 269. When a victim of a motor vehicle accident alleges that the victim incurred |lna medical expense and supports that allegation with a bill, “unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident, it is sufficient to support the inclusion of that item in the judgment.” Gradnigo v. La. Farm Bureau Cas. Ins. Co., 08-1198, p. 15 (La.App. 3 Cir. 3/4/09), 6 So.3d 367, 377 (quoting Esté v. State Farm Ins. Cos., 96-99, p. 10 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857). Moreover, “[a] tortfeasor is required to pay for the cost of overtreatment or unnecessary medical treatment unless the overtreatment was incurred by the victim in bad faith.” Beasley v. Yokem Toyota, 33,805, p. 12 (La.App. 2 Cir. 8/23/00), 767 So.2d 149, 158 (citing White v. Wal-Mart Stores, Inc., 32,621 (La.App. 2 Cir. 3/3/00), 753 So.2d 995, writ denied, 00-1222 (La.6/23/00), 765 So.2d 1041). Failure to award full amount of medical expenses proved by the victim of an accident is an error. Id. (citing Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2 Cir.1993)).

Here, Mr. Marshall claimed that the trial court did not award damages for all medical expenses related to the accident. In particular, Mr. Marshall alleged that the $12,958.67 award did not include the bill for $1,300.00 for an MRI Mr. Marshall underwent on June 29, 2007, and the bill for $8,390.00 for MRIs Mr. Marshall underwent on June 24, 2009. Dr. Troy Le-Blanc, a chiropractor, ordered the 2007 MRI. Dr. White, Mr. Marshall’s primary treating physician, ordered the 2009 MRIs. Dr. White then referred Mr. Marshall to Dr. Karim, a neurologist.

Dr. Karim, in his letter to Dr. White that documented his evaluations, acknowledged that Mr. Marshall was referred to him as a result of the January 2007 motor vehicle accident. The letter indicated that Mr. Marshall complained of 11Theadaches and back and leg pains. Dr. Karim relied on both the 2007 and the 2009 MRIs to make his diagnoses of a herniated disc and spinal disease. While Dr. Karim’s letter did not unequivocally establish that Mr. Marshall’s conditions resulted from the accident, Mr. Marshall consulted Dr. Karim because he considered his headaches and pains to be the result of the accident.

MRIs are appropriate diagnostic tools. The trial court did not give any reasons for its award of medical expenses or why it disregarded certain bills. Mr. Marshall underwent the 2007 MRI relatively shortly after the accident. Mr. Marshall’s primary treating physician ordered the 2009 MRIs and Dr. Karim’s consultations because of Mr. Marshall’s ongoing conditions that began after the accident. Dr. Karim relied on these MRIs in his diagnoses. Because there was no sufficient contradictory evidence or reasonable suspicion that these bills were not related to the accident and because the defendant is responsible even for unnecessary medical treatment as long as it was incurred in good faith, we find that the trial court abused its discretion by denying these valid diagnostic expenses.

V.

CONCLUSION

The judgment in favor of Alexander Marshall is amended in part and rendered. We increase the award of medical expenses by $4,690.00 and order Nathan Boydston to pay to Alexander Marshall this sum in addition to $12,958.67 the trial court awarded, for the total of $17,648.67 in medical expenses. We affirm the trial court’s judgment in all other respects. Costs of this appeal are assessed equally to both parties.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Mr. Marshall's brief stated that the bill for the June 24, 2009 MRI was for $3,300.00. Yet, the record indicates that the bill was for $3,390.00. Mr. Boydston's brief referred to June 24, 2007 MRIs requested by Dr. White. The record contains only June 24, 2009 MRIs requested by Dr. White. We, therefore, presume that both parties made clerical errors in their briefs.


author: PAINTER, Judge. AMY, J.,

text:
    Scott FERGUSON v. LOEWER POWERSPORTS & EQUIPMENT, et al.
    No. 09-990.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 2010.
    Rehearing Denied May 5, 2010.

      Joseph R. Poussan, Jr., Lake Charles, LA, for Defendant-Appellant, Loewer Powersports & Equipment, Federated Mutual Insurance Co.
    Derrick G. Earles, Brian M. Caubar-reaux, Emily G. Meche, Marksville, LA, New Orleans, LA, for Plaintiff-Appellee, Scott Ferguson.

