author: CHARLES R. JONES, Judge.

text:
    STATE of Louisiana In the Interest of L.T.
    No. 2009-CA-1200.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 3, 2010.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellant.
    Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Appellee, L.T.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge PAUL A. BONIN).
   CHARLES R. JONES, Judge.

liThe Appellant, the State of Louisiana, appeals the dismissal of a petition to adjudicate a juvenile, L.T. — the Appellee — pursuant to La. Ch. C. art. 876, by the juvenile court. Finding no abuse of discretion by the juvenile court, we affirm.

In January of 2009, a petition of delinquency was filed against L.T. charging him with theft in violation of La. R.S. 14:67.10. He pled not guilty at his arraignment. The matter was set for Diversion Status and for trial. However, his trial date was later vacated and the case was closed upon his appearance for his Diversion Status court date, and because he had been accepted into the Diversionary Program.

In July of 2009, the State re-filed the dismissed petition against L.T. for failure to complete the Diversionary Program. L.T. appeared before the juvenile court for a pre-trial hearing on the re-instituted matter. The State contended that although L.T. had been compliant with the program when it was scheduled at 5:00 p.m., he became non-compliant when the schedule of the program changed to 11:00 a.m.

_JjAccording to the record, L.T. signed up for Diversion classes that were scheduled to be held from 5:00 p.m. to 6:00 p.m. One of the conditions of enrollment in the Diversionary Program is enrollment in school. L.T. was enrolled in a GED Program from 9:00 a.m. to 4:00 p.m. He did not receive correspondence informing him that the hours of operation for the Diversionary Program changed from starting at 5:00 p.m. to commencing at 11:00 a.m. The State contends that L.T. was verbally notified of the change, and that L.T. in turn informed the Diversionary Program staff that he could not come to classes at the newly scheduled time.

Reasoning that the District Attorney’s office breached its agreement with both L.T. and the juvenile court by changing the parameters of the program in the middle of L.T.’s active participation, the court ordered the State to re-enroll L.T. in the Diversionary Program, and dismissed the delinquency action because the State had changed the terms of the Diversionary Program contract that they entered into with the juvenile. The State objected to the Court’s order several times, after which, the Court dismissed the matter for good cause, pursuant to La. Ch. C. art. 876. The State timely filed a Motion for Appeal and Designation of Record.

The State argues that it reinstituted the petition in this matter because L.T. failed to complete the Diversionary Program. Specifically, the State argues, L.T. stopped attending the required classes sometime at the end of May in 2009, once the class time changed from 5:00 p.m. to 11:00 a.m. According to the record, L.T.’s diversionary classes originally began at 5:00 p.m.; however, after the school |syear ended, the classes were scheduled to begin at 11:00 a.m. Nevertheless, since L.T. was enrolled in a G.E.D. program, his G.E.D. classes remained in session from 9:00 a.m. until 4:00 p.m. in the summer. The State argued that L.T. was orally informed of this schedule change by his diversion counsel- or, and L.T. responded by telling his diversion counselor that he would not be attending the 11:00 a.m. diversion classes.

The record before us indicates that the juvenile court ordered the State to “re-enroll” L.T. in the Diversionary Program. Thereafter, the court scheduled a “Diversion Status/Case Closure,” for the next court setting, over the objection of the State. The court further dismissed the matter for good cause pursuant to La. Ch. C. art. 876.

The juvenile court is given great discretion when determining whether a case should be dismissed for good cause. State in the Interest of S.R., 08-0785, p. 4 (La.App. 4 Cir. 10/8/08), 995 So.2d 63, 65. “Good cause” is generally defined as ‘[a] legally sufficient reason.’ ” S.R., 08-0785, p. 4, 995 So.2d at 65-66, quoting Bryan A. Garner, Black’s Law Dictionary, 235 (8th ed.2004). Good cause must be supported by the record and is determined on a case-by-case basis. State in the Interest of M.B., 97-0524, p. 2 (La.App. 4 Cir. 11/19/97), 703 So.2d 146, 147.

The State raises one assignment of error on appeal: the district court abused its discretion by finding good cause to dismiss the case against L.T. under La. Ch. C. art. 876. The State avers that during the Diversion Status hearing, L.T. and the State agreed that L.T. would enroll in the District Attorney’s Diversionary 14Program. The State entered a nolle prosequi reserving its right to reinstitute the petition if L.T. did not successfully complete the Diversionary Program.

La. Ch. C. art. 876, entitled Dismissal of petition, states:

[f]or good cause, the court may dismiss a petition on its own motion, on the motion of the child, or on motion of the petitioner. The court shall dismiss a petition on the motion of the district attorney.

Finding fault with the Distinct Attorney’s rescheduling of the Diversionary Program’s hours, the juvenile court dismissed the case against L.T. The court explained its reasons for dismissing this matter, as follows:

[y]ou know what, this matter is dismissed under Article 876 for good cause. The Court finds that the district attorney’s office placed this juvenile in a position of not being able to successfully complete diversion. The juvenile successfully participated in diversion as instructed. The juvenile was enrolled in school. The district attorney’s office then changed the time of Diversionary Program because it was summer. Thereby, forcing the juvenile to choose between continuing with his educational program that he successfully completed and graduated from or attending diversion. This is a matter that the court thinks needs to be appealed because it’s going to be repeated continuously. Because children are in year round school in Orleans Parish. Children are in traditional nine month educational setting [sic] in Orleans Parish. Some schools don’t even end until 6:00 p.m. in recovery school district [sic]. Children are in required summer leap tutorials, leap preparations, and leap remedial. We have vocational schools that are operating with these over aged under achieving kids. We had GED programs that aren’t on a regular education track. So when a person signs up for a program and commits to a time and they work their education around that time it’s not fair for you to say unilaterally, oh, it’s the summertime so we’re going to change our time to 11:00 and for a child to choose between school and diversion.
You can say the da’s [sic] office didn’t do that; but that is the outcome ...

|sThe juvenile court supported its decision to dismiss the re-petitioning of L.T. for delinquency charges with good cause after determining that the rescheduling of the Diversionary Program’s hours by the District Attorney’s office forced L.T. to decide between continuing his education, or discontinuing his education so he could proceed with attending the Diversionary Program. We do not find that the juvenile court abused its vast discretion in dismissing this action and ordering the District Attorney’s office to re-enroll L.T. in the program. “The juvenile court is vested with broad discretion to arrive at solutions which balance the needs of the child with the interests of society.” State in the Interest of Davis, 96-0337, p. 2 (La.App. 4 Cir. 10/30/96), 683 So.2d 879, 880. In the case sub judice, it is in the best interest of society and of L.T. that he both continue his education and complete the Diversionary Program so that he can become a productive member of society. While a different trier of fact may have reached another conclusion, we find that the juvenile court did not abuse its discretion.

DECREE

For the foregoing reasons, the judgment of the juvenile court dismissing the re-petitioning of L.T. for theft in violation of La. R.S. 14:67.10 is affirmed.

AFFIRMED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Shondrea DINNAT and Denny Dinnat v. Dr. David Spence TEXADA, et al.
    No. 09-665.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.
    David R. Sobel, Jeremy C. Cedars, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, Louisiana, for Defendant/Applieant, Christus St. Frances Cabrini Hospital.
    David A. Woolridge, Jr., Carlton Jones, III, Roedel, Parsons, Koch, Blache, Bal-hoff & McCollister, A L.C., Baton Rouge, Louisiana, for Defendant/Respondent, Louisiana Patient’s Compensation Fund Oversight Board.

      Peter T. Dazzio, Chris J. LeBlanc, Watson, Blanche, Wilson & Posner, Baton Rouge, Louisiana, for Amicus Curiae, Louisiana Hospital Association and Louisiana Hospital Association Medical Malpractice and General Liability Trust.
    Charles D. Elliott, Vilar & Elliott, L.L.C., Alexandria, Louisiana, for Plaintiffs, Shondrea Dinnat and Denny Dinnat.
    Victor H. Sooter, Sooter & Associates, A Limited Liability Company, Alexandria, Louisiana, for Defendant, Dr. David Spence Texada.
    Normand F. Pizza, Milling Benson Woodward, L.L.P., New Orleans, Louisiana, for Defendant, Louisiana Medical Mutual Insurance Company.
    Court composed of JOHN D. SAUNDERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   ON REMAND FROM THE LOUISIANA SUPREME COURT

GENOVESE, Judge.

|, This case comes before this court pursuant to remand from the Louisiana Supreme Court. Defendant/Applicant, CHRISTUS Health Central Louisiana d/b/a CHRISTUS St. Frances Cabrini Hospital (Cabrini), initially applied for supervisory writs with this court to reverse the judgment of the trial court denying its Exception of Prematurity with regard to a medical malpractice claim. This court denied Cabrini’s writ finding “no error in the trial court’s ruling.” Cabrini then applied for a writ of certiorari with the Louisiana Supreme Court. Cabrini’s writ to the supreme court was granted, and the case was remanded to us for briefing, argument, and opinion. For the reasons that follow, we grant the writ and make it peremptory.

