author: KEATY, Judge.

text:
    Walter KUPKE v. SHELTER INSURANCE COMPANY, et al.
    18-82
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    David D. Benoit, Justin R. Cantu, Post Office Box 877, Breaux Bridge, Louisiana 70517, (337) 332-6666, Counsel for Plaintiff/Appellant: Walter Kupke
    Thomas R. Hightower, Jr., Wade Kee, Thomas R. Hightower, III, Law Offices of Thomas R. Hightower, Jr., Post Office Drawer 51288, Lafayette, Louisiana 70505, (337) 233-0555, Counsel for Defendant/Appellee: Shelter Mutual Insurance Company
    Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   KEATY, Judge.

Following a jury trial, Plaintiff, Walter Kupke, was awarded $79,455.80 in damages arising from an automobile accident, and the trial court signed a judgment awarding that amount plus legal interest and costs. Plaintiff now appeals the trial court's judgment. For the following reasons, we affirm the judgment.

FACTS & PROCEDURAL HISTORY

On November 30, 2012, Walter Kupke was in an automobile accident wherein he was rear-ended by a truck owned by Rader's Insulation Express, LLC, and operated by Jorge Silva. Following the initial impact, Kupke's vehicle was pushed into an intersection where it was struck by another vehicle. As a result, he sustained bodily injuries to his neck, back, shoulders, knee, and hand. Kupke filed suit against Silva, Rader's Insulation, and its insurer, Shelter Mutual Insurance Company (Shelter). He also filed suit against his uninsured/underinsured carrier, USAA Casualty Insurance Company. Thereafter, Rader's Insulation and Shelter stipulated to liability pursuant to a Stipulation and Consent Judgment. All Defendants were dismissed prior to trial except for Shelter.

The matter proceeded to a jury trial which was held June 26-28, 2017, after which Kupke was awarded $79,455.80 in damages as follows: $5,000.00 for past physical pain and suffering; $12,500.00 for future physical pain and suffering; $10,000.00 for past mental anguish; $10,000.00 for future mental anguish; $0.00 for loss of enjoyment of life; $16,955.80 for past medical expenses; and $25,000.00 for future medical expenses. On July 7, 2017, the trial court signed a judgment awarding that amount plus legal interest and costs. Kupke subsequently filed a Motion for Judgment Notwithstanding the Verdict, or In the Alternative Motion for Additur or Motion for New Trial, which the trial court denied following a hearing. Its written judgment was issued on September 15, 2017. Kupke thereafter appealed the July 7, 2017 judgment.

On appeal, Kupke contends that the jury erred in failing to award him damages commensurate with the evidence adduced at trial.

STANDARD OF REVIEW

"It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages." Guillory v. Lee , 09-75, p. 14 (La. 6/2/09), 16 So.3d 1104, 1116 ; see also La.Civ.Code art. 2324.1. General damages are speculative in nature and incapable of being fixed with mathematical certainty.

Thibeaux v. Trotter , 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied , 04-2692 (La. 2/18/05), 896 So.2d 31. "They include pain and suffering, physical impairment and disability, and loss of enjoyment of life." Id. at 1130. Although loss of enjoyment of life is a component of general damages, it is "conceptually distinct from other components of general damages, including pain and suffering." McGee v. A C & S, Inc. , 05-1036, p. 5 (La. 7/10/06), 933 So.2d 770, 775. In the regard:

Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. Loss of enjoyment of life, in comparison, refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. In contrast to pain and suffering, whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury.

Id. On review of an award for general damages, an appellate court cannot decide what it considers to be an appropriate award. Guillory , 16 So.3d 1104. Rather, the appellate court reviews the trial court's exercise of its discretion. Id. An award of general damages "is reviewed pursuant to the abuse of discretion standard." Thibeaux , 883 So.2d at 1131. The plaintiff bears the burden of proving entitlement to general damages by a preponderance of the evidence. Schwartzberg v. Guillory , 16-753 (La.App. 1 Cir. 2/17/17), 213 So.3d 1266.

On the other hand, special damages "may be determined with some degree of certainty and include past and future lost wages and past and future medical expenses." Thibeaux , 883 So.2d at 1130. A special damages' award is reviewed pursuant to the manifest error standard of review wherein an appellate court considers: 1) whether a reasonable basis exists for a trial court's conclusions and 2) whether that finding was clearly wrong. Thibeaux , 883 So.2d 1128 ; Guillory , 16 So.3d 1104. "The plaintiff bears the burden of proving entitlement to special damages by a preponderance of the evidence." Thibeaux , 883 So.2d at 1131.

DISCUSSION

In his assignment of error, Kupke contends that the jury erred in failing to award him damages commensurate with the evidence adduced at trial. He alleges that the accident caused him to sustain a minor traumatic brain injury (TBI), hearing loss, vertigo, anxiety, and depression, which will permanently impact his professional, social, physical, and mental wellbeing. Kupke opines that the jury's award is abusively low and merits an increase. According to Kupke, an award ranging from $20,000.00 to $45,000.00 would compensate him for the ten-month treatment of his headaches and the pain in his neck and left leg. He opines that $90,000.00 would compensate him for his hearing loss and vertigo. He concludes that the jury should have awarded him most, if not all, of the life care plan totaling $209,656.00.

In opposition, Shelter contends that Kupke's evidence presented at trial lacked testimony regarding treatment rendered for his alleged mild TBI complaints, or any substantive treatment for any of his other alleged injuries other than the emergency room visit on the date of the accident. Shelter argues that there was, however, significant testimony and medical records regarding Kupke's prior brain injuries and/or conditions that manifested before the accident. Shelter opines that Kupke, who worked at a nuclear power plant after the subject accident and has maintained steady employment, failed to present evidence of lost wages.

In this case, the jury awarded Kupke general damages and special damages. We must review the evidence in the record to determine whether the jury's awards were contrary to the evidence or constitute an abuse of discretion.

Kupke's trial testimony reveals that he underwent a CT scan in 2002 for "stress related things." According to his testimony, Kupke was involved in an automobile accident in 2005 wherein he ran into a ditch. Although Kupke could not remember any details, he assumed that he was driving home, fell asleep at the wheel, woke up the following morning, and thereafter walked home. As for the automobile accident at issue, Kupke recalled being "in the middle of the intersection with the truck up against my side of my door." He was transported to the hospital where his son picked him up and "[p]robably" took him home although Kupke did not "remember much of anything for the next couple of weeks." According to medical records from Acadian Ambulance Service and Lafayette General Medical Center (LGMC) dated November 30, 2012, Kupke denied neck and back pain, complained of a headache and left shoulder pain, and was diagnosed with a neck and back sprain.

Kupke's testimony reveals that, following the subject accident, he presented to Dr. Ronald Woods, a family medicine physician in Monroe, for shoulder pain. Kupke testified that he no longer suffers from shoulder pain. Kupke advised that he presented to Dr. Lawrence Danna, an ear, nose, and throat physician, for hearing loss and balance issues. Kupke stated that he had good balance prior to the accident, although it "disappeared after the wreck." He is currently employed by CP & I as a quality assurance manager. Before the accident, he rode his motorcycle, played music with his friends, and played golf. Following the accident, he no longer rides his motorcycle because balance issues have made him "scared." Following the accident, his memory is "[n]ot real good," and he repeats himself. Kupke noted that post-accident, he spends time with his wife and together they watch movies.

On cross-examination, Kupke revealed that the amount of time he spent playing in a band decreased prior to the accident at issue. He opined that if he wanted to play golf, he could do so without difficulty. Kupke admitted to riding his motorcycle on several occasions following the accident. He has been steadily employed post-accident and has not received complaints regarding his job performance. Kupke noted that post-accident, his salary has increased, and he has performed work at a nuclear plant in South Carolina. Kupke advised that he works daily and on some weekends. He revealed that his busy work schedule leaves him with little time to do other things on weekends. He noted that he is able to care for himself without physical limitations. Although Kupke sustained a concussion in the accident at issue, he did not think he was knocked out or lost consciousness, and he failed to seek treatment for the same.

Kupke discussed his pre-accident medical history on cross-examination. He advised that in the early 2000s, he suffered from anxiety and was prescribed Valium and benzodiazepines. According to his testimony, anxiety caused him to quit his job at Turner Industries. Kupke agreed that he complained of dizziness and memory loss on August 8, 2002 and underwent a CT scan. This is confirmed by medical records submitted into evidence which reveal that the CT results were normal. Kupke testified that he lost consciousness following his automobile accident in 2005. When asked whether the "amnesia ...

that was occurring in 2005 still exists today," Kupke answered, "[y]es." His testimony indicates that medical records from 2011 note that he was suffering from back pain which was being controlled with medication. The following trial colloquy took place after Kupke recalled presenting to Dr. Jamie Cordova, his general physician, on November 13, 2012:

Q The issues being that you were having-losing sight in both eyes and your face was numb, correct?
A I remember the face. I don't remember the eyes.
Q Dr. Cordova ... indicated that he recommended that you go see a neurologist two weeks before the accident we're here for today. Did you go see a neurologist before this accident?
A I don't-I don't recall.

Although Kupke could not remember telling his ear, nose, and throat physician, Dr. Danna, that he suffered from a muffled right ear prior to the accident at issue, he could not "deny" Dr. Danna's contrary testimony.

