JOHNNY PIERRON v. GREGORY KIMPTON AND ABC INSURANCE COMPANY (2025)

This is an appeal by defendant-appellant, Gregory Kempton, from a judgment, as amended on a Motion for New Trial, rendered after a bench trial, which occurred on October 24 and 25, 2024. The district court awarded property damages in the amount of $48,259.89 plus costs and interest, to the plaintiffs-appellees, Johnny J. Pierron and Angela Pierron Palombo, on behalf of their deceased father, Johnny Pierron, as a result of damage to Johnny Pierron's property caused by the falling of a tree located on Mr. Kempton's adjacent property. For the reasons discussed herein, the amended judgment of the trial court is affirmed.

FACTS AND STATEMENT OF THE CASE

On August 12, 2016, at approximately 6:00 a.m., a tree located on rental property owned by Mr. Kempton, located at 5533 Niagara Drive, Marrero, Louisiana (the “Kempton Property”)¹ caused damages to a fence, carport and garage located on the neighboring property at 5537 Niagara Drive (the “Pierron Property”), owned by Johnny Pierron (“Mr. Pierron”). On November 22, 2016, Mr. Pierron filed suit against Mr. Kempton under La. C.C. art. 2317 and 2317.1 for damages to his property caused by the falling of the tree.² Mr. Pierron alleged that the tree was in Mr. Kempton's custody and control, was in a defective condition that was known or should have been known by Mr. Kempton, and the fall of the tree onto the Pierron Property caused Mr. Pierron to suffer damages that were reasonably foreseeable by Mr. Kempton.

Mr. Kempton contended that he was not responsible for Mr. Pierron's damages, asserting that a force majeure, or Act of God—allegedly heavy rains that had fallen in Marrero, Louisiana, between August 1, 2016 and August 12, 2016—had caused the tree to uproot and fall onto the Pierron Property. Mr. Kempton also contended that the tree was not defective and/or that he had no prior knowledge of any defect in the tree.

Pertinent Pre-Trial Matters

1. Kempton's Motion For Summary Judgment; The Pierrons’ Motion in Limine/Daubert Motion

The trial court issued a scheduling order in July, 2020.³ On November 12, 2020, the last date for filing dispositive motions pursuant to the scheduling order, Mr. Kempton filed a Motion for Summary Judgment to which he attached an affidavit of William Mizell, a landscape architect, whom Mr. Kempton identified as an expert witness as to the cause of the fall of the tree. Mr. Kempton had not previously identified any expert witness that he expected to call at trial.

On November 30, 2020, the Pierrons filed their opposition to Mr. Kempton's Motion for Summary Judgment, complaining that they had no prior notice that Mr. Kempton would be calling Mr. Mizell as an expert witness and that, as a result, they had not had the opportunity to depose Mr. Mizell as to his qualifications and opinion. The Pierrons also filed a Motion for the Issuance of a New Scheduling Order to give them an opportunity to depose Mr. Mizell. Following a hearing on January 12, 2021, the trial court denied Mr. Kempton's Motion for Summary Judgment and granted the Pierrons’ Motion for the Issuance of a New Scheduling Order, giving them until March 12, 2021, to depose Mr. Mizell and to retain their own expert. The Pierrons retained Dr. Malcolm Guidry, an arborist, as their expert witness.

When deposed by the Pierrons, Mr. Mizell testified that, although he is not an arborist, he has a degree in landscape architecture from Louisiana State University and has worked designing, installing and maintaining landscapes for more than 30 years. He had worked as the long-time campus landscape architect at Tulane University (“Tulane”). Mr. Mizell testified that he had never been asked to opine as an expert witness in any field and had never been a consulting expert on tree health or the structural integrity of a tree. He stated that when trees fall on Tulane's campus, he often consults with an arborist as to the cause.

Mr. Kempton, whom he knew only as “Greg,”⁴ was known to Mr. Mizell from Greg's work as a contractor at Tulane. Mr. Kempton approached Mr. Mizell and showed him three pictures of a fallen tree and a printout from the National Oceanic & Atmospheric Association (“NOAA”) for the period of August 1-13, 2016 (the “NOAA Printout”) and asked Mr. Mizell to opine as to the cause of the tree becoming uprooted and falling. Based on the information presented to him by Mr. Kempton, Mr. Mizell opined that, because there was standing water in the area of the tree and the NOAA Printout showed that there had been rain in the area, the tree had uprooted and fallen due to ground saturation and wind.⁵ Mr. Mizell did not offer any opinion as to whether there were any other factors relating to or affecting the tree that may have contributed to it becoming uprooted and falling onto the Pierron Property. Mr. Mizell also testified that, as a result of contractual obligations to Tulane, he could not be retained and paid as an expert witness in this case; instead, he had offered his opinion free of charge as a favor to Mr. Kempton.

Following Mr. Mizell's deposition, the Pierrons filed a Motion in Limine/Daubert Motion to Exclude or Limit [his] Testimony and Evidence (the “Mizell Daubert Motion”). In his opposition to the Mizell Daubert Motion, Mr. Kempton asserted, as he does in his second assignment of error herein that, under the Daubert ⁶ standard, Mr. Mizell was qualified to testify based on his experience alone. A hearing on the Mizell Daubert Motion was held on June 22, 2021, after which the district court granted the motion and excluded Mr. Mizell from testifying as an expert, but stated that it would permit Mr. Mizell to testify as a fact witness. Mr. Kempton's counsel then informed the trial court and the Pierrons that he would call Mr. Mizell as a fact witness. Mr. Kempton did not lodge an objection on the record to the trial court's ruling excluding Mr. Mizell as an expert witness. Judgment granting the Mizell Daubert Motion was entered on July 6, 2021.⁷

2. Stipulation as to Damages

On April 27, 2021, the Pierrons filed a stipulation that the amount of their damages, excluding interest and costs, would not exceed $50,000 and, on that basis, requested a bench trial.

3. Mr. Kempton's Motion for Extension of Time

In June 2021, the district court entered a scheduling order, setting November 12, 2021, as the deadline for the filing of all discovery and amendments of the pleadings, and setting December 3, 2021, as the deadline for filing dispositive motions. On November 12, 2021, the cutoff date for filing discovery, Mr. Kempton filed a Motion for Extension of Time (the “Motion for Extension”), seeking to extend the discovery deadline for sixty days, representing to the district court that there were “several depositions that have yet to occur in this case” and asserting that Hurricane Ida (which occurred on August 29, 2021) had prevented this discovery from taking place.⁸ A hearing on the Motion for Extension was conducted on December 15, 2021, after which, the district court denied the motion in open court, after pointing out the numerous extensions of the discovery deadline that had already been granted. Mr. Kempton did not reserve an objection to the district court's ruling. Judgment denying the motion was entered on January 10, 2022. The denial of Mr. Kempton's Motion for Extension of Time is the basis of Mr. Kempton's third assignment of error in this appeal.

4. Mr. Kempton's Motion in Limine

On November 2, 2022, Mr. Kempton filed a Motion in Limine to Limit the Testimony of Dr. Guidry (the Pierrons’ expert arborist) (the “Kempton Motion in Limine”), to prevent Dr. Guidry from offering legal conclusions as to Mr. Kempton's knowledge and whether Mr. Kempton exercised reasonable care.

