
    Kenneth A. McASHAN v. JACK’S PEST CONTROL and Jack D. Isenberg.
    No. 99-CA-1068.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 5, 2000.
    Order Vacating Denial of Rehearing June 21, 2000.
    Opinion Granting Rehearing Nov. 29, 2000.
    Writ Denied March 9, 2001.
    
      Louis R. Koerner, Jr., New Orleans, Louisiana, Counsel for Plaintiff-Appellee.
    Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., Quentin F. Urquhart, Jr., New Orleans, Louisiana, Counsel for Defendants-Appellants.
    Court composed of Judges WILLIAM H. BYRNES, III, MIRIAM G. WALTZER, JAMES F. McKAY, III.
   h BYRNES, Judge.

Plaintifi/appellee Kenneth A. McAshan sued the defendants/appellants, Jack’s Pest Control (Jack) and Jack D. Isenberg for termite damage to McAshan’s property located at on Girod St. Pursuant to a jury verdict the trial court rendered judgment on July 6, 1998 in favor of McAshan and against the defendant Jack’s Pest Control and its insurer, Louisiana Pest Control Insurance Company, in the sum of $100,000.00, subject to Louisiana Pest Control Insurance Company not being liable for the first $1,000.00. All claims against Jack D. Isenberg were dismissed.

Jack filed a motion for JNOV and alternatively for new trial and McAshan filed a motion for JNOV/New Trial and to Set Expert Fees. The trial court denied both motions for new trial, denied McAshan’s motion for JNOV, deferred McAshan’s .motion to set costs and granted Jack’s motion for JNOV. In doing so the trial court “recast the jury verdict in all respects as heretofore rendered except for reducing the quantum thereof from $100,000.00 to $25,327.98, vrith interest and costs.” •

hOn October 1, 1998 Jack filed a Motion to Clarify the trial court’s judgment of September 25, 1998 on the basis that it failed to specifically provide whether the award of $25,327.98 would be subject to the jury’s finding of 50% comparative fault. The trial court denied Jack’s motion to clarify.

McAshan appealed asking for additional damages and arguing that his recovery should not be reduced for comparative fault. Jack and its insurer appealed contending that the amount awarded included sums for repairs not attributable to the termite damage. Jack also contended that the trial court erred in failing to reduce the $25,327.98 award by the fifty per cent comparative fault attributed by the jury to McAshan. McAshan did not answer the appeal.

THE QUESTION OF COMPARATIVE FAULT

The original jury verdict found that Jack was not grossly negligent; that Jack breached its contract with McAshan, which breach was the cause of damage to McAsh-an; that Jack negligently misrepresented or intentionally misrepresented things to McAshan causing him damage; that McAshan’s own negligence was the 50% cause of his damages; that those damages amount to $200,000.00 before reduction for McAshan’s contributory negligence; and that McAshan owed Jack’s no indemnity. Accordingly, the trial court reduced the $200,000.00 damages found by the jury to have been proven by McAshan to $100,000.00. In his written reasons for granting Jack’s motion for JNOV, the trial judge stated in pertinent part that:

Although Mark Dahlman testified the costs of repairs would be $200,000.00 which matches the jury’s conclusion of damages, the actual cost of repairs totaled | ?much less. The actual governs over the theoretical estimate. Of the $135,966.90 in invoices presented, $9,326.99 was unrelated to the Girod Street property. Although waterproofing and roof repair were not per se related to termite damage repair, such was necessary to deprive any remaining or future Formosan termites with water source and to complete the termite proofing. See Roman Catholic Church of Archdiocese of New Orleans v. La. Gas Service Co., 618 So.2d 874. Thus, the jury verdict must be overturned per Anderson.
* * H* #
The only evidence in support of what part of the termite damage is pre the 1992 treatment is that of James Arcen-eaux whose testimony preponderates to 80% being pre the 1992 treatment. Thus, McAshan’s recovery is limited to 20% of his actual damages.

Neither the judgment of September 25, 1998 nor the written reasons in support thereof make any mention of reversing the jury finding of McAshan’s comparative negligence which caused his recovery in the judgment of July 6, 1998, to be reduced from the $200,000.00 amount originally found to constitute his actual damages to $100,000.00. Therefore, when the judgment of September 25, 1998 states that “the judgment of this Court based on the jury verdict is recast in all respects as heretofore rendered except reducing the quantum thereof from $100,000.00 to $25,327.98,” an argument can be made that it was the implicit intention of the trial court to apply the 50% comparative negligence factor to the $25,327.98 award. According to this reading of the judgment the award would then be one half of $25,327.98. However, it can also be argued that in structuring the wording of the September 25, 1998 judgment so that the $25,327.98 award is made to correspond with the $100,000.00 award, that the $25,327.98 is the bottom line award just as the $100,000.00 was the bottom line award in the original judgment. This is because the $25,327.98 figure represents the 20% of the termite damage occurring after 1992 consisting of $135,966.90 for repairs, less the 14$9,326.99 found not to be attributable to the termite damage. In making the original award of $100,000.00 there is no reference to comparative negligence in the judgment of July 6, 1998, nor to the total damage determination of $200,000.00. We just know from the facts that the $100,000.00 is the net amount after halving the $200,000.00 total damage because of the finding of McAshan’s 50% comparative negligence.