On further cross-examination, Defendant's counsel noted that Kupke provided Dr. Shelly Savant, a certified life care planner and expert witness for Kupke, with an incomplete medical history. Defendant's counsel explained that while Kupke informed Dr. Savant of a tonsillectomy in 1965, elbow fracture in 1973, foot fracture in 1978, and a right-hand fracture in 1991, he failed to provide information regarding the dizziness and memory loss issues he experienced in 2002, his automobile accident in 2005, and his November 13 appointment with Dr. Cordova two weeks before the instant accident. When questioned about this discrepancy, Kupke explained that he "did not remember." When asked whether Dr. Savant's failure to have all of Kupke's pertinent medical history would handicap her assessment, he responded: "I suppose so." Kupke presented to Dr. Cordova, his general physician, approximately six months after the accident at issue with no complaints. Kupke recalled telling Dr. Woods, the family medicine physician, that he was ready to settle the matter in 2014.

On re-direct examination, Kupke recalled an incident in 2011 wherein he slipped and fell off the side of a bulkhead to a barge. As he was climbing back up, he sliced his leg which became infected. He could not recall hurting his back as a result of the slip and fall. However, Pinnacle Home Health nursing visit records dated July 16-17, 2011, which were submitted into evidence and in the record on review, reveal that Kupke was experiencing back pain.

Kupke's wife, Dana Kupke, testified that she met Kupke on September 11, 2012. Before the accident, Kupke was "fun" and they rode his motorcycle, went to dinner, and watched movies. After the accident, they "had to make modifications" to accommodate Kupke's right-ear hearing loss. The modifications require Dana to walk to the left of him so "he can hear [her] talk." At night, Dana has to turn off the light switch because Kupke "lose[s] his balance" in the dark. Kupke "avoids social situations" because he gets uncomfortable and stutters. She agreed that Kupke has maintained employment. On cross-examination, Dana remembered that, when they were dating, Kupke revealed that he could "stand on one foot forever." Dana noted that Kupke experienced "mild[ ]" hearing problems prior to the accident. Dana testified that she and Kupke were married following the accident.

Thereafter, the videotaped depositions of Dr. Woods and Dr. Danna were played for the jury and submitted into evidence by Plaintiff's counsel. The record contains two pages of the transcript from Dr. Danna's deposition dated June 7, 2017. Therein, Dr. Danna admitted that Kupke "may have had muffling" in his right ear before the accident at issue. Dr. Danna revealed that he performed multiple audiological evaluations following the accident. The record contains an audiological evaluation dated December 20, 2012, wherein Kupke complained of dizziness and that his right ear "fe[lt] muffled X 1 y[ea]r." On January 21, 2013, Kupke complained of dizziness and a muffled right ear. On January 28 and February 25, 2013, Kupke was no longer experiencing bouts of dizziness, although his right ear remained muffled. According to the audiological records, no significant changes were noted on July 21, 2014.

Kupke also saw Dr. Woods following the subject accident, complaining of shoulder pain. Dr. Woods' medical records reveal that Kupke answered a questionnaire on December 5, 2012, providing the following medical history: tonsillectomy in 1965; left elbow fracture in 1973; left foot fracture in 1978; nasal issues from a motor vehicle accident in 1981; right-hand fracture in 1991; and a right-leg issue in 2011. Dr. Woods' medical record dated December 11, 2012, reveals that Kupke underwent an MRI of his head arising from a "[motor vehicle accident] two weeks earlier with dizziness and short-term memory loss and headaches and lack of concentration with some nausea." The results of the MRI included mild sinusitis and mastoiditis with no other significant abnormalities. He presented to Dr. Woods on July 17, 2014, who noted that Kupke was not having headaches but was "experiencing vertigo from his injury on 11-30-12" and "hearing loss of right ear and saw Dr. Danna for this." Dr. Woods diagnosed Kupke with post-concussion syndrome and "some permanent damage to his brain[,]" recommended an appointment with Dr. Danna, and a possible follow-up MRI. A follow-up MRI was performed on July 22, 2014, and the results were unremarkable. Dr. Woods' medical record dated October 6, 2014, reveals that Kupke indicated he is "ready to settle."

Plaintiff's expert neuropsychologist, Dr. James Pinkston, Ph.D, testified that he performed an independent neuropsychological evaluation on Kupke in 2016. Dr. Pinkston opined that during the evaluation, Kupke did not exaggerate his physical or psychological symptoms. According to Dr. Pinkston, Kupke's symptoms included poor mental processing speed, depression, and anxiety. He explained that a mild TBI is a term used when discussing the severity of a brain injury. Dr. Pinkston revealed that "a loss of consciousness is not required for a [TBI]. You have altered consciousness." Dr. Pinkston testified that although he remains slow and cannot multitask, Kupke has reached maximum medical improvement. Dr. Pinkston did note that Kupke had pre-existing anxiety; however, Kupke is less able to manage people or deal with stressors following the accident. Dr. Pinkston revealed that Kupke's "depression could be treated." He explained that Kupke remains on anti-anxiety medications that he was prescribed before the accident; however, he has stopped taking his antidepressant medication.

On cross-examination, Dr. Pinkston admitted that he was not Kupke's treating physician. According to Dr. Pinkston's testimony, he initially met with Kupke approximately three years following the accident. The only information available to him regarding Kupke's pre-existing medical history was based upon Kupke's subjective statements and "minimal medical records." Dr. Pinkston agreed that Kupke has been steadily working since the accident and that his salary has remained "about the same or more." Dr. Pinkston agreed that Kupke experienced dizziness and memory loss in 2002. Dr. Pinkston testified that Kupke's complaints of dizziness and memory loss were "significant enough ... for [Kupke's physician] to order a CT."

On cross-examination regarding the 2005 automobile accident, Dr. Pinkston opined that Kupke experienced "a period of posttraumatic amnesia." He was unsure how long Kupke "was out" because "he drove himself home, so he had amnesia for that period of time but he wasn't unconscious the whole time." When Defendant's counsel advised that Kupke did not drive himself home because his car was totaled, Dr. Pinkston responded, "Okay." Dr. Pinkston admitted that Kupke did not tell him about the 2005 accident despite informing him of an accident which occurred in 1981. He opined that knowledge of the 2005 accident could have been helpful when formulating an opinion.

During cross-examination, Dr. Pinkston explained that his initial report incorrectly noted that Kupke lost consciousness following the instant accident. Dr. Pinkston revealed that Kupke had been prescribed Valium for pre-existing anxiety. Dr. Pinkston explained: "At high doses benzodiazepines like Valium can cause some cognitive difficulties some of the time," although he opined it may not have been a problem for Kupke as he "continued to work productively." Dr. Pinkston did not anticipate Kupke's psychological functioning "getting worse."

Defendant's expert neuropsychologist, Dr. Staats, Ph.D., testified that he performed an independent medical evaluation of Kupke. Dr. Staats, who was unaware of Kupke's 2005 automobile accident, agreed that a loss of consciousness could cause long term problems. Dr. Staats was aware of Kupke's dizziness and memory loss issues in 2002 and his vision and facial numbness issues prior to the accident at issue. With respect to Kupke's vision and facial numbness, Dr. Staats opined that in addition to Bell's palsy, "the doctor at that time was concerned about a possible transient ischemic attack" (TIA), i.e., "a mini stroke." Dr. Staats agreed that Kupke may have been experiencing TIAs in conjunction with his memory loss and dizziness symptoms. He opined that Kupke's symptoms may have been a "manifestation of his anxiety and his depression because the anxiety and depression can produce postconcussive disorder symptoms." Dr. Staats revealed that "[a]nyone who has an anxiety problem can be plagued with decreased ability to function if the anxiety rises to a certain state."

Dr. Staats stated the following after being asked whether Kupke confirmed that "he did not have a loss of consciousness" after the instant accident:

He felt confused, and he didn't think that he fully lost consciousness, but that he did have sketchy memory of what went on. And he described that sketchy memory as continuing for a couple of weeks. But, certainly, it would be prominent at the time of the accident. And that's all that's required as part of the criteria for the American Congress of Rehabilitation Medicine's definition for mild traumatic brain injury.

Dr. Staats opined that Kupke suffered a "[c]oncussion." Kupke was not suffering from complete amnesia for two weeks; he just suffered from a "spotty memory" which is a form of posttraumatic amnesia. The following colloquy thereafter occurred:

Q And if I would ask you to assume that-or have you seen anything in any of the medical records of any of his providers that indicated any state of amnesia ... that you reviewed post accident?
A No, I didn't notice that any of the doctors did that. They call it postconcussive disorder.

Dr. Staats performed tests on Kupke which indicated that he "has returned to normal." Although some of Kupke's scores did not return to high normal, they were all within the range considered normal, opined Dr. Staats. Dr. Staats noted that, notwithstanding Kupke's lower motor function score, his anxiety could have contributed to his failure to reach a high normal. Kupke's medication that he takes for his long-standing anxiety can cause "some decreased neuropsychological or memory functioning" and that "his continuing symptoms could be due to the things that he had pre-existing." He agreed that benzodiazepines can have negative, immediate, permanent, and long-term impact on neuropsychological functioning.

On cross-examination, Plaintiff's counsel asked: "You're not too, too worried, ... about this 2005 incident as being the cause of the findings you found; is that true?" Dr. Staats responded that he was not "worried about it having something active today[.]" When asked whether he agrees with Dr. Pinkston that Kupke is "not quite the same" following the instant accident, Dr. Staats responded: "I can't say that he's not the same, but I can tell you that he's back [to] average in all areas." Dr. Staats revealed that he and Dr. Pinkston use different techniques for determining premorbid IQ estimation. He noted that Dr. Pinkston "uses one that predicts IQ, and it's a good one.... [b]ut IQ is not total neuropsychological functioning." Dr. Staats explained that he, unlike Dr. Pinkston, employs "a methodology that combines both IQ pre-estimation and non-IQ neuropsychological information." When questioned again whether Kupke was the same man before the accident, Dr. Staats explained: "From his depiction, ... no. From his wife's depiction on the questionnaires, he's pretty much back and in the range we would expect."