      Court composed of JOHN D. SAUNDERS, MARC T. AMY and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendants, Loewer Powersports & Equipment (Loewer) and Federated Mutual Insurance, appeal the trial court’s judgment in favor of Plaintiff, Scott Ferguson, finding Loewer liable for damages resulting from Plaintiffs use of a lawn mower loaned to him by Loewer. Finding no error in the trial court’s judgment, we affirm.

Plaintiff operates a lawn maintenance service. He bought a riding lawnmower from Loewer and sometime later, brought the mower to Loewer for service. Loewer loaned Plaintiff the same model mower while his was being repaired. The next day, while mowing a customer’s lawn with the loaner mower, Plaintiff felt a stinging on his back and turned around to see what was happening. As he did so, his right hand became stuck in the damaged armrest of the mower. Finding hot water spraying on him from behind, he jumped off the mower, yanking his hand out of the damaged armrest, and injuring it. He later discovered that the radiator hose had become detached causing the spray of hot water.

He filed this suit against Loewer, and after a trial on the merits, the trial court ruled in his favor and awarded him $50,000.00 as stipulated by Plaintiff prior to trial. Loewer appeals, arguing that the trial court erred in concluding that an accident occurred, in finding that the lawnmower was defective, in finding that Plaintiff carried its burden of proof with regard to the defect, in finding that Plaintiff was not responsible for the defect, in failing to find that Plaintiff failed to mitigate his damages, and in its award of damages.

Standard of Review

The manifest error standard of review is the proper standard to be applied in cases involving findings of unreasonable risks of harm or unreasonably dangerous defects. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Thus, an appellate court may not 12set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court:
a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

Bullock v. The Rapides Foundation, 06-26, pp. 4-5 (La.App. 8 Cir. 10/11/06), 941 So.2d 170, 174, writs denied, 06-2646 (La.l/8/07),948 So.2d 127, 06-2708 (La.1/8/07), 948 So.2d 132

Therefore, we will examine the record to determine whether a reasonable factual basis exists therein for the trial court’s findings and whether the finding was clearly wrong.

Elements of Claim

Plaintiff asserts that his injury was the result of a defect in the lawnmower and that Loewer was the owner and custodian of the mower.

La.Civ.Code art. 2317 provides that:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we Rare answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La.Civ.Code art. 2317.1 provides that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

This court recently outlined the elements of a claim under La.Civ.Code art 2317.1 as follows:

Accordingly, to prevail in [his] claim, the plaintiff [must] prove the following: (1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. If the plaintiff fails to provide proof any one of these elements, his ... claim fails.

Robinson v. Meaux, 09-374 (La.App. 3 Cir. 11/4/09); 23 So.3d. 1025, 1028 (citing Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, pp. 3-4 (La.App. 3 Cir. 11/5/08), 997 So.2d 814, 817) (alterations in original).

1) Garde

Defendants first assert that the evidence shows that they did not have custody or garde of the mower at the time of the incident, having turned it over to Plaintiff the previous day. We disagree.

[A]n owner of a thing who transfers its possession, but not its ownership to another, continues to have the garde of its structure and is obliged to protect others from damage caused by structural defects arising before the transfer. As we have previously observed, the principle of legal fault or strict liability underlying Civil Code articles 2317 — 22 is analogous to the principle of strict products liability. Halphen v. Johns-Manville Sales Corp., [484 So.2d 110 (1986)] supra, at p. 116-17.Although the manufacturer usually does |4not have custody of the product when the injury occurs, in order for strict liability to arise, the plaintiff must prove that the product’s unreasonably dangerous condition existed at the time the product left the control of the manufacturer, and that the product reached the user in substantially that same defective condition. As between the innocent consumer of a product and the manufacturer, the manufacturer is in the better position to detect, evaluate and take steps to eliminate an unreasonable risk of harm arising in his product before it leaves his control. Likewise, the owner of a thing is in a better position than the innocent victim to guard against the unreasonable risks of structural defects in the thing he owns which arise before he transfers possession of it to another.

Ross v. La Coste de Monterville, 502 So.2d 1026, 1032 (La.1987) (emphasis added).

Accordingly, we find that Loewer retained garde or custody in spite of Plaintiff having actual possession of the mower.

