text:
    Alicia Johnson BUTLER v. BEGNAUDS, LLC, et al.
    19-51
    Court of Appeal of Louisiana, Third Circuit.
    Rendered May 29, 2019
   Ronnie J. Berthelot, The Law Offices of Herschel C. Adcock, Jr., L.L.C., 13541 Tigerbend Road, Baton Rouge, LA 70817, (225) 756-0373, COUNSEL FOR DEFENDANT/APPLICANT: Home Point Financial Corporation f/d/b/a Stonegate Mortgage Corporation

Darleen M. Jacobs, Al A. Sarrat, Rene D. Lovelace, Jacobs, Sarrat, Lovelace, Harris & Matthews, 823 St. Louis Street, New Orleans, LA 70112, (504) 522-0155, COUNSEL FOR PLAINTIFF/RESPONDENT: Alicia Johnson Butler

James Michael Wooderson, Attorney at Law, 903 West University Ave., Lafayette, LA 70506, (337) 504-4434, COUNSEL FOR DEFENDANT/RESPONDENT: Begnauds, LLC Eddie Begnaud Builders, LLC

Patrick M. Wartelle, Leake & Anderson, P. O. Drawer Z, Lafayette, LA 70502, (337) 233-7430, COUNSEL FOR DEFENDANT/RESPONDENT: Begnauds, LLC Eddie Begnaud Builders, LLC

Lloyd J. Durocher, 14336 St. Elmo Road, Erath, LA 70533, COUNSEL FOR DEFENDANT/RESPONDENT: Begnauds, LLC Eddie Begnaud Builders, LLC

Court composed of John D. Saunders, John E. Conery, and Van H. Kyzar, Judges.

SAUNDERS, Judge.

Defendant-relator seeks supervisory writs from the judgment of the Sixteenth Judicial District Court, the Honorable Anthony Thibodeaux presiding, which denied its motion for summary judgment.

STATEMENT OF THE CASE

The instant case arises from a construction loan agreement between plaintiff, Alicia Johnson Butler, and relator, Home Point Financial Corporation f/d/b/a Stonegate Mortgage Corporation. Plaintiff used the money to build a single-family residence. After plaintiff defaulted on the promissory note, she filed a Petition for Breach of Contract, Damages and Attorney's Fees, alleging that various defects existed in the construction of the home.

Plaintiff named relator as one of the defendants, claiming that relator employed an inspection company who failed to properly inspect the construction, and then negligently approved draws under the loan to pay the builder. Plaintiff claims that she relied upon relator to ensure that all advances under the loan would be based upon a finding of good and workmanlike construction.

In response, relator filed a reconventional demand for all sums owed by plaintiff. Relator then filed a motion for summary judgment on the reconventional demand. Following a hearing held on December 14, 2018, the motion was denied. A written judgment was signed on January 18, 2019. Relator is now before this court on writs seeking review of the trial court's ruling.

"The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201." Brown v. Sanders , 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La.Code Civ.P. art. 2083, comment (b), "Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs." (Citation omitted.)

ON THE MERITS

Relator asserts that it acquired all rights, title and interest in a promissory note signed by plaintiff which is secured by a mortgage granted by plaintiff. Plaintiff failed to pay fifteen installments despite default notices sent to her home by relator. Relator contends that plaintiff's petition and supplemental and amending petition concern unliquidated contingent claims-builder deficiencies-that are not yet ready to be proven. Relator's reconventional claim, however, which seeks to prove an obligation that is easily calculated by accepted legal standards is easily confirmed by the production of the note and mortgage and the affidavit of relator's representative to establish the total amount owed. The reconventional demand, relator maintains, should not be delayed by plaintiff's claim.

Next, relator agues plaintiff must raise an issue that is a "new matter" concerning the enforcement of the promissory note and mortgage, citing Bienvenu v. Allstate Insurance Company , 01-2248 (La.App. 4 Cir. 5/8/02), 819 So.2d 1077. In Bienvenu , the court stated, "Louisiana jurisprudence defines an affirmative defense as a defense that 'raises a new matter , which assuming the allegations in the petition are true, constitutes a defense to the action.' Allvend, Inc. v. Payphone Commissions Co., Inc. , 2000-0661, p. 3 (La.App. 4 Cir. 5/23/01), 804 So.2d 27, 29 (emphasis added)." Id. at 1080. Relator maintains that plaintiff cannot assert her builder deficiency action as a new matter to its reconventional demand because plaintiff is not ready, now, to prove her case. Unliquidated, contingent claims as asserted by plaintiff are not defenses to relator's reconventional demand and cannot defeat relator's motion for summary judgment.

Relator also urges that it presented factual support for every legal element of its claim:

1) A certain sum of money was loaned to plaintiff by relator;
2) Plaintiff signed and executed a promissory note evidencing the loan;
3) Plaintiff granted a mortgage securing the loan; and
4) Plaintiff failed/refused to repay the loan per the promissory note.

Relator asserts that the burden now shifts to plaintiff to present evidence to defeat summary judgment.

In support of its argument, relator cites American Bank v. Saxena , 553 So.2d 836 (La.1989), wherein a bank filed three subsequently consolidated actions seeking to enforce five delinquent promissory notes. The borrower filed an answer and a reconventional demand. The supreme court held, in part, that the borrower was not entitled to use tort claims as a setoff against the amount owed to the bank.

Next, relator distinguishes the jurisprudence cited by plaintiff in her opposition to its motion for summary judgment. First, in Ouachita National Bank in Monroe v. Gulf States Land & Development, Inc. , 579 So.2d 1115 (La.App. 2 Cir.), writ denied , 587 So.2d 695 (La.1991), the bank brought an action against borrowers to recover on notes. The lower court granted the bank's motion for partial summary judgment. On appeal, the court held that genuine issues of material fact existed as to whether the commitment letter altered the maturity dates of notes, whether repayment was conditioned on sale of lots in the development, and whether the bank substantially breached the overall agreement to the extent of excusing the borrowers' nonperformance. Although relator herein concedes that some of the issues therein are presented in this case, relator urges that the second circuit case must be juxtaposed with two cases from this court, Malcombe v. LeBlanc , 539 So.2d 665 (La.App. 3 Cir. 1989), and Premier Bank, Nat.'l Ass'n v. Percomex, Inc. , 615 So.2d 41 (La.App. 3 Cir. 1993), both of which are discussed below, and one case from the supreme court, American Bank , 553 So.2d 836. Second, in KeyBank Nat'l Ass'n v. Perkins Rowe Associates, LLC., 823 F.Supp.2d 399 (M.D. La. 2011), aff'd, 502 Fed.Appx. 407 (5th Cir. 2012), a bank brought an action against a subcontractor to determine the ranking of security interests in a real estate development. The bank held a mortgage (the result of an assignment from the mortgagee), and the subcontractor held construction liens. The parties moved for summary judgment to determine the ranking of security interests, and there was no discussion of the types of claims. As such, the relator herein urges this court to disregard the decision in KeyBank .

In Malcombe , 539 So.2d 665, partners/sole stockholders in a health club borrowed money from a bank and executed a demand promissory note evidencing the loan. The loan was secured by stock and a certificate of deposit (CD). When the club began having financial problems, the bank set off the CD to reduce the loan balance. When the financial problems did not resolve, plaintiff and defendant stockholders entered into an act of subrogation to which the bank was not a party. Eventually, plaintiffs filed suit against defendants for breach of the agreement. At this time, plaintiffs also named the bank as a defendant, asserting that the bank did not have the right to a setoff against the CD. The bank filed a reconventional demand, asserting that the collateral pledge agreement provided the right to a setoff. The lower court agreed and granted the bank's motion for summary judgment. On appeal, this court held, in part, that the evidence called into question whether payments on the debt were current at the time of the offset.

In Premier Bank , 615 So.2d 41, the bank brought an action against a debtor and its personal guarantors for a money judgment on promissory notes. The debtor filed a reconventional demand, alleging that the bank damaged the debtor's inventory and breached its implied obligation of good faith by requesting additional collateral and promising to extend the loan for an additional ninety days. The lower court granted summary judgment in favor of the bank, finding that the debtor's defenses and reconventional demand were unliquidated tort claims and had nothing to do with the liability on the promissory notes. On appeal, this court held that the debtor did not deny signing the notes, receiving the money, or pledging collateral as security as required to establish a defense to liability on the notes.

Likewise, relator in the instant matter argues that plaintiff's claim has nothing to do with her obligation to repay the loan she obtained to build her home. Relator complains that plaintiff offered her self-serving affidavit in support of her claim that she should not have to repay the money she borrowed from relator because relator allegedly hired a company to inspect the construction upon which she relied to her detriment. Relator points out that in plaintiff's affidavit, she did not deny: 1) that she signed the promissory note and mortgage, 2) that she approved advances of money under the note to construct her home, and 3) that she failed to pay relator per the terms and conditions of the promissory note. The only reasonable conclusion, relator maintains, is that plaintiff has no defense to her liability under the promissory note and mortgage.