FACTS

Plaintiff, Shondrea Dinnat, underwent a total abdominal hysterectomy performed by Defendant, Dr. David Spence Texada, at Cabrini, on or about December 5, 2006. During this surgical procedure, it is alleged that Dr. Texada negligently injured Mrs. Dinnat’s right ureter.

Mrs. Dinnat and her husband, Denny Dinnat, filed a civil suit in tort naming as Defendants, Dr. Texada, his alleged insurer, Louisiana Medical Mutual Insurance Company (LAMMICO), Cabrini, and the Louisiana Patient’s Compensation Fund (PCF). Mr. Dinnat’s claim is for loss of consortium.

Mrs. Dinnat’s only allegation against Cabrini, as set forth in paragraph twelve of the original and first supplemental and amending petitions, is as follows (emphasis added):

|2On information and belief, Cabrini is solidarily liable with Dr. Texada for the damages suffered by plaintiffs because Cabrini was aware of multiple prior acts of malpractice committed by Dr. Texada, and Cabiini failed to suspend or revoke Dr. Texada’s hospital privileges. On information and belief, Cabrini finally revoked Dr. Texada’s privileges following the malpractice in this case.

In response to Plaintiffs’ lawsuit, Cabrini filed an Exception of Prematurity stating that Plaintiffs’ claim against it was covered under the definition of “malpractice” in the Medical Malpractice Act (MMA) as set forth in La. R.S. 40:1299.41(A)(13). The trial court denied Cabrini’s exception. This court denied supervisory writs, finding no error in the trial court’s ruling. The Louisiana Supreme Court granted Cabrini’s Writ of Certiorari and has remanded the case to this court for briefing, argument, and opinion.

ASSIGNMENTS OF ERROR

Counsel for Cabrini presents two assignments of error for review:

1. The trial court erred by failing to apply the test set forth in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, to determine whether the Plaintiffs’ allegation against Cabrini is “malpractice” as defined by the MMA.
2. The trial court erred in denying the Exception filed on behalf of CHRIS-TUS St. Frances Cabrini Hospital.

LAW AND DISCUSSION

The allegations in Plaintiffs’ original and first and supplemental amending petitions claim that Cabrini “was aware of multiple prior acts of malpractice | scommitted by Dr. Texada, and Cabrini failed to suspend or revoke Dr. Texada’s hospital privileges.” There is no mention in Plaintiffs’ original petition or in any of the supplemental and amending petitions of any allegation against Cabrini for negligent credentialing. Basically, Plaintiffs’ claim against Dr. Texada is one of negligent supervision, not negligent credentialing.

Though the word “credentialing” is commonly referred to by all parties, this is not a negligent credentialing case. As stated in Black's Law Dictionary 395 (8th ed.2004), the word “credential” is defined as “a document or other evidence that proves one’s authority or expertise.” Plaintiffs do not allege that Cabrini should not have allowed Dr. Texada hospital privileges or that he lacked the authority to perform surgery at its hospital. To the contrary, Plaintiffs only and specifically allege that, Dr. Texada’s privileges should have been suspended or revoked because of his prior malpractice. Therefore, the legal issue before us is not whether Dr. Texada, initially, was negligently eredent-ialed, but whether he was negligently supervised after being credentialed.

This is critical to Plaintiffs’ case as the term “credentialing” is not listed in the definition of malpractice in the MMA. Louisiana Revised Statutes 40:1299.41(A)(13) (emphasis added), as amended in 2001, defines “malpractice,” in pertinent part, as:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions ..., in the training or supervision of health care providers

Counsel for Cabrini argues that the allegations in Plaintiffs’ original and ^supplemental and amending petitions are covered under the language of the MMA. Counsel for the PCF argues that the case of Bickham v. Inphynet, Inc., 03-1897 (La.App. 1 Cir. 9/24/04), 899 So.2d 15, writ denied, 04-2638 (La.12/17/04), 888 So.2d 876, applies to the case at bar. However, Bickham, is a negligent credentialing case prior to the 2001 amendment to the MMA. It is, therefore, distinguishable and inapplicable since the case at bar is not a credentialing case, and the provisions prior to the 2001 amendment to the MMA do apply to Plaintiffs’ allegation in the petitions. Counsel for the PCF also refers to the case of Eusea v. Blanchard, 04-1855 (La.App. 1 Cir. 2/11/05), 899 So.2d 41, which, like Bickham, was decided pursuant to the definition of malpractice that was in effect prior to the 2001 amendment and is likewise inapplicable.

Plaintiffs specifically allege that Cabrini should have suspended or revoked Dr. Texada’s hospital privileges because of his prior acts of malpractice. This allegation presupposes the fact that Dr. Texada already had hospital privileges and, hence, had already been credentialed. Additionally, Plaintiffs neither mention nor claim any negligent credentialing of Dr. Texada either at the onset or during his tenure at Cabrini. Hence, Plaintiffs’ claim is specifically one of negligent supervision. We find that Plaintiffs’ allegations are tantamount to a claim of negligent supervision, not negligent credentialing, and are thus covered under the MMA. The general rule is that any conduct by a hospital of which a patient complains is within the scope of the MMA if it comes within the definitions of the MMA, even if there are alternative theories of liability. Richard v. Louisiana Extended Care Centers, Inc., 02-978 (La.1/14/03), 835 So.2d 460. The current definition of malpractice appearing at La. R.S. 40:1299.41(A)(13), which is applicable |,fin this case, specifically includes “all legal responsibility of a health care provider arising from acts or omissions ... in the training or supervision of health care providers.” “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9. Because Plaintiffs’ claim is one of negligent supervision, and because negligent supervision is specifically defined as an act of malpractice under the MMA, as of the 2001 amendment, the MMA applies.

Additionally, we will address the six-prong test originally set forth in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, which analysis our supreme court has repeatedly stated must be performed when attempting to determine whether an allegation is malpractice as defined by the MMA. See, e.g., Blevins v. Hamilton Medical Ctr., 07-127 (La.6/29/07), 959 So.2d 440; Williamson v. Hosp. Serv. Dist. No. 1 of Jefferson, 04-451 (La.12/1/04), 888 So.2d 782; Richard, 835 So.2d 460. The six factors of the Coleman test are as follows:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill; (2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached; (3) whether the pertinent act or omission involved assessment of the patient’s condition; (4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform; (5) whether the injury would have occurred if the patient had not sought treatment; and (6) whether the tort alleged was intentional.

Richard, 835 So.2d at 469.

As to the first factor of the Coleman test, Plaintiffs allege “prior acts of malpractice” committed by Dr. Texada; therefore, the particular wrong is “treatment related” and is also alleged to be caused by a “dereliction of professional skill.” | r,Hence, the first factor of Coleman is satisfied.

As to the second factor of the Coleman test, Plaintiffs’ allegation of “prior acts of malpractice” committed by Dr. Texada will require “expert medical evidence to determine whether the appropriate standard of care was breached.” Hence, the second factor of Coleman is satisfied.

As to the third factor of the Coleman test, Plaintiffs’ allegation of “prior acts of malpractice” committed by Dr. Texada will involve an “assessment of the patient’s condition.” Hence, the third factor of the Coleman test is satisfied.

As to the fourth factor of the Coleman test, Plaintiffs’ allegation that “Cabrini failed to suspend or revoke Dr. Texada’s hospital privileges” is “within the scope of activities which a hospital is licensed to perform” as set forth in La. R.S. 40:2114. Louisiana Revised Statutes 40:2114(E) provides: “A hospital shall establish rules, regulations, and procedures setting forth the nature, extent, and type of staff membership and clinical privileges, as well as the limitations placed by the hospital on said staff membership and clinical privileges for all health care providers practicing therein.” Hence, the fourth factor of Coleman is satisfied.

As to the fifth factor of the Coleman test, any injury suffered by Ms. Dinnat as a result of Cabrini’s alleged negligence “would [not] have occurred if [she] had not sought treatment” from Dr. Texada at Cabrini. Hence, the fifth factor of Coleman is satisfied.