2) Knowledge

Defendants further assert that Plaintiff failed to carry its burden of showing that Loewer had actual or constructive knowledge of the defect. The trial court found as follows:

The exhibits, the Exhibit No. 1 which was admitted into the evidence were the photographs and they show of course what starts the chain of the events which lead to the injury. And the neck of the radiator is clearly in deplorable condition. There is absolutely no evidence of any kind or any indication to suggest that the plaintiff, Ferguson had anything to do with that deplorable condition of the neck. The question becomes whether Loewer Power Sports knew or should have known and it is interesting because also in the photographs these are taken by a lay person who can’t know the law but there’s -a belt and the condition of that belt shows that maintenance on this mower was not kept up to par. This belt is obviously in considerable, considerably deplorable condition. In fact, significantly and that goes part and parcel with this part of the radiator. It is the court’s opinion that the hose was slipped over an obviously defective and faulty neck to the radiator.
... the lawnmower in the custody and garde of Loewer Motor Sports had some, some obvious defects that the Court believes would have been found in with normal and routine maintenance.

| ¡¡Defendants point to the testimony of Wilfred Loewer and Gregory Graff as proof that the mower could not have been in the condition described by the trial court when it left the possession of Loewer. Wilfred Loewer, owner of Loewer, testified that the mowers owned by his business are periodically run through the shop for service. He stated that it is not Loewer’s policy to loan out a mower in this condition and that he didn’t think a mower in this condition would run as long as Plaintiff ran the mower. He stated, however, that when a mower is returned, it is not feasible to check every aspect of its condition. He further did not know to whom the mower was loaned before it was loaned to Plaintiff. It was his opinion that the belt would have been replaced in ordinary maintenance done to the mowers owned by Loewer’s. There was no testimony on his part that he either ordered or witnessed service done to the mower before it was delivered to Plaintiff.

Gregory Graff testified that prior to loaning a mower, it was the practice at Loewer’s to look it over, check the belts, service the mower, and check antifreeze, oil, blades, and tire air pressure levels. However, he did not testify that he either performed or witnessed this being done to the mower loaned to Plaintiff.

He testified that if anything was broken or missing on the radiator, technicians would have found it and fixed it. He stated that the mower had the proper water level when it left the shop but admits that he did not himself check. He stated that a technician would have done so.

Plaintiff testified that after jumping off the mower, the engine stopped because of safety features. He further testified that he allowed the mower to cool down, opened it up, and saw that the radiator hose had come off. He noticed that the neck of the radiator was damaged and that someone had apparently moved the clamp on | the hose to try to get it to stay on the radiator. He took photographs upon which the trial court relied in giving reasons for judgment.

Defendants assert that the damage to the radiator was created by Plaintiff, arguing that since Loewer and Graff testified that it did not leave the Loewer facility in that condition, the damage must have been done by Plaintiff. Both Loewer and Graff testified that Plaintiff treated his equipment roughly. However, as the trial court noted, there is no evidence to support the conclusion that Plaintiff had anything to do with the defect. Essentially, the questions of whether Loewer knew or should have known of the condition and whether the defect was caused by Plaintiff, are ones of credibility. The trial court found Plaintiff credible and did not accept the testimony of Loewer and Graff. “In situations involving a conflict in the testimony, reasonable determinations of credibility and reasonable inferences of fact should not be disturbed, even if the appellate court might consider its own evaluations and inferences to be as reasonable.” Cross v. Timber Trails Apartments, 04-1623, (La.App. 3 Cir. 4/6/05), 899 So.2d 853, 857 (citing Cooper v. Louisiana State Dep’t of Transp. and Dev., 03-1847, p. 8 (La.App. 1 Cir. 6/25/04), 885 So.2d 1211, 1216), writ denied, 04-1913 (La.11/8/04), 885 So.2d 1142.

Given the reasonable credibility evaluations of the trial court, we find that the court had a reasonable basis for finding that Loewer knew or should have known of the defect.

3) Reasonable Care

Implicit in the trial court’s finding is the conclusion that the accident could have been prevented by the exercise of reasonable care and that Defendants failed to exercise reasonable care to prevent the accident. It states in its reasons for judgment: | /‘Industries and businesses just have to have their equipment in better shape than this one obviously was.” Defendants have not assigned error in this regard, and given the reasonable credibility evaluations previously discussed, we find no error in the trial court’s findings with regard to the lack of reasonable care on the part of Loewer.

