author: PARRO, J.

text:
    Agnes B. CARDINALE v. Thomas A. STANGA
    No. 2001 CA 1443.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Craig P. Hart, Covington, for Plaintiff-Appellant Agnes B. Cardinale.
    Douglas T. Curet, Hammond, for Defen-danb-Appellee Thomas A. Stanga.
    Gary M. Peltier, Hammond, for Defen-danb-Appellee Ponchatoula Homestead Savings, F.A.
    Before: CARTER, C.J., PARRO and CLAIBORNE
       JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PARRO, J.

In this negligence action against a lender of money for failing to transfer an ownership interest in immovable property from one co-borrower to another in conjunction with a loan secured by such immovable property, the trial court granted the lender’s peremptory exception raising the objection of no cause of action. The non-owner borrower appeals. For the following reasons, the judgment of the trial court is affirmed.

Factual and Procedural Background

In April 1994, Agnes B. Cardinale (Car-dinale) and Thomas A. Stanga (Stanga) began to reside together in a home owned by Stanga. Because of their deteriorating relationship, Cardinale moved from Stan-ga’s home in September 1998. On March 1, 2000, Cardinale filed suit against Stanga for breach of contract. In her petition, Cardinale alleged that she and Stanga borrowed $160,000 from Ponchatoula Homestead Savings, F.A. (Homestead) on May 1, 1998, for the purpose of consolidating Stanga’s debts, paying off the liens on his residence, and making home improvements. This debt was evidenced by a note, which was secured by a mortgage on Stanga’s residence. According to Cardi-nale, Stanga agreed to “amend the title to the residence to include [her] name to reflect her position as co-borrower on the mortgage and to reflect her one-half equity interest in the residence” as reimbursement to her of the loans made to him by her and in consideration of her being a co-obligor on the $160,000 loan. Allegedly, Stanga breached this agreement by failing to transfer an equity interest in the residence to her; in particular, he failed to execute the appropriate documentation to place her name on the title to the residence.

By a supplemental and amending petition filed on September 22, 2000, Cardinale added Homestead as a defendant. Cardi-nale alleged that the “Uniform Residential Loan Application” completed in conjunction with the May 1,1998 loan to Cardinale and Stanga evidenced that the parties intended that the title to the residence be held in the name of both borrowers since both would be obligated on the $160,000 loan. According to Cardinale, Homestead was negligent in failing “to transfer any interest” in the residence to her based on the information contained in the loan application.

^Homestead responded with a peremptory exception raising the objections of prescription, no cause of action, and no right of action. Being neither an attorney nor a notary public, Homestead indicated that it did not have the legal right to transfer any interest in the property. Accordingly, Homestead maintained that Cardinale had not stated a cause of action against it.

Following a hearing on these objections, the trial court sustained Homestead’s exception raising the objection of no cause of action and dismissed Cardinale’s claims against Homestead. In so ruling, the trial court noted that in the absence of “I hereby convey, sell, transfer” language within the loan application, there was no written agreement to convey immovable property. Thus, the trial court found that Cardinale would not be entitled to recover from Homestead based on the facts alleged. Cardinale appeals, contending the trial court erred in sustaining Homestead’s exception.

Applicable Law

The purpose of an exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the petition. For the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners of Orleans Levee District, 93-0690 (La.7/5/94), 640 So.2d 237, 241; see LSA-C.C.P. arts. 927, 931. Furthermore, the facts shown in any annexed documents must also be accepted as true. United Companies Mortgage & Investment of Lake Charles, Inc. v. Brown, 303 So.2d 820, 821 (La.App. 3rd Cir.1974); see LSA-C.C.P. art. 853.

In ruling on a peremptory exception pleading the objection of no cause of action, the court must determine whether the law affords any relief to the claimant if the factual allegations in the petition and annexed documents are proven at trial. Southside Civic Association v. Warrington, 93-0890 (La.App. 1st Cir.4/8/94), 635 So.2d 721, 723, writ denied, 94-1219 (La.7/1/94), 639 So.2d 1168. The burden of ^demonstrating that no cause of action has been stated is upon the exceptor. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692 (La.App. 1st Cir.9/24/99), 754 So.2d 1057, 1060.

If the facts alleged in the petition and shown in the annexed documents set forth a cause of action as to any part of the demand, the exception must be overruled. Succession of Bertaut, 572 So.2d 142, 144 (La.App. 1st Cir.1990), writ denied, 573 So.2d 1111 (La.1991); United Companies Mortgage & Investment of Lake Charles, Inc. v. Brown, 303 So.2d at 821. Any doubts are resolved in favor of the legal sufficiency of the petition. Lambert v. Riverboat Gaming Enforcement Division, 96-1856 (La.App. 1st Cir.12/29/97), 706 So.2d 172, 175, writ denied, 98-0297 (La.3/20/98), 715 So.2d 1221. In reviewing a trial court’s ruling sustaining an exception raising the objection of no cause of action, the court of appeal should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. City of New Orleans v. Board of Commissioners of Orleans Levee District, 640 So.2d at 253.

Analysis

Cardinale contends the trial court erred in sustaining Homestead’s peremptory exception raising the objection of no cause of action based on its failure to consider the loan application, that was submitted to Homestead, as a written indication of the parties’ intent to transfer partial ownership of the property.

Relative to the voluntary transfer of ownership of an immovable, LSA-C.C. art. 517 provides:

The ownership of an immovable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership of the immovable. The transfer of ownership takes place between the parties by the effect of the agreement and against third persons when the contract is filed for registry in the conveyance records of the parish in which the immovable is located.

Immovable property may only be alienated by the owner or by persons authorized by him or by law. LSA-C.C. art. 517, comment (b).

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. LSA-|C.C.r art. 2989. The contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form. LSA-C.C. art. 2993. The authority to alienate, acquire, encumber, or lease a thing must be given expressly. LSA-C.C. art. 2996.

A contract to sell must set forth the thing and the price, and meet the formal requirements of the sale it contemplates. LSA-C.C. art. 2623. A sale or promise of sale of immovable property must be made by authentic act or by act under private signature, except as provided by LSA-C.C. art. 1839. LSA-C.C. art. 2440. Therefore, pursuant to LSA-C.C. art. 2993, a mandate authorizing the mandatary to make a transfer of immovable property must be made by authentic act or by act under private signature.

An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. LSA-C.C. art. 1833. An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof. LSA-C.C. art. 1836. When the law requires a contract to be in written form, the contract may not be proved by testimony or by presumption. LSA-C.C. art. 1832.

The supplemental and amending petition makes no allegations of fact that support the existence of a valid act of mandate between Stanga and Homestead such that Homestead would have had the authority to transfer a one-half interest in Stanga’s residence to Cardinale on behalf of Stanga. Nor does it contain allegations of fact sufficient to afford her relief relative to Homestead for the absence of an authentic act or act under private signature transferring just title to her of a one-half interest in the property in question. Therefore, accepting as true the well-pleaded facts in Cardi-nale’s petition, as supplemented, and those shown by the “Uniform Residential Loan Application,” we conclude that Homestead has demonstrated that no cause of action has been stated by Cardinale against it. Accordingly, the exception pleading the objection of no cause of action was properly sustained by the trial court.

| ¡'Decree

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Agnes B. Cardinale.

AFFIRMED.

      . Since the supplemental and amending petition adding Homestead as a party defendant, as well as the original petition, were filed after January 1, 2000, the judgment dismissing only Homestead from this action constitutes a final judgment for purposes of appeal without the need for the designation of that judgment as such. See LSA-C.C.P. art.1915.


source: Caselaw Access Project

author: J^FITZSIMMONS, J.

license: Public Domain

text:
    Elizabeth YOHN v. Kenneth W. BRANDON, as Administrator of the Estate of His Minor Daughter, Kristin Nicole Brandon, and Assurance Company of America
    No. 2001 CA 1896.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.
    Writ Denied Dec. 13, 2002.