As to the sixth factor of the Coleman test, since the alleged acts and/or omissions made by Plaintiffs are not allegations of an “intentional tort,” the sixth factor in Coleman is inapplicable and impertinent.

Having thoroughly considered Plaintiffs’ allegations in the petitions, the MMA, | yspecifically the applicable and current definition of malpractice set forth in the act, and the six factors of the Coleman test, we find that Plaintiffs’ claim is one of negligent supervision and that it is an act of malpractice covered under the MMA.

DECREE

For the foregoing reasons, we grant the writ and make it peremptory; we reverse the judgment of the trial court denying the Exception of Prematurity filed by CHRIS-TUS Health Central Louisiana d/b/a CHRISTUS St. Frances Cabrini Hospital; we grant the Exception of Prematurity; and, we dismiss the petitions of Shondrea and Denny Dinnat without prejudice so that this matter can be submitted to a medical review panel.

WRIT GRANTED AND MADE PEREMPTORY.

      . LAMMICO has since been dismissed from this litigation.

      . The definition of "malpractice,” previously found in La. R.S. 40:1299.41(A)(8), is now contained in La. R.S. 40:1299.41(A)(13) pursuant to the 2008 revision which amended subsection A to place the definitions in alphabetical order.

      . Though counsel have presented arguments relative to the issue of "credentialing,” said issue was neither pled by the Plaintiffs, nor decided by the trial court; therefore, it is not before this court.


author: GREMILLION, Judge.

text:
    Tonya D. GUELDNER, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. CA 09-720.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.

      Ian Alexander MacDonald, Longman Russo, Tammy Bodin Scelfo, Allen & Gooch, Lafayette, LA, for Defendants/Ap-pellees, Progressive Security Insurance Co., U.S. Agencies Casualty Insurance Co.
    Christopher Shannon Hardy, Penny & Hardy, Lafayette, LA, for Defendant/Ap-pellee, Allstate Insurance Company.
    Joshua Guilbeaux, Jean-Paul Layrisson, Attorney at Law, New Orleans, LA, for Defendants/Appellees, Amy Gueldner, David Gueldner.
    Michael J. Remondet Jr., Jeansonne & Remondet, Scott F. Higgins, Attorney at Law, Lafayette, LA, for DefendanVAppel-lee, Jeremy Gueldner.
    Benjamin David Beychok, Bret Thomas Walsh, Beychok & Walsh, Baton Rouge, LA, for Defendant/Appellee, Kim Credeur.
    Gregory Jesse Logan, The Logan Law Firm, Lafayette, LA, for Defendant/Appel-lee, Cue Time, Inc.
    Shannon Jay Thomas, Thomas E. Gibbs & Assoc., Baton Rouge, LA, for Defendant/Appellee, U.S. Agencies Casualty Insurance Co.
    Michael Langdon Cave, Cave Law Firm, Baton Rouge, LA, for Plaintiff/Appellant, Tonya Gueldner.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ,The plaintiff, Tonya D. Gueldner, appeals the judgment in favor of the defendant, Cue Time, Inc., granting its motion to dismiss the case due to abandonment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts in this case are not at issue in this appeal. Litigation in this matter has been ongoing since 2001, when Gueldner filed suit for the wrongful death of her husband who was struck by a minor defendant. The minor had allegedly been drinking alcohol at Cue Time, a bar.

On August 12, 2008, Cue Time filed a Motion and Order to Dismiss for Want of Prosecution. Gueldner filed a Motion to Set Aside the Judgment to Dismiss. Following a February 2009 hearing, the trial court granted Cue Time’s motion finding the case had been abandoned. Gueldner now appeals.

ISSUES

Gueldner assigns as error:

1. The trial court’s finding that the action was abandoned when the suit record reveals that she filed discovery within three years of the date she filed a request for status conference and trial date.
2. The trial court’s ruling that the action was abandoned given the extension of liberative prescription by Executive Orders KBB 2005-32, 2005-48, and 2005-67.

DISCUSSION

The issue of whether a step in the prosecution of a case has been taken for a period of three years is a factual determination subject to manifest error review. See Hutchison v. Seariver Maritime, Inc., 09-0410 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, writ denied, 09-2216 (La.12/18/09), 23 So.3d 946. If proven, the ^determination of whether the act precludes abandonment is a question of law that we review by determining if the trial court was legally correct. Id.

Louisiana Code of Civil Procedure Article 561 governs abandonment and states in part (emphasis added):

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years ...
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26,2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years....
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

Louisiana Code of Civil Procedure Article 1474 pertains to the service of discovery materials and states in part (emphasis added):

A. Except as otherwise provided by Article 1430, All of the objections, notices, requests, affidavits, interrogatories, and answers to interrogatories, required by any Article in this Chapter to be in writing and served on an adverse party, may be served as provided in Article 1313.
(4) The serving of any discovery materials pursuant to the provisions of this Article shall be considered a step in the prosecution or defense of an action for purposes of Article 561, notwithstanding that such discovery materials are not filed in the record of the proceedings.

Louisiana Code of Civil Procedure Article 1313(A)(1) instructs that service by mail is “complete upon mailing.”

|3On August 5, 2005, Gueldner composed a letter with attached discovery to Cue Time and fax-filed with the Clerk of Court on the same date. The Certificate of Service on the second page of the interrogatories states:

I hereby certify that I have on this 5th day of August, 2005, served a copy of the foregoing pleading on all counsel of record or all parties of record to this proceeding, by placing same in the United States Mail, properly addressed and first class postage paid.

The envelope bearing the certified mail sticker affixed to its front was submitted into evidence. It has a postmark of August 08, 2005. Cue Time received the discovery request on August 9, 2005. An original copy of the fax-filed discovery was filed into the record on August 12, 2005. On August 12, 2008, the plaintiff filed a Request for Status Conference and Trial Date. Also on August 12, 2008, CueTime filed a Motion and Order to have the cause dismissed for Want of Prosecution. The trial court granted Cue Time’s motion on August 14, 2008.

On appeal, Gueldner argues that the August 12, 2005 discovery was a different “original” discovery document and was not the same one that was fax-filed on August 5, 2005. We find no merit to this argument. The documents are identical except that 14Gueldner’s counsel or counsel’s agent added the name and address of the registered agent for service of process of Cue Time along with the last known address of Cue Time. Moreover, a different “original” filing in the record is insufficient to count as a step. Clearly, the Louisiana Code of Civil Procedure contemplates service upon all parties which is accomplished in several ways, none of which include filing in the record. See La.Code Civ.P. art. 1313. The “step” in the prosecution for purposes of determining if more than three years has elapsed, occurred on August 8, 2005, the date discovery was mailed. Thus, Gueldner’s August 12, 2008 filing was too late to avoid abandonment. Accordingly, we find no error in the finding that there was no step in the prosecution of the case for a period of more than three years and the trial court properly dismissed the case due to abandonment.

SUSPENSION

Alternatively, Gueldner argues the claim was not abandoned pursuant to executive orders suspending deadlines in legal proceedings from August 29, 2005 through November 25, 2005, because of Hurricanes Katrina and Rita. We note that this issue was not raised at the trial level, and pursuant to the Uniform Rules, Louisiana Courts of Appeal, Rule 1-3, we need not address it. See also Assaleh v. Sherwood Forest Country Club, Inc., 07-1939 (La.App. 1 Cir. 5/2/08), 991 So.2d 67. Nevertheless, in the interest of justice, we will consider the argument.

Gueldner argues that “because prescription was extended for the eighty-nine day time period from August 29, 2005 to November 25, 2005 by Executive Orders, [Gu-eldner’s] action against Cue Time, Inc. is not abandoned as formal steps |sin the prosecution of the action were taken within the prescriptive time periods proscribed by law.” Gueldner points to True Gospel of Jesus Christ Church Ministry v. Doucette, 08-0634 (La.App. 4 Cir. 11/19/08), 999 So.2d 795, in support of her contention.

The legislative codification of Executive Orders KBB 2005-32, 2005-48, and 2005-67 is found in La. R.S. 9:5822. It states in part (emphasis added):

A. All prescriptions, including libera-tive, acquisitive, and the prescription of nonuse, and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006; however, the suspension and/or extension of these periods shall be limited and shall apply only if these periods would have otherwise lapsed during the time period of August 26, 2005, through January 3, 2006. This limited suspension and/or extension shall terminate on January 3, 2006, and any right, claim or action which would have expired during the time period of August 26, 2005, through January 3, 2006, shall lapse on January 4, 2006.