Accordingly, we find no error in the trial court’s assessing Defendants with 100% of the fault in the accident to Plaintiff.

Mitigation of Damages

Defendants also assert that Plaintiff failed to mitigate his damages because he did not obtain the medical testing recommended by his treating physician. With regard to his failure to pursue the testing recommended by Dr. Heard, Plaintiff testified that he has no medical insurance and pays as he goes. He stated that he didn’t get the testing done because of the expense and that Dr. Heard told him there was no use going back for treatment if the tests were not done. Although he had money in retirement savings, he testified that he would have been penalized had he withdrawn the money, and the treatment would have ended up costing him even more. Given this evidence, we find that Plaintiffs actions in not obtaining the recommended testing do not constitute a failure to mitigate his damages. See Du- broc v. Swain, 02-0763,(La.App. 3 Cir. 12/11/02), 833 So.2d 538.

Amount of Damages

Finally, Defendants assert that the trial court awarded an excessive amount in general damages.

It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury |8is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. This court has noted:
[T]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.

Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, reh’g denied, 4/27/01 (quoting Canter v. Koehring, 283 So.2d 716, 724 (La.1973)) (superseded by statute on other grounds). Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review. Youn v. Maritime Overseas Corp., et al., 623 So.2d 1257, 1261 (La.1993), reh’g denied, 10/7/93.

The role of an appellate court in reviewing a general damages award, one which may not be fixed with pecuniary exactitude, is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. This court has long held true to the following principle:

[bjefore a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.

Wainwright, 00-0492, p. 6, 774 So.2d at 74 (quoting Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal citations omitted)). See also Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08), 973 So.2d 693, 711 (stating that an appellate court may disturb a damages award only after an articulated analysis of the facts discloses an abuse of discretion and citing Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993)); Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993); Reck v. Stevens, 373 So.2d 498, 501 (La.1979).... Reasonable persons frequently disagree about the measure of damages | ¡¡in a particular case. “It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” Youn, 623 So.2d at 1261.

Guillory v. Lee, 09-75, p. 14-16 (La.6/26/09), 16 So.3d 1104, 1116-17.

The trial court thoroughly reviewed the testimony and evidence with regard to the injury to Plaintiffs hand as well as the jurisprudence concerning similar injuries. It found Plaintiff to be credible and not a malingerer. He noted that four years after the accident, Plaintiff is still having chronic pain but, by modifying his lifestyle and work habits, is able to continue to do his work. With regard to a video relied on by Defendants to show that Plaintiff is not disabled by the injury, the trial court found that much of the video is useless. It noted that while it shows Plaintiff working, it does not contradict Plaintiffs testimony that he continues to work with some modifications of his routine. It found the tape inconclusive as to Plaintiffs use of his injured finger. It further found that “as a whole the video evidence does not negate or hinder the plaintiffs case.”

After reviewing the record, and in light of the reasonable credibility evaluations made by the trial court, we cannot say that the award of general damages was an abuse of his discretion in this regard.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendants.

AFFIRMED.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissents and assigns reasons.

_JjI respectfully dissent from the majority decision as I find that a reversal is required. In my opinion, the plaintiff failed to carry his burden of proving the defendants knew or should have known about the alleged defect in the lawnmower.

The trial court found that the alleged defect would have been found with normal routine maintenance, and thus the defendants knew or should have known of its existence. However, I find the record reveals no sufficient evidence to support this finding.

The trial court’s reasons reveal that it relied on pictures presented by the plaintiff to find what the defendant knew or should have known. However, I find the record unclear as to what the pictures represented. It is not evident whether the damage shown in the picture existed before the alleged incident or whether the incident itself caused the damage. Wilfred Loewer, the owner of the defendant shop, testified that he was unable to tell from the pictures whether the lawnmower’s belt was broken or loose. Scott Graff, a previous manager of the defendant shop, testified that all of the shop’s loaner lawnmowers were serviced before the customers took them home. Further, he testified that if anything was broken or missing on the radiator, they would have known about it from the service and would have corrected it.

|2The majority finds that the question as to whether the defendants knew or should have known of the defect were credibility determinations, and that it was reasonable for the trial court to find the plaintiff credible and reject the defendants’ testimony. In my opinion, even if the defendants’ testimony was properly rejected by the trial court, it was the plaintiffs burden to prove that the defendants knew or should have known of the defect. I find no sufficient evidence presented indicating that the plaintiff carried his burden in this regard. The plaintiff testified that before the accident, he checked the lawnmower and did not see any problems. He also admitted that he performed no maintenance to the lawnmower because he had just received the lawnmower from the defendant and “everything was done.”