5. Bench Trial

The case came on for trial on October 25, 2023. On the morning of trial, the district court heard and denied the Kempton Motion in Limine, a ruling that Mr. Kempton challenges in his fourth assignment of error herein. Mr. Kempton did not reserve an objection to the district court's ruling at that time. The matter then proceeded to trial.

Neighbors’ Testimony

The Pierrons first introduced the testimony of two of their long-time neighbors, Ms. Celeste Thibodeaux and Mr. Jimmy Boyd. Ms. Thibodeaux testified that she had lived across the street from the Pierron and Kempton properties for 35 years and has an unobstructed view of both properties from her house. Ms. Thibodeaux stated that she and her husband were friends with Mr. Pierron, his parents who lived there before him, and his children.

According to Ms. Thibodeaux, at approximately 6:00 a.m., on the morning that the tree fell onto the Pierron Property, she and her husband were outside with their dog, when she heard a loud noise. Ms. Thibodeaux stated that she assumed that the noise was thunder, as it had been raining. Ms. Thibodeaux was not sure whether it had been raining on the days prior to the tree-fall incident, but she recalled that the ground was soggy.

Ms. Thibodeaux, a school bus driver, also stated that when she was leaving to go on her bus route later on the morning of the incident, she saw that the tree that had been located in the Kempton Property backyard had fallen onto Mr. Pierron's garage and fence. Ms. Thibodeaux testified that, when she returned from her bus route, she and her husband went to the Pierron Property.

Ms. Thibodeaux testified that she was not really surprised that the Kempton Property tree fell onto the Pierron Property. She related that another tree (the “first tree”) on the Kempton Property had fallen approximately two to three years earlier and had landed on the house located on the Kempton Property, necessitating the replacement of the roof. According to Ms. Thibodeaux, she had noticed at that time that the remaining tree in the Kempton Property backyard (sometimes hereinafter, the “subject tree”) did not look well and that as time passed, the condition of the subject tree had deteriorated. Prior to falling onto the Pierron Property on August 12, 2016, the subject tree had looked shabby and dead to her.

Mr. Boyd's testimony was consistent with that of Ms. Thibodeaux. Mr. Boyd testified that he had lived on Niagara Drive on the same side of the street as the Pierron Property for more than fifty years and was friends with the Pierron family. He testified he had been observing the trees in the Kempton Property backyard every day for all of the 50+ years that he had lived on Niagara Drive. Mr. Boyd stated that there were originally two trees in the Kempton Property backyard. The first tree fell onto the roof of the house located on the Kempton Property. There was cavitation in the trunk of the first tree but it had been fully foliaged when it went down.

Mr. Boyd testified that he was not surprised that the subject tree went down because it had been dropping large limbs for a year or two before it fell, had become almost completely barren of leaves, and had dropped a large limb onto Mr. Pierron's fence several months or a year before it fell. Mr. Boyd also testified that he personally observed the subject tree to be defoliated and infested with termites and that it had suffered a previous lightning strike from top to bottom. According to Mr. Boyd, the subject tree had been in decline for about five years prior to falling onto the Pierron Property and, although it had a small amount of green foliage on it when it fell, the quantity of foliage should have been much greater considering the time of year.

Mr. Boyd testified that Mr. Pierron spent a great deal of time working in the garage prior to the incident and “was always outside with some kind of little project going on.” Mr. Boyd stated that Mr. Pierron became very distressed after the incident and that “he took it pretty hard.”

Mr. Boyd admitted on cross-examination that there had been standing water on the ground on the morning of the incident. Mr. Boyd denied that his testimony was influenced by his friendship with the Pierron family or by his negative feelings towards Mr. Kempton's tenants.

Public Insurance Adjuster Testimony

Richard Lyon, the owner of Gulf Coast Adjusting Company, a licensed, bonded public insurance adjusting and appraising firm, was stipulated to be an expert in the field of insurance adjusting and testified as such. Mr. Lyon testified that in this case, he was tasked with providing an assessment of damages to the Pierron Property caused by the fallen tree, which he did, based upon his knowledge of public insurance adjusting, using a program called Xactimate.⁹

Mr. Lyon testified that he visited the Pierron Property on September 24, 2016 -- some 44 days after the tree fell onto the Pierron Property -- and took measurements and photographs of the damages. Mr. Lyon then entered the various items of damages into Xactimate to generate an estimate of the cost to repair the damage to the Pierron Property caused by the fallen tree.

Mr. Lyon opined that the carport would have to be replaced, at a cost of $17,330.81, explaining that it was unlikely that the structure could be properly repaired because the shock of the tree hitting it caused damage to many different aspects of the structure, including connecting parts. It also was unlikely that the carport could be properly repaired because the design of and construction materials for such aluminum carport/patio covers changes approximately every two years. In making his estimate, Mr. Lyon considered that Mr. Pierron would not be indemnified by patching in different materials.

Mr. Lyon found the same to be true of the garage, which had taken the brunt of the impact from the fallen tree. Mr. Lyon stated that everything was “loose” and “jolted” and could not be easily or properly repaired in a workmanlike manner. The garage did not have any drywall or sheetrock and was mostly unfinished studs inside. Mr. Lyon explained that even though there might have been some components, such as 2x4s that could have been salvaged and re-used, a contractor would not come in and “pick apart which little pieces they can save or spend[ ]the time pulling nails out of 2x4s; nobody is going to do that. They're just going to replace the garage.” Mr. Lyon stated that if the carport and garage were located on his property, he would have replaced them and that is what he estimated for Mr. Pierron. Mr. Lyon estimated that the replacement cost of the garage was $24,183.38, inclusive of $6,192.72 to replace the garage roof.

Mr. Lyon separately estimated the cost of repairing/replacing the fence, which he considered as a separate structure, to be $1,068.81. Mr. Lyon's total damage estimate was $48,259.89 based on September 2016 pricing.¹⁰ This is the amount of damage ultimately awarded by the district court.

Although Mr. Lyon's inspection did not occur until some 44 days after the subject tree fell onto the Pierron Property, Mr. Lyon testified that the potential for further deterioration during this 44-day period was not significant and would not have affected his damage estimate. Mr. Lyon testified that he did not account for depreciation because, in a case such as this one, where insurance was not involved, it was not his practice to add depreciation; he simply estimated the cost to replace the structures and building materials as they were. Mr. Lyon further testified that the cost of wood to replace the structures at issue in this case would not have depreciated very much. Mr. Lyon stated that while the roofing would depreciate at a higher rate than the framing, he could not depreciate it because he did not know when the roof had been installed. Mr. Lyon stated that he did not believe the carport or the roof on the garage was sixty years old. The failure of Mr. Lyon to apply depreciation to his damage estimate is the subject of Mr. Kempton's first assignment of error.