According to the plain language of this statute, it does not apply to the facts at hand as the claim did not lapse during the listed period from August 26, 2005, through January 3, 2006. See Harris v. Stogner, 07-1451 (La.11/9/07), 967 So.2d 1151 (three year abandonment period accrued on December 20, 2005, thus plaintiff had until January 4, 2006 to avoid abandonment of his claim); Compensation Specialties, L.L.C. v. New England Mut. Life Ins. Co., 08-1549 (La.App. 1 Cir. 2/13/09), 6 So.3d 275, writ denied, 09-0575 (La.4/24/09), 7 So.3d 1200.

In this case, the claim was not abandoned until August 8, 2008, more than two- and-a-half years following the period for which the exception was granted due to Hurricanes Katrina and Rita. In agreement with our colleagues at the first circuit, we also decline to follow the holding in True Gospel, 999 So.2d 795, which tacked on an additional eighty-nine days to a claim that abandoned on December 26, 2006. See Compensation Specialties, 6 So.3d 275.

| «CONCLUSION

The judgment of the trial court in favor of the defendant-appellee, Cue Time, Inc. is hereby affirmed. All costs of this appeal are assessed against the plaintiff-appellant, Tonya D. Gueldner.

AFFIRMED.

      . Louisiana Revised Statute 13:850 pertains to fax filing and states in part:
      A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
      B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
      (1) The original signed document.
      (2) The applicable filing fee, if any.
      (3) A transmission fee of five dollars.
      C.If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.

      . We note that Article 561 does add an additional two years if the party whose claim would be ordinarily be abandoned if she can prove that the failure to take a step was caused by or was a direct result of Hurricanes Katrina or Rita.


text:
    Helen R. JACKSON v. LIFE AT HOME, L.L.C.
    No. 09-718.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.

      Otha Curtis Nelson, Sr., Nelson & Nelson, Baton Rouge, LA, for Plaintiff/Appellant, Helen R. Jackson.
    Matthew D. Crumhorn, Rabalais, Un-land & Lorio, Covington, LA, for Defendant/Appellee, Life at Home, L.L.C.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

l iOn February 28, 2007, appellant, Helen R. Jackson, filed a Disputed Claim for Compensation with the Louisiana Department of Labor, asserting her entitlement to workers’ compensation benefits from her employer, Life at Home, LLC, and its insurer, the Louisiana Commerce and Trade Association Self-Insurers Fund. The workers’ compensation judge denied appellant benefits following trial on the merits. For the reasons that follow, we affirm.

FACTS

On February 6, 2007, Jackson went to the emergency room of W.O. Moss Regional Medical Center in Lake Charles, Louisiana, with complaints of lower abdominal and left knee pain. The emergency room personnel reported that Jackson complained of lower abdominal pain and a fall from her bicycle that injured her left knee that occurred the previous evening. The ER physician diagnosed Jackson with a ventral hernia and instructed her to follow up with a surgeon.

Jackson related these abdominal complaints to her employment as a home health personal care assistant. Her primary responsibilities were to care for an elderly, obese woman at the woman’s home. Jackson testified that this patient weighed approximately 400 pounds and required the assistance of a walker. However, the patient never left her bedroom unless she had a doctor’s appointment. The patient required bathing at beside. Jackson would bathe the patient, which required lifting and turning her over. Jackson was responsible for getting the patient to doctor’s appointments, which also required lifting the patient from her bed, assisting her in alighting from the steps from her home, and helping her get into the car for the ride to the office. Jackson testified that returning from the doctor’s office was more arduous, because the patient’s weakened state necessitated Jackson having 12to struggle to get the patient up the steps into her home.

During these tasks, Jackson would experience abdominal pain. She related these pains to a herniation of an appendectomy surgical site. That surgery was performed in January 2006 during the time that Jackson was caring for the elderly woman. Jackson claims the surgical site became herniated because of the physical demands imposed by moving the elderly woman, assisting her up and down stairs and into the automobile. The February 6, 2007 incident occurred when Jackson was bicycling to work from a Burger King establishment when she was racked by abdominal pain and crashed, also injuring her left knee.

Jackson underwent surgical repair of the hernia. Life at Home refused to recognize Jackson’s condition as compensable, and the present dispute began. After trial, the workers’ compensation judge denied Jackson’s claim on the grounds that Jackson’s knee injury was not related to an on-the-job accident, and that she failed to carry her burden of proof that the hernia resulted from an accident in the course and scope of her employment. Jackson appeals.

ANALYSIS

The general proposition behind an award of benefits under Louisiana’s workers’ compensation scheme is that an employee is entitled to compensation benefits if she suffers personal injury by accident arising out of and in the course and scope of his employment. La. R.S. 23:1031(A). An “accident” is defined by La. R.S. 23:1021(1) as, “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.”

|sThis court recently reaffirmed the proposition that a finding by the workers’ compensation judge that a claimant failed to carry her burden of proof is one of fact, subject to the manifest error standard of review. Davis v. State ex rel. Dept. of Transp. & Dev., 09-288 (La.App. 3 Cir. 11/10/09), 27 So.3d 969. Under the manifest error rule, the court of appeal must determine, not whether the trial court’s findings were right or wrong, but whether they are reasonably supported by the record. Stobart v. State, Dept of Transp. & Dev., 617 So.2d 880 (La.1993). Unless no reasonable basis for them exists in the record, the factual findings by the workers’ compensation judge may not be disturbed. Id.

An employee’s uncontradicted testimony may be sufficient to satisfy her burden of proof. Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). That testimony, however, must still establish that the personal injury for which compensation is sought resulted from an “accident,” as defined in Section 1021. In the present matter, Jackson testified that the February 6, 2007 incident was not the precipitating event that caused her abdominal pain. In fact, she testified that she had suffered these abdominal pains almost from the day she was discharged following the appendectomy. It is clear that a reasonable basis exists in the record to support the workers’ compensation judge’s finding that Jackson failed to prove that the ventral hernia resulted from an accident. Further, it is equally clear that a reasonable basis exists in the record to support the workers’ compensation judge’s finding that the bicycle crash was not an accident that arose out of and in the course and scope of Jackson’s employment. Jackson was away from her usual place of employment and testified that it occurred while she was returning from purchasing breakfast in preparation for going to work. As a general rule, traveling to and from work is not [4considered within an employee’s course and scope of employment. McLin v. Industr. Specialty Contractors, Inc., 02-1539 (La.7/2/03), 851 So.2d 1135.

CONCLUSION

The workers’ compensation judge found that Jackson’s knee injury was not suffered in the course and scope of her employment and that her ventral hernia did not result from an “accident,” as that is defined in the Worker’s Compensation Act. These findings are subject to review by this court under the manifest error standard. A reasonable basis exists in the record for these findings, and this court is constrained from reversing them.

Costs of this appeal are taxed to Appellant, Helen R. Jackson.

AFFIRMED.


text:
    Charles GLISAN, et ux. v. Michael EATON, et ux.
    No. CA 09-758.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.

      Ricky L. Sooter, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Defendants/Appellees, Michael Eaton, Amanda Eaton.
    Albert Joseph Nicaud, Attorney at Law, Metairie, LA, for Defendants/Appellees, Ralph Chance Chance’s Inspection Services, Randall Brian Keiser, Keiser Law Firm, Alexandria, LA, for Defendants/Ap-pellees, Ralph Riggs, Key Realty.
    Joel Boussert, Crowell & Owens, Alexandria, LA, for Plaintiffs/Appellants, Charles Glisan, Amy Glisan.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

h Charles and Amy Glisan, appellants, appeal the judgment of the trial court maintaining the exception of prescription in favor of Ralph R. Chance, d/b/a Chance’s Inspection Services (Chance). For the reasons that follow, we affirm.

FACTS

The Glisans purchased a home in Rap-ides Parish on June 1, 2007, from Michael and Amanda Eaton. Prior to the sale, the Glisans enlisted Chance to perform an inspection of the home, which was accomplished on May 5, 2007. Chance noted some roofing issues that needed addressing, and met with a roofing contractor and the Glisans on May 9, 2007, at the property. He delivered his report to the Glisans on May 10, 2007.

On May 30, 2008, the Glisans filed suit in Pineville City Court in redhibition against the Eatons, seeking quanti minoris relief. They alleged that in the spring of 2008, they conducted an inspection of the property that revealed that the foundation of the home had cracked and/or unevenly settled. In December 2008, the Glisans filed a motion to have the case transferred to the Ninth Judicial District Court on the belief that the matter would exceed Pine-ville City Court’s jurisdictional limit. In January 2009, the Glisans amended their petition to add Chance, realtor Ralph Riggs, and Riggs’ employer, Key Realty, LLC.