Plaintiff's expert witness, Dr. Savant, also testified at trial. Dr. Savant, a neurologist and psychiatrist, is a clinical assistant professor at Tulane University and also runs a private medical practice that involves the treatment of people with brain injuries. She is also a certified life care planner. According to Dr. Savant's medical records and testimony, she evaluated Kupke on March 6, 2015, for a life care planning consultation. According to her report, Dr. Savant obtained her information from Kupke and medical records from Acadian Ambulance Service; LGMC; Glenwood Family Practice & Occupational Health Center, i.e., Dr. Woods; and Dr. Danna. Kupke's prior injuries, as noted on her consultation, include: "On the Job Injury 1980's-fractured right hand/recovered 100%; M[otor] V[ehicle] C[ollision] 1980's-nasal trauma /recovered 100%; MVC 2005-muscle soreness/no concussion; recovered 100%[.]" The report's relevant history section indicates that Kupke was in an automobile accident on November 30, 2012. The report notes that following the accident, Kupke "says he was disoriented for a brief period and then subsequently developed headaches and shoulder pain.... [and] ongoing issues with dizziness, vertigo, falls, memory/attentional issues, and hearing loss." With respect to a concussion, Dr. Savant listed an onset of November 30, 2012 "[i]mmediate to MVC" and indicated that Kupke had "[n]o previous head injuries [.]" In her report, Dr. Savant revealed the following regarding Kupke:

[F]orgets conversations; occasionally disoriented spatially; forgets things at work e.g. inspection documentation; difficulty with attention & concentration; no seizures/or recent headaches. Occasional dizziness-occasional vertigo/no n/v. Has lost his balance and almost fallen at work. Occasional blurry vision associated with dizziness; not necessarily associated with a headache; also some word-finding difficulties; slowed thought processes[.]

With respect to right-ear hearing loss, Dr. Savant noted an onset immediate to the accident at issue with "[n]o prior hearing issues or tinnitus[.]" She listed Kupke's relevant symptoms as follows: "[O]ccasional vertigo w/o nausea and vomiting; loss of balance[.]" According to her report, Kupke was treated with steroids; however, his symptoms did not resolve. After reviewing the medical records, interviewing Kupke, and performing a neuropsychiatric and physical examination, Dr. Savant's findings were that Kupke sustained a concussion, posttraumatic vestibular dysfunction, and cognitive disorder not otherwise specified. She further noted that Kupke had a history of hyperlipidemia and situational anxiety.

On cross-examination, Dr. Savant testified that she possessed Kupke's post-accident medical records but not his pre-accident medical records when preparing her report. Thus, Dr. Savant agreed that she had no information regarding Kupke's pre-existing memory loss, dizziness, and right ear problems. Dr. Savant was also unaware of Kupke's pre-accident complaints of vision loss and facial numbness. Dr. Savant opined, however, that Kupke "was forthcoming with me about three separate motor vehicle accidents that he had had prior, and described each injury in each one, none of which were head injuries." Dr. Savant was unaware of Kupke's previous head injury sustained in the 2005 accident as shown in the following colloquy:

Q So his 2005 accident, ... I assume he didn't ... tell you like he did yesterday in court that he was knocked out all night, did not wake up until the next morning, and in fact still to this date has no recollection of the accident? You never had that information when you prepared your report, correct?
A I didn't have that information[.]

With respect to his minor TBI, Dr. Savant opined that it was possible that Kupke's condition could get worse with respect to "loss of structure and not working anymore." Conversely, Dr. Savant noted that Kupke "should not develop dementia [,] and he should not get worse in that regard." She testified that Kupke "had not had much treatment related to the after-effects of this accident."

Thereafter, Defendant's next witness to testify at trial was Michael Frenzel, a vocational rehabilitation counselor and life care planner. He reviewed Kupke's pre-accident and post-accident medical records. Mr. Frenzel's concern with Dr. Savant's methodology was that she did not have Kupke's pre-accident medical records. Mr. Frenzel explained that "[w]ithout having all the prior medical records," the marginal cost cannot be appropriately accounted for. Marginal costs are "defined as something related to and only to the accident in question." Access to pre-accident medical records is necessary when formulating a life care plan "[b]ecause you want to document what the history was and you want to look at the objective people that ... did those tests or have seen that person prior to the accident, at the time of the accident, as well as after the accident." Mr. Frenzel presumed that a life care planner hired by a plaintiff should "have access to anybody ... that you want to talk to" whereas "[o]n the defense side, ... [he didn't] necessarily have that" choice because of HIPPA concerns. According to his testimony, in addition to reviewing medical records, a life care planner should speak with the treating physicians. Based upon the evidence available to him, Mr. Frenzel did not have sufficient information from a methodology perspective to assign any number to Kupke's life care plan.

Thereafter, Dr. Cordova's videotaped deposition was played for the trial court and jury. The record before us contains Dr. Cordova's medical report dated November 13, 2012, wherein Kupke presented with complaints of "face being numb" and "sight lose [sic] in both [eyes] on Saturday-11/10/12." Dr. Cordova opined that Kupke suffered from Bell's palsy with TIA.

According to our review of the above testimony and evidence in the record, Kupke was involved in an automobile accident in 1981 which resulted in nasal surgery. Kupke suffered from pre-existing back pain. In 2005, he was involved in an automobile accident where he was knocked unconscious and suffered amnesia. Two weeks before the accident at issue, Kupke presented to Dr. Cordova with complaints of facial numbness and loss of sight in both eyes. Dr. Cordova instructed Kupke to follow up with a neurologist, which he failed to do. According to Dr. Danna's testimony and medical records, Kupke's right ear was muffled both before and after the accident. Prior to the accident at issue, Kupke underwent a CT scan due to complaints of memory loss and dizziness. Those same complaints, i.e., memory loss and dizziness, were noted by Kupke following the instant accident. He never lost consciousness after the accident at issue. Despite his alleged injuries sustained in the instant accident, Kupke continued to work and his salary remained the same or increased. Testimony further provides that his work schedule remained the same or increased. Also, since the accident, he has gotten married.

Accordingly, the trial court did not abuse its discretion in its award of general damages. Additionally, it did not commit manifest error in awarding special damages as a reasonable basis exists for the trial court's conclusion, and it was not clearly wrong. Thus, Kupke's assignment of error is without merit.

DECREE

The trial court's judgment confirming the jury's award in the amount of $79,455.80 plus legal interest and costs is affirmed. All costs associated with this appeal are assessed to Plaintiff, Walter Kupke.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Debra Bergeron DUHON v. PETRO "E," LLC, et al.
    18-57
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
   Francis J. Barry, Jr., Robert E. Kerrigan, Jr., Deutsch Kerrigan, L.L.P., 755 Magazine Street, New Orleans, LA 70130, (504) 581-5141, COUNSEL FOR DEFENDANT/APPELLEE: Estis Well Service, LLC

William W. Goodell, Jr., Goodell Law Firm, P. O. Box 52663, Lafayette, LA 70505-2663, (337) 412-2724, COUNSEL FOR PLAINTIFF/APPELLEE: Debra Bergeron Duhon

Charles R. Minyard, Attorney at Law, P. O. Box 3642, Lafayette, LA 70502, (337) 266-2300, COUNSEL FOR DEFENDANT/ APPELLEE: Apache Corporation

Stephen B. Murray, Murray Law Firm, 650 Poydras Street, Suite 2150, New Orleans, LA 70130, (504) 525-8100, COUNSEL FOR PLAINTIFF/APPELLEE: Debra Bergeron Duhon

Barry J. Sallinger, Barry Sallinger, APLC, P. O. Box 2433, Lafayette, LA 70502-2433, (337) 235-5791, COUNSEL FOR PLAINTIFF/APPELLEE: Debra Bergeron Duhon

Morgan J. Wells, Jr., Lee M. Peacocke, Stephen M. Larzelere, Evan J. Gododsky, Larzelere Picou Wells Simpson Lonero, LLC, 3850 N. Causeway Boulevard, Suite 1100-Two Lakeway Center, Metairie, LA 70002, (504) 834-6500, COUNSEL FOR DEFENDANT/APPELLANT: Enerquest Oil & Gas, LLC

Michael G. Stag, Smith Stag, LLC, 365 Canal Street, Suite 2850, New Orleans, LA 70130, (504) 593-9600, COUNSEL FOR PLAINTIFF/APPELLEE: Debra Bergeron Duhon

Elizabeth A. Roche', Burns Charest, LLP, 365 Canal Street, Suite 1170, New Orleans, LA 70130, (504) 799-2845, COUNSEL FOR PLAINTIFF/APPELLEE: Debra Bergeron Duhon

F. Barry Marionneaux, F. Barry Marionneaux, APLC, 23615 Railroad Avenue, Plaquemine, LA 70764, (225)687-6884, COUNSEL FOR DEFENDANT/APPELLANT: Dow Chemical Company

David M. Bienvenu, Jr., Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, 4210 Bluebonnet Boulevard, Baton Rouge, LA 70809, (225) 388-5600, COUNSEL FOR DEFENDANT/APPELLANT: Dow Chemical Company

Court composed of John D. Saunders, Billy H. Ezell, and Shannon J. Gremillion, Judges.

