text:
    LAW OFFICE OF BRIAN E. CRAWFORD, L.L.C., Plaintiff-Appellant v. WINNSBORO ELEVATOR, L.L.C., Noble Ellington, and Ryan Ellington, Defendants-Appellees
    No. 52,096-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018.
    MATHERNE & DAVIS, By: Valerie Van Matherne, Lauren Pickett Davis, Shreveport, Counsel for Appellant
    JAMES MATTHEW HOLLIS, Counsel for Appellees
    Before PITMAN, GARRETT, and COX, JJ.
   GARRETT, J.

The plaintiff, the Law Office of Brian E. Crawford, L.L.C., appeals from a trial court judgment that rejected its open account claim against two individuals. The trial court found that the plaintiff failed to provide sufficient corroborating evidence required by La. C.C. art. 1846 to prove an oral contract to represent the individual members of a limited liability company. Finding no error by the trial court, we affirm the trial court judgment, which dismissed the plaintiff's claims against the individual defendants.

FACTS

From the trial testimony of Brian Crawford ("Brian"), we glean the following. Over the years, Brian performed legal work on behalf of Winnsboro Elevator, L.L.C. ("Winnsboro"), a company in the grain elevator storage business, and its agents and officers, Noble E. Ellington, Jr., and his son, Ryan Ellington. While both were members of the company, Ryan was the manager of the elevator. Brian testified that, in the first litigation he handled for them, the company and both men were his clients, but the company was the only named party.

At some point, Winnsboro sold the facilities that formerly housed its operations and the grain stored in the silos to Lakeland Grain Company; ultimately, Agspring purchased those assets. Agspring filed suit against Lakeland and Winnsboro, alleging that some of the grain sold to them was spoiled and that the two companies, through their officers and directors, had failed to disclose the condition of the grain, thereby reducing the value of the purchased assets.

In the summer of 2014, Brian met with Noble and Ryan about this lawsuit and agreed to represent them. Because Winnsboro was essentially defunct and had no funds, consideration was given to not defending against the suit. Due to the possibility of personal liability against Noble and Ryan as members and managers, Brian did not agree with this course of action. In August 2014, Noble requested that Brian prepare an estimated budget for the case in the event that it went through discovery and trial. The budget, which estimated costs of $46,175, was emailed to Noble, who responded, "A good bit more than we thought!" Nonetheless, Brian provided representation in the case. Brian performed various legal services, including representing Noble and Ryan at their depositions. Although they were not named as defendants, there were allegations that they knowingly or negligently failed to disclose the condition of the grain. The case eventually settled in about November 2015. According to Brian, the settlement documents identified Noble and Ryan as members and managers of Winnsboro and released them from any individual responsibility. Winnsboro was relieved of paying any money unless it secured settlements in unrelated cases involving BP and Syngenta.

At the conclusion of the litigation, Brian sought payment of his legal bills. He had numerous conversations with Ryan and Noble. The Ellingtons told him that they were still having financial difficulty and that they would pay him when they received funds from settlements in the unrelated claims involving BP and Syngenta. (Brian was not involved as counsel in either of those cases.) Brian also sent several demand letters which were addressed to Ryan and Noble. The first demand letter, which was dated December 21, 2015, stated that, due to Noble and Ryan's assertion that Winnsboro had no funds, the plaintiff had agreed to forgo monthly payment of bills and allow them to pay when they were able to do so. However, the letter recited a conversation between Brian and Noble wherein Noble indicated "that he understood that payment would not be required for these legal services until, or unless, settlement was reached in either the BP or Syngenta cases." Brian stated in the letter that there was no such agreement and that he would have never agreed to such a contingency on an hourly rate case.

In October 2016, the plaintiff filed this lawsuit on open account, against Winnsboro, Noble and Ryan. The petition asserted that the defendants owed legal fees in the amount of $47,338.24, together with interest and attorney fees and costs, pursuant to La. R.S. 9:2781. It alleged that the defendants agreed to pay an hourly rate of $225 for attorney work and $90 per hour for paralegal work, plus reimbursement of expenses incurred by the plaintiff, and that they were sent monthly invoices itemizing the work performed and the amount charged. The total debt was $47,473.24; the only payment made was $135 in July 2014. Attached to the petition were a statement dated July 31, 2016, showing the balance owed of $47,338.24; copies of five demand letters; and copies of the law firm's detail transaction file list showing the billable hours and amounts owed. A verification and affidavit by the law firm's bookkeeper affirmed the correctness of the petition and the accuracy of the monthly statement and detail transaction file list.

The defendants filed a general denial answer. Noble and Ryan also filed an exception of no right of action in which they claimed that they never entered into any contractual relationship with the plaintiff in their personal capacities and that the plaintiff never represented them in their personal capacities. They maintained that any legal services were performed solely on behalf of the company. The exception was withdrawn immediately prior to the trial on the merits held on April 3, 2017.

Only two witnesses testified-the law firm's bookkeeper and Brian. The bookkeeper verified the monthly invoices for the legal work, and they were admitted into evidence. She also stated that the invoices showed "Winnsboro Elevator LLC/Agspring" as the client, and that no invoices had Noble's or Ryan's personal names on them. The only payment received was a check for $135 from Winnsboro in July 2014. In his testimony, Brian set forth the history of his legal work for the defendants, as explained above. He considered Noble and Ryan to be longtime friends and valued clients. Because he trusted them to pay their legal fees, he did not require them to execute a personal guaranty agreement for his representation. He testified that the Ellingtons orally guaranteed Winnsboro's debt and that he would not have accepted representation had they not done so. The demand letters and the email exchange with the proposed budget were admitted during his testimony. Noble and Ryan did not testify or present any evidence. Their attorney maintained that the plaintiff's evidence was legally insufficient to establish a case against even Winnsboro, much less the Ellingtons individually, as being responsible for the amounts claimed. The trial court took the matter under advisement.

On June 14, 2017, the trial court issued lengthy written reasons for judgment. It ruled that only Winnsboro, but not the Ellingtons, owed the debt to the plaintiff. In so ruling, the trial court found that the plaintiff had failed to carry its burden of proof under La. C.C. art. 1846, which requires that an oral contract in excess of $500 be proven by "at least one witness and other corroborating circumstances." After reviewing the jurisprudence, the trial court concluded that the billing statements and demand letters generated by the plaintiff were insufficient corroboration of an oral contract between the plaintiff and the Ellingtons. It found that the check from Winnsboro in partial payment of the legal fees and the emails corroborated the agreement between the plaintiff and Winnsboro, but not the Ellingtons in their personal capacities. It noted that the budget attached to an email referenced "Winnsboro Elevator/Agspring" with no mention of the Ellingtons. Finally, the trial court stated that there was no oral contract by which the Ellingtons guaranteed Winnsboro's debt because La. C.C. art. 3038 required a contract of suretyship to be express and in writing, and La. C.C. art. 1847 prohibited parol evidence to establish a promise to pay a third person's debt. The trial court noted that it had no reason to doubt the veracity of Brian's testimony, but that it was required to follow the applicable law.

Judgment was signed on August 17, 2017, against Winnsboro in the amount of $47,338.24, together with legal interest from date of judicial demand until paid, together with attorney fees of $15,000 and costs. The plaintiff's claims against Noble and Ryan were dismissed with prejudice. On appeal, the plaintiff claims that the trial court erred in its ruling.

LAW

La. C.C. art. 1846 states:

When a writing is not required by law, a contract not reduced to writing, for a price or, in the absence of a price, for a value not in excess of five hundred dollars may be proved by competent evidence.
If the price or value is in excess of five hundred dollars, the contract must be proved by at least one witness and other corroborating circumstances.

It is well settled that a party in the litigation may serve as his own "credible witness" in fulfilling the requirements of this article. Lakewood Estates Homeowner's Ass'n, Inc. v. Markle , 2002-1864 (La. App. 4 Cir. 4/30/03), 847 So.2d 633, writ denied , 2003-1511 (La. 9/26/03), 854 So.2d 362 ; Deubler Elec. Inc. v. Knockers of Louisiana, Inc. , 95-372 (La. App. 5 Cir. 11/15/95), 665 So.2d 481. However, the corroborating circumstances that are required must come from a source other than the plaintiff. Regel L. Bisso, L.L.C. v. Stortz , 11-25 (La. App. 5 Cir. 10/25/11), 77 So.3d 1033 ; Lakewood Estates Homeowner's Ass'n, Inc. v. Markle , supra . Whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact. Lakewood Estates Homeowner's Ass'n, Inc. v. Markle , supra .