      Floyd J. Falcon, Jr., Daniel L. Avant, Baton Rouge, Counsel for Plaintiff-Appel-lee Elizabeth Yohn.
    Owen A. Neff, Roy J. DiVincenti, III, Gigi Fontenot Roberts, Lindsey J. Leavoy, L. Adrienne Dupont, Baton Rouge, Counsel for Defendants-Appellants Kenneth W. Brandon, As Administrator of the Estate of His Minor Daughter, Kristin Nicole Brandon, and Assurance Company of America.
    Before: FITZSIMMONS, GUIDRY and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

Plaintiff, Elizabeth Yohn, filed suit against defendants, Kenneth W. Brandon, as administrator for the estate of his minor daughter, Kristin Nicole Brandon, and their insurer, Assurance Company of America, for damages from a traffic accident. After a jury verdict that failed to award damages, the trial judge granted Ms. Yohn’s motion for Judgment Notwithstanding the Verdict (JNOV) and awarded damages to her. Defendants appealed. Ms. Yohn answered the appeal and asked for an increase in the damage award. We reverse the JNOV, and reinstate the verdict of the jury.

FACTS AND PROCEDURAL BACKGROUND

On June 9, 1997, Ms. Brandon and Ms. Yohn were stopped at an intersection. Under the impression that Ms. Yohn’s leading vehicle had moved forward, Ms. Brandon started forward. Unfortunately, Ms. Yohn’s truck was stopped, and was hit in the rear by Ms. Brandon’s vehicle. Ms. Yohn continued to work full time from the date of the accident until early in July of 1997.

On July 2, 1997, Ms. Yohn’s truck hit a bump. The impact threw her cargo of uniforms onto the floor of the truck. She had to quickly re-hang her stock and continue with her route. Defendants alleged that this second injury to Ms. Yohn at work caused the damages sought.

At trial, Ms. Yohn testified that, from 1993 through 1997, she had seen a chiropractor “several times a year” for soreness in her back. On a form filled out for a physical therapist in August of 1997, she stated that |3she had experienced back pain for years. Although Ms. Yohn denied that she suffered any injury from the July 2nd incident, contradictory statements by Ms. Yohn appear in the medical record. At trial, she testified that the pain from the June accident worsened daily, which finally forced her to quit on July 2, 1997. She denied any connection between the July 2nd alleged injury and the fact that she quit working on that same day. In 1998, she tried a less strenuous job with the same employer, but was unable to meet the performance requirements. She testified that her continued pain from the June accident caused the problems with the second job.

Dr. Dale Rollette, a chiropractor, first saw Ms. Yohn on June 13,1997. Ms. Yohn reported that she experienced neck soreness immediately after the June accident, and suffered back pain shortly thereafter. Dr. Rollette testified that he found some objective signs of Ms. Yohn’s complaints of neck and back pain. However, she also told Dr. Rollette that it was the low back pain that brought her in for treatment. Dr. Rollette advised Ms. Yohn to stop working, but she continued to work full time until early July of 1997. Although Ms. Yohn denied it, Dr. Rollette’s records of July 2, 1997, contain a report by Ms. Yohn to his office that she strained her back at work, and had missed her appointment for that reason. Although Dr. Rol-lette did not classify the July 2nd incident as a new injury, he stated that the July 2nd incident did not help the June injury.

Dr. Roch Hontas, an orthopedic surgeon, first saw Ms. Yohn on July 24, 1997. Dr. Hontas testified that on the first visit, a little over a month after the June accident, Ms. Yohn reported that the neck pain had almost completely resolved, and her primary complaint was her lower back. ^Although contradicted by Ms. Yohn, Dr. Hontas testified that, based on her preliminary complaints, he did not examine her neck. Upon examination, he did find spasm in her lower right back. Again in contradiction of Ms. Yohris testimony, Dr. Hontas testified that she reported to him that she was responding well to treatment until July 2, 1997. A nurse’s note in Dr. Hontas’s records stated that Ms. Yohn went to Dr. Rollette after the first injury, and got relief, but the pain worsened after the second injury. Specifically, Ms. Yohn reported to Dr. Hontas that she continued to work until July 2, 1997, when “while driving her truck she apparently hit a bump.” He testified that she told him “that her pain worsened under those sets of circumstances. They worsened to the point where she discontinued the work activities July 7th, which was five days later .... ” Dr. Hontas felt that the MRI identified a problem at Ll-2 that was a degenerative condition not caused by the accident in June or any incident in July. Based on the information he had, his diagnosis was a soft tissue injury caused by the June accident; specifically a lumbosacral sprain, which was exacerbated by the July 2nd work incident. However, Dr. Hontas was unaware of her prior back problems.

Dr. John Clark, a physician specializing in physical medicine and rehabilitation, saw Ms. Yohn in March of 1999. She reported that her cervical complaints had resolved, but that she still experienced back pain. Dr. Clark related her injury to the June accident, but was unaware of the prior back pain and treatment. In response to questioning, he agreed that the July incident could be a superseding cause.

As of the dates of the trial in March of 2001, Ms. Yohn continued to experience pain that she related to the June 9, 1997 accident. Dr. Dowin | r,Robinson, a chiropractor, treated her in early 2001. Ms. Yohn told him that after the July 2, 1997 incident, the “pain came back” and that, because of the “pain in the back,” she “couldn’t lift, couldn’t drive, [and] no longer worked.”

The jury was also presented with the testimony of defendants’ medical expert, Dr. Thomas Flynn, a neurosurgeon. On June 19, 2000, Ms. Yohn told Dr. Flynn of her continuing complaints of headaches, and neck and back pain. She reported that she was in an accident in June of 1997, but she had improved only to the extent of about 4 percent. Additionally, Ms. Yohn told Dr. Flynn about a prior jet ski accident in which she injured her back, but did not mention the July 2nd work incident. After his examination, Dr. Flynn testified that her neck and back seemed objectively normal. With a sprain or strain that had not resolved in more than three years, he would have expected some evidence of structural change on x-ray or scan, but did not see anything to explain

her on-going problem. In the 1997 MRI, Dr. Flynn did see evidence of chronic degenerative changes that had developed over time, rather than as the result of an immediate strong or blunt trauma.

The jury found that Ms. Brandon caused the June accident, but that the June accident did not cause Ms. Yohn’s claimed damages. With a verdict that awarded no damages, the jury must not have believed Ms. Yohn’s version of the cause of her claimed damages for lost wages, medical expenses, and pain. On April 4, 2001, the trial judge entered an amended judgment based on the jury verdict in favor of Ms. Yohn on the cause of the accident, but against her, and in favor of defendants, on the | ¿issue of damages. The April judgment also assessed all costs and expert fees to the defendants.

In response to the jury’s denial of damages, Ms. Yohn filed a motion for JNOV on that issue. The trial court granted the JNOV in favor of Ms. Yohn, and awarded damages. As reasons for granting the JNOV, the trial judge spoke of the dictates of his heart and stated that he had “strong feelings” that Ms. Yohn did suffer some damages as a result of the June accident. The trial court also observed that the testimony of a pre-existing condition could have been grounds for the jury’s verdict, but the court rejected that view as “overwhelmed by the evidence.” Primarily, the trial judge was troubled by the absence of the chiropractic records from 1993 until the accident in June of 1997. The trial judge awarded Ms. Yohn medical expenses of $18,494.58, lost wages of $16,800.00, general damages of $10,000.00, expert witness fees, and court costs.