SAUNDERS, Judge.

Cross-Plaintiff appeals the trial court's grant of Defendant's motion for summary judgment.

FACTS AND PROCEDURAL HISTORY:

Plaintiff's, Debra Bergeron Duhon's ("Duhon"), property was a small part of the "Blanchard Leases" farmed out to Cross-Plaintiff, EnerQuest Oil & Gas, LLC ("EnerQuest"), for various oil and gas exploration and production operations. Subsequently, EnerQuest leased the property to Defendant, Petro "E," LLC ("Petro E"). Petro "E," owned by brothers, Jamell and Johnny Estis, was engaged in the business of purchasing and developing mineral leases and existing oil wells. Pursuant to its farm-out agreement with EnerQuest, Petro "E" hired Estis Well Service, LLC ("Estis"), an oilfield service company, to perform plug and abandonment work on Plaintiff's property. Estis is owned by Mattie Estis, Jamell and Johnny's mother. Estis was not a signatory to any mineral lease or assignment relating to EnerQuest's agreement with Petro "E."

In September 2007, while Estis was subcontracting for Petro "E," a saltwater spill event occurred that allegedly damaged Plaintiff's property. As a result, Plaintiff sued several companies, including EnerQuest, Petro "E," and Estis. Plaintiff maintained that Petro "E" is an "alter ego" of Estis or was engaged in a single business enterprise ("SBE"), such that Estis should be held liable for the obligations of Petro "E."

Estis filed a motion for summary judgment on Plaintiff's SBE claim. On May 2, 2016, the trial court heard oral argument on Estis's motion, which concerned Plaintiff's claim only, and granted the motion, finding that Estis and Petro "E" are separate corporations. Plaintiff did not appeal that judgment.

EnerQuest filed a cross-claim against Petro "E," which it later amended to assert the identical SBE claim against Estis that had been previously asserted by Plaintiff. Again, Estis moved for summary judgment, citing the same reasons which supported its motion for summary judgment granted by the trial court on Plaintiff's SBE claim.

On December 12, 2016, Estis's motion on EnerQuest's SBE claim was heard by the trial court. On January 3, 2017, judgment dismissing all of EnerQuest's claims against Estis was entered. Due to an infirmity within the judgment, an amended judgment was entered by the trial court on October 19, 2017. The instant appeal was subsequently taken by EnerQuest.

DISCUSSION ON THE MERITS:

In its single assignment of error, EnerQuest alleges that the trial court erred as a matter of law by granting Estis's motion for summary judgment, as Estis (1) failed to meet its initial summary judgment burden; (2) the clear and convincing evidentiary standard is not applicable to EnerQuest's SBE claim; and (3) EnerQuest presented sufficient evidence to establish the existence of an SBE for purposes of satisfying its summary judgment burden. We agree.

Appellate courts review motions for summary judgment de novo, using the identical criteria that govern the trial court's consideration of whether summary judgment is appropriate. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880. The reviewing court, therefore, is tasked with determining whether "the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3).

"A fact is 'material' when its existence or nonexistence may be essential to [the] plaintiff's cause of action." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate." Smitko v. Gulf S. Shrimp, Inc. , 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755 (superseded by statute on other grounds).

When considering a motion for summary judgment, the court cannot "consider the merits, make credibility determinations, evaluate testimony[,] or weigh evidence." Prop. Ins. Ass'n of La. v. Theriot , 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov't , 04-1459, (La. 4/12/05), 907 So.2d 37 ). Moreover, although "summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor." Willis v. Medders , 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

Louisiana Code of Civil Procedure Article 966(D)(1) and (2) further provides:

(1) The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
(2) The Court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum.

In Green v. Champion Ins. Co. , 577 So.2d 249, 257-258 (La.App. 1 Cir. 1991), the first circuit noted:

When determining whether a corporation is an alter ego, agent, tool or instrumentality of another corporation, the court is required to look to the substance of the corporate structure rather than its form. The following factors have been used to support an argument that a group of entities constitute a "single business enterprise":
1. corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control;
2. common directors or officers;
3. unified administrative control of corporations whose business functions are similar or supplementary;
4. directors and officers of one corporation [fail to] act independently in the interest of that corporation;
5. corporation financing another corporation;
6. inadequate capitalization ("thin incorporation");
7. corporation causing the incorporation of another affiliated corporation;
8. corporation paying the salaries and other expenses or losses of another corporation;
9. receiving no business other than that given to it by its affiliated corporations;
10. corporation using the property of another corporation as its own;
11. noncompliance with corporate formalities;
12. common employees;
13. services rendered by the employees of one corporation on behalf of another corporation;
14. common offices;
15. centralized accounting;
16. undocumented transfers of funds between corporations;
17. unclear allocation of profits and losses between corporations; and
18. excessive fragmentation of a single enterprise into separate corporations.

In Dishon v. Ponthie , 05-659 (La.App. 3 Cir. 12/30/05), 918 So.2d 1132, this Honorable Court noted that the failure of the corporation to collect amounts owed by an affiliated corporation supported a finding in favor of the existence of an SBE.

After comparing the evidence with the factors set out in Green , we find that EnerQuest demonstrated that it had sufficient evidence to meet its burden of proof at trial regarding the numerous factors to be considered in determining whether the SBE theory was applicable to the facts of this case. Specifically, the evidence submitted by EnerQuest in support of its SBE claim fully supports a finding that Petro "E" and Estis operated as a single business enterprise with respect to Petro "E"'s operations, as follows: (1) Petro "E" and Estis had common ownership, which was relevant to the operations conducted by Petro "E" and Estis, as it permitted the transfer of funds between the companies without any documentation, interest charges or efforts made to collect unpaid loans; (2) the loans between Petro "E" and Estis clearly did not result from any arms-length transactions; (3) Petro "E" used Estis's office space to store its files, but did not pay rent for the use of this space; (4) Petro "E," who did not have a separate phone number and fax, used Estis's phone number and fax; (5) All of the work performed by Estis for Petro "E" was pursuant to a one-page Master Service Agreement, which was different from all other contracts that it used to perform its services; (6) Estis actively participated in Petro "E"'s acquisition of a lease, by evaluating the property to determine if it could profit from the removal of the scrap metal during the decommissioning of the property; and (7) Estis has never made any effort to collect any unpaid amounts due from Petro "E." Moreover, here, as in Thibodeaux v. Ferrellgas, Inc. , 98-862, p. 13 (La.App. 3 Cir. 1/6/99), 741 So.2d 34, 43, this existing evidence renders the court's discussion of Estis's summary judgment burden to be entirely unnecessary to the disposition of this case. As such, we find that the trial court erred in granting Estis's motion for summary judgment.

Accordingly, this court reverses the grant of motion for summary judgment, and remands to the trial court to allow adequate time for completion of discovery.

CONCLUSION:

For these reasons, the judgment of the trial court granting Estis Well Service, LLC's motion for summary judgment is reversed. This matter is remanded to the trial court to allow time for discovery to be completed.

Costs of these proceedings are assessed to Estis Well Service, LLC.

REVERSED AND REMANDED.


author: CONERY, Judge.

text:
    STATE of Louisiana v. Natasha POIRIER
    18-467
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 2018
    Michael Gregory, 15th JDC Public Defender Office, 600 Jefferson Street, Suite 902, Lafayette, Louisiana 70502, (337) 232-9345, COUNSEL FOR DEFENDANT/APPELLANT: Natasha Poirier
    Keith Stutes, Emilia Salas Pardo, 15th Judicial District Attorney Office, Lafayette Parish, 800 S. Buchanan Street, Lafayette, Louisiana 70502, COUNSEL FOR APPELLEE: State of Louisiana
    Court composed of Shannon J. Gremillion, John E. Conery, and Van H. Kyzar, Judges.
   CONERY, Judge.

Defendant, Natasha Poirier, was arrested on May 9, 2018, for second degree battery and false imprisonment of her mother, violations of La.R.S. 14:34.1 and La.R.S. 14:46, respectively, which took place on April 25, 2018. A contradictory hearing (also known as a Gwen's Law hearing) occurred on May 14, 2018. Following the presentation of evidence and argument by counsel, the trial court denied bail and issued a protective order against Defendant in favor of the victim.

Defendant filed notice of intent to seek supervisory review by this court on May 22, 2018, and a return date of June 14, 2018 was set by the trial court. Defendant's writ was timely filed. In her application, Defendant contends the trial court abused its discretion in denying her request for bail because the State failed to produce sufficient evidence to establish that she was presumptively guilty of the charges against her, a danger to others, or a flight risk. Defendant also asserts that the trial court erroneously shifted the burden of production to her while also preventing her from presenting relevant evidence, which denied her the right to be free from excessive bail and her right to a fair hearing under the due process clauses of the Louisiana and Federal Constitutions. For the following reasons, Defendant's writ application is denied.

GWEN'S LAW HEARING:

At the Gwen's Law hearing, the State made argument to the trial court and admitted several exhibits; it did not call witnesses. In its argument, the State asserted that on the morning of April 25, 2018, Defendant hit her mother with a closed fist, strangled her until she nearly asphyxiated, and then prohibited her from leaving the residence. Four and a half hours after the incident occurred, the victim managed to escape and called 911. Police responding to the domestic disturbance call noted contusions to the victim's face and bruising all over her body. Photographs of the victim's injuries were admitted as State's Exhibit 1. According to counsel, officers spoke to a witness who stated she heard the victim calling out for help and saw Defendant dragging the victim across concrete. Allegedly, the witness approached Defendant and asked if the victim needed help, but Defendant declined, stating "[they] were fine."