A party may offer his own testimony in support of a claim of an oral contract in excess of $500, but must show other circumstances which corroborate his claim. Although corroboration is required, only general corroboration must be shown, not independent proof of every detail of his testimony. The question of whether evidence offered by the plaintiff corroborates his claim under an oral contract is a finding to be made by the trier of fact, and is therefore not subject to reversal unless clearly wrong. Taylor v. Dowden , 563 So.2d 1294 (La. App. 3 Cir. 1990), writ denied , 568 So.2d 1057 (La. 1990) ; Lakewood Estates Homeowner's Ass'n, Inc. v. Markle , supra ; Lee Eyster & Associates, Inc. v. Favor , 504 So.2d 580 (La. App. 4 Cir. 1987), writ denied , 507 So.2d 232 (La. 1987) ; Deubler Elec. Inc. v. Knockers of Louisiana, Inc. , supra .See also Hilliard v. Yarbrough , 488 So.2d 1038 (La. App. 2 Cir. 1986).

An obligation to pay the debt of another, as guarantor or surety, must be in writing. Cole v. Joshua , 575 So.2d 859 (La. App. 2 Cir. 1991) ; Deubler Elec. Inc. v. Knockers of Louisiana, Inc. , supra .

DISCUSSION

In brief, the plaintiff argues that the testimony and the evidence it presented pertaining to the attorney/client relationship with the Ellingtons were credible and unchallenged. At oral argument, it contended that it submitted sufficient corroborating evidence.

The plaintiff has failed to distinguish the law relied upon by the trial court or explain to this court why we are not obligated to follow it. The fact that the trial court found Brian to be a credible witness is not sufficient to satisfy the plaintiff's burden of proof in the instant case. See Hilliard v. Yarbrough , supra ; Deubler Elec. Inc. v. Knockers of Louisiana, Inc. , supra . La. C.C. art. 1846 requires corroboration for a contract in excess of $500. The testimony of the attorney and the submission of demand letters attested to by him are insufficient under La. C.C. art. 1846. See Regel L. Bisso, L.L.C. v. Stortz , supra . Our review of the email exchange between Brian and Noble, which was admitted during Brian's testimony, fails to reveal anything indicating that Noble and Ryan agreed to Brian representing them individually or that they agreed to be personally responsible for paying the company's legal bill. The same is true of the invoices attested to by the firm's bookkeeper and admitted into evidence through her testimony.

Like the trial court, we are constrained to find that the plaintiff failed to carry its burden of proof as to the individual defendants. The trial court made factual findings based upon the testimony and evidence adduced at trial. We find no error in the trial court's ruling. Accordingly, we affirm the trial court judgment granting the plaintiff recovery against the company but not against the Ellingtons individually.

CONCLUSION

The trial court judgment is affirmed. Costs of this appeal are assessed to the appellant, the Law Office of Brian E. Crawford, L.L.C.

AFFIRMED.

      The law firm's detail transaction file list contained several references to depositions, including a "1442 deposition" (an organization deposition under La. C.C.P. art. 1442 ).

      Unfortunately, no documents from this litigation or the prior case in which Brian provided representation were admitted at trial.

      In Price Farms, Inc. v. McCurdy , 45,409 (La. App. 2 Cir. 7/7/10), 42 So.3d 1099, this court discussed several examples found in the jurisprudence of evidence that successfully supplied corroboration under La. C.C. art. 1846 (or its predecessor, La. C.C. art. 2277 ). They included: the testimony of a second witness giving an eyewitness account of the making of the contract (Dennis Miller Pest Controls, Inc. v. Wells , 320 So.2d 590 (La. App. 4 Cir. 1975), writ denied , 323 So.2d 806 (La. 1976), and Dunham v. Dunham , 467 So.2d 555 (La. App. 1 Cir. 1985), writs denied , 469 So.2d 989, 990 (La. 1985) ); and prior contracts between parties which corroborated the testimony of one of them concerning the making of another contract by the same parties (James M. Vardaman & Co. v. Ponder , 443 So.2d 697 (La. App. 1 Cir. 1983), writ denied , 446 So.2d 317 (La. 1984) ).


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    Gilda WOODS v. WINN-DIXIE MONTGOMERY, L.L.C., The Coca-Cola Company a.k.a. Louisiana Coca-Cola Bottling Company a.k.a. Coca-Cola Refreshments USA, Inc., and Jonathan Burden
    NO. 17-CA-707
    Court of Appeal of Louisiana, Fifth Circuit.
    June 27, 2018
    COUNSEL FOR PLAINTIFF/APPELLEE, GILDA WOODS, Lloyd N. Frischhertz, Jr., New Orleans, Marc L. Frischhertz, Anthony J. Impastato, New Orleans
    COUNSEL FOR DEFENDANT/APPELLANT, WINN-DIXIE MONTGOMERY, L.L.C., THE COCA-COLA COMPANY A.K.A. LOUISIANA COCA-COLA BOTTLING COMPANY A.K.A. COCA-COLA REFRESHMENTS USA, INC., AND JONATHAN BURDEN, Quentin F. Urquhart, Jr., Christopher T. Whelen, Matthew J. Averill, New Orleans
    Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Stephen J. Windhorst
   JOHNSON, J.

Defendants/Appellants, Winn-Dixie Montgomery, L.L.C. (hereinafter referred to as "Winn-Dixie"), the Coca-Cola Company a.k.a. Louisiana Coca-Cola Bottling Company a.k.a. Coca-Cola Refreshments USA, Inc. (hereinafter referred to as "Coca-Cola"), and Jonathan Burden appeal the judgment that found them at fault for a slip and fall and awarded damages in favor of Plaintiff/Appellee, Gilda Woods, from the 29th Judicial District Court, Division "D". For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The pertinent facts for this appeal are as follows:

On October 8, 2013, Jonathan Burden was employed by Coca-Cola as a Merchandiser assigned to the Winn-Dixie store located on Highway 90 in Luling, Louisiana. After arriving at the store and conducting a survey of the items that needed to be restocked, Mr. Burden began the process of moving the merchandise from the warehouse to the beverage aisle and stocking the shelves. At approximately 2:24 p.m., he removed two cases of Monster Energy drinks that were on top of one of the stacks of merchandise and placed them on the floor, so he could retrieve four cases of Coca-Cola that were under the Monster Energy drinks. Mr. Burden then left the beverage aisle with the Coca-Cola cases, leaving the Monster Energy drinks on the floor for approximately 30 minutes.

Meanwhile, a few customers, including Ms. Woods, traversed the beverage aisle. Ms. Woods specifically went to Winn-Dixie that day to purchase soft drinks that were on sale. While walking down the aisle, Ms. Woods pulled the shopping cart behind her with her right arm because her left arm had recently undergone rotator cuff surgery and was in a medical sling. When she found the desired drinks, Ms. Woods began to place a couple of cases in her shopping cart. A female customer also on the beverage aisle noticed Ms. Woods struggling with the drinks and offered to assist Ms. Woods. As the customer placed a case of drinks in Ms. Woods' cart, Ms. Wood took a step backward, near the Monster Energy drinks, to give the customer space. When the customer went to place a second case of drinks in Ms. Woods' cart, Ms. Woods took another step backward to avoid being hit in her left arm by the case of drinks being placed in the cart. As she stepped back the second time, Ms. Woods tripped over the Monster Energy drinks that were left on the floor by Mr. Burden.

An ambulance had to be called to Winn-Dixie to transport Ms. Woods to the hospital.

On July 14, 2014, Ms. Woods filed a "Petition for Damages." In her petition, Ms. Woods alleged Mr. Burden was negligent for creating an unreasonable risk of harm by leaving the Monster Energy drinks on the floor; Winn-Dixie and Coca-Cola were vicariously liable for Mr. Burden's negligence; and Winn-Dixie was liable pursuant to La. R.S. 9:2800.6 for failing to exercise a reasonable effort to keep its premises free from hazardous conditions. Ms. Woods further alleged that she sustained severe and disabling injuries and damages resulting from Defendants' negligent actions. Defendants filed a joint "Answer" to Ms. Woods' petition, denying the allegations of negligence. The matter was set for a jury trial on June 12, 2017.