On appeal, the defendants assert that the JNOV was granted in error. Secondly, they assign error to the trial judge’s assessment to defendants of the court costs and expert fees.

APPLICABLE LEGAL PRECEPTS

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. (Citations omitted.)

Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759; see McNeely v. Ford Motor Company, Inc., 98-2139, p. 12 (La.App. 1 Cir. 12/28/99), 763 So.2d 659, 667, writ denied, 2000-0780 (La.4/28/00), 760 So.2d 1182. Generally, the effect and weight to be given medical expert testimony is within the broad discretion of the factfinder. Shows v. Shoney’s, Inc., 98-1254, p. 18 (La.App. 1 Cir. 7/29/99), 738 So.2d 724, 737. A tort-feasor is liable only for damages caused by his negligent act. He is not liable for damages caused by separate, independent or intervening causes. McNeely v. Ford Motor Company, Inc., 98-2139 at p. 12, 763 So.2d at 667. Hence, the plaintiff has the burden of proving that her injuries were not the result of such separate, independent, or intervening causes. Shows v. Shoney’s, Inc., 98-1254 at p. 10, 738 So.2d at 732.

It is axiomatic that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. A plaintiff with a pre-existing condition is entitled to be compensated if plaintiff can prove a defendant’s negligent act caused an aggravation of the pre-existing condition. See Perniciaro v. Brinch, 384 So.2d 392, 395-96 (La.1980).

The standard of review for a JNOY on appeal is a two-part inquiry. In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by the reviewing court using the same criteria used by the trial judge to decide whether to grant the motion. Joseph v. Broussard, Rice Mill, Inc., 2000-0628, p. 5 (La.10/30/00), 772 So.2d 94, 99. In other words, considering all the evidence in the .light most favorable to the party opposing the motion for JNOV, do the facts and inferences point .so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? Smith v. Davill Petroleum Co., Inc., 97-1596, p. 4 (La.App. 1 Cir. 12/09/98), 744 So.2d 23, 27. “If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons 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.” Joseph v. Broussard Rice Mill, Inc., 2000-0628 at p. 5, 772 So.2d at 99. If we determine that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Smith v. Davill Petroleum Co., Inc., 97-1596 at pp. 4-5, 744 So.2d at 27.

APPLICATION OF LEGAL PRECEPTS TO FACTS

The hurdle imposed by a motion for JNOV is higher than that required in a manifest or clear error review by this court. To grant the JNOV, the trial court had to find that, considering all the evidence in the light most favorable to the defendants, the facts and inferences pointed so strongly and overwhelmingly in favor of Ms. Yohn that reasonable jurors could not have found against her. If reasonable persons, in the exercise of impartial judgment, might have reached a different conclusion, then it was error for the trial judge to grant the motion and award damages. To maintain trust in the judicial system, the legal standards and law must be applied evenly, regardless of whether a verdict is in favor of plaintiffs or defendants. In this case, it was within the province of the jury to factor in the various inconsistencies in the testimony. The trial judge is not entitled to interfere with the verdict simply because he believes another result would be correct. See Davis v. Wal-Mart Stores, Inc., 2000-0445, pp. 12-13 (La.11/28/00), 774 So.2d 84, 95.

| flBased on our review of the entire record, including the expert medical testimony and opinion, we must find that the trial court erred in granting the JNOV. Although we may also have found differently than the jury, neither this court nor the court below sat as the triers of fact. In this case, it was the jury’s role to 'accept or reject the testimony of the various witnesses and experts, not the court’s. The facts and inferences do not point so strongly and overwhelmingly in favor of Ms. Yohn that reasonable persons could not have found against her on the issue of damages. Specifically, considering all the evidence in the light most favorable to defendants, the jury could have reasonably found that the neck pain was minor, was not the impetus for the visits to the treating physicians in 1997, and was not the cause of the lost wages. The jury could also have reasonably found that the back pain reported to Dr. Rollette and Dr. Hon-tas stemmed from her pre-existing problem, and that the on-going problems were the result of the years of pre-existing back pain and soreness, exacerbated by her decision to continue working in her prior strenuous job, as well as from degenerative changes. See Broussard v. Razden, 98-2576 & 2577, pp. 13-14 (La.App. 1 Cir. 12/28/99), 763 So.2d 644, 654 (jury’s failure to award damages for future pain and suffering was reasonable based on evidence of prior medical history, intervening cause, and degenerative condition). As to the court’s perceived absence of evidence of the pre-existing back problems and treatment, Ms. Yohn herself testified to her pain and treatment between 1993 and 1997. Thus, we reverse the JNOV and reinstate the jury verdict.

\,¿COSTS

In the April judgment rendered in conformance with the jury verdict, the trial judge assessed the court costs and expert fees solely to the defendants. While it is true that the court may assess costs in any equitable manner, the April judgment was primarily in favor of the defendants. See La. C.C.P. art.1920. Ms. Brandon was found to have caused the accident, but the accident was not found to be the cause of the damages sought. Under these particular circumstances, we find an assessment of all costs and fees to defendants was inequitable and an abuse of the trial court’s discretion. See generally Broussard v. Razden, 98-2576 & 2577 at p. 16, 763 So.2d at 656; Smith v. Davill Petroleum Co., Inc., 97-1596 at p. 1, 744 So.2d at 32 (Kuhn, J., writing for a separate majority on the issue of court costs). Therefore, the award of fees and costs is amended. One-half of the costs and fees awarded in the April judgment is assessed to defendants and one-half to plaintiff.

FAILURE TO ACT ON MOTION FOR NEW TRIAL

When Ms. Yohn moved for a JNOV, she also filed an alternative motion for new trial. Although the trial court granted the JNOV, it did not act, directly or provisionally, on the motion for a new trial.

Louisiana Code of Civil Procedure article 1811 provides that a motion for new trial may be joined with a JNOV request, or made in the alternative. La. C.C.P. art. 1811 A(2). If the JNOV is granted, article 1811 requires the court to rule conditionally on the motion for new trial. La. C.C.P. art. 1811 C(l). Customarily, the first circuit has found that the failure to act on a pending motion for new trial retards the transfer of jurisdiction from the district court to the court of appeal. See La. C.C.P. arts. In 2087 or 2123 and Petitto v. McMichael, 552 So.2d 790, 792 (La.App. 1 Cir.1989). Without jurisdiction, any review by this court would be premature. When a motion for new trial is made as an alternative to a motion for JNOV, but not acted on, the appeal is dismissed, and the case is remanded for action by the trial court on the pending motion for a new trial. Petitto v. McMichael, 552 So.2d at 792-93. However, in a longstanding case procedurally similar to the case before us, the Louisiana Supreme Court rejected a remand in the interest of justice for the parties, and for the sake of judicial economy. Specifically, the supreme court stated: “Because we have previously concluded that the jury’s verdict is reasonable in light of the evidence presented, we find that plaintiffs are not entitled to a new trial.” VaSalle v. Wal-Mart Stores, Inc., 2001-0462, p. 18 (La.11/28/01), 801 So.2d 331, 342. Apparently, the supreme court reasoned that if the JNOV was erroneously granted in the face of a reasonable jury verdict, a ruling on the motion for new trial was unnecessary or moot. See Sledge v. Continental Casualty Company, 26,472, p. 1 (dissent) (La.App. 2 Cir. 1/25/95), 654 So.2d 358, 365 (on rehearing, Hightower, J. dissenting) (If the jury verdict is reasonable and well founded in the law, no real basis for a new trial exists). Additionally, the supreme court must have found that jurisdiction was not delayed by the open motion for a new trial and that jurisdiction had transferred to the supreme court. Otherwise, the court would not have had jurisdiction to review the JNOV, and thereafter reach the issue of the still pending motion for new trial. For these reasons, and based on the same procedural facts in both this longstanding case and VaSalle, we reject remand in favor of justice and judicial economy. As with the supreme court in VaSalle, we hphave “concluded that the jury’s verdict is reasonable in light of the evidence presented,” and that the plaintiff was “not entitled to a new trial.” VaSalle v. Wal-Mart Stores, Inc., 2001-0462 at p. 18, 801 So.2d at 342.