Relator also asserts that the construction loan agreement is clear and unambiguous regarding plaintiff's obligation to ensure that the home was being constructed properly. Relator identifies several excerpts from the agreement wherein plaintiff agreed to notify relator if work was not done correctly and when work was complete. Further, plaintiff agreed to the following:

2.1.7. I Am Responsible for the Work. I have full and sole responsibility to make sure the Work complies with the Plans and all Government Regulations. Lender has no liability, obligation or responsibility for the Work. Lender is not liable for any failure to construct, complete, protect, or insure the Work. Lender is not liable for any costs of the Work....

Relator concludes that plaintiff's claim of detrimental reliance upon relator to ensure all work was done properly before advancing funds is unsupported and contradicted by the loan agreement.

Additionally, relator contends, detrimental reliance is not a defense to its motion for summary judgment. Relator urges that the obligations between it and plaintiff are governed by a credit agreement under Louisiana law. Further, any alleged duty or obligation or theory of recovery cannot form the basis of a new contract when a credit agreement already exists or be implied from the existing contract. La.R.S. 6:1123.

Relator also maintains that the conditions to advances proscribed by the loan agreement in section 2.8.4 cannot be interpreted to modify relator's status as a lender:

2.8.4. Advances; Conditions To Advances. Each of the promises I make in this Loan Agreement shall be considered made again as of the time (i) Lender, or Lender's escrow agent, receives any request from me and Contractor for an Advance ("Request for Advance"); or (ii) I endorse any Loan Proceeds check to Contractor or a Supplier. Lender will hold 10% of each Advance for the Work ("Holdback"). Lender will disburse Holdback only as part of the final Advance. Advances will be made as work is completed and verified by inspection of appraiser or HUD consultant, contractor and borrower - but only if all the following conditions are satisfied: ...

The agreement, relator adds, was prepared by Fannie Mae and is part of the national uniform agreements for this type of loan. Relator avers that the language does not create a contractual duty for the lender as claimed by plaintiff. See Hunter v. Sterling Bank , 750 F.Supp.2d 530 (E.D. Pa. 2010).

Next, relator argues that the standard of review is not manifest error but rather whether the trial court's interpretation of the contract is legally correct or legally incorrect.

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but is, instead, based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect.

Industrial Roofing & Sheet Metal Works, Inc. v. J.C. Dellinger Mem'l Trust , 32,048, pp. 2-3 (La.App. 2 Cir. 8/20/99), 751 So.2d 928, 933, (citations omitted), writs denied , 99-2948, 99-2958 (La. 12/17/99), 752 So.2d 166.

Relator also urges that plaintiff's affidavit supported its motion for summary judgment. Plaintiff testified that relator hired an inspection company to inspect the property which, if true, would have been proper under the loan agreement. Relator points out, however, that there is no evidence that relator inspected the property. Also, relator maintains that an inspection is not material to its motion for summary judgment and is not an affirmative defense upon which plaintiff may rely.

Lastly, relator argues that plaintiff's belated attempt at discovery should not impede its motion for summary judgment. Relator complains that plaintiff's petition has been pending since May 22, 2017, and that she has not conducted any discovery other than propounding interrogatories and requests for production of documents. Further, relator's motion for summary judgment has been pending since October 31, 2017, and again, plaintiff has not conducted any discovery regarding her claims of faulty construction. Relator concludes it has demonstrated that its claim against plaintiff is separate and distinct from her claim against relator and urges that there are no genuine issues of material fact as to its claim.

To date, plaintiff has not filed an opposition to relator's writ application. In her memorandum in opposition to relator's motion for summary judgment, she argued that the key provision relator breached is 2.8.4.2, a subsection of 2.8.4 quoted above. The provision reads as follows:

2.8.4.2. Work Completed; Invoices and Lien Waivers. The Work for which an Advance is requested has been completed in a good and workmanlike manner, and complies with the Construction Contract, the Plans, the Permits, and all Government Regulations.

Plaintiff asserted that relator's argument omits the fact that the note is not the only agreement between plaintiff and relator and that the contract represents the larger agreement between the parties of which the note is a part. Because plaintiff has asserted a claim for the breach of this larger agreement, plaintiff concludes that the claim is a potential defense to the relator's reconventional demand.

Plaintiff also objected to No. 12 of relator's affidavit introduced in support of its motion, which declares that the principal amount owed by Plaintiff to Relator is Four Hundred Five Thousand Eight Hundred Sixty and 10/100 ($ 405,860.10) Dollars. Plaintiff argued that the affiant could not know whether or not she owed anything to relator as it was for the trier of fact to decide.

Next, plaintiff maintains that relator omitted critical distinctions in the jurisprudence concerning the conclusions drawn by the supreme court in American Bank , 553 So.2d 836, citing Ouachita National Bank , 579 So.2d 1115. In Ouachita National Bank , the defendants acknowledged signing the notes at issue. The defendants, however, alleged that their nonperformance under the notes was excused because the plaintiff breached a larger, overall agreement between the parties. The court concluded that the breach of the larger agreement may be a defense because unlike the situation in American Bank (the notes were the only contracts between the parties), the agreement was "decidedly not unrelated to the notes." Id. at 1122. Because the record contained disputed facts regarding the plaintiff's alleged breaches of the overall agreement and whether those breaches were substantial enough to excuse the defendant's non-performance, the court denied summary judgment.

Likewise, plaintiff herein argued that the promissory note at issue herein was not the only agreement between the parties and was part of a larger agreement. Further, plaintiff referred to American Bank , 553 So.2d 836, wherein the plaintiff was unable to produce a letter that was alleged to memorialize an agreement outside the promissory note. As such, plaintiff concludes that relator's breach of the terms of the contract excuses her nonperformance under the note.

In addition to Ouachita National Bank , 579 So.2d 1115, and KeyBank , 823 F.Supp.2d 399, plaintiff cites Geaux Live Digital, L.L.C. v. Taylor and Ross Entertainment, L.L.C. 11-601, 2012 WL 13001902 (M.D. La. 6/27/12), wherein the defendants' unpaid promissory notes were found to be within the context of a larger commercial relationship between the defendants and the plaintiff financier. When the defendants failed to pay on the promissory notes, the plaintiff filed suit on the notes. In turn, the defendant filed a counterclaim for breach of contract-failure to timely disburse funds under the loan agreement resulted in production delays. The plaintiff subsequently moved for summary judgment on the promissory notes. The court, however, found that the alleged breach of the underlying loan agreement by the plaintiff was a valid defense which precluded summary judgment.

In the instant case, plaintiff urged that her claims are not limited to claims of faulty construction as stated by the relator, but include detrimental reliance, relator's responsibility for the inadequate inspection of the property, and breach of contract. These claims, plaintiff concluded, are intertwined with the reconventional demand and should be heard at the same time as the reconventional demand.

CONCLUSION

Relator seeks review of the trial court's January 18, 2019 denial of its motion for summary judgment. In light of plaintiff's argument that the promissory note is part of a larger, overall agreement (the construction loan agreement), along with the language of the agreement, we find no error in the trial court's ruling that relator is not entitled to summary judgment. Accordingly, relator's writ application is denied.

WRIT DENIED.

Conery, J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    Joshua L. ADAMS, et al. v. UNION PACIFIC RAILROAD COMPANY, et al.
    18-903
    Court of Appeal of Louisiana, Third Circuit.
    Rendered May 29, 2019
   Kenneth Warren DeJean, Attorney at Law, Post Office Box 4235, Lafayette, LA 70502, (337) 235-5294, SPECIAL MASTER, William H. Howard, III, Alissa A. Allison, Kathlyn G. Perez, Laura E. Carlisle, Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, (504) 566-5200, COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

H. Alston Johnson, III, Steven J. Levine, Paul LeBlanc, John B. Shortess, Phelps Dunbar, LLP, Post Office Box 4412, Baton Rouge, LA 70821-4412, (225) 346-0285, COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

Antonio M. Clayton, Clayton, Frugé & Ward, 3741 Highway 1 South, Port Allen, LA 70767, (225) 344-7000, COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

Elena A. Pecoraro, Grant F. Freeman, Anna M. Grand, Pecoraro Law Firm, 95 Woods Crossing, Suite 100, Lafayette, LA 70508, (337) 266-2233, COUNSEL FOR DEFENDANT/APPELLANT: Union Pacific Railroad Company

D. Blayne Honeycutt, Colt J. Fore, Hannah Honeycutt Calandro, Fayard & Honeycutt, 519 Florida Avenue, SW, Denham Springs, LA 70726, (225) 664-0304, COUNSEL FOR PLAINTIFF/APPELLEE: Charlene Brown

Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.

