author: | ¡WALTER J. ROTHSCHILD, Judge.

text:
    Edith S. LEMAIRE, Wife of/and Marcel Lemaire v. AIRLINE LIONS CLUB HOME, INC. and its Insurer, Essex Insurance Company.
    No. 02-CA-699.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Byron Ann Cook, William A. Neilson, Ajubita, Leftwich & Salzer, New Orleans, LA, for Edith S. Lemaire and Marcel Le-maire, PlaintiffAppellee.
    Kurt P. Forshag, Martiny & Caracci, Metairie, LA, for Edith S. Lemaire and Marcel Lemaire, PlaintifPAppellee.
    Al M. Thompson, Jr., New Orleans, LA, for Airline Lions Club Home and Essex Insurance Company, Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   | ¡WALTER J. ROTHSCHILD, Judge.

On October 31, 1997, Edith and Marcel Lemaire attended a dance at the Airline Lions Club Home (“Lions Club”) in Me-tairie, Louisiana, as they often did on Friday nights. During the dance, Mrs. Le-maire, who was 81 years old at the time, sat at a table in the front of the Lions Club and she danced many of the dances. At the end of the dance, which was approximately 11:00 p.m., the lights were turned on and Mrs. Lemaire began to say goodbye to her friends. After she wished those at her table farewell, she proceeded to a table in the back of the Lions Club that was perpendicular to the back wall with eight chairs on each side. Mrs. Lemaire went around the table and kissed each person good night. After she kissed the last person at the table, she stepped back and fell on a rug that was just behind the table in front of the back door to the Lions Club. As a result of the fall, Mrs. Lemaire broke her wrist and she had to undergo surgery and use an external fixation device to repair the injury.

On October 28, 1998, Mr. and Mrs. Le-maire filed suit against Airline Lions Club, Inc. and its insurer, Essex Insurance Company. The defendants answered and requested a trial by jury. Prior to the trial, the plaintiffs filed a Motion to |sStrike Trial by Jury, stipulating that the value of their claims did not exceed $50,000. The trial court granted the Motion to Strike Trial by Jury, and a bench trial was held on March 18, 2002. On March 22, 2002, the trial judge signed a judgment in which she found Airline Lions Club Home, Inc. to be 100% at fault for the accident and awarded general damages to Mrs. Lemaire in the amount of $60,000 but reduced the award to $50,000 due to the previous stipulation. The trial court also awarded $10,000 to Mr. Lemaire for loss of consortium. It is from this judgment that Airline Lions Club Home, Inc. and Essex Insurance Company appeal.

DISCUSSION

The first two assignments of error asserted by the appellants are interrelated and will be addressed simultaneously. In the first assignment of error, the appellants assert that the trial court erred in finding the defendant 100% liable for Mrs. Lemaire’s accident, because the trial court’s finding that a chair caused the rug to fold or buckle is unsupported by the record. In the second assignment of error, the appellants argue that the trial court erred in failing to assess comparative fault to Mrs. Lemaire, because she was stepping backward without looking and had traversed the area in question without difficulty only seconds earlier. The plaintiffs argue that the defendants created a hazard when they placed a table too close to a rug/door mat where chairs backed up against it as people got up and down to dance. They argue that when the chairs backed up, the rug would buckle and that this is the most probable explanation for Mrs. Lemaire’s fall.

An appellate court is not permitted to set aside the trial court’s factual findings, unless the findings are clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Badeaux v. State, Department of Transportation and Development, 96-853 (La.App. 5 Cir. 2/25/97), 690 So.2d 203, 208, writ denied, 97-779 (La.5/1/97), 693 So.2d 733. When factual findings |4are based on the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings. Schexnayder v. Exxon Pipeline Company, 01-1236 (La.App. 5 Cir. 3/13/02), 815 So.2d 156, 160. The manifest error standard also applies to the trial court’s apportionment of percentages of fault. Lapeyrouse v. Wal-Mart Stores, Inc., 98-547 (La.App. 5 Cir. 12/16/98), 725 So.2d 61, 65, writ denied, 99-140 (La.3/12/99), 739 So.2d 209.

The parties agree that there was a rug/ door mat in front of the back door near the table where Mrs. Lemaire was telling her friends goodbye and subsequently fell. However, the parties disagree as to the distance of the table and chairs from the door and the rug. Several witnesses testified regarding the distance of the table and chairs from the back door and rug. For instance, Mr. Peter Catalano testified that he attended the dance and witnessed Mrs. Lemaire’s fall, and he stated that the back table was about two feet from the door. However, later in his testimony, he indicated that the table could have been approximately five feet from the door. Mrs. Lemaire testified that “I ‘kind of remember the back of the chairs being partly on the rug.” The testimony regarding the distance of the chairs from the rug was varied and inconsistent, and it was the job of the trial judge to assess each witness’ credibility and to make factual findings accordingly. After listening to the differing testimony and assessing the witnesses’ credibility, the trial judge concluded in her reasons for judgment that “it seems fairly clear and more probable than not that the table was within a couple of feet of the door.”