For these reasons, we reverse the JNOV, and reinstate the jury verdict as amended to reflect the re-apportionment of the trial costs. The costs of the appeal are assessed to plaintiff-appellee, Ms. Yohn.

JNOV REVERSED; JURY VERDICT RE-INSTATED, AS AMENDED.

      . On some pleadings, Ms. Yohn is referred to as Elizabeth Yohn Bonck. On her petition and at trial, she identified herself as Elizabeth Yohn.


author: J^CIACCIO, J.

text:
    Barbara Jean WESTON v. WAL-MART STORES, INC.
    No. 2001 CA 1816.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Howard P. Elliott, Jr., Baton Rouge, Counsel for PlaintifPAppellant Barbara Jean Weston.
    John R. Walker, Metairie, Counsel for Defendant/Appellee Wal-Mart Stores, Inc.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

      . La. R.S. 23:1201.2.

   J^CIACCIO, J.

This appeal arises from an Office of Workers’ Compensation (OWC) judgment which found that Barbara Weston, the claimant, did not violate the provisions of Louisiana Revised Statute 23:1208 which penalizes a claimant who makes a willful false statement or representation for the purpose of obtaining compensation benefits. Ms. Weston appeals the OWC’s failure to award reasonable attorney fees as provided by Revised Statute 23:1201.2. Her employer, Wal-Mart Stores, Inc., answered the appeal and asserts that the OWC erred in finding that Ms. Weston did not make a false representation. We affirm the judgment.

FACTS

In October 1999, Barbara Weston injured her back while in the course and scope of her employment with Wal-Mart Stores, Inc. in Slidell, Louisiana. Prior to the accident, Ms. Weston was employed as a maintenance worker; however, she was placed on light duty after her injury and was reassigned as a “door greeter.” She did not request compensation benefits, but Wal-Mart did pay her medical expenses.

Subsequently, in May 2000, Ms. Weston re-injured her back, again in the course and scope of her employment, while collecting shopping carts in Wal-Mart’s parking lot. After an investigation of the matter, Wal-Mart ceased all payments of Ms. Weston’s medical expenses.

Ms. Weston filed a disputed workers’ compensation form in June 2000. She contended that Wal-Mart erroneously ceased paying her medical expenses, for she had not been released from her physician nor completed ■ her physical therapy. Wal-Mart answered the claim disputing Ms. Weston’s assertions. It also filed a recon-ventional demand contending Ms. Weston suffered an intervening accident on January 22, 2000 at the Jitney Jungle Grocery Store in Slidell, Louisiana. Wal-Mart asserted that she injured her back at that time as well. Wal-Mart further maintained when its claim’s case manager, Laura Garrison, investigated the matter, Ms. Weston denied being involved in any other accidents. Wal-Mart argued that Ms. Weston’s denial of the January 2000 accident should have been considered a willfully false statement within the meaning of Louisiana Revised Statute 23:1208 thereby causing her to forfeit all compensation benefits.

laThe matter went before the OWC whereby the parties stipulated that the sole dispute regarded whether Ms. Weston made a willful misrepresentation as defined under Revised Statute 23:1208. The OWC found that Ms. Weston had not made a “misrepresentation to [Wal-Mart] or its employees or agents which would disqualify her from the receipt of further compensation benefits for her work-related accidents of October 7, 1999 and May 10, 2000 under LSA-R.S. 23:1208.” Ms. Weston appeals, contending the OWC erred in failing to award her reasonable attorney fees as requested under Revised Statute 23:1201.2.

ATTORNEY FEES

Ms. Weston contends the OWC committed manifest error in failing to award her reasonable attorney fees. She argues that her successful reinstatement of compensation benefits should entitle her to reasonable attorney fees under Revised Statute 23:1201.2. Ms. Weston explains that the judgment is silent on the issue of awarding attorney fees neither denying or awarding them. Due to the lack of written reasons for judgment, Ms. Weston explains that she does not have any indication whether the OWC’s silence is an oversight .or the intent to deny the award. However, Ms. Weston states that she assumes the OWC rejected this relief based upon the judgment. She contends that her counsel submitted documentation of 47.5 hours of work towards her case. She further asserts the attorney fees for this work should have been awarded.

Under Louisiana law, attorney fees are not allowed except where authorized by statute or contract. Statutes allowing the recovery of attorney fees and penalties are penal in nature and must be strictly construed. Whether the refusal to pay compensation benefits or the discontinuation of those benefits warrants the imposition of penalties and attorney fees is a factual question which will not be disturbed upon review in the absence of manifest error.

An employer or insurer who discontinues payment of claims due under the workers’ compensation statute, when such discontinuance is found to be arbitrary, ^capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. A determination of whether a denial of compensation benefits is arbitrary, capricious, or without probable cause depends primarily on the facts existing and known at the time that benefits are denied, not facts that come to light subsequently. The realistic standard for making this determination is whether there was a “reasonable” basis for a dispute as to the employee’s entitlement to benefits.

The OWC’s judgment was silent regarding attorney fees and whether Wal-Mart was arbitrary and capricious in discontinuing Ms. Weston’s benefits. After a review of the record, we find there was a reasonable basis for the dispute regarding Ms. Weston’s entitlement to benefits; accordingly, Wal-Mart was not arbitrary or capricious in discontinuing payment of her medical expenses.

Laura Garrison, an investigating adjuster for Claims Management, Incorporated, testified at her deposition that she was the investigator for this matter. Ms. Garrison testified that she began investigating Ms. Weston’s current claim in April 2000. She explained that prior to this claim, Ms. Weston had previously injured her back while employed with Wal-Mart in October 1999 and was still receiving treatment at the time of the investigation. Ms. Garrison received a report from Index Bureau that Ms. Weston had previously filed a claim with a local grocery store, Jitney Jungle, for an accident where she injured her back in January 2000. Ms. Garrison indicated that she had a telephone interview with Ms. Weston on May 17, 2000 during which Ms. Weston failed to inform Ms. Garrison of the January 2000 accident. She further explained that Ms. Weston failed to inform any of her treating physicians about her injury as well. Based upon this information she determined that Ms. Weston had misrepresented herself.

While the OWC found that Ms. Weston did not make willful misstatements to her employer, such a finding is not equivalent to finding her employer was arbitrary and capricious in denying her compensation benefits. After a thorough review of the record, we find Wal-Mart was not arbitrary or capricious in terminating Ms. Weston’s benefits, Land there was a reasonable basis for its termination of benefits. Accordingly, we cannot say that the OWC was clearly wrong in denying attorney fees. This assignment of error lacks merit.

FALSE STATEMENTS

Wal-Mart answered the appeal and asserts the trial court erred in failing to find that Ms. Weston made willful misrepresentations of fact for the purpose of obtaining workers’ compensation benefits as defined under Revised Statute 23:1208. It contends that she failed to notify her treating physician or the investigating claims representative that an intervening injury occurred prior to her May 2000 accident.

Louisiana Revised Statute 23:1208A provides, as follows, “It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.” The only requirements for forfeiture of benefits under section 1208 are that: (1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The issue of whether an employee forfeited her workers’ compensation benefits is one of fact, which is not to be reversed on appeal, absent manifest error.