Testimony of the Pierron children and Debra Pierron

Mr. Pierron's two children, Angela (“Angela”) and Johnny (“Johnny”) testified, as did his ex-wife Debra Pierron. Angela testified that when she was growing up, her grandparents lived in the house at 5533 Niagara Drive and her family lived in the house across the street. She considered the 5533 Niagara Drive property to be “their home,” even when her grandparents were living there. Angela related that the best part of their lives was spent on that street and in that house. The garage had particular significance to her grandfather and Mr. Pierron. Her grandfather was retired from the Air Force and used the garage as a workshop. He and her father, Mr. Pierron, were always in the garage building and working on things. Mr. Pierron and his father took a great deal of pleasure in working together in the garage and they amassed a large number of tools and pieces of equipment over the years. According to Angela, when her grandparents died, Mr. Pierron inherited the house at 5533 Niagara Drive and moved into it.

Angela testified that in August 2016, Mr. Pierron had become disabled and had a lot of health problems. He was living on a disability check and could not afford to do many things. Angela stated that the only activities in Mr. Pierron's life that brought him any pleasure at that point were working out in the garage, building swings, and taking his boats – which he kept under the carport – out to go fishing. “That was his two things that he was able to do” and the “only leisure he could afford.”

As a result of the tree falling on the Pierron Property, Mr. Pierron could no longer use his garage and boats. Every time Angela spoke to Mr. Pierron after the incident, he was upset and depressed about not being able to participate in the activities that had previously provided him with joy in life.

Angela stated that when Mr. Pierron unexpectedly died in 2018, she opened Mr. Pierron's succession and was appointed as its administrator. Angela testified that she tried to get the garage and carport repaired, but it was too expensive. Angela testified that she was forced to sell Mr. Pierron's house out of the succession and said that it was sold without a garage, with the carport hanging and with a damaged fence. She said she had to cut the price of the house “a lot” to be able to sell it, although she did not say by how much. She also did not testify as to the value of the house before and after the incident.

Debra testified that she and Johnny went over to the Pierron Property after the tree fell onto it. Debra stated that she observed the fallen tree, which she perceived as being diseased. According to Debra, the tree was virtually devoid of leaves, its branches were brittle, it had no roots in the ground and was infested with termites. Debra stated that the tree had completely destroyed Mr. Pierron's garage. Debra testified that she did not observe any other downed trees in the neighborhood; instead, the neighborhood trees were tall and green and full of foliage.

Johnny and Mr. Pierron tried to remove the debris left by the fallen tree, but Mr. Pierron had a bad back and ultimately hired someone to come and remove the debris. Debra testified that Mr. Pierron became very despondent after the incident. She stated that Mr. Pierron had “finally gotten the garage cleaned up the way he wanted it, and he got his boat in there, and you know, this is all he had. He couldn't afford to do anything.” Debra stated that, after the incident, some of Mr. Pierron's tools went into a single car garage and the rest of it “just sat out on the patio in the weather. There was a lot of stuff.”

Johnny testified that he grew up on Niagara Drive, directly across the street from his grandparents’ house, ultimately, his father's house, and had spent a great deal of time throughout his entire life in the garage at that house, with both his grandfather and his father, building and repairing things. Johnny characterized the garage as their mechanic shop and testified that his father derived a great deal of pleasure from working in the garage.

Johnny stated that he lived with his father for six to eight months following the incident and that his dad “definitely didn't do much anymore. He pretty much just sat in front of the TV eating. He gave up.” Johnny said that Mr. Pierron was upset about the garage and the boat but also every time he went out onto the back patio, all of his tools were just lying around getting destroyed and damaged by the weather.

Johnny testified that he observed the subject tree on the Kempton Property on many occasions. He stated that approximately five to seven years prior to the fall of the tree onto the Pierron Property, the tree had started to decline. Johnny said that as time went on, he observed the tree to have lost most of its leaves and its trunk to have holes in it. Johnny testified that about six to eight months before the tree fell onto the Pierron Property, the tree dropped some large branches onto Mr. Pierron's fence, caving it and requiring repairs by Johnny and Mr. Pierron. Johnny recalled that, as a result of the limbs falling on the fence, Johnny had a conversation with Mr. Kempton about removing the dead limbs. Johnny did not specifically recall Mr. Kempton's response but believed that Mr. Kempton did remove some dead branches from the tree.

Johnny also testified that he had gone into Mr. Kempton's backyard right after the tree had fallen onto the Pierron Property and observed that the roots of the tree had ripped apart, as opposed to having been ripped up out of the ground. Johnny stated that it appeared to him that the roots of the tree were rotten and had broken because they were all brown and brittle.

Johnny said that after the tree fell, he and his father got on the roof and tried to cut the tree away, but were unsuccessful. According to Johnny, Mr. Pierron became very depressed because he could no longer work in the garage and take his boats out fishing.

Johnny admitted that he had never suggested to or requested of Mr. Kempton that the tree be removed because he did not think of it and did not believe that it was his place to make such a request. Johnny also admitted that he had given a sworn statement after the incident stating that, as of August 12, 2016, it had been raining for three to four days and that there had been a lot of wind.

Testimony of Plaintiff's Expert Arborist, Dr. Malcolm Guidry

Dr. Guidry was tendered, stipulated and accepted as an expert in agriculture and forestry, an arborist and a horticultural consultant. He was retained as an expert witness in this case in 2021, nearly five years after the tree had fallen. By the time Dr. Guidry was retained, the tree had been removed. Dr. Guidry testified that, even though he had been unable to physically examine the subject tree, he was nevertheless qualified to determine and was able to determine the cause of the failure of the tree.¹¹

Based on the photographs of the subject tree, Dr. Guidry opined that the tree had been dried out for some time and that its root system was rotted. Dr. Guidry described the subject tree as being devoid of tension roots, having only little fiber roots that were not capable of holding the tree upright. Dr. Guidry explained that a tree the size of the one that fell onto the Pierron Property, should have had tension roots as long as six to twelve feet permeating out in all directions, but none could be seen on any of the photographs of the subject tree.

Dr. Guidry rejected the defense's theory that the tree fell as a result of wind and rain. According to Dr. Guidry, when considering the wind's effect on the tree, he stated, “Even if the wind were blowing 20 miles an hour, 30 miles an hour, 40 miles an hour, I don't think that wind would have caused this tree -- because it has no wind resistance, no wind loading on this tree.”. Dr. Guidry testified that what the defense identified as green foliage on the tree was algae and mosses that are superficial to the tree and have nothing to do with its health. Dr. Guidry further testified that the visible sprouts that could be observed on the tree were stress sprouts, which were a sign of decline. Other signs that the subject tree had been dead when it fell was that it had long extended limbs with no twigs or branch endings and that when it fell, it broke apart and scattered brittle pieces of branches and limbs all over the top of Mr. Pierron's roof. The trunk of the tree also had visible holes and termites in it, which was an indication that the tree had been weakened and contained rotting wood.

Dr. Guidry testified that, applying his vast experience, knowledge and understanding to what is known about the subject tree, it was his opinion that the wetness of the soil and wind did not bring the tree down; rather the tree was dead prior to the time it fell onto the Pierron Property and came down due to gravitational pull as the result of a rotted root system. Dr. Guidry further stated that the condition of the tree should have been obvious to any layperson, including Mr. Kempton, as being able to observe when a tree is dead is well within the domain of common knowledge. Therefore, it was Dr. Guidry's opinion that Mr. Kempton knew or should have known that the tree was dead and posed a hazard to the Pierron Property. The defense's objection to Dr. Guidry's testimony relative to whether Mr. Kempton knew or should have known of the condition of the tree was overruled.