At the conclusion of the trial, the jury rendered the following verdict determinations according to a preponderance of the evidence: a condition existed at the Winn-Dixie store that presented an unreasonable risk of harm and the risk of harm was foreseeable; Mr. Burden, along with Coca-Cola, was negligent in leaving the Monster Energy drinks on the floor of the aisle at Winn-Dixie; the negligence of Mr. Burden was a proximate cause of injuries to Ms. Woods. The jury further found Ms. Woods was not negligent in her conduct. The jury allocated 50% fault to Winn-Dixie and 50% fault to Mr. Burden and Coca-Cola for the injuries sustained by Ms. Woods. The jury then awarded Ms. Woods a total award of $877,102 for full and fair compensation. On June 20, 2017, the trial court adopted the jury's verdict and rendered a judgment in favor of Ms. Woods. Winn-Dixie was found liable for $438,551 in damages, and Mr. Burden and Coca-Cola were found liable for the other $438,551 in damages, together with legal interest from the date of judicial demand until paid and costs pursuant to La. C.C.P. art. 1920. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Defendants assign the following errors: 1) the trial court erred in failing to properly instruct the jury on the law governing an open and obvious condition; 2) alternatively, the jury clearly erred in failing to allocate any comparative fault to Ms. Woods; and 3) in the further alternative, the jury's award of $620,000 in general damages was abusively high.

LAW AND ANALYSIS

Jury Instructions

Defendants allege the trial court erred in failing to properly instruct the jury on the law governing an open and obvious condition. Defendants argue the trial court simply buried the phrase "obviousness and apparentness" in a laundry list of other factors that the jury was to consider when making a determination as to whether the condition at issue constituted an unreasonable risk of harm. They contend that whether a condition is open and obvious is an essential, fact-based, and outcome-determinative issue, and the importance of making a factual finding as to whether the condition at issue was "open and obvious" was glossed over in a laundry list of other factors that the jury was to consider. Defendants further argue that the erroneous instructions and omission of a proper statement of the law governing open and obvious conditions by the trial court prevented the jury from adequately considering the key issue in this case, thus creating a manifest error. They request that the jury verdict be set aside and a de novo review be conducted by this Court.

Conversely, Ms. Woods maintains the trial court properly instructed the jury in the instruction, and the final version of the jury instruction in question was, in substance, exacted as Defendants requested during the charge conference. She avers that the jury was properly instructed as to the risk/utility balancing test, which Defendants considered to be a laundry list, to determine whether the store's condition presented an unreasonable risk of harm. She further avers that the jury charges proposed by Defendants were inaccurate statements of the law and were properly rejected. Because the jury instruction adequately informed the jury on the law applicable to the case, Ms. Woods asserts there is no ground to reverse the jury's verdict and conduct a de novo review.

This Court, in Oregan v. Cashio , 16-563 (La. App. 5 Cir. 4/26/17), 220 So.3d 845, 849-50, provided the following law regarding jury instructions:

Louisiana Code of Civil Procedure Article 1792(B) requires that a trial judge instruct the jury on the law applicable to the case submitted to them. "The trial judge is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law it deems inappropriate." Trial courts are given broad discretion in formulating jury instructions and a trial court's judgment should not be reversed so long as the charge correctly states the substance of the law.
The trial judge is under no obligation to give any specific jury instruction that may be submitted by either party; however, the judge must correctly charge the jury. The question considered on review is whether the trial judge adequately instructed the jury; specifically, whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice.
Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. When deficiencies in the jury instructions are raised on appeal, the appellate court must consider the instruction as a whole to determine if the jury charges adequately provided the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberations. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.
A de novo review of the record is only warranted when the jury charges are so incorrect or inadequate that the jury was barred from reaching a verdict based on the law and the facts. Otherwise, the manifest error standard of review applies to determine if the trial court erred in omitting the requested instruction.

(Internal citations omitted).

In this matter, Defendants proposed three jury instructions relating to a condition that is an unreasonable risk of harm:

DEFENDANTS' PROPOSED JURY CHARGE NO. 7
Under Louisiana law, a defendant generally does not have a duty to protect against that which is obvious and apparent. When a condition is open and obvious to all, it does not present an unreasonable danger.
DEFENDANTS' PROPOSED JURY CHARGE NO. 8
A person is deemed to have seen that which a reasonably prudent person could have seen or should have seen under the same or similar circumstances.
DEFENDANTS' PROPOSED JURY CHARGE NO. 9 The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A merchant is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a customer as it was to the merchant.

During the jury charge conference, the trial judge heard extensive arguments of the parties concerning the unreasonable risk of harm jury instructions. Defendants insisted the jury instruction give special focus to the law regarding open and obvious conditions. A reading of the transcript from the jury charge conference clearly shows the trial judge sought to fairly incorporate the proposed language of the parties with the applicable laws. Ultimately, the trial judge charged the jury with the following instructions:

While a store owner is not the insurer of the safety of his customers, he owes them an affirmative duty to use ordinary care to keep the aisles, passageways, and floors in a reasonably safe condition. The duty includes reasonable inspection of the premises for defects and obstructions to passageways, and reasonable warning of perils, which the customer may not see through the exercise of ordinary care. However, a patron in a self-service store, reasonably assumes that the aisles are clear for passage and focuses on the displayed merchandise, not on the pathway.
There is no fixed rule for determining whether a condition presents an unreasonable risk of harm. To assist you in determining whether an unreasonable harm exists, you should consider and weigh the purpose which the thing served, its utility and effectiveness for that purpose, the likelihood that it would cause harm, including the obviousness and apparentness of the condition, and the severity of the harm that it was likely to cause.
* * *
In this case, the standard applicable to the Plaintiff's conduct is the requirement that she exercise that degree of care, which we might reasonably expect a person to exercise for her own safety and protection. On this issue, the Defendants have the burden of proof.

Defendants then noted their objection to the jury instructions because they failed to include their proposed wording in charges seven, eight, and nine.

The question of whether a defect presents an unreasonable risk of harm is a mixed question of law and fact that is to be determined by the trier of fact, either the jury or the court in a bench trial. Broussard v. State, through Office of State Bldgs., Div. of Admin. , 12-1238 (La. 4/5/13), 113 So.3d 175, 183 ; Falcon v. Surcouf , 17-212, pp. 14-15 (La. App. 5 Cir. 12/27/17), 236 So.3d 716. The inquiry is " 'a matter wed to the facts' and must be determined in light of facts and circumstance of each particular case." Id. To assist the fact finder in determining whether the condition of a thing creates an unreasonable risk of harm, the Louisiana Supreme Court has synthesized a risk-utility balancing test that considers four pertinent factors:

1) the utility of the complained-of condition; 2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; 3) the cost of preventing the harm; and 4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Broussard , 113 So.3d at 184.

The second factor of the risk-utility test focuses on whether the allegedly dangerous or defective condition was obvious and apparent. Bufkin v. Felipe's La., L.L.C. , 14-288 (La. 10/15/14), 171 So.3d 851, 856. Generally, a defendant does not have a duty to protect against that which is obvious and apparent. Id. If the facts of a particular case show that the complained-of condition should be obvious to all who encounter it, then the condition may not be unreasonably dangerous, and there may be no duty owed to the plaintiff. Broussard , supra ; see also , Upton v. Rouse's Enter., LLC , 15-484 (La. App. 5 Cir. 2/24/16), 186 So.3d 1195, 1200, writ denied , 16-580 (La. 5/13/16), 191 So.3d 1057. However, a person's knowledge or awareness of the risk created by the defendant's conduct should not operate as a total bar to recovery in a case where the defendant would otherwise be liable to the plaintiff. Id. at 188-89.

After review of the jury instructions and applicable law, we cannot find the trial court abused its broad discretion in formulating the unreasonable risk of harm jury instructions. As acknowledged by Defendants during the jury charge conference, the trial court's jury instructions listed the pertinent factors of the risk-utility balancing test and were effectively "a compression of Broussard ." Additionally, as proposed by Defendants, the instructions expressly mentioned the obviousness and apparentness factor of the inquiry. While Defendants argue the inclusion of the instruction that an open and obvious to all condition would have been an outcome-determinative basis to find them free from fault, that instruction would not have been in full agreement with the jurisprudence, as the condition may not have been unreasonably dangerous. See , Broussard , supra . Accordingly, we find the instructions adequately formulated by the trial judge provided the correct principles of law for the jury to apply to this case; thus, a de novo review of the record is not warranted.

Comparative Fault

Defendants allege, alternatively, that the jury clearly erred in failing to allocate any comparative fault to Ms. Woods. They argue that the jury's failure to allocate any fault to Ms. Woods goes against the clear weight of the evidence, which plainly demonstrates that Ms. Woods failed to exercise reasonable precautions for her own safety, e.g. , she was in a store approximately two weeks after undergoing rotator cuff surgery on her left shoulder picking up a case of soft drinks. Defendants contend Ms. Woods failed to remain aware of her surroundings as she stepped backwards and fell over cases of Monster Energy drinks that she had previously maneuvered around. As a result, Defendants argue that an allocation of 100% fault to Ms. Woods in bringing about her own injuries is warranted, but an allocation of 75% fault should be the minimum apportionment made based upon the record.