In May 2000, Ms. Garrison conducted a recorded telephone interview with Ms. Weston regarding the accident. Ms. Garrison asked Ms. Weston if she had any general liability claims pending as a customer, to which Ms. Weston replied, no. Ms. Garrison inquired if Ms. Weston had any motor vehicle accidents. Ms. Weston again answered, no. Finally, Ms. Garrison asked if “other than your back claim with Wal-Mart, you don’t have any other — .” Ms. Weston replied no.

Ms. Garrison received a report from one of Ms. Weston’s treating physicians, Dr. Roch B. Hontas. The correspondence was dated March 10, 2000, and it described treatment Ms. Weston received between the January 2000 accident and the May 2000 accident. Ms. Garrison explained that the document was devoid of any mention of the January 2000 accident. Ms. Garrison indicated based upon this information, she recommended terminating Ms. Weston’s benefits.

awhile Ms. Weston did not voluntarily inform Ms. Garrison that she had an intervening accident in January 2000, based upon the statements in the interview, Ms. Weston did not willfully give a false statement. At the hearing, Ms. Weston explained that she merely answered the questions Ms. Garrison posed as accurately as she could. Ms. Garrison inquired about additional “claims,” and at the time of. the interview, Ms. Weston did not have a pending claim against Jitney Jungle. Ms. Weston explained that she went to the doctor after the January 2002 fall and submitted the bill to Jitney Jungle as the manager of the store directed her. However, she did not have a “claim” against the grocery store. Therefore, her statements to Ms. Garrison were accurate, and she did not provide false statements. In addition, Ms. Weston may have neglected to inform her doctor of the accident for a similar reason, he did not ask. The OWC judge did not find that these answers amounted to a willful misrepresentation. We cannot say that his finding was clearly wrong. Accordingly, we find no error.

CONCLUSION

For the foregoing reasons, we affirm the OWC’s judgment. Costs are assessed to each party equally.

AFFIRMED.

      . Washington v. Lyon’s Specialty Company, 96-0263, p. 8 (La.App. 1 Cir. 11/8/96), 683 So.2d 367, 373; writ denied, 96-2944, (La. 1/31/97), 687 So.2d 408.

      . Martin v. H.B. Zachry Company, 424 So.2d 1002, 1008 (La.1982).

        .Parfait v. Gulf Island Fabrication, Inc., 97-2104, pp. 16-17 (La.App. 1 Cir. 1/6/99), 733 So.2d 11, 24; Augustus v. St. Mary Parish School Board, 95-2498, p. 13 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1154.

      . Parfait, 97-2104 at 16, 733 So.2d at 24.

      . Parfait, 97-2104 at 16, 733 So.2d at 24

      . Claims Management, Incorporated is a third party administrator that handles claims for Wal-Mart.

      . Index Bureau is an independent organization, which houses insurance claims that are filed by individuals.

      . Resweber v. Haroil Const. Co., 94-2708, 94-3138, p. 7 (La.9/5/95), 660 So.2d 7, 12 (La.1995).

      . Short v. Gaylord Chemical Corporation, 98-0606, p. 10 (La.App. 1 Cir. 4/1/99), 731 So.2d 493, 499.


author: | JAMES, J.

text:
    James FRANKLIN, Jr. v. GEORGIA-PACIFIC PORT HUDSON DIVISION
    No. 2001 CA 1854.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      W. Marvin Dunn, Baton Rouge, Counsel for Plaintiff-Appellant James Franklin, Jr.
    Thomas M. Ruli, Metairie, Counsel for Defendant-Appellee Georgia-Pacific Port Hudson Division.
    Before: PARRO, JAMES and PATTERSON, JJ.

      . Judge A. Clayton James, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

      . Michael A. Patterson is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   | JAMES, J.

This appeal arises from the denial of plaintiffs claim for workers’ compensation benefits.

FACTS AND PROCEDURAL HISTORY

Plaintiff, James Franklin, Jr., alleges that he injured his right shoulder, left wrist, low back and both knees on August 3, 1997. Plaintiff claims that he slipped and fell as he pulled a heavy industrial-type water hose up a steel catwalk to wash machinery during the course of his employment for defendant, Georgia-Pacific Port Hudson Division (Georgia-Pacific). Plaintiff continued to work despite alleged increasing pain. The alleged incident was not witnessed, and plaintiff did not make a formal report of the incident and injury to a supervisor until August 19, 1997. On November 12, 1997, plaintiff, left his work shift and did not return to work at Georgia-Pacific.

Plaintiff filed a disputed claim for workers’ compensation benefits. After a trial, the workers’ compensation judge (WCJ) rendered judgment in favor of Georgia-Pacific. The WCJ found that plaintiff had failed to prove by a preponderance of the evidence that he had suffered a work-related accident, because his testimony to that effect was insufficiently corroborated by other evidence. The WCJ specifically noted that the medical evidence and co-workers’ testimony did not corroborate plaintiffs version of the alleged incident and injuries and there was not enough credible evidence that an accident had occurred. Plaintiff now appeals the WCJ’s judgment.

[oLAW AND ANALYSIS

An employee seeking workers’ compensation benefits must establish by a preponderance of the evidence that he has suffered an injury as a result of an accident arising out of and in the course of his employment. A worker’s testimony alone may establish a work-related accident if (1) no other evidence casts serious doubt on his version of the incident and (2) his testimony is corroborated by the circumstances following the alleged incident. Corroboration may be provided by coworkers, spouses, friends, or medical evidence. See La. R.S. 23:1031; Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a worker’s testimony is accorded great weight. Bruno, 593 So.2d at 361. The WCJ’s determinations regarding the worker’s credibility and whether the worker has discharged his burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Bruno, 593 So.2d at 361; Haws v. Professional Sewer Rehabilitation, Inc., 98-2846, p. 6 (La.App. 1st Cir.2/18/00), 763 So.2d 683, 688.

In applying the manifest error standard of review, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). Thus, if the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of 14fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556.

It was established at trial that plaintiff had a history of knee, shoulder, wrist and back pain and that he had sought continuous medical treatment, both before and after the alleged incident, for all of those ailments. In deposition testimony admitted at trial, plaintiff denied that the preexisting injuries were causing him problems at the time of the alleged incident. However, at trial plaintiff acknowledged that he had been treated for wrist and shoulder pain in the month prior to the alleged incident. Plaintiff also had a doctor visit for treatment of ongoing knee problems one day after he formally reported the alleged incident to his supervisor, but the medical records for that date do not mention a work-related accident.

None of the medical evidence in the record corroborated plaintiffs allegations of a work-related accident except a post-incident note from Dr. Joe A. Morgan on August 27, 1998, about a job injury which had occurred one year earlier. However, all other office visits and reports from Dr. Morgan only refer to injuries due to a slip and fall in 1996 and an automobile accident in February 1997. Therefore, Dr. Morgan’s notes are inconsistent as to the cause of plaintiffs various ailments. Likewise, in a supplemental letter issued by Dr. Warren Williams on January 14, 2000, Dr. Williams stated that plaintiff was treated by him on August 3, 1997, for a job-related slip and fall injury and that plaintiff had not worked since August 3, 1997. However, plaintiff testified that he did not visit any doctor on the date of the alleged incident and he did not see Dr. Williams until October 1997 on the referral of Dr. Henry Dixon for continuing back pain due to a February 1997 car accident. Furthermore, plaintiff testified that he quit working on November 12, |K1997, after becoming ill at work. Reviewing the medical testimony in its entirety, we conclude that the WCJ reasonably discounted the two references in the medical records as being inconsistent with plaintiffs testimony and therefore neither credible nor corroborating evidence.

