STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-491
LYNETTE M. MARTIN
VERSUS
ERMC, II, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2007-5053 HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J. Gremillion, Judges.
Gremillion, J., dissents and assigns written reasons.
AFFIRMED.
Laurence E. Best Mark E. Best Best Koeppel, A.P.L.C. 2030 St. Charles Avenue New Orleans, LA 70130 (504) 598-1000 Counsel for Defendants/Appellants: American Home Assurance Company ERMC, II, L.P. Miles A. Matt Law Offices of Matt & Allen, L.L.C. P. O. Box 4405 Lafayette, LA 70502-4405 (337) 237-1000 Counsel for Plaintiff/Appellee: Lynette M. Martin
Bruce David Beach Ungarino & Eckert, LLC 200 W. Congress Street, Suite 650 Lafayette, LA 70501 (337) 235-5656 Counsel for Defendants/Appellants: American Home Assurance Company John R. Landry CBL & Associates Management, Inc. ERMC, II
Robin Lynn Jones Ungarino & Eckert 315 S. College Road, Suite 239 Lafayette, LA 70503 (337) 235-5585 Counsel for Defendants/Appellants: CBL & Associates Management, Inc. ERMC, II American Home Assurance Company John R. Landry DECUIR, Judge.
On September 19, 2006, Lynette Martin was struck by a golf cart as she exited
the Mall of Acadiana in Lafayette, Louisiana. The golf cart was being operated by
John R. Landry in the course and scope of his employment with ERMC, II, L.P., the
facility services contractor for the Mall of Acadiana. Martin immediately reported
the injuries which included a bruised right arm, soreness on the right side, and a
pinched feeling in the neck and low back.
Dr. Robert Franklin diagnosed cervical and lumbar strain, possible underlying
spinal pathology, associated headaches, possible median neuropathy at the right wrist,
a contusion to the right forearm, and spasms in the upper back. Dr. Franklin
prescribed physical therapy and various medications for inflammation, spasms, and
pain. Martin has complained of persistent pain, and evidence was introduced
suggesting a greatly reduced level of activity as a result of the accident. Dr. Franklin
referred Martin to Dr. Michel E. Heard, an orthopedic surgeon.
Dr. Heard ordered steroid injections which offered no lasting relief. Dr. Heard
concluded after twenty-three months of treatment that Martin can expect pain on a
permanent basis and a potential for surgery in the future.
After a jury trial, the jury found Landry 75% at fault in causing the accident
and awarded damages as follows:
Pain and Suffering $50,000.00
Physical Injury $13,000.00
Past Medical $17,134.00
Future Medical $50,000.00
Loss of Enjoyment $40,000.00 Past Lost Wages $30,000.00
Future Lost Wages $0
The trial court signed the judgment but later on oral motion by the plaintiff amended
it to reflect $30,000.00 in past and future lost wages combined. Defendants lodged
this appeal.
EXCESSIVE GENERAL DAMAGES
Appellants contend that the jury’s award of general damages in the amount of
$103,000.00 is excessive. We disagree.
The Supreme Court has defined the role of the appellate court when faced with
a challenge to a general damage award on appeal:
[T]he 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. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
. . . . The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact... . 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.
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510
U.S. 1114, 114 S.Ct. 1059 (1994) (citations omitted). In determining whether an
abuse of discretion has been shown, the relevant evidence must be “viewed in the
light which most favorable to the prevailing party.” Id. at 1261.
Applying these standards, we must consider whether the jury’s award of
$103,000.00 for general damages constitutes an abuse of discretion. In this case the
plaintiff’s complaints are largely subjective, which means the jury was required to
2 assess the credibility of the witnesses very carefully to determine the extent of the
plaintiff’s injuries. While we acknowledge that the award is on the high end of such
awards, given the particular circumstances of this case, we decline to overturn the
considered award of the jury as an abuse of discretion.
LOST WAGES
Appellants’ final two assignments allege the jury’s award of lost wages and
the trial court’s amendment to the judgment with regard to lost wages are erroneous.