McAshan’s brief which was filed over two months after that of Jack, does not address this issue. We are unable to tell whether the trial court denied Jack’s motion for clarification because the judge considered the judgment sufficiently clear as written or because the judge felt that what Jack referred to as clarification might instead be found by this Court to be a substantive change in the judgment contrary to LSA-C.C.P. art. 1951. This is not a matter of finding an error in the judgment of the trial court and correcting it on appeal instead of remanding, where the record is sufficiently complete to enable us to do so, and as we are admonished to do in the name of judicial economy. The litigant in whose favor the jury or the trial court has made certain findings is entitled to have those findings treated to a certain deference by this court, e.g., the manifest error standard of review, abuse of discretion, etc., depending on the nature of those findings. For example, in the instant case the trial court rendered a JNOV which is subject to a very strict standard of review under Anderson v. New Orleans Public Service,Inc., 583 So.2d 829 (La. 1991), and which standard of review is very different from that to be applied to the findings of the jury. Therefore, it is crucial to our review to be able to determine to what extent the JNOV may have differed from the jury verdict. The problem in the instant case is that the ambiguity in the trial court judgment raises questions regarding both quantum and liability, effectively cutting across the | .^entire case. It is impossible to review the findings of the trial court when we cannot be certain what those findings are.

For the foregoing reasons, we, therefore, reluctantly order that this case be remanded to the trial court for a clarification of its judgment of September 15,1998, limited to addressing the question of whether that judgment abrogated the jury’s finding that McAshan’s contributory negligence was a 50% cause of his damage and the $25, 327.98 awarded in the judgment of September 15, 1998 has been or needs to be adjusted to reflect McAshan’s contributory negligence, i.e., should the bottom line amount of the award be $25,327.98 or one half of that amount. As this remand is limited, and as the appellee failed to appeal or answer the original appeal, he may ask for no affirmative relief on appeal from the judgment to be rendered on remand other than on those matters addressed in the clarifying judgment to be rendered on remand, and then only if he appeals or answers any appeal lodged by Jack’s.

REMANDED.

JjORDER

Considering the motion of Kenneth A. McAshan to vacate denial of rehearing, it appears that this Court failed to properly notify the parties of our Order dated January 19, 2000.

IT IS HEREBY ORDERED THAT THE ORDER denying rehearing dated June 15, 2000 is hereby vacated.

IT IS FURTHER ORDERED THAT Mr. McAshan shall have thirty (30) days from the date of this Order in which to furnish this Court with the answer and transcript referred to in the Order of January 19, 2000 and in denial of rehearing of June 15, 2000.

/a/ William H: Byrnes, III JUDGE WILLIAM H. BYRNES, III

/s/ Miriam G. Waltzer JUDGE MIRIAM G. WALTZER

/s/ James F. McKay, III JUDGE JAMES F. McKAY, III

ON APPLICATION FOR REHEARING

hBYRNES, Judge.

This Court agreed to grant rehearing upon discovering that the plaintiff had filed an answer to the appeal in the trial court, a procedure that has been recognized but which creates problems for this Court because we are unaware of anything that occurs outside of the record presented to this Court.

Pursuant to the order of this Court the plaintiff furnished us with a copy of the transcript of the proceedings in the trial court dated October 30, 1998 with which we hereby supplement the record. A review of that transcript eliminates the ambiguity referred to in our original opinion. We find that it was not the intention of the trial judge to reduce the $25,327.98 award by 50% attributable to plaintiffs comparative negligence. The JNOV overturns the jury finding of 50% plaintiff comparative negligence.

Having cleared up this ambiguity, we find there is no reason to remand. The record is sufficiently complete to allow this Court to conduct a full review. In the conduct of this review plaintiff is entitled to have his answer to the appeal considered.

|2The defendants-appellants assigned only two errors: (1) The inclusion by the trial court of costs for replacement of the roof and waterproofing which the defendants contend are unrelated to the termite damage; and (2) the failure of the trial court to assign comparative fault to the plaintiff. Accordingly, the defendants have, in effect, conceded the fundamental question of whether they can be held liable for termite damages. Defendants challenge only the extent of those damages and the degree to which plaintiffs recovery should be reduced by his own comparative fault.