The WCJ also found that the co-workers who testified at trial basically reported what plaintiff had told them about the alleged incident. However, both of the coworkers’ versions of the incident were different from plaintiffs version. Plaintiff testified that he slipped and fell on a catwalk as he pulled on a heavy water hose. Plaintiff stated that he injured his knees, left wrist, right shoulder and lower back. One co-worker testified that plaintiff told him that he hurt his back or shoulder when he was pulling a big water hose up a flight of stairs and he hurt his wrist when he fell out of a chair in the control room. Another co-worker testified that plaintiff told him about an accident when he was pulling a heavy hose that had been rolled up the wrong way, and he fell and hurt his back and shoulder. Neither co-worker actually witnessed the alleged accident. Neither could recall the exact day that plaintiff mentioned the alleged incident.

Plaintiffs supervisors testified that plaintiff had reported several on-the-job accidents in his 29-year work history at Georgia-Pacific. However, plaintiff did not report the alleged incident on August 3, 1997, until approximately two weeks later. Plaintiff told the safety investigator that he hurt his shoulder while pulling on a water hose that had been incorrectly rolled up, but he did not mention falling or causing any injury to his back, wrist or knees. After reviewing all of the testimony, we conclude that the WCJ reasonably concluded that plaintiff was not a credible witness. The other witnesses’ testimony cast serious doubt on plaintiffs | fiversion of the incident and suspicion on the reliability of his testimony. Therefore, we find no manifest error in the WCJ’s finding that plaintiff failed to sufficiently prove by a preponderance of the evidence that a work-related accident occurred.

CONCLUSION

Conflicting evidence was presented in this case on the issue of whether a work-related accident occurred. The WCJ resolved this conflict in favor of the defendant, Georgia-Pacific. Our review of the record convinces us that the WCJ was not clearly wrong in concluding that there was insufficient evidence of a work-related accident. Thus, we affirm the judgment of the trial court. Plaintiff, James Franklin, Jr., is to pay all costs of these proceedings.

AFFIRMED.

      . The WCJ was the Honorable Anthony P. Palermo of the Office of Workers’ Compensation Administration, District 5. La. R.S. 23:1310.5(F) requires that the published court of appeal opinion identify the office of workers’ compensation district from which the appeal was taken and the name of the workers' compensation judge who rendered the judgment.

      . Plaintiff also requested statutory penalties and attorney’s fees; however, because that issue was not assigned as error nor briefed, we deem it to have been abandoned. See Rules 1-3 and 2-12.4, Uniform Rules — Courts of Appeal.

      . The letter was apparently issued in connection with plaintiff's application for disability insurance benefits through the Social Security Administration, as it was addressed to Provident Life and Accident Insurance Company.

      . There was testimony regarding the late reporting of the incident and plaintiff's subsequent reprimand by his supervisors. However, the fact that a claimant does not report an accident immediately, or realize or diagnose the full extent of his injury immediately after an accident, should not bar the claimant from recovery. See Middleton v. International Maintenance, 95-0238, p. 6 (La.App. 1st Cir. 10/6/95), 671 So.2d 420, 424, writ denied, 95-2682 (La. 1/12/96), 667 So.2d 523.


author: | .WHIPPLE, J.

text:
    STATE of Louisiana v. Cedric BRELAND, Jr.
    No. 2001 KA 2865.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Donald D. Candell, Gonzales, for Plaintiff/Appellee, State of Louisiana.
    Alan Robert, Gonzales, for Defendant/Appellant, Cedric Breland, Jr.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

      . Judge Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .WHIPPLE, J.

The defendant, Cedric Breland, Jr., was charged by bill of information with one count of third offense driving while intoxicated (DWI), a violation of LSA-R.S. 14:98. The predicate offenses alleged were a November 27, 1996 guilty plea to first offense DWI under Ascension Parish docket # 232827 (predicate # 1), and a March 25, 1998 guilty plea to first offense DWI under Ascension Parish docket # 249547 (predicate # 2). The defendant moved to quash, attacking the sufficiency of predicate # 1 to enhance the instant offense. Following a hearing, the trial court denied the motion to quash. Thereafter, the defendant entered a guilty plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced, pursuant to a plea bargain, to three years at hard labor, with two years suspended based on certain conditions, including three years supervised probation, twelve months home incarceration, a $2,000.00 fine, enrollment in a substance abuse program, and attend-anee at a court-appointed driver improvement program. He now appeals, designating one assignment of error. For the following reasons, we vacate the guilty plea and sentence, reverse the ruling denying the motion to quash, and remand with instructions.

FACTS

Due to the defendant’s guilty plea, there was no trial testimony concerning the facts in this matter. The bill of information charged that the defendant committed the instant offense on May 12, 2000. At the Boykin hearing, the trial court advised the defendant of the State’s third offense DWI charge against him and the predicate offenses upon which the charge was based, and the defendant indicated he agreed with the factual basis.

| ..MOTION TO QUASH (PREDICATE #1)

In his sole assignment of error, the defendant contends the trial court erred in failing to sustain the motion to quash the predicate offense of December 30, 1996. He contends the trial court erred in finding the conviction of December 30, 1996 to be a proper predicate offense to enhance the charge from a second offense DWI to a third offense DWI.

In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea connotes and its consequences. If the defendant denies the allegations of the bill of information, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when it was taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, ie., either the transcript of the plea or the minute entry. Everything that appears in the entire record concerning the predicate, as well as the trial judge’s opportunity to observe the defendant’s appearance, demeanor and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. Boykin only requires that a defendant be informed of the three rights enumerated above. The jurisprudence has been unwilling to extend the scope of Boykin to include advising the defendant of any other rights which he may have. (Citations omitted.)

State v. Henry, 2000-2250, pp. 8-9 (La.App. 1st Cir.5/11/01), 788 So.2d 535, 541, writ denied, 2001-2299 (La.6/21/02) 818 So.2d 791.

Additionally, as this court has previously stated:

[A]n uncounseled DWI conviction may not be used to enhance punishment of a subsequent offense, absent a knowing and intelligent 14waiver of counsel. When an accused waives his right to counsel in pleading guilty to a misdemeanor, the trial court should expressly advise him of his right to counsel and to appointed counsel if he is indigent. The court should further determine on the record that the waiver is made knowingly and intelligently under the circumstances. Factors bearing on the validity of this determination include the age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity, and seriousness of the charge. Determining the defendant’s understanding of the waiver of counsel in a guilty plea to an uncomplicated misdemeanor requires less judicial inquiry than determining his understanding of his waiver of counsel for a felony trial. Generally, the court is not required to advise a defendant who is pleading guilty to a misdemeanor of the dangers and disadvantages of self-representation. The critical issue on review of the waiver of the right to counsel is whether the accused understood the waiver. What the accused understood is determined in terms of the entire record and not just by certain magic words used by the judge. Whether an accused has knowingly and intelligently waived his right to counsel is a question which depends on the facts and circumstances of. each case. (Citation omitted.)

State v. Cadiere, 99-0970, pp. 3-4 (La.App. 1st Cir.2/18/00), 754 So.2d 294, 297, writ denied, 2000-0815 (La.11/13/00), 774 So.2d 971.

The defendant’s signature on a printed waiver form advising him of his right to counsel and warning him of the dangers of self-representation, and the signature of the trial judge on the same form that he is satisfied the accused understood the nature of his plea and its consequences, do not discharge the trial judge’s duty to advise the defendant expressly of his right to counsel and to determine “on the record that the waiver is made knowingly and intelligently under the circumstances,” taking into account such factors as the defendant’s age, background, and education. Cadiere, 99-0970 at p. 4, 754 So.2d at 297.