During its argument, the State informed the trial court that Defendant pled guilty in 2015 to a 2011 simple battery of her mother. Evidence of that prior conviction was admitted as State's Exhibit 2. The State also advised the trial court that Defendant had been arrested in 2005 for domestic abuse battery, pled guilty to a drug offense in 2004, and had previously been convicted of criminal mischief and a marijuana offense. Counsel stated that warrants for Defendant's arrest had been issued because she failed to appear for court after being arrested in 2005, 2010, 2011, 2013, and 2015. Finally, Defendant's jail packet, including the affidavit supporting the arrest warrant for the instant charges, was introduced as State's Exhibit 3.

Defendant called Calvin Paul St. Julien, Jr., to testify on her behalf. St. Julien testified that he had two children with Defendant and had known her at least twenty years. He and Defendant were in a romantic relationship and saw each other daily at the time of the offenses. St. Julien testified that Defendant had a history of drug addiction, which began approximately fifteen years earlier, and that Defendant entered a treatment program approximately a year earlier. St. Julien believed Defendant had begun using drugs at some point in the year after leaving the treatment program and was using drugs at the end of April 2018. He also assumed Defendant was using drugs during the time of her prior convictions.

St. Julien testified that Defendant suffered from mental illness and would stop taking her prescribed medication, which often coincided with resumption of her illegal drug use. St. Julien testified that Defendant was one hundred percent better when she was on her medication and that Defendant checked herself into "Vermilion" and got back on the proper medication for her mental illness after the April 25, 2018 incident. St. Julien did not know of Defendant fighting or getting into trouble when she was off drugs.

No other evidence was presented at the hearing. During closing arguments, defense counsel requested that the trial court set reasonable bond and if Defendant was unable to make bond, she be released to an in-patient mental health program or alternatively home incarceration conditioned on her participation in out-patient drug treatment and regular mental health treatment. The trial court denied the request, stating:

[T]he evidence that you [ (defense counsel) ] have presented is that this lady has a mental health condition, this lady has a substance abuse disorder ...
....
[H]ouse arrest with electronic monitoring is insufficient for a person who has this kind of criminal history, and who has a mental health diagnosis and a substance abuse disorder diagnosis.
This lady-the evidence does indicate that this lady presents a significant danger to her mother, and for that reason I will order that she be detained without bond. I am going to order that there be a protective order issued in this case that would be valid for two years.

ASSIGNMENT OF ERROR NO. 1:

In her first assignment of error, Defendant contends the State failed to produce sufficient evidence to establish she was presumptively guilty of the charged crimes, a danger to others, or a flight risk.

We review the denial of bail for abuse of discretion. State v. Jacobs , 12-2737 (La. 12/20/12), 108 So.3d 757. "Under 'Gwen's Law,' a trial court can deny bail if it finds that there is clear and convincing evidence that the defendant either might flee or pose an imminent danger to another or the community[.]" State v. Goodie , 17-693, p. 7 (La.App. 3 Cir. 8/23/17), 226 So.3d 1130, 1134, writ denied , 17-1633 (La. 11/28/17), 229 So.3d 936. Louisiana Code of Criminal Procedure Article 313, commonly referred to as "Gwen's Law," permits a trial court to conduct a contradictory bail hearing before determining the conditions of bail or whether the defendant should be held without bail pending trial:

In addition to the factors listed in Article 316, in determining whether [a] defendant should be admitted to bail pending trial, or in determining the conditions of bail, the [trial] judge [ ] shall consider the following:
(a) The criminal history of the defendant.
(b) The potential threat or danger the defendant poses to the victim, the family of the victim, or to any member of the public, especially children.
(c) Documented history or records of any of the following: substance abuse by the defendant; threats of suicide by the defendant; the defendant's use of force or threats of use of force against any victim; strangulation, forced sex, or controlling the activities of any victim by the defendant; or threats to kill. Documented history or records may include but are not limited to sworn affidavits, police reports, and medical records.

La.Code Crim.P. art. 313(3). Gwen's Law allows the trial court to deny bond if it finds proof "by clear and convincing evidence either that the defendant might flee, or that the defendant poses an imminent danger to any other person or the community." La.Code Crim.P. art. 313(4).

The La.Code Crim.P. art. 316 factors referenced in Gwen's Law require the court to also consider:

(1) The seriousness of the offense charged, including but not limited to whether the offense is a crime of violence or involves a controlled dangerous substance.
(2) The weight of the evidence against the defendant.
(3) The previous criminal record of the defendant.
(4) The ability of the defendant to give bail.
(5) The nature and seriousness of the danger to any other person or the community that would be posed by the defendant's release.
(6) The defendant's voluntary participation in a pretrial drug testing program.
(7) The absence or presence in the defendant of any controlled dangerous substance.
(8) Whether the defendant is currently out on a bail undertaking on a previous felony arrest for which he is awaiting institution of prosecution, arraignment, trial, or sentencing.
(9) Any other circumstances affecting the probability of defendant's appearance.
(10) The type or form of bail.

La.Code Crim.P. art. 316.

Defendant argues the trial court failed to find that the proof offered by the State was evident and that the presumption of her guilt was great, as required by La.Const. art. 1, § 18 before a trial court can deny bail. Louisiana Constitution Article 1, § 18 states, in pertinent part:

(A) Excessive bail shall not be required. Before and during a trial, a person shall be bailable by sufficient surety, except when he is charged with a capital offense and the proof is evident and the presumption of guilt is great...
(B) However, a person charged with a crime of violence as defined by law ... and the proof is evident and the presumption of guilt is great, shall not be bailable if, after a contradictory hearing, the judge [ ] finds by clear and convincing evidence that there is a substantial risk that the person may flee or poses an imminent danger to any other person or the community.

The issue of the applicability of La.Const. art. 1, § 18 was not raised by Defendant in the trial court and is, therefore, not properly before this court for review. Uniform Rules-Courts of Appeal, Rule 1-3.

Defendant also argues the State failed to show by clear and convincing evidence that she posed a future danger to her mother. She alleges the evidence submitted failed to establish it was highly probable that she is a future danger to her mother and the trial court misapplied the clear and convincing standard. In support of this argument, Defendant again notes the State presented no eyewitness testimony but relied on the affidavit for the warrant of arrest, pictures that were submitted without explanation of how they came to be, and Defendant's criminal history.

Although Defendant acknowledges that hearsay is admissible at bond proceedings, she argues that the fact that the evidence is unable to be challenged must be considered in determining the weight to be given to the evidence. Defendant contends she was unable to confront the sources of the State's evidence and unable to ask questions to determine the information's validity.

The provisions of the Louisiana Code of Evidence do not apply to "[p]roceedings with respect to release on bail." La.Code Evid. Art. 1101(C)(2). However, Defendant was entitled to subpoena persons, including the investigating officers, to testify at the Gwen's Law hearing, thus Defendant clearly was not deprived of her ability to confront the sources of the State's evidence. Her failure to exercise her right to subpoena witnesses does not create a deprivation of constitutional rights.

Defendant further argues that past conduct cannot serve as de facto proof of potential, imminent danger in the future. However, criminal history and "[d]ocumented history or records" of the use of threats or force against any victim, which includes but is not limited to sworn affidavits, police reports, and medical records, can be considered by the trial court during a Gwen's Law hearing. See La.Code Crim.P. art. 313(A)(3)(a) and (A)(3)(c).

Sufficiency of the Evidence:

We now address whether the State presented clear and convincing evidence that Defendant was a danger to her mother and find the trial court did not abuse its discretion when it denied Defendant bond. This court addressed evidence sufficient to deny bond during a Gwen's Law hearing in Goodie , 226 So.3d at 1136-37 (footnote omitted):

In State v. Anderson , 17-257 (La.App. 3 Cir. 3/27/17) (unpublished opinion), this court upheld a denial of bail under Gwen's Law following the defendant's arrest for domestic abuse battery, in violation of La.R.S. 14:35.3....
In State v. Choplin , 16-499 (La.App. 3 Cir. 6/17/16) (unpublished opinion), this court ruled that the State failed to present clear and convincing evidence to support the denial of bail under La.Code Crim.P. art. 330.3 in a case where the denial of bail followed an initial arrest for domestic abuse battery. The supreme court disagreed and reinstated the district court's ruling denying bail; it held that evidence the defendant had committed a domestic abuse battery upon the victim while under protective order constituted clear and convincing evidence the defendant presents an imminent danger to the victim. State v. Choplin , 16-1190 (La. 6/24/16), 192 So.3d 779.
....
In State v. Anderson , 06-755 (La.App. 3 Cir. 7/10/06) (unpublished opinion), this court found the trial court did not abuse its discretion in revoking the defendant's bond. The defendant had been charged with domestic abuse battery, simple burglary, two counts of violating a protective order, unauthorized entry of an inhabited dwelling, obstruction of a court order, aggravated assault, and stalking, all pertaining to his ex-wife. After bonding out of jail, the defendant continued to contact his ex-wife.

In State v. Duhon , 18-414 (La.App. 3 Cir. 6/12/18) (unpublished opinion), the trial court ordered the defendant held without bail. The defendant was charged with domestic abuse battery for choking and striking his girlfriend. At the Gwen's Law hearing, the State introduced the defendant's jail packet, read from an arrest affidavit, and informed the trial court that the victim had recanted her statement.