PERRET, Judge.

This case is one of several stemming from a train derailment in Lawtell, Louisiana ("Lawtell Derailment") and those injuries suffered by members of the surrounding community. Defendant-Appellant Union Pacific Railroad Company ("Union Pacific") appeals the trial court judgment that awarded Plaintiff, Charlene Brown, damages in the amount of $ 6,400.00. For the following reasons, we amend the award to $ 2,200.00 and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND:

On August 4, 2013, a train derailed near Lawtell, Louisiana. Twenty-six railcars derailed, causing lube oil, dodecanol, and sodium hydroxide solution (also referred to as sulfidic caustic solution), to spill from three of the derailed train cars onto the land and into a nearby drainage ditch. The other derailed cars also contained chemical substances, including vinyl chloride. The derailment prompted a one-mile radius evacuation zone that remained in effect until August 7, 2013. Many of those evacuated were directed to Evangeline Downs and were housed there at the hotel for several days.

Multiple residents, including Plaintiff, Charlene Brown, filed suit on July 11, 2014, against Union Pacific. In the April 1, 2016 case management order, all cases pending in the Louisiana Twenty-Seventh Judicial District Court related to the Lawtell Derailment were consolidated into one division for the purpose of determining liability. Union Pacific stipulated to liability on September 12, 2016, but reserved its causation and damages defenses.

On February 8, 2017, the trial court appointed Kenneth DeJean as Special Master to preside over the causation/damages trials of the pending claims pursuant to La.R.S. 13:4165. The cases were not consolidated and, therefore, each plaintiff's case was tried separately and resulted in separate judgments.

Ms. Brown presented her case-in-chief on June 27, 2017. Union Pacific presented its case on June 27-28, 2017. The Special Master issued his report and recommendation on Ms. Brown's case on October 11, 2017. The Special Master's report summarized Ms. Brown's testimony as follows (citations to the record omitted):

Charlene Brown testified that at the time of the derailment, she was living at 119 McClendon Road, Opelousas, Louisiana, 70570 with her daughter, Lillian Frederick, and John Simien, Sr. At the time of the derailment, she was in her house and heard a loud noise. She then grabbed her shopping list off her refrigerator, got in her car and left her house to head to Opelousas to run some errands and as she was driving away, she saw the derailment. She testified that she panicked when she saw the derailment. She testified that when she drove by the derailment site on the date of the derailment, she saw "like a fog." She testified that when she was leaving her house after the derailment she could smell something. She said it smelled like acid or something burning and her eyes started burning and got red. As a result, she bought and applied some Visine in Opelousas which made the irritation to her eyes subside. She testified that her eyes burned for about 10-15 minutes. She testified that after the derailment, she began suffering from sinus infections.
She was evacuated for three days as a result of the derailment. At the time she left home, after the derailment had occurred, she did not have her heart medicine with her. After she was evacuated, she called John Simien, Sr. and asked him to pick up Lillian from their house and to pick up her heart medicine. She now always keeps her heart medicine on her body. Besides her heart medicine, at the time she was told by the state trooper that she could not go back home, she also did not have her other medications, including her anti-depressants.
She testified that the cleanup process which she witnessed increased her anxiety and depression. She testified that the clean up after the derailment was extensive. She said the derailment caused her to have flashbacks to when her husband was hit by a train in Palmetto, Louisiana in 1996. She testified that before the derailment, she was suffering from anxiety and post-traumatic stress disorder. She testified that she used to drink the water but does not anymore because "it's still brown by times."
She testified that the derailment increased her anxiety substantially and that she was inconvenienced as a result of the derailment. She testified that she had problems before the derailment but they got worse after the derailment. She testified that her daughter, Lillian, was sleeping when she left the house after the derailment. She testified in her deposition that she was not concerned with her daughter, Lillian, at the time of the derailment because Lillian was in college. This was addressed at trial during cross-examination[.]
....
She testified that she had a prior history, five years before the derailment, of taking anti-depressants and anti-anxiety medication.... She testified that although she was concerned about the water, she never had it tested or reached out to anyone in Lawtell about the quality of the water. She testified that when she went back home after the evacuation order was lifted, a representative of DEQ tested her home and said it was safe to enter.
....
She testified that she did not specifically treat with a counselor in relation to the derailment....
She testified that she did not see a doctor in relation to the derailment and no doctor has ever told her that any of her problems are related to the derailment.... Ms. Brown testified that after the derailment, her anxiety issues increased and she experienced physical symptoms such as trouble eating, trouble sleeping and weight loss and that these symptoms still exist today.
She drove into the town of Opelousas after the derailment occurred and called her daughter who was at home and told her about the derailment and told her to stay home. When she tried to go back home, she was then informed by a state trooper that she could not go back into Lawtell and that she had to go to the shelter at Delta, which she did. She remained at the shelter that night until they transferred her to Evangeline Downs around 10:30 p.m. on the night of the derailment.

The Special Master recommended "that the District Court find that causation and damages has been established by the plaintiff, Charlene Brown" and recommended that the trial court award Ms. Brown $ 5,000.00 for "Evacuation/Inconvenience[,]" $ 1,200.00 for "Mental Anguish[,]" and $ 200.00 for "Pain and Suffering" for a total amount of $ 6,400.00 in general damages.

Union Pacific objected to the recommendation alleging that the court should conduct a de novo review, asserting that the Special Master erred in finding causation based on Ms. Brown's self-diagnosed symptoms and that Louisiana law does not recognize a cause of action for mental anguish when there is no risk of actual harm or for negligent infliction of mere inconvenience in the absence of physical injury or property damage.

After a hearing on July 27, 2018, regarding Union Pacific's objection to the Special Master's recommendation, the trial court affirmed the Special Master's recommendation in favor of Ms. Brown, according to La.R.S. 13:4165C(3); awarded $ 6,400.00 plus judicial interest from the date the Petition was filed, July 11, 2014, until paid; and cast all costs, including the Special Master's fees, against Union Pacific. The trial court awarded Ms. Brown a lump sum in the amount of $ 6,400.00, without specifying what damages were included in the award. The trial court's judgment was signed September 6, 2018, and was designated as final and immediately appealable.

On appeal, Union Pacific assigns four assignments of error:

1. The trial court erred in awarding damages to Charlene Brown for physical injuries, absent any evidence showing that the alleged damages were caused by the Lawtell Derailment or exposure to chemicals released during the Lawtell Derailment.
2. The trial court erred in awarding damages to Charlene Brown for mental anguish, absent any accompanying physical injury or property damage.
3. The trial court erred in awarding damages to Charlene Brown based on negligent infliction of inconvenience, absent any accompanying physical injury or property damage.
4. The trial court abused its discretion by awarding $ 5,000.00 for inconvenience.

STANDARD OF REVIEW:

In this case, the trial judge sat as the trier of fact. On appeal, factual findings are not set aside absent manifest error or unless the trial court was clearly wrong. Stobart v. State, Dep't of Transp. and Dev. , 617 So.2d 880 (La.1993) ; Rosell v. ESCO , 549 So.2d 840 (La.1989). To reverse a trial court's factual findings, the appellate court must apply a two-tiered test when reviewing the facts and must find that (1) the record does not establish a reasonable factual basis for the finding of the trial court, and (2) "the record establishes that the finding of the trial court is clearly wrong (manifestly erroneous)." Bradford v. CITGO Petroleum Corp. , 17-296, p. 4 (La.App. 3 Cir. 1/10/18), 237 So.3d 648, 658-59, writ denied , 18-272 (La. 5/11/18), 241 So.3d 314. However, "[i]f the trial court's findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse." Arabie v. CITGO Petroleum Corp. , 10-2605, p. 19 (La. 3/13/12), 89 So.3d 307, 312. Thus, "when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous." Id. This court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. See generally Housley v. Cerise , 579 So.2d 973 (La.1991).

Further, the trial court has much discretion in assessing general damages, and an appellate court should not modify the award unless it is "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[.]" Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La.1993), cert. denied , 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Only if the appellate court finds an abuse of discretion may it examine prior awards of general damages to determine the amount the trier of fact reasonably could award. Theriot v. Allstate Ins. Co. , 625 So.2d 1337, 1340 (La.1993). "In instances where the appellate court is compelled to modify awards, the award will only be disturbed to the extent of lowering or raising an award to the highest or lowest point which is reasonably within the discretion afforded the trial court." Id. at 1340.