Considering the evidence presented by the plaintiff, I find that the record does not support the trial court’s inference that the defendants knew or should have known about the alleged defect in the lawnmower. As such, I conclude that a reversal of the trial court’s judgment is warranted.


author: GREMILLION, Judge.

text:
    In re Garland LATIOLAIS.
    No. CA 09-1186.
    Court of Appeal of Louisiana, Third Circuit.
    March 24, 2010.
    James Patrick MacManus, Attorney at Law, Lafayette, LA, for Appellant, Garland Latiolais.
    Patrick Manning Wartelle, Leake & An-dersson, L.L.P., Lafayette, LA, for Appel-lee, Our Lady of Lourdes Regional Medical Center, Inc.
    Court composed of, JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

      . Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GREMILLION, Judge.

| ¡Appellant, Garland Latiolais, lodged this appeal of the trial court’s maintenance of an exception of prescription in favor of Our Lady of Lourdes Regional Medical Center, Inc. (Lourdes). For the following reasons, we affirm.

FACTS

On January 30, 2003, Latiolais fell in the bathroom of his hospital room at Lourdes, where he had undergone surgery. When he needed to use the toilet, Latiolais was escorted by nursing staff into the bathroom, and was left alone. Latiolais became dizzy and fell. He injured his back in the fall and required surgery.

Latiolais initiated proceedings before the Louisiana Patients’ Compensation Fund Oversight Board (PCF) by forwarding the requisite demand for a medical review panel to the Division of Administration by letter dated January 21, 2004. Unbeknownst to Latiolais and his counsel, the Medical Malpractice Act, La. R.S. 40:1299.41, et seq., had been amended to require that claimants either pay a $100 fee per provider against whom malpractice is alleged, or provide an affidavit from a licensed physician that the defendant health care provider breached the applicable standard of care, or file an order allowing the claimant to proceed in forma pau-peris. La. R.S. 40:1299.47(A)(3), as amended by 2003 La. Acts No. 961. No fee was sent with Latiolais’s request for the convention of a panel.

Latiolais and his counsel deny receiving a letter dated February 10, 2004, from the PCF, which informed the recipient of the requirements of section 1299.47(A). Act 961 mandated this notice, but the form of notice was not specified. At the time, the PCF was not required to forward that notice by registered or certified mail. That was corrected by passage of 2005 La. Acts No. 127. Latiolais’s attorney did receive the 12letter from the PCF dated April 22, 2004, informing him that Latiolais’s failure to comply with section 1299.47(A) resulted in the PCF no longer considering his claim as filed.

Thereafter, Latiolais undertook steps to preserve his claim. On April 27, 2004, he filed his second request for a review panel. He sought and received an order, dated June 9, 2004, allowing him to proceed in forma pauperis.

On August 2, 2004, Dr. Kenneth J. Champagne, the surgeon who performed Latiolais’s surgery at Lourdes, filed a petition to allot the claim a case number for discovery purposes and for purposes of interposing an exception of prescription. The hearing on the exception was continued three times during the ensuing months. On October 18, Lourdes filed its own “Motion to Dismiss Due to Prescription.”

On November 5, 2004, Latiolais filed suit in the Nineteenth Judicial District Court in East Baton Rouge Parish against Ms. Cheryl Jackson and the PCF. The particulars of that suit are discussed more fully in Latiolais v. Jackson, 06-2403 (La.App. 1 Cir. 11/2/07), 979 So.2d 489. In that matter, Latiolais alleged that he never received the February 10 letter, and that the second claim was in the process of being dismissed on grounds of prescription. The suit alleged that Jackson and the PCF were arbitrary in their enforcement of the dictates of section 1299.47(A), in that some attorneys were called by Jackson to remind them of the filing fee requirement, while others, such as Latiolais’s attorney, were not. This, Latiolais alleged, violated his rights to due process and equal protection under the United States and Louisiana | ■¡Constitutions. It also alleged that Jackson and the PCF were negligent in either not sending, or in improperly addressing, the February 10 letter. That suit was amended to include a request that a writ of mandamus be issued ordering the PCF to reinstate his original claim. The mandamus request was tried separately, and the trial court granted Latiolais the requested writ. The PCF appealed, and the Louisiana First Circuit Court of Appeal reversed the trial court, holding that the PCF was following the dictates of section 1299.47(A). During the pendency of the 19th JDC matter, the present matter was stayed.

