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Boudreaux v. State6/10/2005
g that 30-year period, thus resulting in a $21,000,000 diminution in the total market value of all the class plaintiffs' properties.
Moreover, there was testimony by some of the representative plaintiffs regarding their difficulty and sometimes inability to sell their property because of the flood, with the exception of Tommy Tucker. As the State points out, Mr. Tucker did testify that he had no difficulty selling his home following the flood; however, he also related that his employer at the time purchased his home from-him as a consequence of his being transferred to another city to work. Whereas, Hazel Lavigne, another of the representative plaintiffs, testified that her home was listed for sale with potential buyers at the time the flood occurred. She testified that her family attempted to sell the house for a year following the flood, with no success, so they stopped trying to sell the house until 1996, when they again listed the house for sale at $86,500.00, a little below its appraisal value. They sold the house for $82,000.00.
Where there is a legal right to 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 the particular case. Tudor Chateau Creole Apartments Partnership v. D.A. Exterminating Co., Inc., 96-0951, p. 9 (La.App. 1st Cir.2/14/97), 691 So.2d 1259, 1265. Based on the totality of the evidence in the record before us, we find the evidence to be sufficient to support the trial court's award for the diminution in the value of the class plaintiffs' properties.
In assignment of error number eight, the State asserts that the trial court's determination that all of the class plaintiffs who submitted claim forms are entitled to mental anguish damages was clearly wrong. An award for mental anguish as a result of damage to property is normally permitted in four instances:
(1) property damaged by an intentional or illegal act; (2) property damaged by acts for which the tortfeasor will be strictly or absolutely liable; (3) property damaged by acts constituting a continuous nuisance; and (4) property damaged at a time which the owner thereof is present or situated nearby and the owner experiences trauma as a result.
Keller v. Case, 99-0424, p. 6 (La.App. 1st Cir.3/31/00), 757 So.2d 920, 924, writ denied, 00-1874 (La.9/29/00), 770 So.2d 354.
The property damage suffered by the class plaintiffs did not result from an intentional or illegal act, acts for which the tortfeasor would be held strictly and absolutely liable, or acts constituting a continuous nuisance, but did occur at a time when the owners of the property were present or situated nearby. The State, nevertheless, asserts that not all of the class plaintiffs are entitled to recover mental anguish damages because the evidence shows that not all of the class plaintiffs experienced trauma as a result of the property damage sustained, but instead only experienced a normal degree of worry and distress that would be associated with having one's property destroyed or damaged by a flood. See Kemper v. Don Coleman, Jr., Builder, Inc., 31,576, p. 14 (La.App. 2nd Cir.7/29/99), 746 So.2d 11, 21, writs denied, 99-2954, 99-2955 (La.1/7/00), 752 So.2d 861.
We agree that there is evidence indicating that not all of the class plaintiffs who submitted claim forms experienced "psychic trauma" as a result of the flood damage to their property; we, nonetheless, do not find that the trial court erred in awarding all of the class plaintiffs who submitted claim forms damages for mental anguish. First, we note that physical injury or manifestation of serious mental distress nee
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