DISCUSSION:

Before addressing the merits of Union Pacific's assignments of error, it is worth noting that a lump sum judgment of damages, as we have in this case, "is presumed to award all items of damages claimed, and the 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." Boutte v. Nissan Motor Corp. , 94-1470, p. 12 (La.App. 3 Cir. 9/13/95), 663 So.2d 154, 161.

In this case, Ms. Brown's petition requests the following damages: costs of medical treatment; past, present, and future lost wages; past, present, and future mental anguish; loss of enjoyment of life; inconvenience; nuisance; medical monitoring expenses; contamination to property; trespass; and "[o]ther damages which will be shown at the trial of this matter."

Therefore, Boutte would suggest that we would have to find that the trial court abused its discretion in awarding Ms. Brown $ 6,400.00 in total for her general damages in order to reverse. Nonetheless, because the lump sum of $ 6,400.00 awarded for damages is the full amount that the Special Master recommended on behalf of Ms. Brown, we assume that the trial court adopted the Special Master's recommended pain and suffering, mental anguish, and inconvenience awards of $ 200.00, $ 1,200.00, and $ 5,000.00, respectively.

Recovery for Pain and Suffering:

Union Pacific's first assignment of error argues that the trial court erred in making the factual determination that Ms. Brown suffered physical injury as a result of the train derailment. Union Pacific asserts that Ms. Brown failed to present any expert evidence to establish general or specific causation. In fact, Union Pacific argues that there is no proof regarding whether exposure to these chemicals was even possible in Ms. Brown's circumstances because the chemicals were released in liquid form and there is no evidence Ms. Brown was in the vicinity of that liquid. Additionally, there is no evidence of another pathway of exposure by which Ms. Brown might have been injured. Union Pacific asserts that temporal proximity of symptoms alone is insufficient to prove causation.

Ms. Brown counters that the Material Data Safety Sheets ("MSDS") for the chemicals contained in the train cars were admitted and that there was testimony regarding the MSDS, including an inhalation warning for sodium hydroxide solution. Ms. Brown also argues that she testified to symptoms contemporaneous with the release and that those symptoms were listed on the MSDS.

In Arabie , 89 So.3d at 321, the supreme court explained that "[t]he test for determining the causal relationship between the tortious conduct and subsequent injuries is whether the plaintiff proved through medical testimony that it was more probable than not that the subsequent injuries were caused by the accident." In Bradford , 237 So.3d at 659 (citations omitted), the third circuit noted that "[p]roof of causation in toxic tort cases has two components, general and specific. 'General causation' refers to whether a substance is capable of causing a particular injury or condition in the general population, while 'specific causation' refers to whether a substance caused a particular individual's injury." Further, "cases only establish that expert testimony on causation is required." Id.

The Special Master provided the following pertinent Findings of Fact:

1. A train derailment occurred on August 4, 2013 between the time of 3:20pm and 3:30pm in Lawtell, Louisiana.
2. This derailment involved a train and tracks owned, operated and maintained by the defendant, Union Pacific Railroad Company.
....
5. As a result of this derailment, chemicals were spilled (including lube oil, dodecanol and sodium hydroxide) from some of the derailed train cars.
6. The derailment and its resulting chemical spill and the threat of the spill was the cause of an evacuation order being issued for the residents located within an approximate one mile radius of the derailment with the center of the radius being the derailment site and thus potentially extending that distance from either end of the derailment.
....
8. After the derailment, many of the residents in areas near the derailment developed varying complaints of physical symptoms lasting for varying time periods.

Additionally, the Special Master found, and the record shows, that although air monitoring was conducted, it was not done immediately following the derailment. In fact, state police could not immediately go on the scene of the derailment due to a rain event that occurred shortly after the derailment, which hindered the response. The Center for Toxicology and Environmental Health (CTEH), hired by Union Pacific to primarily conduct air monitoring, did not have any air monitor readings before 8:00 p.m. on the night of the derailment. Further, the rain event caused "wind shifts and water to affect the spilled chemicals and led to their disbursement into the surrounding area and waterways." The rain event, as well as discharge of water by farmers, permitted chemicals to enter the drainage system and Bayou Mallet and travel approximately seven miles, which resulted in the chemicals entering the property of many adjacent landowners. However, members of the response and clean-up crew testified that they did not have any symptoms when they were at the derailment site.

Specifically, as to Ms. Brown, the Special Master found and the record supports:

18. Charlene Brown was evacuated for three days as a result of the derailment.
19. Charlene Brown did not see a doctor in relation to the derailment.
20. Charlene Brown experienced burning eyes for approximately 10-15 minutes after the derailment and the burning subsided after she applied Visine.

The MSDS for lube oil, dodecanol, and sodium hydroxide solution were admitted into evidence, and Mr. Christopher Calvitt, an Environmental Scientist II and lead investigator for the Louisiana Department of Environmental Quality for this derailment, read the MSDS information as his testimony. Mr. Calvitt testified regarding the MSDS for dodecanol as follows:

Says some of the potential health effects of exposure to the eyes would be irritating to the eyes, may cause corneal inflammation, swelling of the eyes. Skin, prolonged skin contact may cause skin irritation or dermatitis. High standards of skin care and personal hygiene should be exercised at all times. Inhalation, states the irritation of nose and throat, dizziness and headache would be possible. As far as ingestion, ingestion of material would cause central nervous system depression. Ingestion may cause gastrointestinal irritation, nausea, vomiting, diarrhea. And aspiration hazard, if swallowed, can enter lungs and cause damages.

He further testified the MSDS for sulfidic caustic solution (or "sodium hydroxide solution") provides as follows:

It states the potential health effects for eye contact will cause marked eye irritation, possible severe corneal damage. Health effects to skin contact would be contact with skin will cause skin irritation or burning sensation. Prolonged contact will result in corrosion of the skin. States skin absorption is unlikely to occur. Ingestion will result in severe burning, corrosion of mouth, throat, gastrointestinal tract. If the ingested material contacts stomach acid, highly toxic hydrogen sulfide will be evolved. It also states inhalation, product solution and vapors contain some highly toxic hydrogen sulfide gas. Exposure to this gas causes headaches, nausea, dizziness and vomiting. Continued exposure can lead to loss of consciousness and death.

Lastly, for lube oil, Mr. Calvitt testified that the MSDS provided:

It states depending on routes of exposure, possibly inhalation, ingestion, skin or eye contact. Of those, eyes may cause slight transient irritation, lacrimation or tears and a burning sensation in the eyes. It also states that skin may have slight - - due to exposure, may have slight irritation. Repeated and prolonged skin contact may cause reddening, itching or inflammation. Inhalation may cause - - under normal circumstances - - conditions, inhalation is not expected to be a problem. However, respiratory tract irritation may occur if exposed to fumes or mists. May cause central nervous system depression or effects....

Mr. Calvitt further testified that MSDS are reviewed in situations such as this train derailment and subsequent chemical spill as a "tool to try to either identify, monitor or protect ourselves against that chemical." However, Mr. Calvitt was not an expert in this case and, therefore, could not provide any expert opinions regarding the chemicals. Mr. Calvitt further testified that he and his team only tested for certain chemicals based on what they were told had been released. Mr. Calvitt personally donned protective eyewear which protects from particulate matter, although he did not test for particulate matter.

Dr. Kelly Scribner with CTEH, testified that while no vinyl chloride was detected before its transfer into another carrier, they did find "instances of low level volatile organic compounds detected periodically throughout these documents, but none above action levels that were established for the work area or for the community." Dr. Scribner also testified that she did not specifically test for dodecanol.

Dr. Scribner also testified regarding the use of MSDS:

Q. ... So, isn't one of the purposes of MSDS to know how people - - I know it's for the industry - - but as in people, when they come in contact with these substances, what to expect?
A. No. They give you the potential of what could happen depending on the scenario. It's not an indicator of expectation, but an indicator of potential.
Q. So, it's what could happen?
A. Yes, right.
Q. So, what you would have to do to find out if it happened is you have to go out, and you would have to get real world evidence; is that correct?
A. If I understand what you are saying, partially, yes.
Q. So, you get the evidence is the smell. MSDS says, if there is such and such release, you might smell a certain thing. So, if that smell is consistent with what you would expect, then that would be evidence that there was that release; wouldn't it be?
A. No, not necessarily.
Q. That's not - - I'm not asking you if it is dispositive of the question. I'm asking you if that would be evidence. Would that be something that you would have to investigate?
A. It's something you would investigate, yes.

Despite the fact that the MSDS and the Hazardous Material Response Information sheets were admitted into evidence and that evidence indicates eye burning as a potential result of the spilled chemicals, Ms. Brown did not submit any expert evidence in support of causation, general or specific.