Mr. Pierron's Sworn Statement

Following the testimony of Dr. Guidry, the district court admitted into evidence, over defense objection, Mr. Pierron's sworn statement (the “Pierron Statement”), taken on September 22, 2016. Therein, Mr. Pierron stated that he had lived at 5533 Niagara Drive for approximately fifty years. He testified that he had all of his tools that he had collected over his life, his father's tools, a welding machine, a boat and other items of value in his garage. When the tree fell, it destroyed his garage. He stated that the estimated cost to repair the damage caused by the tree was $50,000.

Mr. Pierron stated that the subject tree had been planted when he was about seven years old and grew to be a big tree. Mr. Pierron testified that the tree was rotten prior to falling onto the Pierron Property and that he had been “cutting limbs off of it that was hanging over my garage” for some time prior to the time it fell. Mr. Pierron also stated that about three years prior to the tree falling onto his property, he observed the tree to have termites. Mr. Pierron did not contact Mr. Kempton directly to discuss the condition of the tree but asked Mr. Kempton's tenants to tell him that the tree needed to be cut down. The admission of the Pierron Statement is the subject of Mr. Kempton's sixth assignment of error herein.

At the close of plaintiffs’ case, defense counsel made no assertion that the Pierrons had failed to prove any element of their claim, including causation or damages and made no motion for a directed verdict. The defense then proceeded to call two witnesses, Messrs. Bobby Andrus and Kempton.

Testimony of Bobby Andrus

Mr. Andrus was a long-time employee of Advanced Waterproofing, Mr. Kempton's company. Mr. Andrus testified that, on the morning of the incident, Mr. Kempton called him and asked him to go out to the scene, take photographs of the damage caused by the tree, and to make sure that the property was watertight. When Mr. Andrus arrived at the Pierron Property, he was met by an older man who informed him that it was not safe for him to go onto the roof and refused him permission to come onto the Pierron Property. As a result, Mr. Andrus did not tarp Mr. Pierron's garage, did not observe the Pierron Property and did not take any photographs.¹²

Testimony of Mr. Kempton

Mr. Kempton testified that he had no knowledge of the subject tree being in a distressed or diseased condition; as far as he knew, the tree was healthy and covered with leaves. Mr. Kempton further testified that he had treated the Kempton Property for termites on a regular basis.

Mr. Kempton stated that, some months prior to the tree falling onto the Pierron Property, he had seen one dead branch on Mr. Pierron's side, which he instructed his “guys” to remove. He did not observe any other fallen limbs or branches, nor was he informed of any by Mr. Pierron, Johnny or any of the neighbors. Mr. Kempton testified that he was never asked to remove the tree by anyone, although he had been requested to remove some trees in the front of the Kempton Property, which he did.

Mr. Kempton testified that the subject tree appeared healthy and he never had any reason to think that anything was wrong with it. According to Mr. Kempton, the tree fell due to heavy rains, ground saturation and wind. Mr. Kempton claimed that he was told by several of his friends who were judges, attorneys, landscapers and insurance agents that the tree fell due to an act of God and that he was not responsible for the tree falling.

Judgment and Post-Trial Motions

Following the trial, the district court awarded to the plaintiffs $68,259.89, consisting of $48,259.89 in property damage and $20,000 in damages for emotional distress. Mr. Kempton filed a Motion for New Trial on the basis that the district court's damage award exceeded the stipulated damage amount of $50,000 and the district court failed to apply depreciation to the property damage award.¹³ On March 26, 2024, the district court issued a Judgment granting Mr. Kempton's Motion for New Trial, in part, and amending the damage award to reduce the emotional distress damages to $1,000, in keeping with the Pierrons’ stipulation to damages of no more than $50,000, exclusive of interest and costs. The district court denied Mr. Kempton's Motion for New Trial as to the failure to apply depreciation.¹⁴

Mr. Kempton timely filed a Motion for a Suspensive Appeal, which was granted by the district court. This appeal timely follows.

DISCUSSION

As stated above, Mr. Kempton has assigned six errors. We will discuss his first assignment of error last.

Second and Fourth Assignments of Error

We will first consider Mr. Kempton's second and fourth assignments of error, which relate to the exclusion/admission of expert witness testimony. In his second assignment of error, Mr. Kempton complains that the district court erred in excluding Mr. Mizell as an expert witness. In his fourth assignment of error, Mr. Kempton contends that the district court erred in permitting Dr. Guidry to testify as to whether Mr. Kempton knew or should have known of the condition of the subject tree. Neither of these assignments of error have merit.

Mr. Kempton did not preserve an objection to the district court's failure to permit Mr. Mizell to testify as an expert witness. At the hearing on the Mizell Daubert Motion, the district court, in open court, stated that it was granting the Pierrons’ motion and excluding Mr. Mizell from testifying as an expert witness, but stated that it would allow Mr. Mizell to testify as a fact witness. Mr. Kempton's counsel did not lodge an objection to the granting of the Mizell Daubert Motion but, instead, stated that he would call Mr. Mizell as a fact witness. Further, at the hearing on Mr. Kempton's Motion for Extension, conducted on December 15, 2021, counsel for Mr. Kempton stated on the record that trying to retain Mr. Mizell was an effort to save money and that “Your Honor rightfully perceived later on that that was not an expert that you were going to allow in this forum․.” (Emphasis added).

A party must make a timely objection and state the specific ground for the objection in order to preserve an issue for review. Gibson v. Jefferson Par. Hosp. Serv. Dist. No. 2, 23-580 (La. App. 5 Cir. 5/29/24), 389 So.3d 960, 974. The failure to contemporaneously object constitutes a waiver of the right to complain of an alleged error on appeal. Id. Accordingly, Mr. Kempton's second assignment of error is not properly before this Court.

In his fourth assignment of error, Mr. Kempton complains that the district court erred in permitting Dr. Guidry to opine as to whether Mr. Kempton, as a reasonable and prudent owner, knew or should have known that the subject tree was dead and posed a potential hazard. After hearing arguments on the Kempton Motion in Limine on the morning of trial, the district court ruled as follows:

The Court finds that the Defendant Gregory Kempton has not met his burden and has failed to establish that the testimony of the Plaintiff's expert witness, Mr. Guidry, should be excluded or restricted. Specifically, the Court finds that the expert opinion is relevant and will be useful to the trier of fact in making a determination regarding the issues in this matter, therefore for the foregone (sic) reason, the Court finds that the denial of the Motion to Limit Testimony of Dr. Guidry filed by the defendant Gregory Kempton and against Plaintiff is proper at this time, the Court is going to․deny the Motion to Limit and Restrict the Testimony of Dr. Guidry.

Mr. Kempton did not lodge an objection to the district court's ruling on the record at that time. The district court inquired whether the parties were ready for trial. They indicated that they were and the trial commenced.