In opposition, Ms. Woods maintains that the jury's allocation of fault in this matter was not manifestly erroneous. She avers that the jury's finding of fault is supported by a reasonable factual basis because her actions did not constitute any negligence. Ms. Woods contends that Dennis Howard, an expert safety consultant, provided uncontroverted testimony that she did nothing to contribute to her fall, and the unattended drinks on the floor constituted an unreasonably dangerous condition. She further contends that Winn-Dixie's own floor safety documents and incident report clearly stated that the drinks upon which Ms. Woods tripped constituted a tripping hazard, and the surveillance video showed Ms. Woods behaving as an ordinary shopper. Ms. Woods asserts that the evidence presented to the jury on this issue supports the jury's findings that she was free from fault and that Defendants were 100% at fault.

As indicated in the "Jury Interrogatories," the jury in this matter did not find a preponderance of the evidence proved that Ms. Woods' conduct was negligent. Moreover, the jury did not allocate any percentage of fault to Ms. Woods and, therefore, essentially found that Ms. Woods' conduct did not contribute to the cause of the accident or her resulting injuries. However, the jury allocated 50% fault to Winn-Dixie and 50% fault to Mr. Burden and Coca-Cola.

A trier of fact's findings as to percentages of fault are factual and, in the absence of clear or manifest error, must be upheld on appeal. Warden v. Richoux (La. App. 5 Cir. 3/23/10), 40 So.3d 139, 147, writ denied , 10-921 (La. 6/25/10), 38 So.3d 340. Allocation of fault is not an exact science or the search for one precise ratio, but rather an acceptable range, and any allocation by the fact finder within the range cannot be clearly wrong. Herbert v. Rapides Par. Police Jury , 06-2001 (La. 1/16/08), 974 So.2d 635, 655, rehearing denied , (La. 3/7/08). The trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed. Id. , citing Watson v. State Farm and Cas. Ins. Co. , 469 So.2d 967, 974 (La. 1985).

At trial, Ms. Woods presented the testimony of Dennis Howard, who was accepted by the trial court as an expert in comprehensive general practice with experience in accident prevention in grocery store settings. Mr. Howard testified that it is an industry standard that aisles are kept clear without leaving products unattended on the floor, particularly not at a low level, because that causes a tripping hazard for the shoppers. He concluded that the cases of drinks left in the shopping aisle by Mr. Burden created a hazard and unreasonably dangerous condition if not seen and avoided by a shopper, and the positioning of the cased drinks in the pedestrian's pathway was the root cause of Ms. Woods' fall. Mr. Howard opined that Ms. Woods did nothing unexpected of the average shopper, as it is not uncommon for customers to step backwards on aisles to view merchandise. Mr. Howard further opined that Ms. Woods did not act unreasonably in any way.

In reference to Winn-Dixie, Mr. Howard testified to Winn-Dixie's safety policies regarding hazards. He stated that the policy for aisle and stack displays is a minimum of 36 in. because merchandise left at a lower height creates a tripping hazard. He attested that he did not see any evidence of Winn-Dixie inspecting the area of the incident during the time Mr. Burden left the cased drinks unattended on the floor. He further attested that Winn-Dixie should have ensured that all vendors participating in merchandising in its store were informed of its safety policies, and the Winn-Dixie store manager, Marie Kingsmill, failed to effectively inspect and correct the unsafe condition created by Mr. Burden.

Ms. Kingsmill testified that, according to Winn-Dixie's floor safety policy, drinks are not to be left unattended in the aisle. She stated that Winn-Dixie team members are trained to place aisle and stack displays at a minimum of 36 in. high to avoid tripping hazards. She also stated that it is a team effort of the Winn-Dixie employees to notice any unsafe condition in the store. Ms. Kingsmill verified that after her investigation of the matter, her incident report indicated that Ms. Woods' fall was caused by an unsafe act and the leaving of the drinks on the floor unattended by Mr. Burden was the unsafe act.

After review of the evidence, we cannot find the jury was manifestly erroneous in its allocation of fault. Mr. Howard testified that Ms. Woods did not act unreasonably in any way on the day in question. Defendants did not present any evidence to refute Mr. Howard's opinion as to how a reasonable person would have reacted in that situation. Mr. Howard's testimony, coupled with Ms. Kingsmill's testimony concerning her incident report and Winn-Dixie's floor safety policies, support the jury's allocation of fault. The jury weighed the evidence presented to it and rendered its determination on the fault of each of the parties. (See , Thistlethwaite v. Gonzalez , 12-130 (La. App. 5 Cir. 12/18/12), 106 So.3d 238, 254, rehearing denied , (La. App. 5 Cir. 2/14/13), where this Court held, "As the trier of fact, the jury weighs the expert testimony, just as it weighs other evidence. The jury ha[s] great discretion to accept or reject both expert and lay testimony.") Furthermore, we note that the jury was adequately instructed by the trial judge on comparative fault and the standard for possibly finding Ms. Woods at fault. Accordingly, we find the jury was not erroneous in determining Ms. Woods was not at fault for her fall.

General Damages Award

Defendants allege the jury's total award of $620,000 in general damages is abusively high and is clearly excessive under the facts of this case. They argue that other than shopping and playing softball, which she already could not play because of her previously torn rotator cuff, Ms. Woods could not identify any specific activities from which she was prevented from engaging. They also argue that Ms. Woods testified that her shoulder and neck surgeries were successful and had good outcomes. Under those conditions, Defendants contend that a $620,000 general damages award was clearly an abuse of discretion.

Ms. Woods maintains the jury award is not abusively high. She avers the jury was presented with ample evidence of her two separate surgeries, a second arthroscopic rotator cuff repair and a three level cervical fusion in her cervical spine, and the multiple ways the accident-resulting in injuries and extensive treatment-have affected her life. She further avers that her treating physicians testified to the grueling nature of the surgeries and the permanent condition she will live with for the rest of her life. As such, Ms. Woods asserts that the jury's award is supported by the evidence presented at trial and should be affirmed by this Court.

"General damages are those which may not be fixed with pecuniary exactitude; instead, they 'involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms.' " Bellard v. Am. Cent. Ins. Co. , 07-1335 (La. 4/18/08), 980 So.2d 654, 674, quoting Duncan v. Kansas City Southern Railway Co. , 00-66 (La. 10/30/00), 773 So.2d 670. The assessment of the appropriate amount of damages, by a trial judge or jury, is a determination of fact, one entitled to great deference on review. Joseph v. Neth. Ins. Co. , 15-549 (La. App. 5 Cir. 2/24/16), 187 So.3d 517, 519, citing Wainwright v. Fontenot , 00-492 (La. 10/17/00), 774 So.2d 70, 74. The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Id.

Before a court of appeal can disturb an award made by a fact finder, the record must clearly reveal that the trier of fact abused its discretion in making its award. Thibodeaux v. Donnell , 16-570 (La. 1/20/17), 219 So.3d 274, 278, citing Coco v. Winston Industries, Inc. , 341 So.2d 332, 332 (La. 1976). Only after making the finding that the record supports the notion that the lower court abused its great discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point reasonably within the discretion afforded that court. Id. (See also , Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1260 (La. 1993), where the Louisiana Supreme Court found, "Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.") It is never appropriate for a court of appeal, having found that the trial court has abused its discretion, to simply decide what it considers an appropriate award on the basis of the evidence. Thibodeaux , supra .

At trial, Ms. Woods testified that she was 59 years old at the time of the incident. Although she had back, shoulder, and neck pain prior to the incident that was either sporadic or resolved, Ms. Woods testified that the pain worsened after her fall in the store. After the incident, Ms. Woods had to undergo a second arthroscopic rotator cuff repair on her left shoulder for the severe pain she experienced in that shoulder. She received an injection in her neck to relieve her neck pain, but the injection did not resolve the pain and she had to have surgery. She had the three level cervical fusion performed to resolve her pain and had to wear a collar for some time. However, Ms. Woods stated that she still has pain in her neck. As a result of the neck surgery, Ms. Woods stated that she developed a scar on the incision area that causes her pain. The scar makes it uncomfortable for her to eat and talk, and she has the sensation that something is always lodged in her throat. Ms. Woods also stated that the complications from her Bell's palsy worsened after the surgery because it affected the nerves in her face.