Although Ms. Brown cites Broussard v. Multi-Chem Group, LLC , 17-985 (La.App. 3 Cir. 7/11/18), 255 So.3d 661, writ denied , 18-1347 (La. 11/14/18), 256 So.3d 258, in support of the finding of causation in this case, the plaintiffs in Broussard provided multiple experts who testified that the smoke plume from the explosion travelled in the areas in which the plaintiffs were and that particulate matter existed for days in the air sampling data. Expert testimony regarding the risk posed by the fire's emissions was also submitted, as well as testimony of a medical doctor who explained that the type of injuries reported by the various plaintiffs more likely than not resulted from exposure to particulate matter and chemicals from the explosion.

Further, in Arceneaux v. CITGO Petroleum Corp. , 18-370 (La.App. 3 Cir. 1/9/19), 263 So.3d 1251, writ denied , 19-228 (La. 4/8/19), 267 So.3d 615, although one plaintiff, Mr. Richard, did not receive medical care, expert testimony was still provided to relate Mr. Richard's symptomology to chemical exposure, in addition to the fact that his symptoms were contemporaneous with his alleged exposure, similar to those indicated on the MSDS introduced into evidence, and similar to those symptoms experienced by other plaintiffs.

In the current case, there were no experts presented to testify on causation. Instead, Ms. Brown relies on the MSDS and the contemporaneous onset of her symptoms. Therefore, without expert testimony to relate Ms. Brown's symptoms to any particular exposure, we find that the trial court was manifestly erroneous in awarding damages for pain and suffering in this case and reduce the general damage award by $ 200.00.

Recovery for Mental Anguish Damages :

Union Pacific argues that to receive mental anguish damages, the plaintiff must also suffer physical injury, property damage, or have special circumstances present that create a likelihood of distress, citing Moresi v. State Through Department of Wildlife and Fisheries , 567 So.2d 1081 (La.1990). Union Pacific first argues that pain and suffering damages were erroneously awarded to Ms. Brown, then argues that the trial court erred in awarding mental anguish damages absent any accompanying physical injury or property damages. Further, Union Pacific argues that Ms. Brown's circumstances do not constitute "special circumstances."

In response, Ms. Brown argues that "due to the special circumstances of the plaintiff, she can recover damages with or without physical injury." She further argues that she can recover mental anguish damages due to her proximity to the event and "contemporaneous reports from reliable sources that the danger is real."

In Moresi , 567 So.2d 1081, the plaintiffs sought "to recover on the basis that defendants' ordinary negligence caused them only mental disturbance." Id. at 1095. The supreme court acknowledged certain circumstances in which recovery has been permitted and noted that the commonalty between those circumstances is "the especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." Id. at 1096. Furthermore, the first circuit in McDonald v. Illinois Central Gulf Railroad Co. , 546 So.2d 1287, 1292 (La.App. 1 Cir.), writs denied , 551 So.2d 1340 (La.1989), awarded damages for mental anguish where "Plaintiffs were both within the 'zone of danger[,]' " and stated that "[m]ore than minimal inconvenience and worry must be shown before damages are awarded."

In this case, the Special Master provided the following additional Findings of Fact:

3. As a result of the derailment, Governor Bobby Jindal issued a proclamation declaring the area a disaster area. This was widely disseminated by the local media and news outlets.
4. The media and local news outlets reported on the derailment and evacuation as well as the threat posed by the chemicals being transported in the rail cars.
5. As a result of this derailment, chemicals were spilled (including lube oil, dodecanol and sodium hydroxide) from some of the derailed train cars.
....
7. As a result of the derailment and resulting chemical spill and/or threat of chemical spill, many of the residents in areas near the derailment and evacuation area were displaced and were required to be evacuated from their homes, property and/or businesses. The result was widespread fear and fright and/or mental anguish and anxiety for many residents within the evacuation zone and extending to many residents located outside of the evacuation zone based on the perception of some residents of a real danger or threat of harm from the derailment and the cargo and contents of some of the tank cars.
....
17. The evacuation order and associated evacuation of residents was a direct result of the train derailment.
18. Charlene Brown was evacuated for three days as a result of the derailment.

Additionally, Ms. Brown testified regarding her mental anguish, which is well summarized by the Special Master above. Ms. Brown heard a loud noise and then left to run errands. In doing so, she smelled a strange odor, like acid or something burning. She passed by the scene of the derailment where she saw a fog and her eyes began burning for ten to fifteen minutes. There were no response units at the derailment site yet. After completing her errands, she was prevented from returning to her home and was sent to a shelter. She was eventually housed in a hotel without her medications. Ms. Brown made a call to have someone collect her daughter who was left at home without a car. Upon being allowed to return home on August 6, 2013, she was accompanied by DEQ personnel who took air readings of several rooms in her home prior to Ms. Brown being allowed inside. Ms. Brown also witnessed the extensive cleanup that occurred. The event brought flashbacks of her husband being hit by a train. The Special Master's report stated that Ms. Brown "testified that the derailment increased her anxiety which she struggled with before the derailment. She testified that this increase in her anxiety led to physical symptoms such as trouble eating, trouble sleeping and weight loss and that these problems still exist today."

The Special Master found, and the trial court accepted, that Ms. Brown's fear was "genuine, serious and reasonable under the circumstances" and "factually distinguishable from Moresi [, 567 So.2d 1081], Bonnette [v. Conoco, Inc. , 01-2767 (La. 1/28/03), 837 So.2d 1219 ] and Howard [v. Union Carbide Corp. , 09-2750 (La. 10/19/10), 50 So.3d 1251]." Specifically, the Special Master notes, "I find that the 'special circumstances' of a train derailment and resulting chemical spill and uncertain threat of [a] chemical spill and evacuation which occurred in close proximity to plaintiff's house are more serious and distressful circumstances than the circumstances presented in the cases of Moresi and Bonnette ."

We also find Bonnette , 837 So.2d 1219, cited by Union Pacific, factually distinguishable because it involved claims for exposure to asbestos, and the fear of developing an asbestos related cancer, and did not involve claims for witnessing the wreckage of a train derailment, spilled chemicals, an emergency proclamation by the governor, emergency response and evacuation, and the lengthy clean-up of that derailment. Similarly, Moresi , 567 So.2d 1081, which involved duck hunters and a note left on the wrong camp by state game agents is also distinguishable for those reasons. After a review of the record, we agree with the Special Master's reasons for awarding Ms. Brown mental anguish damages and also find that Ms. Brown's testimony regarding the train derailment, the uncertain threat of the chemical spill, and the evacuation that occurred within a mile of her home presents the type of special circumstances described by the supreme court in Moresi .

Based on these facts and the mental distress experienced by Ms. Brown, we find no abuse in the trial court's damage award, wherein we assume $ 1,200.00 of the lump sum award is attributable to her claim for mental anguish.

Negligent Infliction of Inconvenience:

Union Pacific argues in its third and fourth assignments of error that the trial court erred in awarding damages to Ms. Brown for negligent infliction of inconvenience, absent any accompanying physical injury or property damage, and when reasonable accommodations are provided. Alternatively, Union Pacific argues that the trial court abused its discretion by awarding Ms. Brown $ 5,000.00 for inconvenience.

In response, Ms. Brown argues that the evacuation resulted in a "temporary deprivation" of her "legally protected interest in her home" and that her inconvenience was "severe." Ms. Brown argues that "[g]iven her inconvenience, evacuation, her proximity to the events described and the resulting complaints, which the trial court credited, the award of" damages is supported by the record.

In McDonald , 546 So.2d 1287, the first circuit agreed with awarding damages for inconvenience, but disagreed with the amount, where the plaintiffs were forced to evacuate following a train derailment that caused explosions and fires which damaged their property. The explosion caused a fire that blew out the front windows of the McDonalds' business, in which Mr. McDonald was working at the time. Mrs. McDonald heard the explosion but was at home when it occurred and did not witness the event. The McDonalds were forced to flee their home and business for two weeks and had to live with relatives. When they could return, the McDonalds spent several weeks cleaning up the mess that was left behind.

On appeal, the first circuit found that an award for the McDonalds' inconvenience was appropriate. Specifically, the first circuit stated:

The inconvenience he [Mr. McDonald] experienced during the evacuation is also compensable, since it is directly related to the derailment. Likewise, Mrs. McDonald is entitled to an award for inconvenience during the two weeks she was forced to stay with relatives during the evacuation. Both were forced out of their home by the derailment and were, even for another two weeks, compelled to spend all their time cleaning up their home and store.

McDonald , 546 So.2d at 1292 (citation omitted).