Chance responded to the suit with an exception of prescription. This exception asserted that pursuant to the terms of La. R.S. 9:5608, the Glisans had one year from the date of the alleged act or omission of a home inspector to file suit. Because the |2Glisans did not allege that Chance was a joint tortfeasor, the amendment of the petition does not relate back to the filing of the original petition; therefore, according to Chance, the suit against him was not timely instituted.

The Glisans’ opposition was based upon the doctrine of contra non valentem, and specifically on what is known as the “discovery rule,” under which jurisprudence of this State has held that prescription does not begin to toll against a plaintiff whose cause of action is not known or reasonably knowable, even though the defendant did nothing to induce the plaintiffs ignorance.

ANALYSIS

Prescription of actions against home inspectors is governed by La. R.S. 9:5608, which reads:

A. No action for damages against any home inspector duly licensed under the laws of this state or against any home inspection company, whether based in tort, breach of contract, or otherwise, arising out of a home inspection or report performed or prepared by the home inspector shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date the act, omission, or neglect is alleged to have occurred.
B. The prescriptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
C. The prescriptive period provided in Subsection A of this Section shall not apply to any proceedings initiated by the Louisiana State Board of Home Inspectors.
D. The provisions of this Section shall not apply to the inspection of new homes which are subject to the provisions of R.S. 9:3141 et seq.

This statute sets forth a prescriptive, rather than a peremptive, period, as clearly stated in sections (B) and (C). There are two distinctions between prescription and peremption: (1) the tolling of peremption extinguishes the right sought to be exercised, whereas prescription merely limits the time within which one may exercise lathe right; and (2) peremption is not subject to renunciation, suspension or interruption, while prescription may be renounced, suspended or interrupted. La. Civ.Code arts. 3458 and 3461; Naghi v. Brener, 08-2527 (La.6/26/09), 17 So.3d 919; Yen v. Avoyelles Parish Police Jury, 07-225 (La.App. 3 Cir. 3/4/09), 5 So.3d 1002, writ denied, 09-1098 (La.9/4/09), 17 So.3d 964. Indeed, the effect of La.Code Civ.P. art. 1153, allowing an amendment to relate back to the date of original filing, does not affect a peremptive period. Naghi, 17 So.3d 919.

Chance argues that the language of the statute clearly expresses the legislature’s intent to limit suits against home inspectors to one year from the date of the alleged act, omission or neglect without the suspensive effect of contra non valentem. Specifically, he points to the statute’s absence of language allowing suspension pending discovery. A comparison of the statute with other provisions governing prescription is helpful in discerning whether this position is correct.

Louisiana Civil Code article 3492 reads:

Delictual actions are subject to a li-berative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

Article 3492 does not reference discovery as triggering or suspending the tolling of prescription in tort actions. However, as this court has previously noted in construing article 3492:

Damage is sustained, within the meaning of prescription, only when it has manifested itself with sufficient certainty to support the accrual of a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154 (La.1993). The damages suffered must at least be actual and appreciable in quality. Where a claimant has suffered some but not all damages, prescription runs from the day on which he suffered actual and appreciable damages even though he may thereafter realize more precise ^damages. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992). However, prescription will not commence at the earliest possible indication that plaintiff may have suffered some wrong. It will begin to run when plaintiff has a reasonable basis to pursue a claim against a specific defendant. Jordan v. Employee Transfer Corporation, 509 So.2d 420 (La.1987). Prescription should not be used to force a potential plaintiff who believes that he may have a cause of action to rush to the courthouse to file suit against all parties that may have caused the damage. Miley v. Consolidated Gravity Drainage District No. 1, 93-1321 (La.App. 1st Cir.9/12/94); 642 So.2d 693.

Labbe Serv. Garage Inc. v. LBM Distribs., Inc., 94-1043, p. 11 (La.App. 3 Cir. 2/1/95), 650 So.2d 824, 829. There is a clear distinction between the statute at issue and article 3492. Prescription does not commence under article 3492 until the date damages are sustained, and that date is determined according to when the damages are discovered. That date could be the date of the tort, but it could be much, much later.

The legislature has acted to limit the application of contra non valentem in other circumstances. Recently, we determined that, in the context of redhibitory actions against good faith sellers of residential property, contra non valentem did not suspend the running of prescription against purchasers who did not learn of a flood zone designation that prevented them from building on the property. Wimberly v. Blue, 08-1535 (La.App. 3 Cir. 5/6/09), 11 So.3d 560. Civil Code article 2534 provides that the discovery rule suspends prescription against a bad faith seller, but does not suspend prescription against a good faith seller of residential or commercial immovables. The absence of reference to the date of discovery in the good faith seller situation precluded the application of contra non valentem.

Chance argues that the absence of reference to the date of discovery indicates that the legislature intended to limit actions to one year from the date of the alleged act or omission on the home inspector’s part. We find that, because the statute 15mandates that the triggering mechanism for the tolling of prescription is the date the act, omission or neglect is alleged to have occurred, the legislature intended to limit the prescriptive period in such a way as to preclude the operation of the discovery rule. Had the legislature intended for the discovery rule to apply, it could have worded the statute in the manner it did article 3492.

CONCLUSION

Louisiana Revised Statute 9:5608 establishes a one-year prescriptive period for actions against home inspectors. The wording of the statute persuades us that the legislature intended to limit that period in such a manner as to preclude the application of the discovery rule. The ruling of the toial court is affirmed. Costs of this appeal are taxed to Plaintiffs/Appel-lees, Charles and Amy Glisan.

AFFIRMED.

      . Quanti minoris' is a reduction in the purchase price based upon the existence at the time of sale of a hidden defect not susceptible of discovery by simple inspection on the buyer’s part. La.Civ.Code art. 2541.


author: EZELL, Judge.

text:
    Philip SMITH, et al. v. UNIVERSITY ANIMAL CLINIC, INC.
    No. CA 09-745.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.

      Stephen H. Vogt, Baton Rouge, LA, for Defendant/Appellee, University Animal Clinic, Inc.
    Michael Glenn Hodgkins, Bice, Palermo & Veron, LLC, Lake Charles, LA, for Plaintiffs/Appellants, Philip Smith Shannon Smith.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   EZELL, Judge.

1, Phillip and Shannon Smith and the University Animal Care Clinic (Clinic) appeal the decision of the trial court in this case involving the loss of the Smiths’ pet cat. For the following reasons, we affirm the decision of the trial court.

The facts in this case are undisputed. The Smiths boarded their five cats at the University Animal Care Clinic from April 28 until May 5, 2007. The identification tags on one of their cats, Girlie, were inadvertently switched with another cat. This ultimately led to Girlie being delivered to another client. Girlie then escaped from that client’s home and was never found, despite great efforts by Ms. Smith and Clinic employees. The Clinic waived the $800 charges the Smiths incurred in boarding, examining, and vaccinating all their cats. The Smiths then filed this suit seeking emotional damages resulting from Girlie’s loss.

The trial court ruled that the Smiths were entitled to emotional damages under La.Civ.Code art. 1998, but that the damages were not greater than the $800 the Clinic had already waived. Accordingly, no damages were awarded. Both the Smiths and the Clinic appeal the trial court’s decision. The Smiths claim that the trial court’s award was abusively low for the damages suffered. The Clinic claims that the trial court erred in finding that the Smiths were entitled to any damages under La.Civ.Code art. 1998.

We will first address the Clinic’s claims that the trial court erred in awarding any damages under La.Civ.Code art. 1998. Louisiana law is clear that a domestic animal is considered corporeal movable property. Holland v. Teague, 43,496 (La.App. 2 Cir. 9/17/08), 996 So.2d 325.

Louisiana courts have also recognized that plaintiffs, without regard to physical injury, may recover for emotional distress and inconvenience resulting from damage to their property, but only in the following four categories of cases: (1) when the property was damaged by an |2intentional or illegal act; (2) when the property was damaged by acts giving rise to strict or absolute liability; (3) when the property was damaged by activities amounting to a continuous nuisance; and (4) under circumstances where the owner was present or nearby at the time the damage occurred and suffered psychic trauma in the nature of or similar to a physical injury as a direct result of the incident itself. Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02[6] (2nd ed.2004). The jurisprudence, however, has limited such recovery by requiring that the emotional distress be severe and not merely the result of the usual worry or anxiety attendant to property damage. See Farr v. Johnson, 308 So.2d 884 (La.App. 2d Cir.1975).