The defendant's jail packet indicated he had a pending charge for simple escape, a 2017 misdemeanor conviction for domestic abuse battery against the same girlfriend, a 2012 conviction for unauthorized entry of an inhabited dwelling, a 2005 second degree battery charge, and a 2001 conviction for simple battery. This court denied the defendant's writ application, concluding the trial court did not abuse its discretion in finding clear and convincing evidence that the defendant was an imminent threat to another considering the defendant's prior conviction for domestic abuse battery against the same victim.

Considering this jurisprudence, the trial court did not abuse its discretion in finding the State presented clear and convincing evidence that Defendant was a danger to the victim.

Defendant further contends the State failed to show by clear and convincing evidence that she might flee. Louisiana Code of Criminal Procedure Article 313(A)(4) (emphasis added) states, in part: "the judge or magistrate may order that the defendant not be admitted to bail, upon proof by clear and convincing evidence either that the defendant might flee, or that the defendant poses an imminent danger to any other person or the community." The disjunctive use of or means the State need not have proven by clear and convincing evidence that Defendant might flee because there was sufficient proof that she posed an imminent danger to the victim.

ASSIGNMENT OF ERROR NO. 2:

In her second assignment of error, Defendant contends the trial court shifted the burden of proof to her and prevented her from presenting relevant evidence, which denied her right to due process.

The first part of Defendant's argument is that she was prevented from introducing evidence relevant to whether she was an imminent danger to another when the trial court sustained several objections to St. Julien's testimony. Defendant asserts that her behavior is drastically different when she is not actively using drugs, and that she checked herself into treatment for drug addiction after the offenses. She claims her behavior when she is not using drugs is the measuring stick a court should use to determine if she is a future danger.

The State objected on grounds of relevance to defense counsel's questioning of St. Julien about his "impressions" of Defendant's living environment at the end of April 2018. That objection was sustained. Defendant lived with the victim at the end of April, and St. Julien's "impressions" of that living environment have no relevance on a bond determination.

When St. Julien was asked by defense counsel how Defendant's drug history changed around the end of April, the State objected on the same basis as previously set forth. That objection was also sustained. After argument from defense counsel, the trial court stated: "[i]f you want to present evidence that you're going to have someone follow this woman around 24/7 to assure [me] that she is not using drugs, then this line of questioning would be relevant. Until that happens it's not relevant."

The State next objected to defense counsel asking St. Julien why the Defendant was using drugs at the end of April. The reason for Defendant's drug use is not relevant to her bond and not a factor for consideration under either La.Code Crim.P. art. 313 or La.Code Crim.P. art. 316.

Defendant also complains about the State's objection to defense counsel's asking St. Julien if the victim had a history of drug use. The trial court sustained the objection, finding it was irrelevant because that would not give anyone "permission to commit a crime against them." Defense counsel claimed the question was asked to show that the victim's drug use led to Defendant's drug use. The trial court stated: "No one can make another individual use drugs." The trial court's finding that the matter was irrelevant was correct, as it is a defendant's behavior at issue at a bond hearing and not that of the victim.

St. Julien testified Defendant went through treatment for drug abuse a year prior. He was then asked how long she was clean and sober. The State objected to the question based on relevancy, and the trial court sustained the objection. In his very next question, defense counsel asked St. Julien to talk about what Defendant was like when she was off drugs. An objection to that question was also sustained. Defense counsel went on to ask St. Julien to talk a little about how Defendant was when she was not using drugs. An objection to that question was sustained. The court told defense counsel that he needed to "try a little more effectively." How long Defendant had been sober may have been relevant to the issue of her bond. However, it is clear Defendant has a long history of drug use and has battered the victim on more than one occasion. St. Julien testified he did not know of Defendant fighting or getting into trouble when she was sober. However, he felt she was using drugs at the end of April and at the time of her prior convictions, which shows a tendency to commit crimes when she uses drugs.

Defendant's second claim is that the trial court considered the lack of evidence presented by her as part of its reason for ruling, impermissibly shifting the burden of production to her. Defendant claims the trial court penalized her for not issuing subpoenas for the officer who wrote the report to testify, not presenting evidence that she was diagnosed with a mental health condition and what that condition was, not presenting what medication she requires and if she was compliant, and not presenting evidence that she participated in a detoxification program after the incidents. Defendant had the burden of presenting a defense to the State's attempt to prove that she should be held without bond, and the trial court did not shift that burden of proof. For the reasons set forth herein, we find Defendant's second assignment of error lacks merit.

CONCLUSION:

Defendant's writ application is denied. We find that the trial court did not abuse its discretion in denying bail to Defendant.

WRIT DENIED.


author: Judge Paula A. Brown

text:
    ROY ANDERSON CORPORATION v. 225 BARONNE COMPLEX, L.L.C.
    NO. 2017-CA-1005
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 11, 2018
    W. Lee Kohler, Douglas A. Kewley, GARDNER & KEWLEY, APLC, 110 Veterans Blvd., Suite 300, Metairie, LA 70005, COUNSEL FOR INTERVENOR/APPELLANT, RONALD FRANKS CONSTRUCTION CO., L.L.C.
    Matthew R. Emmons, Mark W. Frilot, Nicholas R. Pitre, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, 3 Sanctuary Boulevard, Suite 201, Mandeville, LA 70471, COUNSEL FOR DEFENDANT/APPELLEE, 225 BARONNE COMPLEX, LLC
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge Paula A. Brown

This underlying matter involves a dispute arising out of the Louisiana Private Works Act ("LPWA"). Appellant, Ronald Franks Construction Company, L.L.C. ("Franks Construction"), a subcontractor, intervened in the Petition to Enforce Lien and For Damages ("Petition to Enforce Lien") filed by the general contractor, Roy Anderson Corp. ("RAC"), against the property owner, 225 Baronne Complex, L.L.C. ("225 Baronne"). Franks Construction appeals the district court's judgment which granted 225 Baronne's peremptory exception of no right of action, finding that Franks Construction had no right to intervene in the Petition to Enforce Lien. For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

225 Baronne and RAC entered a Contract in the amount of $61,300,000.00 for the renovation and reconstruction of property located at 225 Baronne Street in New Orleans, Louisiana (the "Project"). On March 17, 2014, RAC subcontracted with Franks Construction for Franks Construction to complete certain portions of the work that 225 Baronne had contracted with RAC to perform.

RAC filed a Petition to Enforce Lien on December 21, 2016, alleging that 225 Baronne had failed to pay RAC the total amount due for the work it had performed on the Project. Paragraph 4 of the Petition to Enforce Lien alleged the following:

On November 8, 2013, the Contract was recorded with a Notice of Construction Contract as Instrument No. 2013-42883 with the Recorder of Mortgages for Orleans Parish.

On April 18, 2017, Franks Construction filed a Petition for Intervention (the "Intervention") into the Petition to Enforce Lien, pursuant to La. C.C.P. art. 1091. Franks Construction alleged it was entitled to intervene against both RAC and 225 Baronne to enforce its rights as a third person with an interest in the Petition to Enforce Lien. Franks Construction contended that it had entered into three subcontracts with RAC totaling $6,691,448.00. It alleged that delays, scheduling, and other management problems caused by RAC made it spend an additional 305 days on the Project and incur total damages in the amount of $8,372,629.00. Franks Construction joined with RAC to seek relief for any "pass-through" claims RAC might recover against 225 Baronne. Franks Construction also pled that it had filed a demand for arbitration in December 2016 with the American Arbitration Association ("AAA") against RAC to recover those damages.

225 Baronne filed a peremptory exception of no right of action (the "Exception") in response to the Intervention. 225 Baronne alleged that RAC had furnished and maintained a payment bond (the "Bond") of solvent, legal sureties for the work to be performed under the Contract and attached the Bond to the notice of the Contract that was recorded in the Office of the Recorder of Mortgages for Orleans Parish ("Recorder of Mortgages"). The furnishing of the Bond and the recordation were completed prior to work commencing on the Project in accord with La. R.S. 9:4812(A) of the LPWA. Accordingly, it argued that as the owner, La. R.S. 9:4802(C) relieves it of claims asserted against it by the subcontractor, Franks Construction, which arise from the performance of the Contract. Therefore, Franks Construction did not have a right to intervene in the Petition to Enforce Lien; instead, 225 Baronne urged that Franks Construction's only LPWA remedies were limited to the arbitration action it had filed against RAC and its suit against the Bond.

On June 16, 2017, the district court heard arguments on the Exception, and orally sustained the Exception on the same date. This devolutive appeal followed.

DISCUSSION

"The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit." Two Canal Street Investors, Inc. v. New Orleans Building Corp. , 2016-1306, p. 8 (La. App. 4 Cir. 2/15/17), 212 So.3d 611, 617(citation omitted). As set forth in Louisiana Citizens Prop. Ins. Corp. v. LAA Shoring, LLC , 2016-1136, p. 5 (La. App. 4 Cir. 6/14/17), 223 So.3d 17, 23 :

"The determination of whether a plaintiff has a right of action is a question of law." Mendonca v. Tidewater Inc. , [20]03-1015, p. 3 (La. App. 4 Cir. 12/17/03), 862 So.2d 505, 508. "The standard of review of a trial court's ruling on an exception of no right of action is de novo ." N. Clark, L.L.C. v. Chisesi , [20] 16-0599, p. 3 (La. App. 4 Cir. 12/7/16), 206 So.3d 1013, 1015. "Therefore, this court is required to determine whether the trial court applied the law appropriately." Mendonca , [20]03-1015, p. 3, 862 So.2d at 508.