In In re New Orleans Train Car Leakage Fire Litigation , 00-1919 (La.App. 4 Cir. 4/20/05), 903 So.2d 9, writ denied , 05-1297 (La. 2/3/06), 922 So.2d 1171, the fourth circuit affirmed the finding that damages for inconvenience were appropriate for numerous plaintiffs injured by a leaking tank car fire. The defendants only challenged one of the evacuation/inconvenience awards, that of Jacqueline Thomas. Ms. Thomas "was awarded $ 60,000.00 for physical pain and suffering, $ 25,000.00 for mental anguish, and $ 15,000.00 for evacuation/inconvenience." Id. at 14. The defendants challenged the entirety of her award as being unsupported. Not only did Ms. Thomas experience physical symptoms, she was elderly and caring for five of her grandchildren. She, along with the children, evacuated to an overcrowded shelter that was unsanitary. She did not have time to pack extra clothes and, in fact, continued to wear a shirt soaked with urine because she did not have enough diapers for the baby. When Ms. Thomas returned home, she had to clean the entire house, wash all the clothes, and throw away all the food. The appellate court affirmed the award.

In England v. Fifth Louisiana Levee District , 49,795 (La.App. 2 Cir. 6/3/15), 167 So.3d 1105, the second circuit awarded damages for the plaintiffs' loss of use of property. The second circuit awarded $ 50.00 per day for ten days of inconvenience due to a contaminated water supply plus an additional $ 100.00 for direct expenses for the cost of additional water supplies. The England plaintiffs were forced to make trips to laundry facilities, daily trips to bathe at friends' homes, and trips to purchase bottled water. The second circuit specifically stated that "loss of use of property allows for economic recovery in tort." Id. at 1113.

The evidence in the record to support Ms. Brown's award for inconvenience is Ms. Brown's testimony. She testified that she was not permitted to return home to collect any belongings, including her medications, and that she was evacuated. Ms. Brown came across the derailment scene soon after it occurred, her home was within one and one-half miles from the derailment. Based on these facts, we cannot say that the trial court erred in awarding evacuation/inconvenience general damages to Ms. Brown.

However, as alternatively argued by Union Pacific, we do find that the trial court abused its discretion by awarding Ms. Brown $ 5,000.00 for evacuation/inconvenience where Union Pacific paid for her hotel and food costs during the evacuation and the evacuation only lasted two days.

In support of its argument, Union Pacific cites to McDonald and England to suggest that the highest reasonable award justified by this record is $ 50.00 per day. In McDonald , 546 So.2d 1287, the first circuit concluded that the highest reasonable award permissible for inconvenience, where the plaintiffs were forced to evacuate for two weeks and experienced two weeks of clean-up following a train derailment that caused explosions and fires which damaged their property, was $ 5,000.00 per person for evacuation and inconvenience.

In England , 167 So.3d 1105, the second circuit awarded $ 50.00 per day for ten days for inconvenience damages due to the contaminated water supply plus an additional $ 100.00 for direct expenses for the cost of additional water supplies. The plaintiffs in England were not evacuated but were deprived of the use of water in their homes.

Additionally, the fourth circuit in Adams v. CSX Railroads , 01-114 (La.App. 4 Cir. 4/20/05), 902 So.2d 413, also reviewed the same leaking tank car fire involved in In re New Orleans Train Car Leakage Fire Litigation , 903 So.2d 9. Several plaintiffs sought review of the trial court's denial of their motion for new trial in which they alleged there was no factual basis to support the low damages awarded by the jury. On appeal, only one plaintiff's evacuation/inconvenience damage amount was challenged, that of Sandra August, who received $ 200.00 for physical pain and suffering as well as $ 500 for evacuation/inconvenience. Ms. August evacuated her home in the morning and returned home the following day. She suffered from "eye, nose and throat irritation for two days[.]" Id. at 417. The fourth circuit found no abuse in discretion of the $ 500 awarded for Ms. August's evacuation and inconvenience.

In this case, the only inconvenience suffered by Ms. Brown was having to leave her home for forty-eight hours without collecting any of her belongings. There is no evidence that she had to endure any particular hardship, especially considering that Union Pacific paid all expenses for room and board. Although the courts in In re New Orleans Train Car Leakage Fire Litigation and McDonald support high awards for inconvenience damages, we find these cases distinguishable based on the fact that the plaintiffs in those cases suffered either physical injuries and/or property damages along with their inconvenience damages.

However, we also find the England case distinguishable from the facts of this case because unlike Ms. Brown, the plaintiffs in England were not asked to evacuate and were not displaced from their homes. Instead, Ms. Brown was deprived of the full use and convenience of her home during the evacuation.

Accordingly, based on these facts where Ms. Brown was provided all expenses for room and board, and did not suffer any physical or property damage, we find that the trial court's award of $ 5,000.00 for evacuation/inconvenience was beyond that which a reasonable trier of fact could assess for inconvenience damages to Ms. Brown under these circumstances.

Thus, we hereby amend the evacuation/inconvenience damage award to the highest damage award for inconvenience supported by the record, $ 500.00 per day. Although the Special Master's report states that Ms. Brown was evacuated for three days, the evidence shows that the derailment occurred roughly at 3:30 p.m. on August 4, 2013. Ms. Brown was permitted to return home some time on August 6, 2013, which is the date she signed the Home Re-Entry Form. The records from Evangeline Downs also show Ms. Brown checked out on August 6, 2013, around midday. Thus, we hereby amend the evacuation/inconvenience award to $ 1,000.00.

CONCLUSION:

After a review of the record, we find that the trial court erred in awarding general damages for pain and suffering, based on its adoption of the Special Master's report, and delete that award. We also amend the trial court's evacuation/inconvenience damage award to $ 1,000.00. Thereafter, we affirm the trial court's mental anguish award of $ 1,200.00, for a total award of $ 2,200.00 in general damages to Charlene Brown and against Union Pacific Railroad Company. Costs of this appeal are assessed one-half to Charlene Brown and one-half to Union Pacific.

AMENDED AND, AS AMENDED, AFFIRMED.

      Union Pacific's brief refers to only twenty-three train cars derailing. However, the evidence suggests that an updated report from Union Pacific indicated that twenty-six train cars derailed.

      The appointment of a special master may be made "[p]ursuant to the inherent judicial power of the court and upon its own motion and with the consent of all parties litigant[.]" La.R.S. 13:4165(A). In such capacity, the special master "has and shall exercise the power to regulate all proceedings before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties." La.R.S. 13:4165(B). Such duties may include making "findings of fact or conclusions of law[.]" La. R.S. 13:4165(C)(1).

      Ms. Brown testified that she was not completely unconcerned about Lillian, but that she told Lillian not to go outside and that she would have someone get her from the house. However, as a mother, "yes, I am and was very concerned."

      Although under the authority of La.R.S. 13:4165 the district court empowered the Special Master to make findings of fact and conclusions of law, the Louisiana constitution and laws vest the judicial power in judges to make the final determinations of fact and conclusions of law. See Bordelon v. La. Dep't of Corrections, 398 So.2d 1103 (La.1981). In conformity with that mandate, La.R.S. 13:4165(C)(3) provides, in pertinent part, "After a contradictory hearing, the court may adopt the report, modify it, reject it in whole or in part, receive further evidence, or recommit it with instructions." In the present case, the trial court affirmed the Special Master's findings of fact and conclusions of law. Thus, the trial judge functioned as the ultimate factfinder and adjudicator of the law in this case.

      After a review of the record, we note that the petition filed on behalf of all plaintiffs does not allege damages for pain and suffering-only for medical expenses, which Ms. Brown has none. However, the petition requests "[o]ther damages which will be shown at the trial of this matter." Therefore, we find plaintiffs petition inclusive of pain and suffering damages. Additionally, under La.Code Civ.P. art. 862, relief is granted to "the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief." In fact, Defendants did not and do not object to the pain and suffering award for the reason that it was not pled; they rely only on the argument that Plaintiff failed to prove causation. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading.... failure to so amend does not affect the result of the trial of these issues." La.Code Civ.P. art. 1154.

      However, it is noted that Ms. Brown was not asked and, therefore, did not testify that she observed any of the media reports regarding the derailment.

      Shunta Dickerson was awarded $ 100 for "evacuation expenses [,]" but those damages were not listed as "evacuation/inconvenience" damages as were Ms. August's damages. Adams , 902 So.2d at 417 (emphasis added).


author: PERRY, Judge.

text:
    STATE of Louisiana v. Deandrus JONES, et al.
    18-911 18-909 18-910
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Paul J. deMahy, 2206 Catherine Drive, St. Martinville, Louisiana 70582, (337) 519-5400, Counsel for Defendant/Appellant: American Surety Company
    Keith Stutes, District Attorney, Emilia Salas Pardo, Assistant District Attorney, 800 S. Buchanan St., Lafayette, Louisiana 70501, (337) 232-5170, Counsel for Appellee: State of Louisiana
    Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.
   PERRY, Judge.