Ms. Woods testified that the cervical fusion aged her, and it was a very hard recovery for her. She maintained that her entire lifestyle has been changed due to her surgery. She loved to shop, play softball, and attend church, but she is hindered from being active. Ms. Woods further testified that the injuries resulting from the fall have affected her sleep. She sleeps better in a lounge chair and had not slept in her bed in a long time.

Dr. Everett Robert was admitted as an expert in the field of neurosurgery. He testified that, during the surgery he performed on Ms. Woods' spine, an incision being made in her neck; her carotid artery was moved outside of her neck; and her trachea and esophagus were moved in the other direction. The surgery was complicated because of Ms. Woods' huge jugular vein, which Dr. Robert had to work around. As a result of the incision made on Ms. Woods' neck, a keloidformed, which can cause pain. Dr. Robert testified that Ms. Woods' neck is never going to be "normal." He confirmed that, although the surgery eliminated the radicular pain Ms. Woods was experiencing, she was left with residual neck pain and may have to live with that pain for the rest of her life. Dr. Robert opined that Ms. Woods' fall in Winn-Dixie not only caused her neck pain but also caused the onset of the right upper-extremity pain, an exacerbation to her underlying back condition, and the need for surgery.

At the conclusion of the trial, the jury in this matter awarded the following general damages to Ms. Woods:

Past pain and suffering $250,000 Future pain and suffering $50,000 Past mental/emotional anguish $200,000 Future mental/emotional anguish $50,000 Loss of enjoyment of life $70,000

After review, we find the record does not clearly reveal that the jury in this matter abused its discretion in determining the amounts of the general damages. Ms. Woods' testimony explained the complications and lifestyle changes she has endured from the injuries and surgeries resulting from her fall in Winn-Dixie. She expressed the amount of pain she continues to experience and the effects of the pain on her lifestyle. Dr. Robert's testimony confirmed Ms. Woods' complaints of neck pain and gave the bleak prognosis that she may have to live with the pain for the rest of her life. Therefore, based upon all of the evidence presented, we cannot find the jury abused its discretion in its award of general damages to Ms. Woods.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court that ruled in favor of Plaintiff/Appellee, Gilda Woods, and against Appellants/Defendants, Winn-Dixie Montgomery, L.L.C., the Coca-Cola Company a.k.a. Louisiana Coca-Cola Bottling Company a.k.a. Coca-Cola Refreshments USA, Inc., and Jonathan Burden. Defendants are assessed the costs of this appeal.

AFFIRMED

      In this position, Mr. Burden was responsible for stocking store shelves with various Coca-Cola brand products.

      The cases of drinks were left near the shelf but were not flush against it.

      Winn-Dixie's surveillance system recorded the entire incident.

      At the conclusion of the jury charge conference, defense counsel acknowledge the trial judge's efforts to reach a compromise in effectively charging the jury by stating:
      Your Honor, I, I think the charges we proposed are more appropriate, but, but I'm satisfied that at least that the compromise gets us closer to there...I can make my objection for the Record, but I-I think your Honor's suggested charge, at least, makes the point of open and obvious.

      The reasoning behind this general principle is that, when a condition is open and obvious to all who encounter it, "[t]he probability of injury is low and the thing's utility may outweigh the risks caused by its defective condition." Broussard , 113 So.3d at 184.


author: MOORE, J.

text:
    Carolyn Sue HINES, Plaintiff-Appellee v. Karen Denise Womack HYDE, Kenneth Womack, Annette Womack and John Womack, Defendant-Appellants
    No. 52,103-CA
    Court of Appeal of Louisiana, Second Circuit.
    June 27, 2018
    BETHARD & BETHARD, LLP, By: Henry W. Bethard, V, Benjamin T. Bethard, Coushatta, Counsel for Appellant, Karen Denise Womack Hyde
    LINEAGE LAW, LLC, By: Ricky L. Sooter, Jeremy C. Cedars, Alexandria, Counsel for Appellee, Carolyn Sue Hines
    ROBERT LEAVINES, Agent for LeMart Properties
    KENNETH WOMACK, In Proper Person
    ANNETTE WOMACK, In Proper Person
    JOHN WOMACK, In Proper Person
    GATES LAW FIRM, By: Justin Keith Gates, Winnfield, Curator for Thomas M. Hines
    Before BROWN, MOORE, and COX, JJ.
   MOORE, J.

Karen Womack Hyde appeals a petitory judgment which found that her lot, in the city of Winnfield, measures only 54.3 × 104.4 feet, instead of the 74.3 × 104.4 feet stated in her credit sale deed. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Carolyn Hines, and defendant, Karen Womack Hyde, are next-door neighbors on West South Avenue in Winnfield: Ms. Hines to the west, Ms. Hyde to the east. Ms. Hines alleged that in early 2013, Ms. Hyde's family members started parking vehicles on the east side of her (Ms. Hines's) lot, built a fence on her lot, and threatened and "cussed" her when she tried to have her lot surveyed. Ms. Hines filed this suit, in August 2013, for possession of her lot, preliminary and permanent injunction, and damages.

Ms. Hyde reconvened, in March 2014, alleging that she actually owned the eastern strip of Ms. Hines's lot. In support, she cited her own credit sale deed, dated April 21, 1986, from W.R. "Bill" Roberts. This described her lot as starting 208.7 feet west of the SE corner of Lot 3, Old Town of Winnfield (this point of beginning, hereinafter "POB", is not in dispute), and then running 74.3 feet to the west. By this measure, she contended, she owned the strip of land that Ms. Hines had been using for years as a driveway.

Ms. Hines responded, first urging that by converting the matter to a petitory action, Ms. Hyde conceded that she (Ms. Hines) had been in physical possession of the contested strip. She then alleged that an ancestor in title, Olin Mathieson Chemical Corp., owned both lots prior to 1961. In May 1961, by separate acts, Olin sold both tracts to someone named James Scales. One of these acts described the eastern lot (now belonging to Ms. Hyde) as starting 208.7 feet west of the POB and the running 54.4 feet to the west. The other described the western lot (now belonging to Ms. Hines) as starting 263.1 feet west of the POB (note, 208.7 + 54.4 = 263.1 feet) and running west 54.4 feet. In 1979, Scales's heirs sold both tracts to Roberts, with both lots as described in the 1961 conveyances. In December 1984, Roberts sold the western lot to Ms. Hines and her husband; however, the property description said it began 283 feet west of the POB, instead of the 263.1 stated in the prior acts, and ran 54.4 feet to the west. Ms. Hines attached a 2013 survey showing that if her boundary line was that far over, it would run through a brick apartment house on the west side of her lot. Ms. Hines conceded that in 1986, Roberts sold the eastern lot to Ms. Hyde, described as starting 208.7 feet west of the POB and running 74.3 feet to the west. She contended, however, that an error had occurred in her property description, and that, at any rate, she had exercised possession of her lot for over 30 years.

Ms. Hines then filed a motion for summary judgment. She reiterated all the facts of her earlier pleadings, and argued that the documents showed that the original owners, Olin and Roberts, owned two adjacent lots, each with a 54.4-foot frontage; however, when Roberts conveyed the east tract to Ms. Hyde, he erroneously listed a 74.3-foot frontage. Ms. Hines argued that under La. C.C. art. 532, her deed from the common ancestor, Roberts, came first, so it took precedence.

Ms. Hyde opposed the motion. She attached a boundary agreement from May 1984 in which the common ancestor, Roberts, settled his western boundary with his neighbor to the west, someone named Machen (LeMart's predecessor in title). This document described the east lot as starting 208.7 feet west of the POB, the west lot as starting 263.1 feet west of the POB, and Machen's lot as starting 316.15 feet west of the POB. By the agreement, Roberts and Machen declared they would fix the boundary, under La. C.C. art. 789, in accord with "markers on the ground," whereby Machen's lot was to start 337.4 feet west of the POB (21.25 feet farther west). Ms. Hyde also showed that in 2001, Machen's successor sold this tract to LeMart, by cash sale deed that used exactly the same description as in the boundary agreement, 337.4 feet west of the POB.

Ms. Hyde then filed her own motion for summary judgment. She contended that when Ms. Hines filed her petition, she did not have 30 years' uninterrupted possession of the contested strip. She disputed Ms. Hines's view that the boundary issue stemmed from "misunderstandings, or typos"; instead, in 1984, pursuant to the boundary agreement, Roberts, the common ancestor, owned 20 feet more frontage than had been described in his deeds from Olin. She argued that Roberts added the 20 feet to the eastern lot (Ms. Hyde), giving it a 74.3-foot frontage, while the western lot (Ms. Hines) still had the 54.5-foot frontage stated in her deed. Ms. Hyde suggested the real problem was between Ms. Hines and the LeMart lot.