Mr. Harold Meyer testified that he attended the dance 'and that he was seated at the back table on the side of the table that was next to the rug. He indicated that his chair was at the end of the table that was opposite to the back door and away from the rug. He testified that the rug was directly behind the chairs at the end of the table nearest to the door. He stated that prior to Mrs. Lemaire’s fall, he was aware of the presence of the rug, and he opined that, “[t]he reason I had no 1 .¡difficulty with the rug that was there is because I was closer to this end of the table, so when I turned I turned to my right and walked right on out to go to the dance floor.” Mr. Meyer stated that he observed Mrs. Lemaire lying partially on the rug after she fell, and he noticed that the rug had a wrinkle in it. Although the defendants argue that the wrinkle was probably caused by the fall, the plaintiffs contend that the wrinkle was more probably caused by a chair coming in contact with the rug and that the wrinkle must have caused Mrs. Lemaire to fall. The defendants also contend that the rug was placed at the back door for use by anyone who entered the Lions Club through that door. However, the plaintiffs argue that all of the guests entered from the front door where the money was collected.

The defendants also argue that Mrs. Lemaire suffered from positional vertigo and that she likely lost her balance on her own accord-while the rug was lying flat on the floor. However, Mrs. Lemaire testified that she danced every dance and felt great that night. Further, Mrs. Florence Catalano testified that she saw Mrs. Le-maire that evening and she did not appear to be dizzy or to have any difficulty walking or dancing.

After hearing the testimony and evidence in this matter, the trial judge stated in part:

More probably than not the table was too close to the rug, and interfered with the function of the rug and turned something that was there for safety purposes into a hazard, because when one stepped away from the table, one was placed in a position where one would fall on the rug.
Therefore, I find more probably than not that the rug as situated next to the table posed a hazard and unreasonable risk of harm, and that that harm caused Mrs. Lemaire’s injury sustained in the fall.
There was a question of comparative negligence, whether Mrs. Lemaire was comparatively negligent when she stepped back onto the rug. I found that she was not, because as explained at trial, her act of stepping was a typical act that one would make as one steps away |¿from a table to turn and walk away, so I find that she was not comparatively negligent.

The trier of fact is accorded great deference on the question of factual causation. Schexnayder v. Exxon Pipeline Co., supra at 160. In this case, the testimony and argument presented by each side supported a different cause of the accident. When there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly wrong or manifestly erroneous. Stobart v. State, 617 So.2d 880, 882-883 (La.1993). An appellate court must determine whether the factfinder’s conclusion is reasonable in light of the entire record. Lapeyrouse v. Wal-Mart Stores, Inc., et al., supra 64-65. Considering the testimony and evidence in this matter, we cannot say that the trial judge was manifestly erroneous when she found that the defendants were 100% at fault for the accident and that Mrs. Lemaire was not comparatively negligent. Accordingly, the appellants’ first two assignments of error are without merit.

In the third assignment of error, the appellants argue that the trial court erred in awarding $10,000 to Mr. Lemaire for loss of consortium. They assert that there was no evidence that Mrs. Lemaire’s injuries had an adverse effect on her relationship with Mr. Lemaire.

A claim for loss of consortium encompasses the following elements: loss of love and affection, loss of society and companionship, impairment of sexual relations, loss of performance of material service, loss of financial support, loss of aid and assistance, and loss of fidelity. Kistner v. King, 98-641 (La.App. 5 Cir. 12/16/98), 726 So.2d 68, 70; Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700, 713. However, a plaintiff is not required to prove every element in order to prevail. Id.

At trial, Mrs. Lemaire testified that she “couldn’t do anything” for about eight months after the accident. She could not dress, bathe, eat, cook or use the 17bathroom without the assistance of her husband. She further testified that she did not sleep in the same bed with her husband after the accident, because her arm was hurting and she had to stretch out to get comfortable. Mr. Lemaire testified that “she couldn’t do nothing for almost a year” and that he had to do everything, including the grocery shopping and washing the clothes. He also stated that he did not sleep in the same bed with Mrs. Lemaire after the accident.