American Surety Company ("American") appeals the judgment of the trial court, forfeiting three appearance bonds American, as surety, posted on behalf of Deandrus Jones, its principal. For the reasons set forth in the consolidated case hereto, State of Louisiana v. Deandrus Jones, et al. , 18-909 (La.App. 3 Cir. 6/5/19), --- So.3d ----, 2019 WL 2374002, the trial court's judgment in the current case, appellate docket 18-911, is affirmed. Costs in docket number 18-911 are assessed to American Surety Company.

AFFIRMED.


author: KEATY, Judge.

text:
    Bradley BROUSSARD v. GULFPORT ENERGY CORPORATION, et al.
    18-839
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Randall Kurt Theunissen, S. Brian Perry, Allen & Gooch, Post Office Box 81129, Lafayette, Louisiana 70598-1129, (337) 291-1000, Counsel for Defendants/Appellees: Wet Tech Lighting, Inc., Wet Tech Energy, Inc.
    Robert A. Mahtook, Jr., Mahtook & LaFleur, LLC, Post Office Box 3089, Lafayette, Louisiana 70502-3089, (337) 266-2189, Counsel for Defendant/Appellee: AFX Petrologix, LLC
    Leo Raymond McAloon, III, Gieger, LaBorde & Laperouse, LLC, One Shell Square, 701 Poydras Street, Suite 4800, New Orleans, Louisiana 70139, (504) 561-0400, Counsel for Defendant/Appellee: Shamrock Management, LLC
    Marc D. Moroux, Juneau David, APLC, Post Office Drawer 51268, Lafayette, Louisiana 70505-1268, (337) 261-1408, Counsel for Defendant/Appellee: Gulfport Energy Corporation
    Thomas M. Flanagan, Sean Brady, Andy Dupre, Anders F. Holmgren, Flanagan Partners LLP, 201 St. Charles Avenue, Suite 2405, New Orleans, Louisiana 70170, (504) 569-0235, Counsel for Plaintiff/Appellant: Bradley Broussard
    J. Kyle Findley, Kala Sellers, Adam Lewis, Arnold & Itkin, LLP, 6009 Memorial Drive, Houston, Texas 77007, (713) 222-3800, Counsel for Plaintiff/Appellant: Bradley Broussard
    F. Douglas Ortego, LeBas Law Offices, 201 Rue Iberville, Suite 100, Lafayette, Louisiana 70508, (337) 236-5500, Counsel for Intervenor: American Interstate Insurance Company
    Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Plaintiff/Appellant, Bradley Broussard, appeals the trial court's grant of summary judgment in favor of Defendant/Appellee, Wet Tech Energy, Inc. For the following reasons, the trial court's judgment is reversed.

FACTS AND PROCEDURAL HISTORY

This personal injury matter stems from injuries sustained by Broussard on January 21, 2015, while working in the course and scope of his employment with AFS Petrologix, LLC, on platform 114 in the East Hackberry Field in Calcasieu Lake, State Lease 50. Broussard was inspecting a navigational light on top of a pole when it broke, causing him to fall into the water below and sustain injuries. As a result, Broussard filed an Original Petition for Damages on May 6, 2015, against Gulfport Energy Corporation as the owner and/or operator of the platform based upon negligence and premises liability. Broussard's workers' compensation insurer, American Interstate Insurance Company, filed a Petition of Intervention. On April 26, 2016, Broussard filed his First Amended Petition for Damages, naming Wet Tech Lighting, Inc., Wet Tech Energy, Inc., and Shamrock Management, L.L.C., as additional Defendants. In his amended petition, Broussard alleged that Wet Tech Lighting, Wet Tech Energy, and Shamrock were negligent by failing to properly inspect and maintain the navigational light and pole.

On April 11, 2018, Wet Tech Energy filed a motion for summary judgment, alleging that it was not liable for Broussard's injuries. Broussard filed an opposition memorandum and, alternatively, a motion to continue the summary judgment hearing. Following a hearing on May 14, 2018, the trial court denied Broussard's motion to continue and granted Wet Tech Energy's motion for summary judgment. The trial court's written judgment was signed on May 24, 2018, which Broussard now appeals.

On appeal, Broussard asserts the following assignments of error: (1) The trial court erred in finding the absence of disputed material facts and granting summary judgment as a matter of law and (2) in the alternative, the trial court abused its discretion and erred in refusing to continue the summary judgment hearing.

STANDARD OF REVIEW

The standard of review utilized by an appellate court when reviewing a trial court's grant of a motion for summary judgment is de novo. Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard of review, the appellate court uses the same criteria as the trial court in determining if summary judgment is appropriate pursuant to La.Code Civ.P. art. 966. Id. The criteria enunciated in La.Code Civ.P. art. 966(A)(3) provides that "a motion for summary judgment shall be granted if 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." "A fact is 'material' when its existence or nonexistence may be essential to [a] plaintiff's cause of action under the applicable theory of recovery." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Additionally, a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Id.

Louisiana Code of Civil Procedure Article 966(D)(1) explains the mover's burden of proof on summary judgments as follows:

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.

DISCUSSION

In his second assignment of error, Broussard contends that the trial court erred in refusing to continue the summary judgment hearing because he received less than thirty-days' notice in violation of La.Code Civ.P. art. 966(C)(1)(b). According to Broussard, this article ensures that parties are given at least thirty-days' notice of the setting of a hearing on a motion for summary judgment. He asserts that this mandatory pre-hearing notice was not afforded to him.

In opposition, Wet Tech Energy contends that the article at issue states that the time limits must be followed unless otherwise agreed to by all of the parties and the court. It points to Broussard's handling of the case, including the filing of an opposition addressing the merits and appearing at the hearing to argue his position. According to Wet Tech Energy, Broussard's foregoing actions reveal that no prejudice occurred and that he waived any objection he may have had regarding the timing of the hearing.

Notice of a hearing on a motion for summary judgment is discussed in La.Code Civ.P. art. 966, as follows:

C. (1) Unless otherwise agreed to by all of the parties and the court:
....
(b) Notice of the hearing date shall be served on all parties in accordance with Article 1313(C) or 1314 not less than thirty days prior to the hearing.

On review, the record reveals that April 24, 2018 is when Broussard's counsel received notice of the hearing scheduled for May 14, 2018. Thus, receipt of the notice was less than thirty days in violation of La.Code Civ.P. art. 966(C)(1)(b). At the hearing and in its memoranda filed in the trial court proceeding, Wet Tech Energy argued that Broussard waived his right to the thirty-day notice requirement because he filed an opposition memorandum. Wet Tech Energy also pointed to the language in La.Code Civ.P. art. 966(C)(1) wherein an exception to the thirty-day notice requirement exists when otherwise "agreed to by all of the parties and the court[.]"

In this case, the record shows that Broussard never agreed to a waiver of the thirty-day notice requirement. Rather, in his opposition memorandum, he objected and asserted that the hearing "fail[ed] to comply with the required notice under Art. 966(C)(1)(b)" and that he "was not provided the minimum amount of notice, 30 days, as required." Broussard argued that the "current hearing should be continued." At the hearing on the motion for summary judgment, Broussard advised the trial court that he sought a continuance because of Wet Tech Energy's failure to provide the requisite thirty-days' notice.

We recognize that La.Code Civ.P. art. 966(C)(1)(b) requires that notice "shall" be provided thirty days prior to the hearing. In Lewis v. Old Republic Insurance Co. , 17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, this court explained the meaning of "shall" under La.Code Civ.P. art. 966(B), the provision governing the procedure for filing, opposing, and replying to a motion for summary judgment. This court in Lewis , 226 So.3d at 559, held:

As amended, Article 966(B) allows a trial court to extend the deadline with the agreement of all parties. This condition clearly was not fulfilled; Relator objected to the late filing of the opposition. The trial court, therefore, had no discretion to allow this late filing. The refusal of the trial court to entertain Respondents'
late filings was mandated by La.Code Civ.P. art. 966.

Similar to Lewis , there was no agreement between Broussard and Wet Tech Energy to change the thirty-day notice requirement provided in La.Code Civ.P. art. 966(C)(1)(b). This is evident based upon Broussard's repeated objections. The trial court, therefore, had no discretion to allow the summary judgment hearing to occur on May 14, 2018. Accordingly, this assignment of error has merit, and the summary judgment is reversed. In light of our holding, we decline to address Broussard's first assignment of error.

DECREE

For the above reasons, the trial court's judgment granting the motion for summary judgment in favor of Defendant/Appellee, Wet Tech Energy, Inc., is reversed. All costs associated with this appeal are assessed to Defendant/Appellee, Wet Tech Energy, Inc.