The plaintiff asked this Court to address three issues only: (1) The granting of the defendants’ motion for JNOV; (2) the question of whether there was any basis for the finding of comparative fault on the part of the plaintiff; and (3) whether the trial court should have awarded additional damages for the plaintiffs overall loss on his investment.

Because of the way the parties have postured their appeals, there are no terms in the agreements between the parties, whether written or oral that need detain this Court. We may assume that the defendants have liability arising out of the agreement(s) - we need only determine the extent of that liability.

The standards for reviewing the decision of the trial court to grant a motion for JNOV are as set forth in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991):

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach Indifferent conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might, reach different conclusions, the motion should be denied. [Citation omitted.] -In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.
In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e., do the facts and inférences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated. [Emphasis added.]

The trial judge adverted to the aforementioned Anderson standards in the written reasons he issued in connection with the JNOV. We adopt the reasons of the trial judge as quoted in the original opinion of this Court including the following omitted portion shown by the ellipsis in our original quotation:

Recognizing that the defendant can only be held liable for gross negligence relating to his pre-1992 treatment, the only damages for which the defendant can be held liable are those post the 1992 treatment. Evidence of negligence in the 1985 treatment exists. The Court does not believe the concrete was drilled around the columns. But, that failure is ordinary negligence, not gross negligence; gross negligence is equivalent to wanton disregard for appropriate action.

^Plaintiffs contractor, Mr. Richard Pad-dison, prepared an estimate of $183,501.00 for the repair and moisture control work. Another of plaintiffs witnesses, Mr. Mark Dahlman, estimated the cost of repairs to be $200,000.00. However, the total of the invoices actually paid by Mr. McAshan for the work at the property was only $135,966.60. It was conceded that the $135,966.60 included $9,326.99 for work performed on Mr. McAshan’s St. Charles Ave. residence that was totally unrelated to the building that is the subject of this suit. Therefore, the total of invoices paid in connection with this property was only $126,639.91. We agree with the trial court’s conclusion that the “actual governs over the theoretical” and that the record will support no reasonable conclusion other than that the cost of repairs must be based on actual invoices paid for work done to the Girod Street building. We find that no reasonable fact finder would disagree with the trial judge’s finding that the record will not support a finding that more was spent to address the termite problem in plaintiffs budding than could be supported by the paid invoices presented. Further, from among those invoices, no reasonable fact finder would dispute the fact that the invoice for $9,326.66 representing work done on the plaintiffs St. Charles Ave. home is not recoverable by the plaintiff in connection with termite damage sustained by the plaintiff at his 825 Girod Street building. Accordingly, we conclude that the threshold decision made by the trial judge to grant the JNOV was not error.

Once the jury verdict is set aside under the strict JNOV standards, the trial court is then the trier of fact. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 834 (La.1991); Pino v. Gauthier, 633 So.2d 638, 653 (La.App. 1 Cir.1993), writ denied 94-0243 and 94-0260 (La.3/18/94), 634 So.2d 858 & 859. As the trier of fact, the trial judge then confects a de novo award based on his independent ^assessment. Id. and Anderson, supra, citing Coco v. Winston Industries, 341 So.2d 332 (La.1976); Perkins v. Guaranty Nat. Ins. Co., 95-229, p. 8 (La.App. 3 Cir. 11/2/95); 667 So.2d 559. In so doing, the trial judge is not constrained as are the courts of appeal to the lowest (or highest) point which is reasonable within the discretion afforded the trial court. Id.; Anderson. We infer from the foregoing that once this Court determines that the granting of the JNOV by the trial court was proper, this Court then must treat the findings of the trial court as though the trial court had been the original finder of fact, whether this means applying the manifest error standard of review to findings of fact generally, or affording the trial court the breath of discretion allowed to the find finder in those areas insusceptible of precise determination such as comparative negligence or general damages.

Therefore, we will now proceed to review the award of the trial judge by applying the standard set forth in Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976) as called for by the Supreme Court in Anderson.

The trial court relied on the expert testimony of James Arceneaux in finding that 80% of the termite damage occurred prior to 1992 at a time when the | ^defendants would clearly have no liability. Although one might reasonably infer otherwise from the testimony of plaintiffs contractor, Mr. Paddison, which testimony indicated no signs of damage prior to 1991 and heavy damage in 1995, we cannot say that the trial court’s conclusion in this regard was unreasonable, manifestly erroneous or clearly wrong. In reaching this conclusion, we note that the only properly qualified expert who testified at trial as to the age of the termite damage was Mr. James Arceneaux. Mr. Paddison admitted that he was not an expert in determining the age of termite damage. He further testified that he would probably defer to an expert on that issue.