Mr. Kempton's counsel objected at the point in Dr. Guidry's testimony at which counsel for the Pierrons questioned Dr. Guidry about his opinion that “it's hard to believe that Kempton wasn't fully aware of the need to remove the tree.” The basis of Mr. Kempton's objection was that Dr. Guidry's report reflects that in reaching that opinion, Dr. Guidry relied upon included statements made by Mr. Pierron's neighbors, some of which were hearsay. According to Mr. Kempton's counsel, Dr. Guidry could not “infer as to the truth of what other witnesses are telling him,” and “he can't offer an opinion as to whether Mr. Kempton was aware or not aware of some need to remove the tree. That's not within the scope of an arborist's expertise.”¹⁵ The Pierrons’ counsel responded that experts are allowed to rely on the testimony of fact witnesses for the development of facts and to then apply their experience, knowledge, education and skill to those facts to reach an opinion as to causation. The district court overruled Mr. Kempton's objection.

The trial judge has great discretion concerning the admissibility and relevancy of evidence and he has wide latitude to determine whether an expert has the competence, background, and experience to testify. Lataxes v. Louisiana Home Specialists, LLC, 24-129 (La. App. 5 Cir. 10/30/24), __ So.3d __; 2024 WL 5265376, citing, Williams v. State Farm Mut. Auto. Ins. Co., 20-248 (La. App. 5 Cir. 2/17/21), 314 So.3d 1010, 1018, writ denied, 21-402 (La. 5/11/21), 315 So.3d 871. A trial court's ruling permitting an expert to testify at trial will not be disturbed on appeal absent a clear abuse of discretion. Id., citing Williams, 314 So.3d at 1018, citing Blair v. Coney, 19-795 (La. 4/2/20), 340 So.3d 775. “[T]he trial court's discretion in controlling the admission of expert testimony is well established in Louisiana jurisprudence․The trial court is vested with broad discretion in ruling on the scope of expert testimony.” Giavotella v. Mitchell, 19-100 (La. App. 1 Cir. 10/24/19), 289 So.3d 1058, 1069-70. See also Harvey v. Hamby, 23-84 (La. App. 4 Cir. 10/4/23, 376 So.3d 225, 234 (“Review of a trial court's decision to admit or exclude testimony from a witness offered as an expert is reviewed under an abuse of discretion standard.) (Citation omitted).

Dr. Guidry testified that, based on the testimony he heard in court at trial, and on his experience as an expert witness on tree issues and advising property owners relative to the conditions of trees approximately 30,000 times, it was not reasonable to think that the owner of the tree did not know or should not have known, that the tree was dead. In Dr. Guidry's vast experience in the field as an arborist, it was his opinion that it was more likely than not that Mr. Kempton knew or should have known of the condition of the tree.

Based on the evidence as a whole, to which Dr. Guidry applied his knowledge and experience, we cannot say that the district court abused its discretion in permitting Dr. Guidry to testify that it is more probable than not that Mr. Kempton was aware of the condition of the subject tree.

Moreover, any error of the district court in permitting Dr. Guidry to testify that Mr. Kempton was or should have been aware of the condition of the tree, was harmless. “The effect of an erroneous evidentiary ruling is governed by La. C.E. art. 103, which provides that ‘error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.’ ” Arceneaux v. Amstar Corp., 06-1592, pp. 36-37 (La. App. 4 Cir. 10/31/07), 969 So.2d 755, 779, quoting La. C.E. art. 103. “The concept of ‘substantial right’ as used in Article 103 is ‘akin to the familiar ‘harmless error’ doctrine applicable in both civil and criminal matters.’ ” Id. at 779, quoting George Pugh, Robert Force, Gerald Rault, Jr. and Kerry Triche, Handbook on Louisiana Evidence Law, p. 300 (2006 Ed). An error is harmless when “the error, when compared to the record in its totality, [does not have] a substantial effect on the outcome of the case.” Neumeyer v. Terral, 478 So.2d 1281, 1285 (La. App. 5th Cir. 1985) (citations omitted).

This was a bench trial. “The jurisprudence has properly taken the view that the risk of prejudice is often less likely in a bench trial than in a jury trial.” Arceneaux, 969 So.2d at 779. (Citation and internal quotation marks omitted). The admissibility of evidence in a judge trial is different from the requirements of jury trials because a judge, unlike a jury, by virtue of the judge's training and knowledge of the law is fully capable of disregarding any impropriety. Jenkins v. Baldwin, 00-0802 (La. App. 4 Cir. 8/29/01), 801 So.2d 485, 492. Improperly introduced evidence will be considered harmless error if it is found to be cumulative and corroborative of other properly admitted evidence and did not contribute to the verdict. In re Benson, 15-0874 (La. App. 4 Cir. 2/24/16), 216 So.3d 950, 960, writ denied sub nom. In re Interdiction of Benson, 16-0314 (La. 4/8/16), 188 So.3d 1052 (Citation omitted).

There was ample evidence in the record as a whole, even without Dr. Guidry's testimony, to permit the district court to conclude that Mr. Kempton knew or should have known of the condition of the subject tree, including but not limited to the testimony of Ms. Thibodeaux, Mr. Boyd, and Debra and Johnny Pierron. Dr. Guidry's testimony was merely cumulative and corroborative of that evidence.

Third Assignment of Error

In his third assignment of error, Mr. Kempton contends that the district court erred in denying his Motion for an Extension. As stated above, the Motion for Extension was filed on November 12, 2021, the cutoff date for filing discovery. The Pierrons opposed the motion and it came on for a hearing on December 15, 2021. The district court ruled from the bench, denying Mr. Kempton's Motion for Extension, stating:

[T]he Motion for Extension of Time filed by the defendant, Gregory Kempton, and against the Plaintiffs, Johnny Pierron and Angela Pierron, is hereby denied. The Code of Civil Procedure Article 1551, the court looks to what has taken place thus far, not just the motion itself, but also the cutoffs that has (sic) been established and the Court notes that the Court set the following discovery deadlines: Discovery deadline October 24th, 2018, which was extended to January 24, 2019. The discovery deadline of September 11th, 2019. A discovery deadline of July 15th, 2020. The discovery deadline August 12th, 2021, which was extended to November the 12th of ’21. So, the Court finds that the Court has given ample time to extend and the Court's failing to do so at this time. Counsel, prepare a judgment to that effect.

At that point in the proceedings, counsel for Mr. Kempton replied, “Yes, Your Honor, thank you,” lodging no objection to the district court's ruling. La. C.C.P. art. 1635 requires that a party objecting to a court's ruling on a matter make a contemporaneous objection. “It is well-settled under La.Code Civ.P. art. 1635, that such failure to contemporaneously object to the trial court's action constitutes a waiver of the right to complain on appeal.” State in Int. of P. P., 23-38 (La. App. 3 Cir. 6/21/23), 368 So. 3d 250, 255 (Citations omitted); see also Jeansonne v. Bosworth, 601 So. 2d 739, 743 (La. App. 1st Cir. 1992), writ not considered, 614 So. 2d 75 (La. 1993) (Article 1635 “requires contemporaneous objection to procedural matters before the court and also requires the giving of grounds for the objection.”)

Mr. Kempton's failure to contemporaneously object to the district court's ruling constitutes a waiver of the right to complain of an alleged error in that ruling on appeal. Accordingly, Mr. Kempton's second assignment of error is not properly before this Court.