Doerr v. Mobil Oil Corp., 04-1789, pp. 8-9 (La.App. 4 Cir. 6/14/06), 935 So.2d 231, 237, writ denied, 06-1760 (La.11/3/06), 940 So.2d 664 (footnote omitted)(alteration in original).

The Smiths’ claims do not meet any of the criteria listed above for recovery of emotional damages for a property loss in tort, as they allege only negligence on the part of the Clinic. Nor did the Clinic’s actions meet any of the remaining criteria listed above. However, the Smiths argue that a new, narrowly defined, contractually based fifth exception has been created for depositaries through the legislature and the 2004 Civil Code revision. They claim that the Clinic would be liable for damages as a depository in breach of what they allege amounts to a non-pecuniary contract under La.Civ.Code art. 1998. After a thorough analysis of the statutes at issue, we agree with the Smiths that they are now entitled to recover damages for mental anguish from the Clinic.

“A deposit is a contract by which a person, the depositor, delivers a movable thing to another person, the depositary, for safekeeping under the obligation of returning it to the depositor upon demand.” La.Civ.Code art. 2926. Louisiana Civil Code Article 2930 (emphasis added) reads:

When the deposit is onerous, the depositary is bound to fulfill his obligations with diligence and prudence.
laWhen the deposit is gratuitous, the depositary is bound to fulfill his obligations with the same diligence and prudence in caring for the thing deposited that he uses for his own property.
Whether the deposit is gratuitous or onerous, the depositary is liable for the loss that the depositor sustains as a result of the depositary’s failure to perform such obligations.

“The depositary is bound to use the same diligence in preserving the deposited thing that he uses in preserving his own property, a standard of diligence that, according to the civil code, is to be rigorously enforced when ... he receives compensation for his service-”6 La. Civ. L. Treatise, Law Of Obligations § 15.7 (2d ed.). “Quite naturally, the depositary’s liability is more extensive when his services are compensated.” 6 La. Civ. L. Treatise, Law Of Obligations § 15.8 (2d ed.).

It is clear that in boarding their pet, the Smiths entered into a contract of deposit with the Clinic whereby they delivered property, Girlie, to the clinic for safekeeping and return. Further, it is undisputed that the Clinic failed to return the deposited object due to its own negligence. Accordingly, the Smiths are entitled to damages from the Clinic under the contract of deposit. However, to determine if the Smiths are entitled to recover the emotional distress damages they seek, we must examine the nature of the contract created with the Clinic closer.

Louisiana Civil Code Article 1998 provides:

Damages for nonpecuniary loss may be recovered when the contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.
Regardless of the nature of the contract, these damages may be recovered also when the obligor intended, through his failure, to aggrieve the feelings of the obligee.

Comment (b) to La.Civ.Code art. 1998 states that “ ‘Nonpecuniary loss’ means that which is known in continental doctrine as ‘dommage moral, ’ that is, damage of a |4moral nature which does not affect a ‘material’ or tangible part of a person’s patrimony.” See Litvinoff, ‘Moral Damages,’ 38 La.L.Rev. 1 (1977).” Comment (c) to Article 1998 (first emphasis ours) goes on:

A contract made for the gratification of a nonpecuniary interest means one intended to satisfy an interest of a spiritual order, such as a contract to create a work of art, or a contract to conduct scientific research, or a contract involving matters of sentimental value. In such a case, upon the obligor’s failure to perform, the obligee may recover the damages he has sustained of a nonpecu-niary or “moral” nature. See Litvinoff, supra. Thus, if a horse is bought for the purpose of showing it at an exhibition, the purchaser is entitled to recover for his disappointment and inconvenience if the contract is rescinded because of a redhibitory vice.

We find that the contract of deposit made between the Smiths and the Clinic to board Girlie was made for the gratification of a nonpecuniary interest and, because of circumstances surrounding its formation, the Clinic knew or should have known that its failure to perform would cause a nonpe-cuniary loss. The contract to board Girlie went beyond simply paying someone to feed a cat, it clearly involved something of a sentimental nature. The Clinic not only knew of this, but also advertised its services by noting the “tender loving care (such as brushing and cuddling)” they provided to keep boarded pets “happy and active.” The Clinic noted that this special attention was required because “pets are like our children.” The Clinic’s website even included a special section dealing with the loss of a pet, noting:

The loss of any close friend can be devastating, and pets can be among our closest companions. A pet frequently provides unconditional love, emotional security, and loyalty. Routine activities with an animal companion often provide structure, fun, relaxation, and social contact in our daily lives. The death of a cherished pet can mean the loss of an entire lifestyle as well as a devoted companion.

Because of the nature of the business the Clinic was in, and more clearly, the manner in which it held itself out to the public, the Clinic certainly knew that the boarding services it provided were rooted in reasons of a sentimental nature and that a failure |fito render services properly would result in a non-pecuniary loss. As such, the Smiths are entitled to recover non-pecuniary damages from the Clinic under La.Civ. Code art. 1998 for the Clinics breach of the boarding contract.

Having determined that the Smiths were entitled to recover damages for their loss, we now turn to their assertion that the trial court erred in awarding only $800 in damages.

It is well-settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review.

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

In the initial determination of exces-siveness or insufficiency, an examination of prior awards has a limited function if indeed the facts and circumstances of the prior awards are closely similar to the present. The prior awards may serve as an aid in this determination only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) “similar” injuries, see Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). However, absent an initial determination the trial court’s very great discretion in the award of general damages has been abused under the facts of this case, the reviewing court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979).

Rando v. Anco Insulations Inc., 08-1163, p. 41 (La.5/22/09), 16 So.3d 1065, 1094.

Louisiana cases dealing with emotional damage awards for loss or injury to animals or other property are few and far between. However, the awards contained in those that do exist are nominal. See Deblieux v. P.S. & Sons Painting, Inc., 405 So.2d 600 (La.App. 3 Cir.1981) (wherein $3,000 was awarded for the loss of twenty-five cattle); Quave v. Bardwell, 449 So.2d 81 (La.App. 1 Cir.1984) ($2,500 awarded for the unprovoked and intentional shooting of a dog); Kling v. U.S. Fire Ins. Co., 146 So.2d 635 (La.App. 1 Cir. 1962) (plaintiff was entitled to $100 for loss of his terrier); Brown v. Crocker, 139 So.2d 779, (La.App. 2 Cir.1962)(award of $250 for shock and mental anguish of minor observing pain and suffering of his horse that was shot). These amounts are in line with such awards throughout the nation, which generally range between $500 and $2,000. Debra Squires-Lee, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L.Rev. 1059 (1995). We find the award made by the trial court to be in line with awards made for similar losses in this state as well as nationally. More importantly, we do not find it to be an abuse of the trial court’s vast discretion.

For the above reasons, we hereby affirm the decision of the trial court. Costs of this appeal are to be assessed to University Animal Care Clinic, including $156.50 for the deposition of Roberta Dowden.

AFFIRMED.


author: COOKS, Judge.

text:
    TEE IT UP GOLF, INC., et al. v. BAYOU STATE CONSTRUCTION, L.L.C.
    No. 09-855.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.

      Mark F. Vilar, Aaron L. Green, Vilar & Elliott, LLC, Alexandria, LA, for Plaintiffs/Appellees: Tee It Up Golf, LLC and John Nobles.
    Mark A. Watson, Stafford, Stewart & Potter, Alexandria, LA, for Defendant-Appellant: Bayou State Construction, Inc.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

| iBayou State Construction, Inc., was hired by John Nobles and/or Tee it Up Golf, LLC, to serve as the general contractor for the construction of a strip mall in Pineville and to perform work on Nobles’ private home in Pineville, Louisiana. Nobles and Bayou State agreed to a “cost plus 10%” contract for the jobs. Work began in January 2008, and was billed to Nobles in eight invoices totaling slightly in excess of 1.5 million dollars.

A dispute ai'ose between Nobles and Bayou State concerning the projects. There were attempts by the parties to resolve the matter, however, they were unsuccessful. Eventually, Bayou State filed materialman’s liens on both properties with the Clerk of Court in Rapides Parish. Nobles asserted the liens were improper, and demanded in writing that Bayou State request the Recorder of Mortgages cancel the liens. Bayou State did not act upon that request within the ten days provided by law, and, as a result, Nobles brought a Writ of Mandamus to have the materialman’s liens cancelled.