Franks Construction argues that it was entitled to intervene because the outcome of the Petition to Enforce Lien litigation would have a direct impact on its ability to recover additional funds due Franks Construction on the Project. It further asserts that RAC had informed Franks Construction that Franks Construction's outstanding claims were "pass through" claims that could be recouped only if RAC successfully recovered those claims against 225 Baronne. Therefore, Franks Construction alleges that it had the right to intervene to aggressively protect its own interests.

Franks Construction contends the district court, in sustaining 225 Baronne's Exception, erred in: (1) basing its ruling on evidence which was not made a part of the record; (2) granting the Exception premised on an affirmative defense- La. R.S. 9:4802(C) -rather than an evaluation of Franks Construction's procedural capacity to assert the intervention; (3) failing to evaluate Franks Construction's right to intervene under the criteria enunciated pursuant to La. C.C.P. art. 1091 ; (4) concluding that Franks Construction had no justiciable interest connected to the object of the existing litigation; and (5) dismissing Franks Construction's Intervention with prejudice without affording Franks Construction the opportunity to amend its Intervention to remove the grounds for the Exception. We will discuss each alleged error, although some may be combined for consistency and ease of reading.

Bond Evidence

Franks Construction urges that comments from the district court suggest it granted the Exception based on 225 Baronne's argument that, as the owner of the property, Franks Construction did not have a right of action against it because the Bond had been furnished and the Contract recorded in accordance with La. R.S. 9:4802(C). Our jurisprudence is well-settled that an appeal is taken from a final judgment and not the district court's reasons for judgment; however, an appellate court may consider the reasons for judgment in determining whether the district court committed legal error. Winfield v. Dih , 2001-1357, p. 8 (La. App. 4 Cir. 4/24/02), 816 So.2d 942, 948 (citation omitted).

At the hearing, 225 Baronne represented the following:

"...Roy Anderson at the started[sic] of the project filed a Private Works Act statutory payment bond that exist [sic]in the record. What that does is, is it precludes subcontractors and suppliers like Ronald Franks Construction from filing direct actions against the project owner and so the - - Ronald Franks in enforcing its lien rights has to file suit against the bond which it has in an action in [sic] Eastern District. It's also initiated arbitrate [sic] against Roy Anderson to assert its claim against Roy Anderson.

In a colloquy with counsel for Franks Construction's, the district court inquired:

THE COURT:
But don't you have to go after the bond? I don't understand how you can file suit in this. I'm having a hard time with that. Isn't your only right is to go against the surety bond?
MR. RICHESON:
Yeah. We can also go against Roy Anderson. And we are going against Roy Anderson in the arbitration. (emphasis added).
THE COURT:
Well, I'm going to grant the exception because I just don't think you can do it.

Franks Construction argues that the district court should not have granted the Exception based on the submission of the Bond because 225 Baronne did not offer evidence of the Bond's recordation into evidence. As the burden of proving the grounds for the Exception rests with the mover, Franks Construction contends 225 Baronne did not meet its burden of proof. This assignment of error lacks merit.

La. C.E. art. 201(C) permits a court to take judicial notice of adjudicative facts, whether requested or not. A judicially noticed fact, pursuant to La. C.E. art. 201(B), requires that the fact be one that is not subject to reasonable dispute in that it is (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Established jurisprudence provides that the second criterion-a fact capable of accurate and ready determination-may be established by public records.

Here, the facts establish that Franks Construction, in enforcing its lien rights, filed an action against the Bond in Civil District Court for the Parish of Orleans-which was later removed to the United States District Court for the Eastern District of Louisiana. We also note that RAC's verified Petition to Enforce Lien represents that the Bond was recorded;

and, 225 Baronne's Answer admits that the Bond was recorded. Moreover, Franks Construction does not contest that the Bond was recorded in its Intervention or in its argument before the district court, nor in the present appeal. Similar to other public records, a "trial court may take judicial notice of records in its own Clerk's office." Louisiana Lift & Equipment, Inc. v. Eizel , 33,747, p. 8 (La. App. 2 Cir. 11/1/00), 770 So.2d 859, 864.

Accordingly, we conclude the district court could properly take judicial notice of Franks Construction's Bond action filed in the Civil District Court Clerk's office.

Franks Construction's Right of Action to Intervene

Franks Construction next argues that the district court: (1) erroneously relied on La. R.S. 9:4802(C) in determining it did not have a right of action to intervene in the Petition to Enforce Lien; (2) failed to evaluate its right to intervene pursuant to La. C.C.P. art. 1091 ; and (3) erroneously concluded that Franks Construction had no justiciable interest in connection to the Petition to Enforce Lien.

Franks Construction emphasizes that it meets the criteria to intervene. This Court acknowledges this argument may have merit. Louisiana courts have interpreted La. C.C.P. art. 1091 to allow intervention where a justiciable right exists and that right has a connexity with the facts, circumstances, and objects of the main demand. Harrison v. Gaylord's Nat'l Corp. , 539 So.2d 909, 910 (La. App. 4th Cir. 1989). A "justiciable right" for purposes of La. C.C.P. art. 1091"means the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it." Amoco Prod. Co.v. Columbia Gas Transmission Corp. , 455 So.2d 1260, 1264 (La. App. 4th Cir. 1984). Connexity exists if the intervenor's claim is "so related or connected to the facts or object of the main action that a judgment on the main action will have a direct impact on the intervenor's rights. Id.

Franks Construction's Intervention seeks to recover damages arising out of the Contract between RAC and 225 Baronne, and Franks Construction's subcontract. Franks Construction demonstrates connexity in that any judgment on the Petition to Enforce Lien may directly impact Franks Construction's ability to recover damages for outstanding monies allegedly owed on the Project, including damages for pass-through claims. However, notwithstanding that Franks Construction may meet the criteria to intervene, the issue before us is whether Franks Construction has a right of action to intervene. We answer that inquiry in the negative.

Clearly, two different laws apply to this dispute- La. R.S. 9:4802 and La. C.C.P. art. 1091. Where there is a conflict of laws, Louisiana courts apply La. C.C. art. 13 to resolve the conflict. Thus, we shall apply Article 13 to determine whether the intervention rights afforded by La. C.C.P. art. 1091 or the rights of subcontractors and owners conferred by La. R.S. 9:4802 control whether Franks Construction has a right of action to intervene.

In Pumphrey v. City of New Orleans , the Louisiana Supreme Court espoused the following:

La. Civ.Code art. 13 provides, where two statutes deal with the same subject matter, they should be harmonized if possible.
Kennedy v. Kennedy , [19]96-0732, [19]96-0741 at 699 So.2d at 358 (on rehearing). However, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character. Kennedy , [19]96-0732, [19]96-0741 at p. 2, 699 So.2d at 358.

2005-0979, pp. 11-12 (La. 4/4/06), 925 So.2d 1202, 1210. Therefore, "[a]s a general rule of statutory construction, a specific statute controls over a broader, more general statute." Channelside Services, LLC v. Chrysochoos Group, Inc. , 2015-0064, p. 17 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 761.

Channelside Services considered whether the specific provisions of the Louisiana Limited Liability Act ("LLA") or the general discovery rules enunciated in La. C.C.P. arts. 1421 through 1472 and La. C.C.P. art. 2451 -the judgment debtor examination statute-controlled a judgment creditor's right to obtain certain financial documents from a limited liability company in which the debtor had a membership interest. The debtor, Chrysochoos Group, Inc. ("CGI"), owned a fifty percent membership interest in JTMC Enterprises, LLC ("JTMC"), a limited liability company. Channelside, the judgment creditor, obtained a "charging order" against JTMC for payment of the unsatisfied amount of Channelside's judgment against CGI. Channelside issued a notice of records deposition and subpoena duces tecum to JTMC for the production of various business and financial records. When the documents were not produced, Channelside filed a motion to compel their production and JTMC filed a motion to quash. In support of its motion to compel, Channelside maintained that the requested discovery was needed to enforce the charging order and Channelside's judgment against CGI. In support of its motion to quash, JTMC contended that certain provisions within the LLA expressly restrict the rights of a judgment creditor to inspect the books and records of a member of a LLC. The district court partially granted and partially denied the motion to compel and the motion to quash, ordering JTMC to submit any evidence of indebtedness by JTMC to CGI for an in camera inspection. Both parties appealed.

On appeal, the Channelside Court balanced the rights of the judgment creditor to obtain information allowed by our discovery and judgment debtor statutes against the rights afforded to JTMC under La. R.S. 12:1301, et seq. , of the LLA. The Court noted that Channelside was not a member of the LLC; and as such, found that "[a]ccording to the language of La. R.S. 12:1319, the right to obtain and inspect the LLC's records is reserved to members of the LLC." 2015-0064, p. 15, 194 So.3d at 760. In reversing the partial denial of JTMC's motion to quash and amending the judgment to wholly deny Channelside's motion to compel, the Court opined:

As a general rule of statutory construction, a specific statute controls over a broader, more general statute. See Capital City Press, L.L.C. v. La. State Univ. System Bd. Of Sup'rs , [20]13-2000, [20]13-2001 pp. 12-13 (La. 12/30/14), 168 So.3d 727, 737 (citing Burge v. State , [20]10-2229 (La. 2/11/11), 54 So.3d 1110, 1113 ). Thus, "when two statutes deal with the same subject matter, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character." Id. ; see State v. One 1990 GMC Sierra Classic Truck, VIN No. 1GTCS142XL25052929 , [19]94-0639, pp. 3-4 (La. 11/30/94), 646 So.2d 492, 494-95. Accordingly, we find that the specific provisions of the Louisiana LLC Act are controlling in this case over the more general statutory provisions governing discovery and the examination of judgment debtors and third parties.