ACTION OF THE DISTRICT COURT

The matter came for a hearing on the opposing motions for summary judgment in February 2017. The parties laid out their respective documents and argued. In written reasons for judgment, the court found that the deeds initially described both lots as having a 54.4-foot frontage. It then found that the boundary agreement actually resolved only a 1.35-foot strip, not the 19.9 feet claimed by Ms. Hyde. The court concluded that Ms. Hyde owns a 54.3-foot frontage to the east, and Ms. Hines owns a 54.4-foot frontage to the west, exactly as shown in the 2013 survey. The court rendered judgment to this effect.

Ms. Hyde filed a motion for new trial. At a hearing in July 2017, Ms. Hyde argued that the court had improperly used parol evidence to find that the boundary agreement was in error. Ms. Hines responded that after Roberts sold her the western lot, he could not sell Ms. Hyde a lot with a 74.3-foot frontage, because he no longer owned it. The court denied the new trial.

Ms. Hyde has appealed, raising two assignments of error.

DISCUSSION

By her first assignment of error, Ms. Hyde urges the court erred in granting Ms. Hines's motion for summary judgment, and in ruling that Ms. Hines owned a 54.4-foot frontage and Ms. Hyde, only a 54.3-foot frontage, "in contradiction of the deeds filed of public record." She concedes that prior to 1984, Roberts, the common ancestor, owned both lots, totaling 108.7 feet frontage; however, she contends, the boundary agreement, in May 1984, moved Roberts's western boundary 20 feet to the west, giving him the extra 20 feet that he added to the east lot when he sold it to Ms. Hyde in 1986. She submits that that district court's reasons "went awry" of these public records, based on a mere "assumption." She contends that both she and Ms. Hines are third parties to the boundary agreement, La. C.C. art. 3343, and thus subject to what is written on that document, and to nothing else. She concludes that strict reliance on the public records shows that Roberts acquired the extra 20 feet by the boundary agreement in May 1984; Roberts sold it to her in April 1986, by credit sale deed that clearly gave her a 74.3-foot frontage; and the court committed legal error by finding that she owned anything less. By her second assignment of error, Ms. Hyde contends the court improperly relied on parol evidence to contradict the clear and unambiguous language of the boundary agreement. In support, she cites La. C.C. art. 1848, which prohibits the use of "testimonial or other evidence" to negate or vary the terms of an authentic act, and argues that parol evidence is expressly prohibited in a petitory action, Blevins v. Manufacturers Record Publ'g Co. , 235 La. 708, 105 So.2d 392 (1957). She concludes that once the parol evidence is disregarded, she has unquestioned title to property with a 74.3-foot frontage. She asks this court to reverse and render judgment to that effect.

Ms. Hines counters by listing the deeds in chronological order, and argues that the cash sale deed from Roberts to herself "is in error as to the point of beginning," as it differs from the 263.1-foot measurement used in the three prior deeds. She submits that Ms. Hyde's credit sale deed is erroneous for the same reason, and that Roberts conveyed more property to Ms. Hyde than he had title to. She also contends that moving her western boundary 20 feet to the west would be absurd, as the new boundary would run through the middle of LeMart's brick apartment house. She concludes that the only way to interpret these obviously erroneous documents is the way the district court did, and asks this court to affirm.

When the titles of the parties are traced to a common ancestor, he is presumed to be the previous owner. La. C.C. art. 532 ; La. C. C. P. art. 3653 ; Guess v. Gathings , 31,700 (La. App. 2 Cir. 2/24/99), 728 So.2d 1038. The summary judgment evidence plainly establishes that Roberts was the common ancestor and previous owner of both lots.

The parties may, by written agreement, determine the line of separation between their lands with or without reference to markers on the ground. La. C.C. art. 789 ; Longleaf Invs. LLC v. Cypress Black Bayou Recreation & Water Conserv. Dist. , 49,508 (La. App. 2 Cir. 2/26/15), 162 So.3d 479, writ denied , 2015-0619 (La. 5/22/15), 171 So.3d 251. The sale of a thing belonging to another does not convey ownership. La. C.C. art. 2452 ; J-W Operating Co. v. Olsen , 48,756 (La. App. 2 Cir. 1/15/14), 130 So.3d 1017, writ denied , 2014-0313 (La. 4/11/14), 137 So.3d 1217. Review of the grant of summary judgment is de novo. Olympia Minerals LLC v. HS Resources Inc. , 2013-2637 (La. 10/15/14), 171 So.3d 878.

We have closely examined the summary judgment evidence and agree that Ms. Hyde's credit sale deed gives her a 74.3-foot frontage. However, the chain of title from the common author shows that this was an error. From before 1961 until 1984, Olin Mathieson Chemical, and then Scales, and then Roberts, owned the two adjacent lots on West South Avenue: the east lot started 208.7 feet west of the POB, the west lot started 263.1 feet west of the POB, and each had a 54.4-foot frontage. In December 1984, however, Roberts sold the west lot to Ms. Hines, starting 283 feet west of the POB and running 54.4 feet west. When he later sold the east lot to Ms. Hyde, with a stated frontage of 74.3 feet, he had sold a total of 128.7 feet frontage, or 20 feet more than he had acquired from Scales. The sale of more property than he owned obviously could not convey ownership. La. C.C. art. 2452.

Ms. Hyde contends that the boundary agreement between Roberts and his neighbor to the west, Machen, conveyed this additional 20 feet of frontage to Roberts. However, this agreement states that Roberts's east lot starts 208.7 feet from the POB, his west lot starts 263.1 feet from the POB, and both have a frontage of 54.4 feet; this plainly sets his west boundary at 317.5 feet from the POB. The dispute was that Machen's title described his tract as starting 316.15 feet west of the POB. The boundary agreement was plainly intended to resolve the 1.35-foot discrepancy between their property descriptions. Inexplicably, the attached plat stated that Machen's property started 337.4 feet west of the POB, a value not expressed in the actual agreement, not included in the diagram, and not supported by the prior deeds. It appears to be a mathematical error for 317.4 feet, but was reproduced in Roberts's subsequent conveyances to Ms. Hines and Ms. Hyde. The fact that this was erroneous is confirmed by the 2013 survey, which precisely shows LeMart's lot starting 317.4 feet from the POB. In short, the boundary agreement does not provide as Ms. Hyde contends. This assignment of error lacks merit.

By her second assignment of error, Ms. Hyde urges the district court erred in relying on parol evidence. Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act. La. C.C. art. 1848. However, testimonial proof may be used against a writing to show error, fraud or duress. Peterson v. Schimek , 98-1712 (La. 3/2/99), 729 So.2d 1024 ; Marsh Cattle Farms v. Vining , 30,156 (La. App. 2 Cir. 1/23/98), 707 So.2d 111, writ denied , 98-0478 (La. 4/24/98), 717 So.2d 1167. In view of the 20-foot error that arose in the boundary agreement, and was replicated in the cash sale to Ms. Hines and the credit sale to Ms. Hyde, the district court did not commit legal error in referring to the earlier deeds, with their accurate property descriptions. The case of Blevins v. Manufacturers Record , supra , relied on by Ms. Hyde, merely applies the public records doctrine established in McDuffie v. Walker , 125 La. 152, 51 So. 100 (1909). It does not alter the admissibility of testimonial or other evidence to show error, fraud or duress. This assignment of error lacks merit.

CONCLUSION

For the reasons expressed, the judgment is affirmed. All costs are to be paid by the defendant, Karen Denise Womack Hyde.

AFFIRMED .