The plaintiff contends that there is no basis for assigning comparative fault to him. In rendering the JNOV, the trial court did not assign any comparative fault to the plaintiff. Therefore, from the plaintiffs perspective, this matter is moot. However, in answering plaintiffs appeal, the defendants contend that the trial court was correct when it granted the JNOV based on an erroneous assessment of damages by the jury, but that the trial court, in effect committed an error of law when it failed to sustain the jury finding of 50% comparative fault. In other words, the defendants contend that the trial court’s authority to adjust the damage award pursuant to the JNOV does extent to the right to adjust the allocation of fault because the decision to grant the JNOV was not based on the allocation of fault. The defendants cite no authority in support of this contention. We are aware of none. We infer from Anderson, supra, that when a trial court decides to grant a motion for JNOV, it then becomes the responsibility of the trial court to review the award de novo, including the calculation of comparative fault. Moreover, although |7the defendants made a brief general conclusory statement saying that the record would support a finding of plaintiffs comparative fault, the defendants failed to argue or demonstrate that the trial judge’s failure to assign any fault to the plaintiff was manifestly erroneous or clearly wrong.

The plaintiff assigns as error the failure of the trial court to award damages based on his “loss of investment” theory. “Loss of investment,” assuming for purposes of argument only that plaintiff sustained such damages, is an item of special damages that must be specifically alleged. LSA-C.C.P. art. 861. Plaintiff made no allegations of loss of investment. Over and over again, plaintiffs petition and amended petition describe no damages other than “the cost of repairing the termite damage and of treating active termites, along with mental anguish and emotional distress.” We recognize that plaintiffs pleadings may be enlarged by evidence admitted without objection. LSA-C.C.P. art. 1154. But the trial court sustained the defendants’ objections to plaintiffs attempts to enlarge the record in regard to the issue of “loss of investment.” We find no error in the refusal of the trial court to award “loss of investment” damages. See Harris v. Cole, 98-0174, 98-0175, 98-0176 (La.App. 1 Cir. 5/14/99); 732 So.2d 822.

For the foregoing reasons, we grant rehearing, vacate our original opinion to remand, and render judgment affirming the judgment of the trial court.

REHEARING GRANTED.

ORIGINAL OPINION OF THIS COURT TO REMAND VACATED.

JUDGMENT OF THE TRIAL COURT AFFIRMED. 
      
      . For example, if in clarifying the judgment the trial court declares that the $25,327.98 awarded to McAshan should be reduced by 50%, McAshan may by appeal or answer to appeal argue that the $25,327.98 figure should be reinstated. However, by failing to appeal or answer the appeal at this stage, McAshan is now precluded from asking for more than that amount.
     
      
      . In his answer to the appeal, the plaintiff moved in the alternative for a devolutive appeal. As the issues raised by the plaintiff in connection with this appeal are limited to those raised in his answer to the appeal the outcome is the same regardless of how this Court looks at plaintiff’s appearance before this court, the issues raised remain the same.
     
      
      . Plaintiff’s brief fails to raise the issue of gross negligence either expressly or impliedly. Plaintiff’s brief does not argue that any of the defendant's breaches of duty amount to gross negligence. Moreover, we find as a matter of law that none of the breaches of duty alleged to have been committed by the defendant prior to 1992 amount to gross negligence.
     
      
      . In Pino, supra, 633 So.2d at 654, the First Circuit stated that:
      The question before this court is whether, considering the evidence in the light most favorable to defendants Gauthier and R.P.M., the trial court was manifestly erroneous in concluding that reasonable men could not have found Gauthier 1 percent at fault and R.P.M. 34 percent at fault [as was found by the jury] in causing the accident. [Emphasis added.]
      We find the Pino Court's reference to the manifest error standard of review when reviewing the trial court’s decision to grant the JNOV inconsistent with the quotation from Anderson which immediately precedes it stating that the criterion to be used in reviewing the initial determination to grant the JNOV is "do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict.” According to the Anderson standard set by the Supreme Court, it would be closer to the mark to apply the manifest error standard in support of the jury’s verdict than in support of the decision by the trial court to grant the JNOV. As Anderson directs the reviewing court to "not evaluate the credibility of witnesses,” and that “all reasonable inferences or factual questions should be resolved in favor of the non-moving party” we conclude that the standard for sustaining the initial decision to grant the JNOV is probably higher than the manifest error standard. The language used in Anderson is very similar to the language employed by reviewing courts when reviewing summary judgments under the old law when all inferences were resolved in favor of the non-moving party and no credibility determinations were made.
     
      
      . The plaintiff does not contest the trial court’s finding that the defendants can be liable for gross negligence only prior to 1992.
     