Annie Edwards v. Donald P. Breaux

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-601

ANNIE EDWARDS

VERSUS

DONALD P. BREAUX, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 79559 F
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Oswald A. Decuir
and Marc T. Amy, Judges.

AFFIRMED.

Reule P. Bourque
Attorney at Law
P. O. Box 127
Kaplan, LA 70548
(337) 643-8686
Counsel for Defendant/Appellant:
Donald P. Breaux

Donald R. Dobbins
Attorney at Law
842 East Boulevard
Baton Rouge, LA 70802
(225) 387-6010
Counsel for Defendant/Appellant:
Donald P. Breaux

Rusty Galloway
Michael L. Barras
Galloway Jefcoat, L.L.P.
P. O. Box 61550
Lafayette, LA 70596-1550
(337) 984-8020
Counsel for Plaintiff/Appellee:
Annie Edwards

DECUIR, Judge.

In this case, a landlord appeals a judgment of the trial court finding him liable

for injuries sustained by his tenant.

FACTS

Annie Edwards leased an apartment in Kaplan, Louisiana from Donald Breaux.

Prior to the accident in this case, Edwards notified Breaux that there were loose

ceiling tiles in the living room and bathroom of the apartment. On the day of the

accident, Edwards was sitting on the toilet applying makeup when three to four

ceiling tiles fell and struck her, causing immediate pain. Edwards is disabled and

suffers from fibromyalgia, but she indicated that the pain was different than what she

had experienced previously.

Edwards filed suit against Breaux seeking damages for her injuries. The trial

court found for Edwards and awarded $13,212.08 in damages. Breaux lodged this

appeal.

NOTICE

Breaux contends that the trial court erred in failing to require Edwards to

establish that he had actual or constructive notice of the alleged defect that caused her

injury as required by Louisiana Civil Code article 2317.1. We disagree.

It is true that the trial court opined in its written reasons that he did not believe

that actual or constructive notice was required due to the operation of La.Civ.Code.

art. 2695. However, the court noted that neither party had raised the issue of the

article’s applicability and specifically stated, “Whether the plaintiff was required to

do so, she has proven actual notice to the lessor.” The trial court further stated that

it based its determination that Edwards’ testimony was more credible than Breaux’s

on the notice issue. Accordingly, this assignment has no merit.

DAMAGES

Breaux does not assign as error the trial court’s award of damages. However,

he argues that the award is not supported by the record.

The standard for an appellate review of damages was established in Reck v.

Stevens, 373 So.2d 498 (La.1979) and confirmed in Youn v. Maritime Overseas,

Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127

L.Ed.2d 379 (1994). An appellate court cannot disturb a trial court's award of

damages unless we find that the award constitutes an abuse of the trial court's

discretion.

Clearly given Edwards’ preexisting conditions and the subjective nature of her

complaints, the trial court was required to make a credibility determination in making

its award. After reviewing the record, we find no abuse of discretion in this case.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of these proceedings are taxed to appellant, Donald Breaux.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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