REVERSED.


author: EZELL, Judge.

text:
    Lisa SMITH-ASEKOMEH v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT
    CA 19-69
    Court of Appeal of Louisiana, Third Circuit.
    June 5, 2019
    Robert A. Mahtook, Jr., Kay Theunissen, Julie I. Faulk, Mahtook & LaFleur, L.L.C., P. O. Box 3089, Lafayette, LA 70502-3089, (337) 266-2189, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City-Parish Consolidated Government
    John Jefcoat, Holly Lamarche, Galloway Jefcoat, L.L.P., P. O. Box 61550, Lafayette, LA 70596-1550, (337) 984-8020, COUNSEL FOR PLAINTIFF/APPELLANT: Lisa Smith-Asekomeh
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie, Judges.
   EZELL, Judge.

Lisa Smith-Asekomeh appeals a trial court judgment granting summary judgment in favor of the Lafayette City-Parish Consolidated Government (LCG). She claims that summary judgment should be reversed because there are questions of material fact concerning the fault of Jackie Green, a bus driver for the Lafayette Transit System. For the following reasons, we reverse the judgment of the trial court.

FACTS

On April 18, 2015, Ms. Smith-Asekomeh was a passenger on an LCG bus. Jackie Green was driving the bus on Lafayette Transit System Route #50. She had recently been hired by LCG as a driver so her supervisor, Jason Ledet, was on board the bus to train her. Mr. Ledet explained that they were in the process of route training Ms. Green. She initially trained without passengers, but on April 18 there were passengers on the bus.

Mr. Ledet explained that Route #50 starts at the bus terminal. One of the stops is in the Walmart parking lot located on Buchanan Street. Ms. Smith-Asekomeh traveled on the bus to go to Walmart the afternoon of the incident at issue. She did some shopping at Walmart. After Ms. Smith-Asekomeh finished shopping, she got back on the same bus with several grocery bags. Ms. Smith-Asekomeh took the first forward facing seat behind the driver. There were two seats in front of her facing the aisle that could be flipped up to allow for handicap seating. Mr. Ledet was standing on the yellow line in the aisle in the front near the driver holding the post.

After the bus left Walmart, it made a right on Pierce Street. From Pierce Street, the bus would take a left onto Willow Street, which is where the incident took place. Ms. Smith-Asekomeh could not see what was happening because Mr. Ledet was standing in aisle, and the bus driver was seated in front of her. Mr. Ledet testified that they were at the red light in the left lane to turn left onto Willow. The turn lane does not have a green arrow light. When the light turned green, the bus proceeded to take a left.

Ms. Green had to put on her brakes to avoid a collision with a car coming from the opposite direction. Ms. Smith-Asekomeh testified she flew forward, her arm hit the armrest on the chair in front of her, and then she slammed back into her seat.

Ms. Smith-Asekomeh never reported to Ms. Green or Mr. Ledet that she was hurt. The bus continued its route. After she got off the bus, Ms. Smith-Asekomeh dropped her bags off at her house and then walked to her mother's house. Her mother called an ambulance. When the ambulance arrived, Ms. Smith-Asekomeh walked to it and got into the ambulance. Her mother rode with her to the emergency room. Ms. Smith-Asekomeh testified that she was in great pain the next day.

Ms. Smith-Asekomeh filed suit against the LCG on October 26, 2015. On February 27, 2018, the LCG filed a motion for summary judgment. A hearing on the motion was held on October 29, 2018. The trial court granted the motion for summary judgment and dismissed Ms. Smith-Asekomeh's petition on November 8, 2018. Ms. Smith-Asekomeh then filed the present appeal.

SUMMARY JUDGMENT

Ms. Smith-Asekomeh claims the trial court erred in granting the LCG's motion for summary judgment. She argues that there are genuine issues of material fact regarding Ms. Green's fault in performing a left-hand turn.

The summary judgment procedure is favored and "designed to secure the just, speedy, and inexpensive determination of every action[.]" La.Code Civ.P. art. 966(A)(2). Appellate courts review the grant or denial of a motion for summary judgment de novo, "using the same criteria that govern the trial court's determination of whether summary judgment is appropriate; i.e. , whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law." Samaha v. Rau , 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882-83 ; La.Code Civ.P. art. 966(A)(3).

The moving party has the burden of proof unless the mover "will not bear the burden of proof at trial on the issues that is before the court on the motion for summary judgment." La.Code Civ.P. art. 966(D)(1). In that case, the mover need only "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." Id.

"The owner and operator of a public bus is considered a common carrier, and owes a heightened standard of care to the passengers he or she undertakes to transport." Williams v. Lafayette City-Parish Consol. Gov't. , 11-281, pp. 8-9 (La.App. 3 Cir. 10/5/11), 72 So.3d 1023, 1030, writ denied , 11-2473 (La. 2/3/12), 79 So.3d 1027 (citing Lewis v. City of Shreveport , 43,249 (La.App. 2 Cir. 6/4/08), 985 So.2d 1249, writ denied , 08-1477 (La. 10/3/08), 992 So.2d 1018 and Amos v. St. Martin Parish Sch. Bd. , 00-808 (La.App. 3 Cir. 12/6/00), 773 So.2d 300 ). "Although a common carrier is not an insurer of its passengers' safety, the carrier is required to exercise the highest degree of care and is liable for the slightest negligence." Id. (quoting Lewis v. City of Shreveport , 43,249, p. 2 (La.App. 2 Cir. 6/4/08), 985 So.2d 1249, 1250, writ denied , 08-1477 (La. 10/3/08), 992 So.2d 1018 ).

The trial court found that the testimony introduced in support of the motion for summary judgment established that Ms. Green stopped in response to a sudden emergency produced by the actions of an oncoming vehicle. The trial court also concluded that Ms. Green did not make a left turn in violation of La.R.S. 32:101.

Louisiana Revised Statutes 32:101(A)(2) provides:

Left turns on two-way roadways. At any intersection where traffic is permitted to move in both directions on each roadway entering the intersection, an approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof and by passing to the right of such center line where it enters the intersection and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the center line of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.

"No person shall turn a vehicle at an intersection ... until such movement can be made with reasonable safety." La.R.S. 32:104(A). Louisiana Revised Statutes 32:122 further provides that: "The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard."

A left turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety. Agency Rent-A-Car, Inc. v. Hamm , 401 So.2d 1259 (La. App. 1 Cir. 1981). A left-turning motorist involved in an accident is burdened with a presumption of liability and the motorist must show that he is free of negligence.

Rabon v. Smithkors , 17-502, p. 6 (La.App. 3 Cir. 1/18/18), 238 So.3d 1013, 1017, writ denied , 18-294 (La. 4/27/18), 241 So.3d 310 (quoting Thomas v. Champion Ins. Co. , 603 So.2d 765, 767 (La.App. 3 Cir. 1992) ).

Ms. Green testified that the bus was at the traffic light on Pierce waiting for it to change to green so she could make a left turn onto Willow. The intersection did not have a green arrow. There was a car "opposite of mine, it was at the light, too. So, I was giving him the right-of-way first to go before I turned." The light changed from red to green, and she began to enter the intersection. Explaining, Ms. Green stated, "I was going to make my turn, but I let him ... [g]o across first, but when I went, he went." She proceeded to make the turn, but the car on opposite side swerved his car at her. This is when she applied her brakes and let him proceed.

Mr. Ledet knew the bus was stopped at the intersection before turning left, but could not recall if the light was red or green. Mr. Ledet saw the car approaching before the bus entered the intersection. He testified that he was shocked the vehicle was coming so fast. This is when he indicated to Ms. Green to stop the bus.

The LCG argues that it is absolved of liability because Ms. Green was faced with a sudden emergency and had to avoid a collision with the vehicle in the oncoming lanes that was speeding and swerved into her lane.

[T]he sudden emergency doctrine is available to a person who finds himself in a position of imminent peril and does not have sufficient time to consider and weigh all of the best means available to avoid that impending danger; such a person is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to be the better method, unless the emergency is brought about by his own negligence.

Stelly v. Nat. Union Fire Ins. Co. , 18-293, p. 10 (La.App. 3 Cir. 2/6/19), 266 So.3d 395, 403.

Based on the testimonies of both Ms. Green and Mr. Ledet, we find that there are genuine issues of material fact. Ms. Green testified that both the bus and the car were stopped at the red light, yet Mr. Ledet testified that the car was approaching fast. Ms. Green testifies that she was going to let the other car pass, as she is required by law to do, yet she started her approach in to the intersection.

Utilizing a de novo standard of review, we find that there are genuine issues of material fact, and the LCG was not entitled to summary judgment regarding the fault of Ms. Green in making a left-hand turn. We reverse the grant of summary judgment in favor of the LCG and remand this case for further proceedings. Costs of this appeal are assessed to the LCG.

REVERSED AND REMANDED.