The record before us establishes that Mr. Lemaire did indeed suffer the loss of several of the elements required for a loss of consortium claim. Accordingly, we find that he has met his burden of proving a loss of consortium claim. We further find that an award of $10,000 for Mr. Lemaire’s loss of consortium is not excessive, and we affirm this judgment of the trial court.

In the fourth and final assignment of error, the appellants argue that the trial court erred in granting the plaintiffs’ Motion to Strike Trial by Jury. They assert that the plaintiffs’ stipulation that their damages did not exceed $50,000 was intended solely to deprive the defendants of their right to a trial by jury.

Procedural maneuvers designed solely for the purpose of depriving a litigant of his right to a jury trial based on jurisdictional amount are disfavored. Black v. Prudential Property and Casualty Insurance Co., 93-878 (La.App. 3 Cir. 3/2/94), 634 So.2d 1340, 1344. However, the plaintiff can establish that a Motion to Strike Trial by Jury is not intended to be solely a procedural maneuver if the plaintiff can show in good faith that the amount in dispute is less than $50,000.

In the instant case, at the hearing on the plaintiffs’ Motion to Strike Trial by Jury, the trial judge stated that “a broken wrist with an external fixation device in Jefferson Parish is probably worth less than $50,000.” Thereafter, the trial judge granted the plaintiffs’ Motion to Strike Trial by Jury. However, after considering the testimony and evidence at trial, the trial judge found that Mrs. Lemaire’s general damages were $60,000, but she reduced them to $50,000 due to the | ¡^plaintiffs’ stipulation. Although the defendants argue that the plaintiffs intended to deprive them of their right to a jury trial, we find that it was reasonable for the trial judge to believe prior to trial that the good faith amount in dispute was less than $50,000. Accordingly, we find that the trial judge did not err when she granted the plaintiffs’ Motion to Strike Trial by Jury, and this assignment of error is without merit.

For the reasons set forth above, we affirm the trial court’s March 22, 2002 judgment and the trial court’s ruling granting the plaintiffs’ Motion to Strike Trial by Jury.

AFFIRMED.


source: Caselaw Access Project

author: J^SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Anna N. ANGELLE v. David L. DELERY, Rachel Douglas, and Allstate Insurance Company.
    No. 02-CA-0644.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      James E. Stovall, James E. Stovall, LLC, Covington, LA, for Anna N. Angelle, Plaintiff-Appellee.
    Lucia G. Hawks, Law Offices of Harold G. Toscano, New Orleans, LA, for Allstate Insurance Company, Defendant-Appellant.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   J^SUSAN M. CHEHARDY, Judge.

In this personal injury lawsuit, after tidal, the jury found that the defendant-driver caused the automobile accident, which caused the injury to plaintiffs shoulder and awarded damages. The trial court subsequently granted plaintiffs motion for judgment notwithstanding the verdict and increased the amount of general damages awarded to the plaintiff: For the following reasons, we affirm.

Facts

On Wednesday, October 27, 1999, the plaintiff, Anna Angelle, and the defendant, David Delery, were involved in a side-impact collision near the intersection of Dickory Avenue and Citrus Boulevard in Harahan, Louisiana. In the accident, the front of the defendant’s vehicle collided with the driver’s side of the plaintiffs vehicle, causing substantial damage to the driver’s door and puncturing the front tire on the driver’s side. Although neither driver sought medical attention immediately after the accident, the 76-year-old plaintiff stated that the collision made her feel “like all the flesh was taken off [her] bones.”

The next day, she felt pain in her left upper torso, which made it difficult to breathe, so she made an appointment for Friday, October 29, 1999, with her family physician, Dr. Miles. She presented to Dr. Miles with complaints of headaches and Lpain and bruising on her left side, specifically at her ribs, her left arm, her left elbow, her left shoulder and her neck. He advised a conservative treatment of over-the-counter pain relievers.

On December 27, 1999, Mrs. Angelle visited her orthopedist, Dr. Marshall Book, complaining of pain in her left shoulder and left rib pain. While Mrs. Angelle had previously experienced mild pain in her neck, back, and shoulder associated with osteoarthritis, on that visit, she complained of pain in her left shoulder. That day, Dr. Book injected Mrs. Angelle’s left shoulder with steroids.

Mrs. Angelle did not experience relief so, on December 29, 1999, she sought further treatment, at the advice of her attorney, from Dr. Stewart Altman, a general surgeon. She presented with headaches and nausea as well as pain in her neck, left elbow and left shoulder. Dr. Irra, who is Dr. Altman’s associate, diagnosed Mrs. Angelle with cervical and lumbar strain as well as post-traumatic muscle tension headaches. He prescribed medication, heat therapy and a TENS unit to alleviate her pain.