      Ms. Hines also filed a peremptory exception of nonjoinder, which the district court granted ordering Ms. Hyde to join the owner of the apartment house, LeMart Properties, as a defendant. The record does not show that Ms. Hyde ever complied, but neither side has mentioned this on appeal. The court can "determine whether the action should proceed among the parties before it," La. C. C. P. art. 642, Gibbs v. Magnolia Living Ctr., Inc. , 38,184 (La. App. 2 Cir. 4/7/04), 870 So.2d 1111, writ denied , 2004-1148 (La. 7/2/04), 877 So.2d 146. In light of the district court's discretion under Art. 642, the fact that nobody objected to Ms. Hyde's failure to comply, and the ultimate result, not impinging on LeMart's property, we pretermit any consideration of nonjoinder.


author: COX, J. GARRETT, J., concurring.

text:
    Clint RICHARDSON, Plaintiff-Appellee v. CITY OF SHREVEPORT and its Appointing Authority and the Shreveport Municipal Fire and Police Civil Service Board, Defendants-Appellants
    No. 52,203-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 27, 2018.
    BRAINARD & BRAINARD, LLC, By: Eron J. Brainard, Counsel for Appellee
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, LLP, By: Joseph S. Woodley, Shreveport, Counsel for Appellants, City of Shreveport And Its Appointing Authority
    BILLY R. CASEY, Counsel for Appellants, Shreveport, The Shreveport Municipal Fire And Police Civil Service Board
    Before GARRETT, COX, and STEPHENS, JJ.
   COX, J.

Clint Richardson ("Richardson") was an employee of the Shreveport Fire Department. On August 30, 2013, he was terminated by the Appointing Authority for the City of Shreveport ("City"). Richardson appealed his termination to the Shreveport Municipal Fire and Police Civil Service Board ("Board"). The Board upheld his termination. Richardson then appealed the Board's decision to the First Judicial District Court, Caddo Parish, Louisiana. The district court found the termination to be an absolute nullity. The City of Shreveport has now appealed the district court's judgment. For the reasons outlined below, we respectfully reverse the district court judgment and remand this matter to the district court for further proceedings in order for it to fulfill its function as the reviewing court pursuant to La. R.S. 33:2501.

FACTS

On July 10, 2013, Richardson was given a Notice of Formal Investigation and/or Interrogation ("NOFI"), which he signed the same day. Richardson's NOFI stated he was being investigated under La. R.S. 33:2500(A), which provides, in pertinent part:

A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons:
(1) Unwillingness or failure to perform the duties of his position in a satisfactory manner.
(2) The deliberate omission of an act that it was his duty to perform.
(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.
(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee; and, any dishonest, disgraceful, or immoral conduct.
(14) The willful violation of any provision of this Part or of any rule, regulation, or order hereunder.
(15) Any other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the respective service.

The NOFI also lists violations of General Rules, specifically:

(R) Refrain from being a party of any malicious gossip, rumor, report or activity that would disrupt the department or any member, and from making derogatory statements or adversely criticizing City Government policies, activities or officers of the Fire Department or other personnel of the City Government. Any concerns relative to polices, activities, or officers shall be submitted through proper channels.
(U) Not engage in any type of sexual conduct, nor shall they solicit such conduct while on duty or visiting any fire station or facility.
Refer to City of Shreveport Executive Order 95-1 (revised) Harassment Statement (page 45)
E. Conduct themselves in such a manner as approved by law-abiding, self-respecting citizens.
F. Refrain from committing any act which might bring discredit upon the Department or its members.

On August 26, 2013, Richardson was given a Notice of Pre-Disciplinary Conference ("PDC"), scheduled for August 29, 2013. The PDC was attended by the Fire Chief, Assistant Fire Chief, Personnel Analyst, Assistant City Attorney, and Clint Richardson. The first section on the PDC form is "Charges." The instructions state, "Below write the action(s) with which employee is charged. Specify dates, times, and any other pertinent information. Attach additional sheets if needed." The list written below includes the violations, which were also set forth in the NOFI, but does not state specific dates, times, and other information.

Under the section entitled "Evidence," it states to "Refer to audio recording. It is alleged that Firefighter Richardson had Knowledge of improper behavior at Station # 8 and did not report it." Under the section entitled "Employee's Side," it simply states to "Refer to the audio recording."

Richardson was given a termination letter on August 30, 2013, which he signed. The stated reasons for termination include:

You had knowledge of a female and male visitor being together in a locked bathroom at Section 8, and when questioned about the incident, failed to report or share information relative to the Administrative Investigation and permitted the use and possession of alcohol while on duty.
You participated in staged photographs of an offensive nature towards the public that has disrupted Departmental Service and negatively impacted the public interest.

The termination letter also stated Richardson had received no corrective action during his employment.

In September of 2013, criminal charges were brought against Richardson in Caddo Parish for cruelty to the infirmed and principal to prostitution. Richardson pled guilty to the principal to prostitution charge. He was not sentenced with any jail time, and only given a $25 fine.

Richardson was represented by counsel when he appealed his termination to the Board. The Board proceedings were held on June 8, 2016. In his appeal, he claimed violations of the fire employee rights and due process, specifically stating that he was not given written notice when the investigation began and when he did receive notice, it did not list specific charges or violations, only statutes. Richardson also states he was not given a copy of the PDC recording, which his counsel requested repeatedly in 2016.

After hearing counsel's opening statements to the Board, it was determined Richardson received a copy of the recording of his PDC hearing in 2013. The Board voted unanimously that the third issue of not receiving the requested recording was satisfied because Richardson received it, and signed for it, back in 2013. At the hearing, the City of Shreveport was given the opportunity to fulfill the request by counsel for the recording. Because counsel was not given a copy before the hearing, the Board offered to give Richardson a continuance. Richardson's counsel did not want a continuance to review the recording. The hearing continued on the first two issues.

Fire Chief Ronald Mulford testified at the Board hearing. Chief Mulford stated that on June 25, 2013, he received a complaint about employees on Shift A at Fire Station 8, but he did not know who, exactly, was involved. The next day, June 26, he requested all of Shift A to come to the Central Fire Station. Five firemen from Shift A were interrogated that day, and each received their NOFI at that time. From the information given by those firemen, Chief Mulford stated that it appeared the allegations had not actually occurred. Because of what he learned in the interrogations and because it was getting late into the evening, he dismissed everyone who had not been interrogated. On July 9, 2013, in the course of the ongoing investigation, Chief Mulford was given Richardson's name. Richardson was given his NOFI the next day, July 10, while on his shift.

Fire Chief Randy Beason also testified at the Board hearing. Chief Beason was an Assistant Fire Chief over Shift A in 2013. He stated that he received the initial complaint, before turning it over to Chief Mulford's office. On June 25, 2013, Chief Beason filled out NOFIs on every fireman at Station 8 and turned those in to Chief Mulford, along with the complaint. He stated that he filled out the NOFIs and left the date and signature spaces blank for Chief Mulford to fill in when he issued the NOFIs.

As to whether Richardson received proper notice of the investigation and whether the notice listed specific allegations, the Board voted unanimously that the City did not violate the firefighter employee rights. They stated Richardson was given his NOFI once his name came up during the investigation. Specifically, one of the board members, Mr. Remedies, stated:

And I just say that, if what their argument is, to set a policy, they would have to NOFI every single person on the Shreveport Fire Department, because they could become part of the investigation if they were working for someone on "A" shift, or they could possibly be-become part of the investigation. So, that's why-I just don't see where that holds water. Because at the time he was specifically investigated, he was-it looks like the time line matches when he became a target of that. And the reason why he wasn't before because they were given false information.

In regards to whether the specific charges and allegations were listed, another board member, Fire Engineer Ogunyemi, stated, "I mean, it even goes further, I mean, it says it in here. Not to engage in any type of sexual conduct nor shall they solicit such conduct. [I]t says it exactly in the specific charges and violations being investigated." After unanimously agreeing the City did not violate the firefighter employee rights, the Board moved on to decide issues on the merits of the case.

Richardson conceded that discipline was needed, but said it was an issue of the degree of discipline. Richardson ended his opening argument on the merits by asking the board to consider giving him a second chance.

Chief Mulford testified again regarding the issue of the merits. He stated:

Mr. Richardson was terminated due to the fact that he was not honest when he was questioned or interrogated during the administrative investigation. And during the administrative investigation, it was found out by us that there were some-Mr. Richardson had been a part of participating in or taking some photographs of an individual that frequently visited Station 8 that I deemed were inappropriate.

When Chief Mulford questioned Richardson about incidents at Station 8, Richardson told him nothing happened. Upon further investigation, it was determined Richardson did have knowledge of the incidents and he had lied to the Chief. Chief Mulford stated he felt termination was appropriate. Richardson stipulated that he lied to the internal investigations officer as well.

William Millsaps, a Shreveport Fireman, served as a witness for Richardson. He stated:

As a firefighter, I mean, Clint, he is one of the guys I never had to worry about inside a fire. He was right there with me. He had my back. I didn't have to worry. He's always been a real good firefighter, real knowledgeable, real hardworking.
* * *
[H]e is just like me, you now, away from the job. He likes to spend time with his family and friends. Just hunt, fish, and hangout.
* * *
If I need something, I don't have a problem calling him up and him coming and helping.