The exceptions of Lourdes and Champagne were taken up on June 30, 2008. The trial court granted the exceptions. Latiolais then moved for a new trial. That motion was denied. The present appeal followed.

ANALYSIS

Two principles guide our analysis of this case. The first is found in La.Civ.Code art. 5: No one may avail himself of igno-ranee of the law. The second, embodied in La.Civ.Code art. 9, is that unambiguous laws must be applied as written unless to do so would lead to absurd consequences. See also La. R.S. 1:⅛.

Central to Latiolais’s argument is the fact that at the filing requirement had only recently been enacted. The first principle requires the conclusion that his ignorance of the requirement does not excuse his failure to comply with it. Latio-lais also argues that his failure regarding the filing requirement should be excused because the PCF failed in its notice requirement. The evidence, though, demonstrates that the PCF did indeed mail the February 10 letter on February 13. The mailing of the letter brings us to the second principle.

14At the time of Latiolais’s complaint, La. R.S. 40:1299.47(A)(1) read:

(c) A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review in accordance with R.S. 40:1299.47(A)(3)(a) to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part.
(d) Such filing fee may be waived only upon receipt of one of the following: (i) An affidavit of a physician holding a valid and unrestricted license to practice his specialty in the state of his residence certifying that adequate medical records have been obtained and reviewed and that the allegations of malpractice against each defendant health care provider named in the claim constitute a claim of a breach of the applicable standard of care as to each named defendant health care provider, (ii) An in forma pauperis ruling issued in accordance with Louisiana Code of Civil Procedure Article 5181 et seq. by a district court in a venue in which the malpractice claim could properly be brought upon the conclusion of the medical review panel process.
(e) Failure to comply with the provisions of Subparagraph (A)(1)(c) or (d) of this Section within the specified time frame shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend time within which suit must be instituted in R.S. 40:1299.47(A)(2)(a).

No ambiguity can be found in this statute. A claimant must comply with the requirements for filing. His failure to do so within 45 days of the mailing of the confirmation of receipt results in the request for a review panel invalid and without effect, and the suspension of prescription during the pendency of the panel proceedings does not occur.

Latiolais was required to file his order allowing him to proceed in forma pauperis within 45 days of February 13, 2004. The order he obtained was signed on June 9, 2004, which is well after the 45-day period had lapsed. Therefore, his initial request for a medical review panel was invalid and without effect, and prescription on his claim was not suspended. His second request was filed after the one-year prescriptive period established in La. R.S. 9:5628. There was no error in the trial ^court’s ruling.

CONCLUSION

A claimant is required to comply with the requirements of La. R.S. 40:1299.47(A)(3). His failure to do so renders his request invalid and without effect. This compliance must be effected within 45 days of the PCF’s mailing of the confirmation of receipt of the complaint; no provision has been made by the legislature in the event the confirmation is not received. The mailing date is the triggering mechanism. Accordingly, Latiolais’s initial request was without effect and prescription was not suspended. His second request was not filed timely, and is thus prescribed. The trial court’s ruling is affirmed.

Costs of this appeal are taxed to plaintiff/appellant, Garland Latiolais.

AFFIRMED.

      . For the sake of brevity, we will henceforth refer to these dictates as the filing fee requirement.

      .Ms. Jackson is the Malpractice Insurance Director for the PCF. Her signature appeared on the February 10, 2004 letter, as well as a letter dated May 7, 2004, acknowledging receipt of Latiolais’s second request for a review panel and advising of the requirements for filing. Latiolais alleged that Ms. Jackson sent the letter of April 22, but the record reflects that letter was sent by Ms. Lorraine LeBlanc, the PCF’s Executive Director.

      . Latiolais has only appealed the judgment in favor of Lourdes. He did not appeal the judgment in favor of Champagne.