After reviewing the record, we find that the jury erred in finding that Martin
was entitled to $30,000.00 in past lost wages and $0 in future lost wages. When an
appellate court finds that the trial court has committed manifest error of fact, the court
must ascertain the facts de novo from the record and render a judgment on the merits.
Siverd v. Permanent General Ins. Co., 05-973 (La. 2/22/06), 922 So.2d 497, writ
denied, 05-0967 (La. 4/24/06), 926 So.2d 532.
In this case, reviewing the record de novo, we find that the evidence clearly
establishes past lost wages in the amount of $8,240.00 for the one year and eight
months prior to trial. The jury’s finding that past lost wages were $30,000.00 is not
supported by the record. Furthermore, we find that the jury could have found that
Martin was entitled to as much as $98,000.00 in future lost wages. The jury erred in
finding that future lost wages were $0. After reviewing the record, and particularly
the speculative nature of the plaintiff’s future work plans, we find that a $30,000.00
award for past and future lost wages combined is appropriate. This is quantitatively
the same result reached by the jury and expressed in the amended judgment of the
trial court. Accordingly, we affirm the judgment of the trial court on the grounds
stated above.
3 We need not discuss the appellant’s remaining assignment regarding the
propriety of the trial court’s amendment under Louisiana Code of Civil Procedure
Article 1951, as our discussion above renders it moot. However, we note that the
trial court’s actions were in conformity with the clear intent of the jury and the
findings of this court.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All
costs of these proceedings are taxed to appellants.
4 09-491
ERMC, II, ET AL
GREMILLION, Judge, dissents in part.
The defendants herein assigned three errors. The first was that the jury abused
its discretion in awarding general damages in the amount of $103,000. I agree with
the majority that, while at the “high end,” this was not an abuse of the jury’s
discretion.
The second of the defendant’s assignments of error is that the evidence did not
support a past lost wages award of $30,000. This is where I must dissent.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-491
LYNETTE M. MARTIN
VERSUS
ERMC, II, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2007-5053 HONORABLE KRISTIAN D. EARLES, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J. Gremillion, Judges.
Gremillion, J., dissents and assigns written reasons.
AFFIRMED.
Laurence E. Best Mark E. Best Best Koeppel, A.P.L.C. 2030 St. Charles Avenue New Orleans, LA 70130 (504) 598-1000 Counsel for Defendants/Appellants: American Home Assurance Company ERMC, II, L.P. Miles A. Matt Law Offices of Matt & Allen, L.L.C. P. O. Box 4405 Lafayette, LA 70502-4405 (337) 237-1000 Counsel for Plaintiff/Appellee: Lynette M. Martin
Bruce David Beach Ungarino & Eckert, LLC 200 W. Congress Street, Suite 650 Lafayette, LA 70501 (337) 235-5656 Counsel for Defendants/Appellants: American Home Assurance Company John R. Landry CBL & Associates Management, Inc. ERMC, II
Robin Lynn Jones Ungarino & Eckert 315 S. College Road, Suite 239 Lafayette, LA 70503 (337) 235-5585 Counsel for Defendants/Appellants: CBL & Associates Management, Inc. ERMC, II American Home Assurance Company John R. Landry DECUIR, Judge.
On September 19, 2006, Lynette Martin was struck by a golf cart as she exited
the Mall of Acadiana in Lafayette, Louisiana. The golf cart was being operated by
John R. Landry in the course and scope of his employment with ERMC, II, L.P., the
facility services contractor for the Mall of Acadiana. Martin immediately reported
the injuries which included a bruised right arm, soreness on the right side, and a
pinched feeling in the neck and low back.
Dr. Robert Franklin diagnosed cervical and lumbar strain, possible underlying
spinal pathology, associated headaches, possible median neuropathy at the right wrist,
a contusion to the right forearm, and spasms in the upper back. Dr. Franklin
prescribed physical therapy and various medications for inflammation, spasms, and
pain. Martin has complained of persistent pain, and evidence was introduced
suggesting a greatly reduced level of activity as a result of the accident. Dr. Franklin
referred Martin to Dr. Michel E. Heard, an orthopedic surgeon.
Dr. Heard ordered steroid injections which offered no lasting relief. Dr. Heard
concluded after twenty-three months of treatment that Martin can expect pain on a
permanent basis and a potential for surgery in the future.