While the use of a printed form alone is not sufficient to establish a knowing and intelligent waiver of the right to the assistance of counsel, the use of such a form in conjunction with other matters which appear in the record viewed as a whole may establish that a waiver was valid. Cadiere, 99-0970 at p. 4, 754 So.2d at 297.

|sIn support of the use of predicate # 1 for enhancement of the instant charge, the State introduced a waiver of rights/guilty plea form (form) and presented testimony from a former Ascension Parish Court Judge regarding his use of the form.

The form, in pertinent part, states:

My guilty plea in this case is made with understanding and recognition of the fact that in so doing I waive and give up certain rights, among which are included:
1. Right to trial and, if convicted, right to appeal;
2. Right to representation by an attorney and, if indigent (unable to afford an attorney’s service), right to a court-appointed attorney at no expense to me;
3. Right to confront or cross-examine the witnesses who might be called to testify against me at trial;
4. Right to subpoena or compel the attendancé of witnesses at my trial whom I might wish to have testify;
5. Right against self-incrimination, meaning right to remain silent and not testify at my trial without having any adverse inference drawn therefrom;
6. Right to presumption of innocence until or unless overcome by proof beyond a reasonable doubt;
7. Right to a trial by jury.
I am satisfied with the legal representation I have received from my attorney.
The nature of the charges have been explained to me and I fully understand the element of the offense(s) to which I am pleading guilty.
I have not been forced, threatened, or intimidated into making this plea, nor has anyone made me any promises in order that I enter this plea. I voluntarily waive all of the above rights and enter this plea of guilty because I am, in fact, GUILTY.
MY SIGNATURE TO THIS DOCUMENT IS ACKNOWLEDGEMENT OF MY UNDERSTANDING OF ITS CONTENTS.

|f;On the form, numbers 1-6 were checked, as were the statements concerning the nature of the charges and waiver of rights. The form was signed by “Cedric R. Breland Jr[.]” and the lines for address, date of birth, social security number, and driver’s license number were completed with handwritten information. However, the line for the judge’s signature under the statement, “PLEA OF GUILTY IS HEREBY ACCEPTED AS VOLUNTARILY AND INTELLIGENTLY OFFERED AND SUPPORTED BY FACTUAL BASIS” is unsigned.

The judge testified that he recognized the form as the one he had used to remind him of the Boykin rights to advise defendants of and to make certain he had “give[n] [defendants] all of the different rights that were needed at the time in order to accept the guilty plea.” The judge further stated that he recognized his handwriting on the form and that his check marks indicated, “[t]hat I read all of the rights that are contained in this agreement to him, and asked him if he understood them.” In response to questioning concerning whether or not, in checking the form, he had made a determination as to the defendant’s knowing and intelligent waiver of his rights, the judge indicated he had specifically asked for the defendant’s address, date of birth, social security number, and driver’s license number to determine whether he could answer those questions and based upon the answers had judged whether or not the defendant was under the influence of alcohol or drugs and whether he knowingly and intelligently knew what he was doing. In response to further questioning, the following exchange occurred:

Q. Your Honor, with regard to — everybody gets into the fact that there’s no question regarding the defendant’s literacy, competency or understanding or his ability to read and write. At that particular time when you were asking this defendant the question or questions according to your Boykin form or your guilty plea and waiver of rights form, were you able to ascertain what you believed to be the defendant’s character at that time insofar as his understanding and literacy?
|7A. Normally I would ascertain that through this document, and that would be evidenced by my signature. I hate to tell you, my signature is not present, so I don’t really know why I didn’t sign it. If it was by mistake that I just overlooked it or it was because of something I felt defective, I don’t remember to be honest with you.
Q. Okay.
A. Normally by my signature, I would answer in the affirmative.
Q. Let me ask you this, Judge. If you by not signing or the' fact that your signature is not on that form, would you have taken that guilty plea if you believed that there would be a defect in your form?
A. No, of course not.
[THE COURT]: Let me ask this question, ....
Judge ..., so far as not signing that particular sheet, would you have had that Boykin form filed?
A. No. If I wouldn’t have signed it, I wouldn’t have taken the guilty plea and wouldn’t have filed it.
[THE COURT]: Right. You wouldn’t have taken it and you wouldn’t have had it filed. By the fact that it was filed, does that indicate anything to you, that it was filed? .
A. Well, the fact — if it was filed, and which it seems to have been, the fact that I took the guilty plea would indicate to me that I did think that he understood his rights, that he knowingly and intelligently waived those rights, that he did voluntarily enter a guilty plea, knowing what he was doing at the time.

On cross-examination, the judge stated the form indicated the defendant did not have the assistance of counsel at the time he was advised of his rights. Additionally, the judge acknowledged he had no independent recollection of giving the form to the clerk to be filed on the date in question.

In the instant case, after consideration of the record before us, and in light of the jurisprudence, we must conclude that neither the form nor the testimony presented by the State were legally sufficient to establish a valid waiver of counsel for predicate # 1. In State v. White, 98-0343, p. 5 (La.App. 1st Cir.12/28/98), 727 So.2d 574, 578, this court found the evidence relied upon by the State to prove an Ascension Parish Court predicate DWI offense “woefully inadequate to establish a valid waiver of counsel.” We reached that conclusion, “[e]ven noting the Ascension Parish judge’s opportunity to observe the defendant’s appearance, demeanor, and responses in court[.]” White, 98-0343, p. 5, 727 So.2d at 578. Notably, the evidence relied upon by the State in White for the predicate in question consisted of a minute entry and the same form relied upon by the State in the instant case.

This assignment of error has merit.

CONCLUSION

Accordingly, we find that the trial court erred in denying the defendant’s motion to quash and we hereby reverse the ruling denying the motion to quash. The defendant’s guilty plea and sentence are hereby vacated, and this case is remanded to the trial court with instructions to grant the defendant’s motion to quash predicate # 1 and to proceed accordingly.

GUILTY PLEA AND SENTENCE VACATED. RULING DENYING MOTION TO QUASH REVERSED AND REMANDED WITH INSTRUCTIONS.

      . Predicate # 1 was initially set forth in the bill of information as a December 30, 1996 conviction for first offense driving while intoxicated. However, the State subsequently amended the bill to correctly set forth the date of predicate # 1 as November 27, 1996.

      . The minute entry indicated the Ascension Parish judge had informed the defendant of his right to trial, right against self-incrimination, right to confront and cross-examine witnesses, right to be represented by an attorney, and the presumption of innocence, and reflected the defendant stated he heard, understood and waived his rights. White, 98-0343, pp. 4-5, 727 So.2d at 577.


author: | aLANIER, J.

text:
    Stanley PERRET v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTION, OFFICE OF MOTOR VEHICLES
    No. 2001-CA-2837.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.
    H. Thomas Murphy, New Orleans, Counsel for Plaintiff/Appellant Stanley Perret.
    Richard P. Ieyoub, Attorney General, Leslie S. Levet, Asst. Attorney General, Baton Rouge, Counsel for Defendanl/Ap-pellee Louisiana Department of Public Safety and Correction.
    Before: KUHN, DOWNING, and LANIER
       JJ.

      . The Hon. Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | aLANIER, J.

This is a suit cumulating an action in tort for damages and an action for injunction arising out of the denial of plaintiffs request to obtain a driver’s license by the defendant, Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (DPSC). This appeal is from a trial court’s judgment sustaining defendant’s peremptory exception raising the objection of prescription.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Stanley Perret, has been the holder of a valid Louisiana driver’s license since 1980 and has never provided the DPSC with his social security number. On January 29, 1996, plaintiff attempted to renew his driver’s license and was requested to provide his social security number. Plaintiff refused to provide his social security number asserting the requirement was an invasion of his privacy and violated his constitutional rights. Accordingly, the DPSC did not renew his driver’s license. On February 8, 1996, plaintiff again attempted to renew his driver’s license without providing his social security number and DPSC again refused to do so. Plaintiff allegedly filed suit on January 20, 1998, requesting declaratory and injunctive relief. That suit was dismissed -without prejudice.