Damian Louis Stinger, of the Shreveport Fire Department, also testified for Richardson. He stated Richardson was dependable, had good work ethic, and took the initiative when things needed to get done.

Richardson testified before the Board on his own behalf. He stated that he felt pressure from a higher ranking officer to keep his mouth shut. He got the impression that "maybe Chief Mulford didn't really want to know exactly what's going on." Richardson said he was disappointed in himself and how he handled the pressure. Richardson described the photos that Chief Mulford stated were inappropriate.

The only picture I can think of that Chief Mulford is talking about is sometimes some guys would leave their bunker gear laying around[.] And Andy had put on a pair of the bunker pants that was there and was walking around wearing them. And, he got around behind the fire truck-around behind the engine where there is a small one inch booster line that was used for trash fires and stuff. And he grabbed it off the truck and was holding it like a fireman and then he started doing like-I don't know what you would-like calendar type poses with the hose up towards his face and sticking his tongue out and stuff like that. He was just being silly. [S]o, there was some pictures snapped of it. And it wasn't to be-it wasn't to, you know, be ugly.

Richardson stated the pictures were never intended to be published. He stated that he saw something funny and took a picture.

Richardson acknowledged that what he did was wrong. He requested that the Board consider adjusting his termination to a lesser discipline. He stated he felt a 90 day suspension would be more than fair.

The Board determined unanimously that the City acted in good faith and just cause for the termination of Richardson. The Board upheld the discipline, with one member voting to modify the discipline. Richardson appealed his termination to the First Judicial District Court, Caddo Parish.

On September 27, 2017, the district court ruled Richardson's termination was in violation of La. R.S. 33:2181 et seq ., rendering the termination absolutely null. The district court held that the investigation began on June 26, not July 10, and stated, "My position is when he filled out these forms and called everybody in, that's when it started." The law required the PDC to be held within 60 days. Therefore, when the PDC was held on August 29, it was more than 60 days, making the termination an absolute nullity. After asking if there were any questions about the ruling, the following conversation took place:

MR. WOODLEY: Is it my understanding that your ruling is that the Civil Service Board was arbitrary and capricious when it determined that Mr. Richardson's Firefighter Bill of Rights were not violated?
THE COURT: They were violated, so I guess the answer is yes.
MR. WOODLEY: Okay.
THE COURT: They were violated because the investigation began on the 26th, the P.D.C. was August 29th. Right?
MR. BRAINARD: Right.
THE COURT: More than 60 days.
MR. WOODLEY: I just need that arbitrary and capricious finding is what I need.
THE COURT: You got it, however you want to term it.

DISCUSSION

In its first assignment of error, the City argues the district court erred by substituting its own factual findings and credibility determinations for that of the Board. The City argues that absent manifest error, the district court could not find the investigation began on June 26, instead of July 10.

An employee under classified service may appeal from any decision of the civil service board that is prejudicial to him. La. R.S. 33:2501(E)(1). Such an appeal shall be taken to the district court wherein the civil service board is domiciled.

Factual findings in civil service cases are to be given deference by a reviewing court. Morris v. City of Minden , 50,406 (La. App. 2 Cir. 3/2/16), 189 So.3d 487, writ denied , 2016-0866 (La. 6/3/16), 192 So.3d 748. Review by the district court does not include a trial de novo. McCoy v. City of Shreveport , 42,662 (La. App. 2 Cir. 12/5/07), 972 So.2d 1178. The district court may not substitute its opinion for that of the Board. Hawkins v. City of Bossier , 48,959 (La. App. 2 Cir. 4/9/14), 137 So.3d 128. The hearing "shall be confined to the determination of whether the decision made by the board was made in good faith for cause" and "[n]o appeal shall be taken except upon these grounds." La. R.S. 33:2501(E)(3). The Board's decision will not be overturned unless it is manifestly erroneous or arbitrary and capricious. McCoy v. City of Shreveport, supra. La. R.S. 33:2501(E) specifically limits the district court's reviewing authority to determining whether the Board's decision was made in good faith for cause.

Good faith does not occur if the appointing authority acts arbitrarily or capriciously, or as a result of prejudice or political expediency. Arbitrary or capricious means the lack of a rational basis for the action taken. Moore v. Ware , 2001-3341 (La. 2/25/03), 839 So.2d 940 ; Hawkins v. City of Bossier, supra. Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the efficient operation of the public service. The appointing authority must demonstrate, by a preponderance of the evidence, that the conduct did in fact impair the efficient and orderly operation of the public service. Morris v. City of Minden, supra.

The intermediate appellate court's review of a civil service board's findings of fact is limited. Those findings are entitled to the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. City of Shreveport v. DeBello , 46,891 (La. App. 2 Cir. 1/25/12), 86 So.3d 17, writ denied , 2012-0460 (La. 1/25/13), 105 So.3d 62.

Part of the court of appeal's role in this review process is to determine whether the district court utilized the proper standard of review and the appropriate procedures. Based on the district court transcript, it appears the district court applied a de novo standard of review, by making a finding of fact as to when the investigation began. After determining the investigation began on June 26, rather than July 10, the district court then agreed to the terminology of "arbitrary and capricious."

The district court's judgment reversing the Board must be reversed pursuant to the above stated statutes and jurisprudence, and the matter remanded to the district court for further proceedings. The Board thoroughly questioned the date on which the investigation began and clearly determined that the investigation into Richardson's conduct began on July 10, 2013. Because the Board found that the investigation began on July 10, 2013, the Board determined that the PDC was held within 60 days, as required by law. After determining the investigation date, the Board was entitled to determine the appropriate discipline for Richardson. As such, the district court's ruling that Richardson's termination is an absolute nullity and that he is entitled to retroactive reinstatement and full back pay is reversed.

This matter is remanded to the district court for review of the remainder of the Board's decision pursuant to La. R.S. 33:2501. If the district court finds the Board satisfied the "good faith for cause" requirement, then the district court must affirm the Board's decision. The district court may overturn the Board's findings only if it finds the Board was manifestly erroneous or arbitrary and capricious.

Because we are reversing and remanding under the first issue, we pretermit discussion of the remaining issues.

CONCLUSION

For the reasons assigned above, we respectfully reverse the district court judgment and remand the matter to the district court for further proceedings in compliance with this opinion. The appellate court costs in the amount of $2,135 are to be equally split between Richardson and the City of Shreveport, in accord with La. R.S. 13:5112.

REVERSED AND REMANDED.

GARRETT, J., concurring.

I concur. I write separately to further emphasize that the Board considered extensive testimony from both former Fire Chief Ronald Craig Mulford and former Assistant Fire Chief Randy Beason before it unanimously determined that the investigation as to Mr. Richardson did not begin until July 10, 2013, and, thus, there was no violation of the 60-day rule under La. R.S. 33:2186. Indeed, the record shows that the Board took this issue up first and devoted considerable attention to it. Evidence was presented to the Board which explained that Mr. Richardson's presence at the Central Fire Station on June 26, 2013, was not because he was under investigation at that time. Rather, all the firefighters on duty from Station 8 were required to be at the Central Fire Station because both fire trucks from the station were driven to the Central Fire Station. Some of the more senior firefighters were questioned on June 26, 2013, and apparently were less than forthcoming. Mr. Richardson was not questioned on that date.

Information concerning his possible involvement in the illegal activities at Station 8 did not surface until later, as more information came to the attention of the Chief. Mr. Richardson was questioned on July 10, 2013, and executed the "Notice of Formal Investigation and/or Interrogation" on that date. The Board members considered much evidence adduced by counsel for the parties and also posed many questions on their own. The Board carefully considered this issue and had ample evidence before it to reject Mr. Richardson's contention that the investigation as to him was not completed within the 60-day time frame required by La. R.S. 33:2186.

The Board's decision that "the clock" applicable to Mr. Richardson's case began on July 10, 2013, is fully supported by the evidence adduced before the Board and reasonable inferences drawn by the Board members from the evidence. The Board's factual findings and decision based on them are entitled to much deference. An examination of the proceedings before the Board shows they were not clearly wrong or manifestly erroneous in reaching their ruling on this issue. The district court's decision to "overrule" the Board by conducting a de novo analysis and interpreting the evidence in a manner different from the Board's findings was wrong.

      Both of these witnesses were retired by the time of the hearing. Mr. Richardson was terminated on August 30, 2013. For reasons unclear from the record, the hearing before the Board in this case was not held until June 8, 2016. Perhaps the hearing was delayed pending resolution of the criminal proceedings.