The hearing on the Petition for Writ of Mandamus took place on May 4, 2009. Nobles contended there were numerous deficiencies with the liens, including an insufficient property description and a failure to reasonably itemize the elements comprising the amounts and obligations asserted. Following the taking of evidence, the trial court granted the parties leave to file memorandums concerning whether the liens met the procedural requirements of the Private Works Act. Ultimately, the trial court ruled in favor of Nobles, finding the liens did not satisfy the requirements of the Private Works Act and ordering cancellation of the liens. Nobles was also awarded $3,000.00 in attorney fees pursuant to La. R.S. 9:4833(B) for Bayou State’s failure to have the liens cancelled within ten days as provided in that section. The trial court |adid not make an award for damages incurred by Nobles due to his inability to cancel the liens because there was no proof with regard to damages due to Bayou State’s refusal to cancel the liens.

Bayou State appeals that judgment, contending it met the burden required under the Private Works Act. Nobles answered the appeal, requesting we remand to the trial court solely for presentation of proof as to the damages incurred due to Bayou State’s refusal to cancel the hens. Nobles also requests an additional award of attorney fees for the work necessitated by Bayou State’s appeal. Lastly, he contends Bayou State’s appeal is frivolous, further entitling him to an award of damages.

ANALYSIS

I. Perfection of the Liens.

Initially, we note it was stipulated at the hearing on this matter that Bayou State was the General Contractor for the project at issue and that a reasonable estimate of the work clearly exceeded $25,000.00. Louisiana Revised Statute 9:4811(D) specifically provides “[a] general contractor shall not enjoy the privilege granted by R.S. 9:4801 if the price of the work stipulated or reasonably estimated in his contract exceeds twenty-five thousand dollars unless notice of contract is timely filed.” Bayou State conceded notice of contract was not timely filed; thus, as a general contractor cannot advance a claim under the Private Works Act. However, Bayou State argues it is allowed, under Burdette v. Drushell, 01-2494 (La.App. 1 Cir. 12/20/02), 837 So.2d 54, writ denied,, 03-682 (La.5/16/03), 843 So.2d 1132, to assert a laborer’s lien under La. R.S. 9:4801(2) or a lien as a non-general or ordinary conti’actor under La. R.S. 9:4801(1). We do not disagree. Bayou State was not barred from filing a labor lien because its employees performed work on the projects. However, as ^Nobles notes, there is a “difference between being able to file a ‘Labor Lien’ and having properly perfected such a lien.” We find the record supports the trial court’s conclusion that Bayou State failed to properly perfect its liens in this case.

In order to perfect a labor lien under the Private Works Act, La. R.S. 9:4822(G) sets forth the required elements:

G. A statement of a claim of privilege:
(1) Shall be in writing.
(2) Shall be signed by the person asserting the same or his representative.
(3) Shall reasonably identify the immovable with respect to which the work was performed or movables or services were supplied or rendered and the owner thereof.
(4) Shall set forth the amount and nature of the obligation giving rise to the claim or privilege and reasonably itemize the elements comprising it including the person for whom or to whom the contract was performed, material supplied, or services rendered.

The trial court held the above article should be read in pari materia with La. R.S. 9:4831(C), which provides as follows:

C. Each filing made with the recorder of mortgages pursuant to this Part which contains a reference to immovable property shall contain a description of the property sufficient to clearly and permanently identify the property. A description which includes the lot and/or square and/or subdivision or township and range shall meet the requirements of this Subsection. Naming the street or mailing address without more shall not be sufficient to meet the requirements of this Subsection.

The trial court found the Statement of Claim filed by Bayou State did not “reasonably identify the immovable with respect to which the work was performed or movables or services were supplied or rendered and the owner thereof.” We agree. The only reference to an immovable in the Statement of Claim is the municipal address where the “materials were delivered.” No other information is provided. The courts have held that under La. R.S. 9:4831(C) “a municipal address is insufficient to ^perfect a privilege.” Norman H. Voelkel Construction, Inc. v. Recorder of Mortgages for East Baton Rouge Parish, 02-1153, p. 3 (La.App. 1 Cir. 6/27/03), 859 So.2d 9, 11, writ denied, 03-1962 (La.10/31/03), 857 So.2d 486; see also Boes Iron-Works v. Spartan Building Corp., 94-519 (La.App. 4 Cir. 12/15/94), 648 So.2d 24, 25, writ denied, 95-103 (La.3/10/95), 650 So.2d 1184 (wherein the court held “a claim of privilege describing immovable property by correct municipal address of property did not adequately describe property subject to privilege for purposes of the Private Works Act.”). Therefore, the trial court did not err in finding the listing of only the municipal address on the Statement of Claim was insufficient; and, under La. R.S. 9:4833, Nobles was entitled to have the privilege cancelled.

We also find the trial court did not err in finding Nobles failed to properly set forth the amount and nature of the obligation giving rise to the claims or privileges and reasonably itemize the elements comprising them. The record established that Bayou State filed two claims or privileges, one on each property. However, Bayou State listed the same amount on each claim, $180,762.59. The trial court noted it was not reasonable to assume that two separate projects at two different locations would have required the same amount of material and labor expenses. Noting Bayou State gave no explanation for this, the trial court concluded it simply listed the lump sum for both projects. Clearly, such a lump sum amount cannot meet the statutory requirement to set forth the amount and nature of the claim giving rise to the privilege against each property. It is impossible to know how much the reasonable amount is for the claim on the strip mall as opposed to the claim on the private residence.

Likewise, on both statements of claim filed by Bayou State, the $180,762.59 figure is listed under the category “Materials Supplied.” There is no attempt whatsoever to itemize the elements comprising this amount as required by statute. | r,Thus, the Statements of Claim filed by Bayou State were improper and the trial court did not err in ordering their cancellation.

II. Damages for Frivolous Appeal.

In his answer, Nobles seeks damages for a frivolous appeal. Louisiana Code of Civil Procedure Article 2164 provides the authority for an appellate court to award damages for a frivolous appeal.

If the court feels that counsel for the appellant does not seriously advocate the position taken or that the appeal was filed solely for dilatory purposes, then damages for frivolous appeal are appropriate. Gallien v. Winn-Dixie, 96-832 (La.App. 3 Cir. 12/11/96), 685 So.2d 531 (citing Hampton v. Greenfield, 618 So.2d 859 (La.1993)); Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ denied, 95-2076 (La.11/13/95), 662 So.2d 478. However, if even the slightest justification is found for the appeal, and even if the appellant does not prevail on appeal, damages will not be awarded. Hawkins v. City of Jennings, 97-1291 (La.App. 3 Cir. 3/6/98), 709 So.2d 292.

Moraus v. Frederick, 05-429, pp. 9-10 (La.App. 3 Cir. 11/2/05), 916 So.2d 474, 481-82.

Neither the record nor the briefs indicate that counsel for Bayou State does not seriously advocate the position taken, or that this appeal was filed as a dilatory tactic. Thus, we deny Nobles’ request for damages for frivolous appeal.

III. Damages and Attorney Fees under the Private Works Act.

Nobles also asserts in his appeal he has suffered damages due to his inability to cancel the two Statements of Claims against his properties. He asserts he has lost the opportunity to refinance existing loans at a lower rate, and thus has incurred increased finance charges as a result. The trial court did not make an award of damages, because there was no proof offered by Nobles regarding the damages he may have incurred as a result of Bayou State’s refusal to cancel the liens. We cannot supply the proof on appeal and Nobles has not offered any reasons for his failure to advance this claim by presenting sufficient evidence below. We, therefore, reject | ,¡Nobles’ request for remand.

Nobles was awarded $3,000.00 in attorney fees pursuant to La. R.S. 9:4833(B) for Bayou State’s failure to have the liens cancelled within ten days. In his answer, Nobles requests additional attorney fees for the work necessitated by this appeal. We believe such a request is warranted, and award $3,000.00 in additional attorney fees for the work done on appeal.

DECREE

For the foregoing reasons, we affirm the trial court’s judgment ordering cancellation of the two liens against appellees’ properties. We amend the judgment to reflect an additional award of $3,000 in attorney fees in favor of Nobles for the work necessitated by this appeal. AH costs of this appeal are assessed against appellant, Bayou State Construction.

AFFIRMED, AS AMENDED.


author: J. DAVID PAINTER, Judge. GREMILLION, Judge,

text:
    Adonis Cole WEEKS v. SUNSTREAM, INC., et al.
    No. 09-706.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.