2015-0064, pp. 17-18, 194 So.3d at 761.

In City of New Orleans v. Louisiana Assessors' Ret. & Relief Fund , the Supreme Court further expounded on the construction courts should give to statutes as follows:

A statute cannot be interpreted by review of select portions of the statutory scheme. All the words must be read together. As we have repeatedly cautioned, the meaning and intent of a law must be determined by a consideration of the law in its entirety. Moss [v. State], [20]05-1963 at [p.] 15 [ (La.4/4/06) ], 925 So.2d [1185] at 1196 ; Sultana Corporation[v. Jewelers Mut. Ins. Co.], [20]03-0360 at [p.] 4(La.12/3/03), 860 So.2d [1112] at 1116 ; Succession of Boyter, [19] 99-0761, p. 9 (La. 1/7/00), 756 So.2d 1122, 1129. Moreover, in construing statutes, "courts must endeavor to give an interpretation that will give them effectiveness and purpose, rather than one which makes them meaningless." State v. Cunningham , [20]04-0220, pp. 8-9 (La. 6/13/05), 903 So.2d 1110, 1116. State v. Union Tank Car Company , 439 So.2d 377, 382 (La. 1983).
2005-2548, p. 22 (La. 10/1/07), 986 So.2d 1, 18.

In the case sub judice , applying the precepts as discussed in Channelside and Louisiana Assessors , we reach the same result-the specific statutory provisions of La. R.S. 9:4802 prevail over the broader, more general intervention statutes to deprive Franks Construction of a right of action against 225 Baronne.

Franks Construction also argues that La. R.S. 9:4802(C) only confers upon the owner an affirmative defense. As an "affirmative defense," Franks Construction maintains that La. R.S. 9:4802(C) does not automatically proscribe a subcontractor from intervening in an action against the owner. This Court finds no judicial or statutory support for Franks Construction's position that La. R.S. 9:4802(C) bestows on the owner only an affirmative defense.

A statute is a legislatively created law. BLACK'S LAW DICTIONARY (6th ed. 1990). The enactment of a statute is a solemn expression of legislative will. Louisiana Assessors', 2005-2548, p. 20, 986 So.2d at 16. See also La. C.C. art. 2. The legislature enacted the LPWA to provide a mechanism for contractors to recover the costs of labor and other materials from a party with whom there is no contract. See Bradley Elec. Services, Inc.v. 2601, L.L.C. , 2011-0627, p. 2 (La. App. 4 Cir. 12/14/11), 82 So.3d 1242, 1243. La. R.S. 9:4802(A) imposes liability on owners for claims arising out of the performance of work under the contract; and La. R.S. 9:4802(C) expressly creates an "escape hatch" that relieves an owner of liability when an owner complies with its provisions. See Newt Brown, Contractor, Inc. v. Michael Builders, Inc. , 569 So.2d 288, 290 (La. App. 2d Cir. 1990). In interpreting La. R.S. 9:4802(C), established jurisprudence has found that where a notice of contract and bond has been timely filed and properly recorded, such as in the present matter, an owner can avoid personal liability to subcontractors; and the subcontractors' rights are "restricted to [a set amount] against the surety company plus whatever contractual privity rights they may have against the general contractor." Jefferson Door Company, Inc. v. Forman Construction, Inc. , 2002-0941, pp. 5-6 (La. App. 5 Cir. 12/30/02), 836 So.2d 552, 555.

Thus, in the case sub judice , Franks Construction's right to assert an action against 225 Baronne was extinguished once the Bond was furnished and notice of the Contract was filed as delineated in La. R.S. 9:4802(C). Moreover, when we examine the specific reasons the Legislature enacted the LPWA-to delineate and protect the rights and remedies available to parties who engage in construction projects-to provide Franks Construction with a right of action to intervene in the Petition to Enforce Lien would render La. R.S. 9:4802(C) meaningless. It would defeat the legislation's purpose "not only to protect those who furnish the services, labor, or material for the construction of the property for the owner when he fails to comply with the mandates of the law, but also to protect the owners when they comply with the Act's provisions." Flournoy Const. Co., L.L.C. v. Slidella, L.L.C. , No. 04-3098, 2005 WL 1400405, at* 2 (E.D. La. June 9, 2005) (unpub).

Accordingly, the district court did not err in finding that Franks Construction did not have a right of action to intervene in the Petition to Enforce Lien.

Right to Amend

Franks Construction, relying on La. C.C.P. art. 934, argues the district court should have given it the opportunity to amend to remove the grounds for the Exception before dismissing its Intervention with prejudice. The right to amend, however, is not absolute. Smith v. State Farm Ins. Companies , 2003-1580, p. 6 (La. App. 4 Cir. 3/3/04), 869 So.2d 909, 913. While article 934 provides that a judgment sustaining a peremptory exception should permit amendment to the petition when the grounds for the exception can be removed by amendment, amendment is not permitted when it would constitute a vain and useless act. Doe v. Entergy Services, Inc. , 608 So.2d 684, 687 (La. App. 4 Cir. 1992). Here, the district court granted the Exception on the ground that La. R.S. 9:4802(C) afforded Franks Construction no liability action against 225 Baronne once the Bond was furnished, maintained and properly filed in accordance with the statute. Franks Construction cites no facts it could plead in an amended petition that would cure or remove the grounds for granting the Exception. Therefore, amendment would be a vain and useless act.

CONCLUSION

Upon our de novo review, the district court properly applied the law. Pursuant to La. R.S. 9:4802(C) and our general rules of statutory construction, Franks Construction does not have a right of action to intervene in the Petition to Enforce Lien. Accordingly, the judgment of the district court is affirmed.

AFFIRMED

      RAC also filed an Amended Petition to Enforce Lien and For Damages. This opinion shall collectively reference the Petition to Enforce Lien and the Amended Petition to Enforce Lien and For Damages as the "Petition to Enforce Lien."

      Franks Construction sub-subcontracted some of its work with Coryell County Tradesmen, L.L.C. ("CCT").

      RAC alleged it was owed the principal sum of $15,401,300.00.

      La. C.C.P. art. 1091 provides:
      A third party having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
      (1) Joining with plaintiff in demanding the same or similar relief against the defendant;
      (2) Uniting with defendant in resisting the plaintiff's demand; or
      (3) Opposing both plaintiff and defendant.

      Franks Construction itemized its total damages as follows:
      Unpaid Contract Balance $ 742,353.00 Discrete Change Order Requests $ 495,034.00 Incremental RFC Management Costs $ 167,737.00 Incremental CCT Management Costs $ 586,061.00 Incremental CCT Craft Labor Costs $5,937,153.00 Incremental RFC Financing Costs $ 444,291.00 _____________ Total Damages $8,372,629.00

      "Pass-through" claims have been described as damage claims that subcontractors pass through to the contractor to prosecute an action against the project owner to recover those damages. See Jeremy Baker, Pass-Through Claims in Construction Litigation (May 29, 2007), https://www.internationallawoffice.com/.

      La. R.S. 9:4812(A) provides:
      To be entitled to the benefits of the provisions of R.S. 9:4802(C), every owner shall require a general contractor to furnish and maintain a bond of a solvent, legal surety for the work to be performed under the contract. The bond shall be attached to the notice of the contract when it is filed.

      La. R.S. 9:4802 provides in pertinent part:
      A. The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract:
      (1) Subcontractors for the price of their work.
      * * *
      C. The owner is relieved of the claims against him and the privileges securing them when the claims arise from the performance of a contract by a general contractor for whom a bond is given and maintained as required by R.S. 9:4812 and when notice of the contract with the bond attached is properly and timely filed as required by R.S. 9:4811.

      225 Baronne referenced the December 2016 arbitration claim Franks Construction filed against RAC. It also averred that Franks had filed an action against the Bond in the matter of Ronald Franks Construction Company, LLC v. Travelers Casualty and Surety of America , Civil District Court for the Parish of Orleans, Case No. 2016-1139, which was removed to the United States District Court for the Eastern District of Louisiana as Case No. 2017-cv-00309 on January 11, 2017.

      See Mecom v. Mueller , 235 So.2d 597, 599 (La. App. 4th Cir. 1970) (where the Fourth Circuit took judicial notice that the public records reflected the parties had consummated a property sale); see also Tinney v. Lauve , 280 So.2d 588, 590 (La. App. 4th Cir. 1973) (where the Fourth Circuit found defendants' objection to the trial court's search of the public records of the parish lacked merit, noting that "[a] trial court may take judicial notice of the public conveyance records over which it has jurisdiction").

      La. C.C. art. 13 provides: "Laws on the same subject matter must be interpreted in reference to each other."

      La. C.C.P. art. 2451 provides the following:
      A. In aid of execution the judgment creditor may examine the judgment debtor, his books, papers, or documents, upon any matter relating to his property, either as provided in Articles 1421 through 1515 or as provided in Articles 2452 through 2456.
      B. In aid of execution of the judgment, the judgment creditor may also examine any person upon any matter relating to the judgment debtor's property, as provided in Articles 1421 through 1474.

      La. C.C. art. 2 provides: "[l]egislation is a a solemn expression of legislative will."

      La. C.C.P. art. 934 provides: "When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment with the delay allowed by the court."