Mrs. Angelle continued treatment with Dr. Altman until May 15, 2000 when he referred her to Dr. Seltzer, an orthopedic surgeon. In the meantime, Mrs. Angelle returned to Dr. Book on April 12, 2000, complaining of acute shoulder pain in her left shoulder. He again injected her shoulder with steroids.

On May 23, 2000, Mrs. Angelle presented to Dr. Seltzer with complaints of neck pain, shoulder pain which radiated down her left arm, and difficulty in lifting her left arm. He prescribed oral medication. On June 14, 2000, at Dr. Seltzer’s direction, Mrs. Angelle underwent an MRI of her left shoulder, which revealed spurring with the potential for development of chronic impingement syndrome and complete tear.in the distal supraspinatus muscle of the rotator cuff.

On August 15, 2000, Mrs. Angelle returned to Dr. Seltzer who, after reviewing the results of the MRI, recommended two courses of treatment for Mrs. | ¿Angelle’s left shoulder: conservative treatment with oral medication or more aggressive treatment with surgery. On December 12, 2000, Mrs. Angelle, while trying to avoid using her left arm, ruptured a tendon in her right bicep through overuse.

Although Mrs. Angelle continued to suffer with pain in her left shoulder, she was reluctant to undergo surgery until February of 2001. When Dr. Seltzer sent her to Dr. Miles to obtain clearance for shoulder surgery, Dr. Miles refused to clear her for surgery because- he detected a systolic murmur. Dr. Miles referred Mrs. Angelle to cardiologist, Dr. Edward St. Martin.

When Dr. St. Martin examined her on April 6, 2001, he discovered that she had critical aortic valvular stenosis. On April 23, 2001, Mrs. Angelle underwent an aortic valve replacement. As of November 28, 2001, Mrs. Angelle continued to suffer with shoulder pain but had not yet been released by Dr. Miles to undergo the shoulder surgery.

Procedural History

On October 17, 2000, plaintiff filed this lawsuit against the driver, David Delery; the vehicle owner, Rachel Douglas; and the driver’s liability insurer, Allstate Insurance Company. On November 26, 2001, the matter proceeded to a trial. After hearing two days of testimony and evidence, the jury unanimously found that David Delery’s negligence was the proximate cause of the automobile accident on October 27, 1999. Further, the jury attributed fault 100% to Delery and awarded Anna Angelle a total of $36,645 in damages, with general damages of $20,000.00 and medical damages of $16,645.00. Plaintiff subsequently filed a | ¡^Motion for Judgment Notwithstanding the Verdict. On January 24, 2002, after a hearing, the trial judge granted plaintiffs motion and increased plaintiffs general damages award to $50,000.00.

On February 14, 2002, counsel for De-lery and Allstate filed a Motion for suspen-sive Appeal. Plaintiff timely filed an answer to the appeal seeking an increase in the award of general damages.

Law and Argument

In their appellate brief, defendants De-lery and Allstate assert that “the trial judge erred in granting judgment notwithstanding the verdict by using an improper standard and because the amount awarded by the jury for general damages was within the range, which reasonable minds could award.” The defendants specifically contend that the trial court used the improper standard of his own opinion when he granted the JNOV. Further, the defendants argue that the evidence in this case is not so favorable to the plaintiff that reasonable and fair-minded persons could not arrive at any verdict in favor of the defendant. Finally, they argue that the jury was not clearly wrong in its award of general damages to the plaintiff.

La. C.C.P. art. 1811 governs judgments notwithstanding the verdict (JNOV). It provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages, or both. The standard to be used in determining whether a JNOV has been properly granted has been set forth in our jurisprudence as follows:

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

Anderson v. New Orleans Public Service, 583 So.2d 829, 832 (La.1991).

In determining whether the trial court erred in granting the JNOV as to quantum, the appellate court uses the same criteria: could reasonable men in the exercise of impartial judgment differ as to the fact that the jury award was either abusively high or abusively low? If reasonable persons could differ, then the trial court erred in granting the JNOV, and the jury’s damage award should be reinstated. On the other hand, if reasonable persons could not differ, then the trial court properly granted the JNOV, and its damage award based on its independent assessment of the damages is the judgment of the trial court which is reviewed on appeal for manifest error. Mendoza v. Mashburn, 99—499 (La.App. 5 Cir. 11/10/99), 747 So.2d 1159.