Fifth Assignment of Error

In his fifth assignment of error, Mr. Kempton asserts that the district court committed reversible error in admitting into evidence: (i) a copy of a mortgage in favor of Liberty Bank on Mr. Kempton's properties, including the Kempton Property (the “Liberty Mortgage”); (ii) portions of Mr. Kempton's deposition testimony, in order to impeach his trial testimony that he had never had property insurance on the Kempton Property (the “Insurance Impeachment Testimony”); and (iii) portions of Mr. Kempton's deposition testimony offered for the purpose of impeaching his testimony as to how often he went to the Kempton Property (the “Property Visit Impeachment Testimony”). In this appeal, Mr. Kempton challenges the admission of this evidence based upon an alleged lack of proper foundation. However, he failed to object at trial on that basis. At trial, Mr. Kempton objected to the Liberty Mortgage on the grounds of relevancy and the plaintiffs’ failure to provide the document to him in discovery. He objected to the Insurance Impeachment Testimony on the grounds of relevancy and that the statements were not inconsistent. Mr. Kempton objected to the Property Visit Impeachment Testimony on the grounds that the statements were not inconsistent.

As discussed above, La. C.C.P. art. 1635 and La. C.E. art. 103(A) require not only an objection, but that the grounds for the objection be articulated. In Relan v. State Through Dept. of Health & Hosps., 18-348 (La. App, 5 Cir. 12/19/18), 262 So.3d 445, 449, we stated:

For an issue to be preserved for review, a party must make a timely objection and state the specific ground for the objection. The reasons for the objection must be brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error․It is well established that when a party fails to contemporaneously object to the introduction of objectionable evidence, that party waives the right to complain of the issue on appeal․On appeal, an appellant is limited to the grounds for objection that he articulated in the trial court and a new basis for the objection may not be raised for the first time on appeal. (Citations and internal quotation marks omitted).

Accordingly, we find that Mr. Kempton has failed to preserve any error for appeal under La. C.E. art. 613, relative to the foundation laid by plaintiff for the admission of the Liberty mortgage, the Insurance Impeachment Testimony and/or the Property Visit Impeachment Testimony. Even if Mr. Kempton had preserved this issue for appeal, we find that any error by the trial court in admitting this evidence was harmless. First, whether or not there was insurance on the Kempton Property was irrelevant to the issues in the case and clearly, the evidence established that there was none. Moreover, Mr. Kempton's testimony on this issue was not inconsistent. He testified at his deposition and at trial that the Kempton Property was uninsured.

The same is true of the Property Visit Impeachment Testimony, to which defense counsel objected on the ground that Mr. Kempton's prior statements were not inconsistent. While we do not find that Mr. Kempton testified inconsistently as to this issue in his deposition and at trial, we find any error in admitting it to be harmless under the circumstances.

The district court is afforded great discretion in evidentiary rulings, and absent a clear abuse of that discretion, rulings regarding the relevancy and admissibility of evidence will not be disturbed on appeal. Simmons v. Simmons, 24-162 (La. App. 5 Cir. 1/29/25), __ So.3d ___, 2025 WL 323355. While we do not find that the “impeachment” evidence was proper impeachment evidence under La. C.E. arts. 607(A) and (D) and 611(B), we again point out that this was a bench trial and that a judge, unlike a jury, by virtue of the judge's training and knowledge of the law is fully capable of weighing the evidence and balancing its probative value against its potential for undue prejudice and applying the rule of limited admissibility. Accordingly, we find that any error committed by the district court in admitting the Liberty Mortgage and the Insurance Impeachment Testimony was harmless. The district court observed the witnesses, made its credibility determinations, and was fully capable of assessing whether or not this evidence was true impeachment evidence, as well as the proper weight to be afforded to it.

Mr. Kempton's fifth assignment of error is without merit.

Sixth Assignment of Error

In his sixth assignment of error, Mr. Kempton contends that the district court erred in admitting the “sworn statement” of Johnny Pierron, Sr. into evidence “despite there being no applicable hearsay exception under La. C.E. art. 804(B).” At trial, the Pierrons’ counsel stated he sought to introduce into evidence a sworn statement of Mr. Pierron that had been taken on November 15, 2016, some three months after the subject tree fell onto his property and shortly before suit was filed on November 22, 2016. The Pierrons’ counsel asserted that the statement was admissible under La. C.E. art. 804(A)(4). The district court then inquired whether the defense objected and the following exchange occurred:

[Defense Counsel]: Your Honor, that exception I think the case law is described as the weakest of exceptions and of evidence, Your Honor, dead man talking. But if Your Honor would give us the opportunity to review the statement and get back to you, it may be that we have no objection to the bulk of it. I think based on a quick reading—

[The Court]: Did you give this to counsel prior to today?

[The Pierrons’ Counsel]: Yes, Your Honor, 4 years ago, 4 or 5 years ago.

[The Court]: Okay. The question you asked about an extension, the Court is not going to be given (sic) an extension because this is a Trial that has been set and you all knew that you were coming to Trial today. So, with that being the case – if there's an objection, I need you to say that you object or you don't object and then I make my ruling.

[Defense Counsel]: All right, we object.

The district court noted defense counsel's objection for the record and admitted the statement. Article 804(A)(4) provides for an exception to the hearsay rule when a witness is “unable to be present or to testify at the hearing because of death․.” Mr. Pierron had passed away at the time of trial and was unable to be present or to testify at the hearing and thus Article 804(A)(4) is satisfied; however, unless the statement falls within one of the hearsay exceptions set forth in Article 806(B), it is nevertheless, not admissible.

Article 804(B)(6) provides that “in a civil case․if the court determines that considering all pertinent circumstances in the particular case the statement is trustworthy, and the proponent of the evidence has adduced or made a reasonable effort to adduce all other admissible evidence to establish the fact to which the proffered statement relates” the evidence falls within an exception to the hearsay rule. That article also states that the proponent of the introduction of the statement must “make known in writing to the adverse party and to the court his intention to offer the statement․sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it.”

It does not appear from the record before us that counsel for the Pierrons ever put defense counsel or the district court on notice that it intended to offer Mr. Pierron's statement as evidence at trial. The only representation made was that the statement had been provided to defense counsel four or five years prior to trial; however, Mr. Kempton did not object to the introduction of Mr. Pierron's statement on the ground of lack of notice and that issue is not before us.

Article 804(B)(6) has been described as an “extraordinary” exception to the hearsay rule. Trasher v. Territo, 11-2093 (La. 5/8/12), 89 So.3d 366; M&R Drywall, Inc. v. MAPP Constr., LLC, 17-0186 (La. App. 1 Cir. 4/29/19), 280 So.3d 260, 269, writ denied sub nom., M&R Drywall, Inc. v. Mapp Constr., LLC, 19-1325 (La. 11/19/19), 282 So.3d 1073, and writ denied, 19-1403 (La. 11/19/19), 282 So.3d 1073, and writ denied, 19-1411 (La. 11/19/19), 282 So.3d 1074; Newburger v. Orkin, L.L.C. 19-383 (La. App. 3 Cir. 11/6/19), 283 So.3d 549, 555. In Trascher, the Supreme Court explained that Article 804(B)(6)

․exists to provide a trial court with discretion to admit a statement by an unavailable declarant which is not specifically covered by any other hearsay exception, if the statement was made under sufficient assurances of trustworthiness, the evidence in the statement generally is otherwise unavailable and the opponent is given a fair opportunity to meet the evidence in the statement.