      William J. Mitchell, Attorney at Law, Baton Rouge, LA, for Defendants-Appel-lees, SunStream, Inc. and The Northern Insurance Company of New York.
    Robert L. Salim, Attorney at Law, Billy L. West, Jr., Attorney at Law, Natchitoch-es, LA, for Plaintiff-Appellant, Adonis Cole Weeks.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   J. DAVID PAINTER, Judge.

| plaintiff, Adonis Cole Weeks (Weeks), appeals the grant of summary judgment in favor of Defendants, SunStream, Inc. (SunStx-eam) and The Northern Insurance Company of New York (Northern), dismissing his negligence claim against them. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Weeks was employed by Pilgrim’s Pride Corporation (Pilgrim’s) as a maintenance mechanic. He alleges that he was injured on July 29, 2005, in the course and scope of his employment, by an “arcing explosion” that occurred when he re-set a circuit breaker in the master control center of Pilgrim’s chicken processing plant in Natchitoches, Louisiana. Weeks initially filed suit against only SunStream, a contractor who provides electrical services to Pilgrim’s on an “as needed” basis. By first supplemental and amending petition, Northern, as insurer of SunStream, was added as a defendant. Weeks filed a second supplemental and amending petition adding Schneider Electric Engineering Services, LLC (Schneider), and Square D, the manufacturer of the breaker, as defendants. Schneider was dismissed on an exception of no cause of action. Pilgrim’s filed a petition in intervention naming Sun-Stream as the sole defendant-in-intervention. A second supplemental and amending petition in intervention was filed to add Northern, Schneider, and Square D as additional defendants-in-intervention. Sun-Stream and Northern filed a motion for summary judgment alleging that Weeks had absolutely no evidence regarding any alleged negligence on the part of Sun-Stream that was a possible cause-in-fact of the accident or any alleged breach of any duty that SunStream may have owed him. The trial court agreed, granted the motion for summary judgment, and dismissed Weeks’ claims against SunStream and Northern. The intervention, as well as Weeks’ principal demand against Square D, remains pending in the district court.

Weeks appeals the grant of summary judgment in favor of SunStream and Northern and contends that the trial court committed legal error in finding that Sun-Stream did not have a duty to warn him of the risk of injury and/or unreasonable |2risk of harm. For the following reasons, we agree with Weeks and reverse the summary judgment.

DISCUSSION

We review this matter de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. However, we must first address SunStream and Northern’s contention that this appeal is not properly before us. Specifically, Sun-Stream and Northern contend that this is a partial summary judgment under La. Code Civ.P. art. 1915(B) since it does not dispose of all of Week’s claims and because they remain as defendants-in-intervention. As such, SunStream and Northern contend that since Weeks did not request that the judgment be designated as a final judgment and since the trial court did not designate it as a final judgment, it is not immediately appealable. Accordingly, SunStream and Northern ask that we dismiss this appeal. Weeks, on the other hand, asserts that no designation is necessary.

Louisiana Code of Civil Procedure Article 1915(A) provides that “[a] final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case.” We find that the judgment at issue is a final judgment under La.Code Civ.P. art. 1915(A)(1) and (3), rather than a partial judgment under 1915(B), because it disposes of Weeks’ entire claim against SunStream and Northern. No designation is necessary under La.Code Civ.P. art. 1911, which provides that “[a]n appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.” This is not a situation where the summary judgment does not dispose of the entire case under La.Code Civ.P. art. 966(E). That SunStream and Northern remain in the suit as defendants-in-intervention is of no moment because the summary judgment dismissed all of Weeks’ claims against them in the principal demand.

| ;¡We now move to the merits of the grant of the motion for summary judgment. There was testimony that, prior to the subject accident, SunStream had attempted to repair the breaker. Sun-

Stream’s owner was called to the plant the day before the subject accident because a circuit breaker kept tripping, causing the plant to shut down. SunStream’s owner, Mr. Talmadge, testified that he contacted ETI, an engineering firm that is accredited to test this equipment, to come and test the breaker. He and the ETI representative went to Pilgrim’s facility, and ETI conducted the testing, which was done by removing the rating plug and hooking the testing device up to it. The test revealed that the breaker was functioning at only a third of its capacity. Pilgrim’s manager instructed SunStream to obtain a replacement breaker since the breaker could not be repaired on site. Weeks contends that the breaker was left in place while a new one was ordered and that he was instructed by his supervisors that he could by-pass the fail safe breaker by manually flipping the breaker back on. He alleges that Sun-Stream failed to warn him of the risk of injury associated with the circuit breaker. Weeks’ expert found that “the most probable cause of the accident was the incorrect reassembly of the breaker inside the motor control panel....” Representatives of Sun-Stream, however, contend that the breaker was not taken apart. The trial court found that “nothing that SunStream did or failed to do that [sic] caused plaintiffs damages. Plaintiff would be unable to satisfy his evidentiary burden of proof at trial.” The trial court also found that there was no genuine issue of material fact as to whether or not SunStream was negligent. We disagree. There is a genuine issue of material fact regarding SunStream’s leaving the breaker in place while a new one was located. Weeks contends that SunStream left the circuit breaker in an unsafe condition and failed to warn him and others at Pilgrim’s facility of the risk of injury associated with the circuit breaker.

Whether a defect presents an unreasonable risk of harm is a mixed question of fact and law that is peculiarly a question for the jury or trier of the facts. It entails innumerable considerations; and, because it requires a balancing of the risk and utility of the condition, it is not a simple rule of law which can be applied mechanically to the facts of any particular case. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. It is “a matter wed to the facts” and must be determined | fin light of the facts and surrounding circumstances of each particular case. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002.

Waller v. Shelter Mut. Ins. Co., 41,215, p. 7 (La.App. 2 Cir. 6/28/06), 935 So.2d 288, 292.

We conclude that the trial court erred in granting summary judgment. In opposing the motion for summary judgment, Weeks presented sufficient evidence, including evidence of failure to comply with OSHA rules and regulations and that there was no warning label on the breaker despite Square D’s suggestion that an arc flash warning label be used, to create a genuine issue of material fact as to whether an unreasonable risk of harm was presented by leaving the circuit breaker, which was known to be malfunctioning, in place. Further, to reach its stated conclusions, the trial court had to weigh the credibility of the opposing experts. The law is well settled that the trial court cannot make credibility determinations or weigh conflicting evidence in making its decision whether to grant or deny a motion for summary judgment. DeMoss v. Pine Hills Golf and Country Club, Inc., 42,033 (La.App. 2d Cir. 4/4/07), 954 So.2d 316; Sharp v. Parkview Care Center, Inc., 41,341, 41,342 (La.App. 2d Cir. 9/27/06), 940 So.2d 724. Instead, the trial court must assume that all affiants are credible. Hutchinson v. Knights of Columbus Council 5747, 03-1533 (La.2/20/04), 866 So.2d 228; Gladney v. Milam, 39,982 (La.App. 2d Cir. 9/21/05), 911 So.2d 366. That did not happen in this case. For these reasons, we reverse the summary judgment rendered by the trial court.

DECREE

The trial court’s grant of summary judgment in favor of Defendants-Appellees, SunStream, Inc. and The Northern Insurance Company of New York, is reversed. Costs of this appeal are assessed against Defendants-Appellees, SunStream, Inc. and The Northern Insurance Company of New York.

REVERSED.

GREMILLION, J., concurs and assigns written reasons.

GREMILLION, Judge,

concurs.

hi agree with the majority’s conclusion that there exists a genuine issue of material fact as to whether an unreasonable risk of harm was presented by leaving the circuit breaker, which was known to be malfunctioning, in place. Thus, I concur with the majority’s opinion. However, the majority overreached in attempting to articulate issues of fact, which, in fact, do not exist.

First, the majority states that “Sun-stream had attempted to repair the breaker.” The trial court expressly found that there “is no evidence of any repair attempts.” Second, the majority cites the plaintiffs expert for the proposition that the accident was probably caused by “incorrect reassembly of the breaker.” The trial court referenced the same language in its reasons for judgment. However, it went on to conclude that “[tjhis opinion is not factually supported as it is clear that the breaker was never entered.” Third, the majority suggests that there is a genuine issue as to whether Sunstream should have placed a “warning label” on the breaker. Because the defendant in question neither manufactured nor owned the breaker, it clearly had no duty to place such a warning label. There is no evidence that the defendant would have been permitted to place a warning label on the breaker of which it had no guard, custody, or control. Accordingly, I concur in the result.

      . See Riehm v. State Farm Mut. Auto. Inc. Co., 07-651 (La.App. 5 Cir. 1/22/08), 977 So.2d 1045, wherein the court noted that judgment dismissing a party is final and appealable wilhout the necessity for designation under La.Code Civ.P. art. 1915(B) even though other claims remain pending.