Plaintiff subsequently filed this suit on September 6, 2000, alleging that defendant violated his constitutional rights and caused him damages by refusing to grant him a driver’s license. Plaintiff also requested injunctive relief. DPSC filed a peremptory exception raising the objection of liberative prescription, alleging plaintiffs claims for damages and injunctive relief had prescribed on the face of his petition. The matter was assigned for a hearing and counsel for plaintiff and defendant submitted the matter on memoranda and waived their appearances. On October 10, 2001, judgment was rendered by the trial court in favor of defendant sustaining the peremptory | .^exception raising the objection of prescription. Plaintiff filed this devolutive appeal on October 9, 2001.

OBJECTION OF LIBERATIVE PRESCRIPTION

(Plaintiffs assignment of error no. 1)

Plaintiff asserts the trial court erred in granting defendant’s peremptory exception raising the objection of liberative prescription.

Liberative prescription is a mode of barring of actions as a result of inaction for a period of time. La. C.C. art. 3447. If a plaintiffs claims are not prescribed on the face of the petition, the burden is on the party raising the objection to prove the facts to support the objection. Our Lady of the Lake Hosp. v. Vanner, 95-0754, p. 3 (La.App. 1 Cir. 12/15/95), 669 So.2d 463, 464; Tranum v. Hebert, 581 So.2d 1023, 1030 (La.App. 1 Cir.), writ denied, 584 So.2d 1169 (La.1991). Conversely, if a claim is prescribed on the face of the petition, the burden is on the plaintiff to show a suspension or interruption of the prescriptive period. Vanner, 95-0754, p. 3, 669 So.2d at 464; Hebert, 581 So.2d at 1030. In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. See La. C.C.P. art. 931; Scott v. Sears, Roebuck and Co., 99-0571, p. 5 (La.App. 1 Cir. 12/22/00), 778 So.2d 50, 53. In the instant case, no evidence was introduced and plaintiffs petition alleges, in pertinent part:

II.
The Defendants have denied the Plaintiff the right to obtain an operator’s license due to the fact that the Plaintiff declined to provide the Defendants with the social security account number established for him.
III.
The Plaintiff would show that this unconstitutional act by the Defendants in the prevalent use of the social security account number by numerous state and private agencies, including but not limited to Louisiana, has resulted in a situation whereby the social security account numbers have been employed as universal identifiers, and anyone can become privy to the Plaintiffs information, location, and other facts which can be used against him, among other things, as a violation of his Fifth Amendment rights. As a result, the Plaintiff has been deprived of his civil rights.
_k...
Y.
The Plaintiff first attempted to renew his operator’s license on January 29, 1996 at which time he was asked to furnish the social security account number established for him. The Plaintiff refused to furnish the social security account number ... on the grounds that it was an invasion of his privacy and constitutional rights, and, further, he had not been required to do so since 1980. The Defendants, Louisiana Office of Motor Vehicles, Department of Public Safety, refused to renew his license and referred the Plaintiff to Cheryl Gauthier, Motor Vehicles Supervisor.
VI.
The Plaintiff again attempted to renew his operator’s license on February 8, 1996. The renewal was again refused because the Plaintiff failed to provide the social security account number established for him.
VIII.
The Plaintiff originally filed suit in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, Case Number 425880, Division “D” requesting declaratory judgment and injunctive relief. A hearing was held on this matter, and relief was denied, and trial set on the injunctions for January 20, 1998, which had been continued without date. This suit was eventually dismissed without prejudice.
X.
Although Louisiana has passed a law subsequent to the Plaintiff filing suit in the Nineteenth Judicial Court, Louisiana, no longer requiring the Social Security number to be placed on the license, the State keeps in its possession the Social Security numbers and has acknowledged that this information is widely disseminated.
XI.
The Plaintiff later went to the Office of Motor Vehicles, Department of Public Safety, Louisiana, where, under the new law of Louisiana and United States law, he was supposed to have been provided with a copy of the Privacy Notice Act, and the lists of the uses to which the social security account number established for him would be put. However, the Office of Motor Vehicles, not obeying the United States law, did not give him either the privacy act notices required by law, nor was any such notice posted at this particular location of the Office of Motor Vehicles, nor was he given a list of the uses to which the social security account number established for him would be put. On that instance, he was given a list and told that this was what used to be passed out.
XII.
The Plaintiff ... seeks an appropriate award of damages for any injuries which may be proved in the trial of this matter, plus all costs of this litigation and reasonable attorney’s fees in the event that he prevails.
WHEREFORE, the Plaintiff ... prays that after due proceedings be had this Court render Judgment in favor of the Plaintiff and against the IsDefendants and Louisiana, granting the Plaintiff relief on all causes of action asserted herein, and enjoining the Defendants from continuing enforcement of the practice of requiring Mr. Perret to give the social security account number established for him. The Plaintiff also requests that he be awarded any damages proven at trial ....

Plaintiffs petition does not state specific dates for some of the acts of which he complains. See paragraph XI. Further, the record contains no evidence of the dates of the acts of which plaintiff complains in paragraph XI. Therefore, there is no indication as to the amount of time that has elapsed between the acts complained of in paragraph XI and the filing of this suit. Where a plaintiffs petition does not contain specific dates associated with the acts of which he complains in his petition, the petition is not prescribed on its face. See Doucet v. Lafourche Parish Fire Protection Dist. No. 3, 589 So.2d 517, 519 (La.App. 1 Cir.1991); see also Thaxton v. Roberson, 224 So.2d 183 (La.App. 3 Cir.1969). Therefore, plaintiffs claims for in-junctive relief and damages are not prescribed based solely on the face of his petition. Finally, even if we hold that plaintiffs claims were prescribed, plaintiff must be given an opportunity to amend his petition to remove the grounds for the objection of prescription, if he is able to do so. La. C.C.P. art. 934; see Marmolejo v. Fairmont Roosevelt Hotel Co., Inc., 301 So.2d 375, 377 (La.App. 4 Cir.1974).

The trial court erred in sustaining the objection of prescription based solely on the facts alleged on the face of the petition.

This assignment of error has merit.

DECREE

For the foregoing reasons, the trial court’s judgment sustaining defendant’s peremptory exception raising the objection of prescription is reversed; judgment is rendered in favor of the appellant and against DPSC overruling the exception; this action is remanded to the trial court for further proceedings in accordance with law. DPSC is cast for the costs of this appeal in the amount of $540.72.

REVERSED AND REMANDED.

      . La. R.S. 32:409. lA(2)(vi) provides that an applicant for a driver's license shall provide a social security number.

      . The record does not show when this suit was filed or dismissed.

      .Plaintiff's petition for appeal was filed on October 9, 2001, and stated that the plaintiff had not yet received a copy of the trial court’s judgment of July 30, 2001. The trial court signed a final judgment on October 10, 2001, and granted the plaintiff's appeal on October 11, 2001.

      . In Doucet, the court stated, "On the record before us, it is impossible to determine if the prescriptive period has run. In the interest of justice, the appellate court can remand for proper consideration when the record is so incomplete that the court is unable to pronounce definitively on the issues or where parties have failed, for whatever reason, to produce available evidence material to a proper decision.” Doucet, 589 So.2d at 519-520, citing La. C.C.P. art. 2164.