After a jury trial, the jury found Landry 75% at fault in causing the accident
and awarded damages as follows:
Pain and Suffering $50,000.00
Physical Injury $13,000.00
Past Medical $17,134.00
Future Medical $50,000.00
Loss of Enjoyment $40,000.00 Past Lost Wages $30,000.00
Future Lost Wages $0
The trial court signed the judgment but later on oral motion by the plaintiff amended
it to reflect $30,000.00 in past and future lost wages combined. Defendants lodged
this appeal.
EXCESSIVE GENERAL DAMAGES
Appellants contend that the jury’s award of general damages in the amount of
$103,000.00 is excessive. We disagree.
The Supreme Court has defined the role of the appellate court when faced with
a challenge to a general damage award on appeal:
[T]he 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. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
. . . . The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact... . 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.
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510
U.S. 1114, 114 S.Ct. 1059 (1994) (citations omitted). In determining whether an
abuse of discretion has been shown, the relevant evidence must be “viewed in the
light which most favorable to the prevailing party.” Id. at 1261.
Applying these standards, we must consider whether the jury’s award of
$103,000.00 for general damages constitutes an abuse of discretion. In this case the
plaintiff’s complaints are largely subjective, which means the jury was required to
2 assess the credibility of the witnesses very carefully to determine the extent of the
plaintiff’s injuries. While we acknowledge that the award is on the high end of such
awards, given the particular circumstances of this case, we decline to overturn the
considered award of the jury as an abuse of discretion.
LOST WAGES
Appellants’ final two assignments allege the jury’s award of lost wages and
the trial court’s amendment to the judgment with regard to lost wages are erroneous.
After reviewing the record, we find that the jury erred in finding that Martin
was entitled to $30,000.00 in past lost wages and $0 in future lost wages. When an
appellate court finds that the trial court has committed manifest error of fact, the court
must ascertain the facts de novo from the record and render a judgment on the merits.
Siverd v. Permanent General Ins. Co., 05-973 (La. 2/22/06), 922 So.2d 497, writ
denied, 05-0967 (La. 4/24/06), 926 So.2d 532.
In this case, reviewing the record de novo, we find that the evidence clearly
establishes past lost wages in the amount of $8,240.00 for the one year and eight
months prior to trial. The jury’s finding that past lost wages were $30,000.00 is not
supported by the record. Furthermore, we find that the jury could have found that
Martin was entitled to as much as $98,000.00 in future lost wages. The jury erred in
finding that future lost wages were $0. After reviewing the record, and particularly
the speculative nature of the plaintiff’s future work plans, we find that a $30,000.00
award for past and future lost wages combined is appropriate. This is quantitatively
the same result reached by the jury and expressed in the amended judgment of the
trial court. Accordingly, we affirm the judgment of the trial court on the grounds
stated above.
3 We need not discuss the appellant’s remaining assignment regarding the
propriety of the trial court’s amendment under Louisiana Code of Civil Procedure
Article 1951, as our discussion above renders it moot. However, we note that the
trial court’s actions were in conformity with the clear intent of the jury and the
findings of this court.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All
costs of these proceedings are taxed to appellants.
4 09-491
ERMC, II, ET AL
GREMILLION, Judge, dissents in part.
The defendants herein assigned three errors. The first was that the jury abused
its discretion in awarding general damages in the amount of $103,000. I agree with
the majority that, while at the “high end,” this was not an abuse of the jury’s
discretion.
The second of the defendant’s assignments of error is that the evidence did not
support a past lost wages award of $30,000. This is where I must dissent.
The majority finds as follows, “[W]e find that the evidence clearly establishes
past loss wages in the amount of $8,240.00 for the one year and eight months prior
to trial. The jury’s finding that past lost wages were $30,000.00 is not supported by
the record.” I agree. Thus, the jury’s $30,000.00 award for past loss wages should
be reduced to $8,240.00.
The majority continues, “Furthermore, we find that the jury could have found
that Martin was entitled to as much as $98,000.00 in future lost wages. The jury erred
in finding that future lost wages were $0.”