Examples in which out-of-court statements by a witness who has become unavailable due to death have been found to be sufficiently trustworthy include: (1) first-hand testimony corroborating the statement was presented (Russell on Behalf of Wunstell v. Kossover, 93-1900, 93-1901 (La. App. 4 Cir. 5/20/94), 634 So.2d 72, 74, writ denied, 94-912 (La. 5/20/94), 637 So.2d 482 and writ denied, 94-929 (La. 5/20/94), 637 So.2d 483); (2) the only evidence as to a critical issue in the case was contained in the statement (Lewis v. Jones, 11-1117 (La. App. 5 Cir. 5/22/12), 96 So.3d 559, 563); (3) the opinion had been rendered five years before suit was filed and the defendants investigated numerous additional avenues, all of which resulted in the same conclusion (Cupit o/b/o Cupit v. Twin City Fire Ins. Co., 17-918 (La. App. 3 Cir. 3/14/18), 240 So.3d 993, 1000).

We now consider whether Mr. Pierron's statement had sufficient indicia of trustworthiness to permit its introduction. As stated above, Mr. Pierron's statement was given approximately three months after the incident, when it may be inferred that the events were still fresh in his mind. The statement was made, under oath, although in anticipation of the filing of the lawsuit. Nevertheless, it does not appear from the record as a whole, that Mr. Pierron had any reason at the time to be less than truthful. The testimony at trial presented by all of the Pierrons’ witnesses was consistent with the facts contained in Mr. Pierron's statement. Mr. Pierron had died by the time of trial, so the evidence in his statement was generally otherwise unavailable. Trial occurred on October 23, 2023. Mr. Pierron died suddenly and unexpectedly on November 2, 2018, nearly two years after the suit was filed. There is no evidence in the record that Mr. Kempton's counsel ever deposed Mr. Pierron or attempted to depose him during the period between the filing of the petition and Mr. Pierron's death. Counsel for the Pierrons represented to the district court that Mr. Pierron's statement had been provided to the defense some four or five years prior to trial; thus, Mr. Kempton's counsel had adequate notice of the facts stated in Mr. Pierron's statement, which were the same facts presented at trial through the testimony of Ms. Thibodeaux, Mr. Boyd, Angela, Johnny and Debra Pierron, Mr. Lyon and Dr. Guidry.

Defense counsel did not object on the ground of lack of foundation or that the statement was false, contradicting the evidence presented by the Pierrons at trial. Questions of admissibility of evidence fall within the province of the trial court and its decision to admit evidence or not will not be overturned absent an abuse of discretion. Under the circumstances presented, we cannot say that the district court abused its discretion in admitting Mr. Pierron's sworn statement into evidence. Even if the district court had abused its discretion in admitting Mr. Pierron's statement, the error was harmless since the facts contained in the statement were cumulative of the evidence presented through the Pierrons’ witnesses at trial. Mr. Kempton was not prejudiced by the introduction of Mr. Pierron's sworn statement.

Mr. Kempton's sixth assignment of error is without merit.

First Assignment of Error

In his first assignment of error, Mr. Kempton argues that the district court erred by calculating damages based upon a replacement cost value rather than the actual cash value of the loss. According to Mr. Kempton, this error is a legal error warranting de novo review of the issue.

La. C.C. art. 2315(A) provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” In Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service Company, 92-71 (La. 5/24/93), 618 So.2d 874, 876, the Louisiana Supreme Court found that:

One injured through the fault of another is entitled to full indemnification for damages caused thereby․In such a case ‘[t]he obligation of defendant․is to indemnify plaintiff—to put him in the position that he would have occupied if the injury complained of had not been inflicted on him.’

Consequently, ‘[w]hen property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage․’Accordingly, the measure of damages is the cost of restoring the property to its former condition. In assessing damage to property generally courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired․’[N]o mechanical rule can be applied with exactitude in the assessment of property damages under Article 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record.

(Emphasis added; internal citations omitted).

The Court went on to point out that these basic precepts are acknowledged in Article 1, § 4 of the Louisiana Constitution dealing with the taking or damaging of property by the state or a political subdivision, leading the Court to opine that:

Accordingly, justice, reason and the principle of full reparation of Louisiana Civil Code article 2315 require that where an individual's property is damaged unlawfully by a tortfeasor for no good reason, he be compensated at least as fully as when is property is damaged by the state for a public purpose pursuant to the owner's obligation of citizenship to the community.

Id.

When property is damaged or taken by the state or a political subdivision, the law demands that the owner be “compensated to the full extent of his loss” and “placed in as good a position pecunarily as he enjoyed prior to the taking.” Id., citing State v. Bitterwolf, 415 So.2d 196, 199 (La. 1982), quoting, State v. Constant, 369 So.2d 699, 702 (La. 1979). Applying those principles to determine the appropriate measure of damages, the Court held that:

[A]s a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or maybe reasonable incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm. Consequently, if a building such as a homestead is used for a purpose personal to the owner, damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building.

Id. at 879-80.

The Court went on to discuss, with disapproval, the fact that courts in other jurisdictions and some Louisiana courts of appeal had approved stringent tests which are not compatible with Civil Code Article 2315, stating:

Some of our own courts of appeal have approved such limitations, including a rigid ‘cost of replacement, less depreciation,’ test, evoking this court's pointed admonitions that no mechanical rule can be applied with exactitude in the assessment of property damage under Article 2315 and that every case must rest on its own facts and circumstances.

Id. at 877. (Emphasis added; citation omitted).

The Court discussed several cases in which the trier of fact had awarded full replacement value without any deduction for depreciation. In Fortson v. Louisiana Power & Light Co., 509 So.2d 743 (La. App. 3d Cir. 1987), the appellate court upheld an award for full replacement cost with no deduction for depreciation where application of depreciation would render the property virtually worthless. The appellate court in that case found that “[w]here there is a legal right to the recovery of damages but the amount cannot be exactly determined, the courts have reasonable discretion to assess them based upon all the facts and circumstances of a particular case.” Id. at 745. (Citation omitted). “The function of an appellate court in reviewing a damage award is not to decide what it considers an appropriate award on the basis of the evidence but rather only to determine whether the trial court abused its much discretion.”Id. See also French Jordan, Inc. v. Oilfield Sales & Service, 439 So.2d 523 (La. App. 1st Cir. 1983) (Trial court abused its discretion in applying depreciation where the depreciated value would not make the plaintiff whole).

In Aetna Insurance Company v. Palao, et al., 263 So.2d 394 (La. App. 4th Cir. 1972), a two-car collision occurred, which propelled one of the vehicles into the plaintiff's porch, destroying it. The porch that was damaged was constructed of concrete piers with a wooden frame and floor. The plaintiff replaced the porch with one made entirely of concrete. At trial, the only evidence introduced by the plaintiff relative to the amount of damages sustained was the testimony of the plaintiff's daughter, who testified that her father paid $715.00 to replace the porch and an unverified estimate of a contractor that the cost of repairing the porch would be $715.00. The district court awarded $715.00 in damages to the plaintiff. 263 So.2d at 396-97.