The majority offers this despite the fact the amount of future lost wages was
not presented to the court, as an assignment of error. The Court of Appeal will
normally only review issues assigned as errors on appeal. Guilbeaux v. Times of
Acadiana, Inc., 94-1270 (La.App. 3 Cir. 8/9/95), 661 So.2d 1027, writ denied, 95-
2942 (La. 3/29/96), 670 So.2d 1238. Of course that restriction can be lifted when the
1 “interest of justice” clearly requires otherwise. Id. and Uniform Rules – Courts of
Appeal, Rule 3-1. Here, however, the majority simply assigns its own error and
renders its finding.
The third error assigned by the defendants suggests that the trial court erred in
converting the jury’s past lost wages award into a single combined award for both
past and future lost wages. The trial court does have a mechanism for amending
judgments. That mechanism is provided by La.Code Civ.P. art. 1951. However, the
trial court can only do so to change “phraseology” and to fix “errors in calculation.”
Id. The record is utterly devoid of any evidence that the trial court’s action was to do
one of those two things. Thus, the limitations placed on the trial court by La.Code
Civ.P. art. 1951 would be paramount in the majority’s reasoning. However, the
majority expressly ignores this dispositive code article by simply indicating that it is
“moot.” Again, there is no discussion whatsoever of why it is moot. Rather, there is
simply the conclusion that the trial court need not concern itself with the limitations
of the code when its actions “are in conformity with the clear intent of the jury.” I
disagree.
As a matter of procedure, the trial court lacked authority to amend the
judgment. In fact, the trial court cannot alter the substance of a judgment in the
absence of a timely application for a new trial or an action for annulity. Succession
of James v. Lain, 27,639, 27,640 (La.App. 2 Cir. 12/6/95), 665 So.2d 715. Here,
Martin filed no such application; indeed, she sought no modification of the judgment.
Secondly, as a matter of substance, nothing in the law allows the trial court to
combine past and future lost wages into one single award. The reason that the trial
court may not do so is simple: as this court has previously ruled, “[p]ast and future
lost wages are separate and distinct damage awards.” Fontenot v. Southwestern
2 Offshore Corp., 00-1727 p. 6 (La.App. 3 Cir. 6/6/01), 787 So.2d 588, 592, writ
denied, 01-1913 (La. 10/12/01), 799 So.2d 504. These areas of damage carry with
them two completely different standards of proof. Specifically, in order to recover
for past lost wages, the plaintiff must prove her past lost earnings and the length of
time absent from work which is attributable to the injury caused by the defendant.
Id. See also Mathews v. Dousay, 96-858 (La.App. 3 Cir. 1/15/97), 689 So.2d 503.
By contrast, to recover for future loss of earnings, the plaintiff must show medical
evidence that indicates with reasonable certainty that a residual disability causally
related to the accident in question exists, which results in the plaintiff’s inability to
earn wages to the same extent she could have earned had she not been injured. Id.
An even more striking difference between past and future lost wages is the fact that
past lost wages are susceptible of mathematical calculation from the evidence
presented at trial, while future lost wages are not. Id.
When one looks at the distinction between past and future lost wages, it
becomes clear that it is no more logical or appropriate to merge those two elements
together than it would be to merge any two other elements of damages normally
found on a verdict form.
Given the clarity of the completed verdict form that forms the basis for the
original judgment, the fact that the law provides that past and future lost wages are
completely separate and distinct, and that the trial court lacked the procedural
authority to amend the original judgment, I would find that the appellants’ third
assignment of error regarding the improper “converting” of the original judgment to
be well-founded.
The evidence clearly establishes that the proper amount of past lost wages is
$8,240.00, as the majority notes. The jury’s award of $30,000.00 is not supported by
3 the record. Whether or not the jury’s line item entry of $0 for future lost wages is
supported by the record is immaterial, because no party assigned that as error.
As the trial court pointed out, the total damage award was broken down by the
verdict form into seven categories. I would affirm the jury’s verdict in six of those
seven categories. With regard to past lost wages, I would reduce the award from
$30,000.00 to $8,240.00 as every member of this panel agrees is the highest amount
supported by the record.