On appeal, the Court quoted Granger v. Bouillion, 220 So.2d 764 (1969), relative to the measure of damages to property under Article 2315, as follows:

In arriving at the amount of damages to property, our courts have in the past followed generally three approaches. (1) The cost of restoration, if the thing damaged can be adequately repaired. (2) The difference in value prior to the damage and the value following the damage. (3) If the value before and after the damage cannot be reasonably determined or of the cost of repairs exceed the value of the thing damaged, the measure of damages to the owner has been the cost of replacement new, less reasonable depreciation. (Citations omitted; enumeration supplied by the Court).

The Court found that of the three approaches, the only one applicable to the case before it was the third, since the owner replaced the porch with new construction. The Court, however, awarded the full cost of the new construction, without depreciation, finding that it would be very impractical for the plaintiff to prove the value of the depreciation of the porch after seven years had elapsed since the date of the accident. Id.

In this case, the district court initially found that the appropriate measure of damages as a result of Mr. Kempton's tree falling onto Mr. Pierron's property was $68,259.89, which included $48,259.89 for property damage and $20,000 for mental anguish. However, the Pierrons had stipulated the value of their claim to be less than $50,000.00. When Mr. Kempton called this error to the attention of the district court in his Motion for New Trial, the district court reduced the award to $49,259.89.

Mr. Kempton raised the depreciation issue in his Motion for New Trial. The district court, in ruling upon the motion, declined to depreciate the damages found to have been caused by the tree's fall onto the Pierron Property, finding that “such award for damages in amount (sic) of $48,259.89 was proper and appropriate in light of the testimony and evidence offered at the October 25, 2023 Trial on Merits.” In its Reasons for Judgment, the district court provided additional rationale for its finding, citing the testimony of Mr. Lyon and the failure of any party to produce evidence of an appropriate depreciation figure.

While Mr. Kempton is correct that the plaintiff bears the burden of proving damages (Borden, Inc. v. Howard Trucking Co., 545 So.2d 1081, 1092 (La. 1983)), it is also true, based on the authorities cited above, that district courts are not to apply a rigid formula to the assessment of property damages and that each case turns on its own facts. The district court is vested with much discretion in awarding damages in each particular case, and we will not substitute our own judgment for that of the district court where there is sufficient evidence in the record to support the district court's assessment of damages.

In this case, we find that there was sufficient evidence in the record to support the district court's property damage award. Mr. Lyon testified that the structures were not “finished” inside and that the construction materials to reconstruct them in their pre-damage state would not have depreciated very much. He also testified that he did not believe that a depreciated value would be sufficient to make Mr. Pierron whole. Moreover, some seven years had elapsed between the time the property damage was incurred and the trial, making it extremely difficult for the district court to determine an appropriate depreciation factor. While Mr. Kempton seems to suggest that the damaged Pierron Property should have been depreciated for a factor of 60 years, to have done so would render Mr. Pierron's claim worthless, a result that would be contrary to the letter and spirit of Article 2315. Further, Mr. Lyon testified that, based on his inspection, he did not believe that portions of the structures were 60 years old; he believed they were younger. Finally, the testimony of Ms. Thibodeaux, Mr. Boyd, Angela, Debra and Johnny Pierron and the sworn statement of Mr. Pierron were sufficient to permit the district court to conclude that the damaged property held special meaning for Mr. Pierron and that it was therefore not appropriate to apply depreciation to the damage award.

Based on all of the foregoing, we find that the district court did not abuse its discretion in awarding property damages of $48,259.89 to the Pierrons. Mr. Kempton's first assignment of error is without merit.

DECREE

For all of the reasons stated above, the district court's judgment is affirmed.

AFFIRMED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

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I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 14, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-313

CURTIS B. PURSELL CLERK OF COURT

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)

SUZETTE P. BAGNERIS (APPELLEE)

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EMILE A. BAGNERIS, III (APPELLEE)

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NEW ORLEANS, LA 70113

FOOTNOTES

1.   The Kempton Property was not insured.

2.   Also named as a defendant was ABC Insurance Co., but as stated above, the Kempton Property was not insured. On November 2, 2018, Mr. Pierron died unexpectedly and his children, Johnny J. Pierron and Angela Pierron Palombo (hereinafter the “Pierrons”) were substituted as plaintiffs.

3.   The trial court had entered at least two previous scheduling orders, the discovery deadlines of which had been extended.

4.   Mr. Mizell testified that he did not know “Greg” Kempton's last name at the time of his deposition. At his own deposition taken by the Pierrons on October 1, 2020, Kempton referred to Mr. Mizell as Bill Mazzoli.

5.   The NOAA Printout attached to Mr. Mizell's affidavit did not address wind speeds from August 1 through August 12, 2016.

6.   Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

7.   At a hearing on a Motion for Extension of Time filed by Mr. Kempton, conducted on December 15, 2021, counsel for Mr. Kempton stated that trying to retain Mr. Mizell was an effort to save money and that “Your Honor rightfully perceived later on that that was not an expert that you were going to allow in this forum․.” (Emphasis added).

8.   In this appeal, Mr. Kempton contends that the extension of time would have given him the opportunity to retain an expert after the striking of Mr. Mizell. At his deposition of October 1, 2020, Mr. Kempton testified that he had consulted numerous experts, including unidentified insurance experts at Lloyds of London and State Farm, as well as a “big” tree company thatworks at Tulane, although he did not recall the name of that company. Mr. Kempton also stated that he consulted several judges. Mr. Kempton claimed that he showed the photographs of the tree to all of these experts, who all agreed that the uprooting of the tree was due to an Act of God.

9.   According to Mr. Lyon, Xactimate is the most used insurance damage estimating software that exists.

10.   Mr. Lyon also added 20% overhead and profit for a general contractor. He explained that he includes this where the home owner is not doing the work himself or acting as a general contractor for the job. He also included $5,614.94 for the cost of having dumpsters at the property to contain and remove debris.

11.   Dr. Guidry stated that he had determined the causes of the failure of trees that were not available for inspection on many occasions and that he had never been prevented from testifying as to causation, whether the trees as to which he was asked to opine were available for inspection or not. In this case, Dr. Guidry based his expert opinions on his review of photographs of the tree taken at by Mr. Lyon on September 24, 2016, documents, sworn statements of Mr. Pierron and his neighbors, the depositions of Messrs. Mizell, Lyon and Kempton, a weather report from the relevant time period; Mr. Kempton's Motion for Summary Judgment; and the trial testimony of the witnesses, as well as the evidence introduced (including defense photographs that were represented to have been taken on the date of the incident) at trial.

12.   Defense counsel had initially represented that the photographs that it introduced at trial were taken on the day of the incident by Mr. Andrus. Mr. Kempton testified at trial that they were taken by his tenants.

13.   The Pierrons’ filed a Motion to Tax Costs, which was heard at the same time as the Motion for New Trial.

14.   The district court also granted in part and denied in part the Pierrons’ Motion to Tax Costs. That portion of the district court's judgment is not before us in this appeal.

15.   This is the same argument made by Mr. Kempton in his Motion in Limine, which was rejected by the district court in ruling on the motion.

FREDERICKA HOMBERG WICKER JUDGE