In this matter, we have reviewed the entire record, including the two-day trial transcript. At trial, plaintiff presented the testimony of Dr. Daniel Seltzer, an orthopedic surgeon. In his medical opinion, Mrs. Angelle’s MRI revealed that she had suffered a complete tear of the distal su-praspinatus muscle of her left rotator cuff, which was consistent with her complaints of serious pain and difficulty in raising her left arm. He also stated that, based on the history reported by Mrs. Angelle, the injury to her rotator cuff was attributable to her car accident on October 27, 1999.

|7Further, he stated that an individual who suffers a blow from the side while their hands are braced against a static object, like a steering wheel, could experience sufficient force to produce tearing of the rotator cuff. He also stated that it is likely that, for several reasons, the rotator cuff of a person of 76 years old would be more prone to injury than one of a younger person. Finally, he explained that, Mrs. Angelle, as is not uncommon in a person of 76 years old, may have signs of osteoarthritis in her back and neck but that condition is separate from, and did not cause or contribute to, the torn muscle in her rotator cuff.

Mrs. Angelle also testified at trial. She testified that, before her accident, she had experienced minor neck and back aches, but after her accident, she has experienced severe pain in her left shoulder. Now, because of the pain in her shoulder, she is not able to play with her grandchildren like she did previously. She cannot perform simple functions, like combing her hair or grocery shopping, like she used to because she cannot lift her left arm. She does not sleep well because the pain in her shoulder wakes her at night. Although she is scared to have surgery, she is now willing to undergo surgery to alleviate the constant pain in her shoulder.

Mrs. Angelle’s daughter, Alma Clarke, also testified. Before the accident, her mother was very active but now she is not the same person. To her, her mother seems very depressed, cries a lot, and complains of pain frequently.

In its case-in-chief, David Delery testified and admitted liability for the accident. The defendants Delery and Allstate also submitted testimony from orthopedic surgeons, Dr. David Aiken, Jr. and Dr. Marshall Book. At Allstate’s request, Dr. Aiken examined Mrs. Angelle, who told him that she had pain in her neck, her lower back, and nearly constant pain in her left shoulder. He testified that his examination revealed an elderly adult female with “subjective complaint of tenderness in the neck and complaint of pain in the shoulder when she moved her | Rshoulder ... and I found no objective complaints that would be related to the car accident.”

Importantly, Dr. Aiken did not review Mrs. Angelle’s MRI. When asked by defense counsel whether there were ways besides sudden trauma that a person could suffer a torn rotator cuff, Dr. Aiken opined that a person could suffer a chronic tear over a number of years, which gives a minor ache over a long period of time. He also testified that pain and inflammation of the shoulder tendon from a slight tear in the muscle or tendon, usually diagnosed as tendonitis, can be the beginning of a chronic rotator cuff tear. He opined that, unless Mrs. Angelle complained of acute pain at the time of the car accident, he would not relate Mrs. Angelle’s torn rota-tor cuff to the accident since she did not complain of acute pain in her left shoulder at the accident scene.

Dr. Book, the plaintiffs treating orthopedist before the accident, testified that she had presented with tendonitis in her right shoulder as early as 1993 and, on January 21, 1997, two years before the accident, Mrs. Angelle presented with pain, which she described as severe, in her left shoulder. Dr. Book also testified that a person of Mrs. Angelle’s age, with degenerative changes like those experienced by Mrs. Angelle, would be more susceptible to a rotator cuff injury, which may have been present even before her automobile accident. Dr. Book admitted, on cross examination, however, that in the seven years that he treated her before this accident, he had not x-rayed her shoulder and never diagnosed Mrs. Angelle with either impingement of the left shoulder or a rotator cuff injury. He admitted that, because of her age, he had considered osteoarthritis to be the source of her pain.

After he granted the JNOV, the trial judge increased the jury’s original general damage award of $20,000.00 to $50,000.00. At the JNOV hearing, the trial judge stated that,

|9... the jury’s verdict would have been reasonable if they would have said, Tm going to give her 25, 30, 50, 75 percent of the medical expenses,’ ... and they would have distinguished between preexisting injuries.... But the jury’s verdict to the Court said ... ‘[Mrs. An-gelle’s] torn rotator cuff is caused by the accident,’ and they only gave her $15,-000.00[sie].
* * *
I think in the community it is perceived that ... when you take a scalpel to somebody, the minimum amount of damages that is satisfactory is $50,000.00.
The question comes down in this case is to whether I conclude there is one or two because of the heart. Sorry, Counsel, but I do think that $50,000.00 if the minimum, but I think that $50,000.00 is for the rotator cuff — I’m not going to grant another award for the heart.
* * * *

We recognize that the trial court did not accurately verbalize the standard of review in granting the JNOV as to the jury’s general damage award. As previously stated, a JNOV should only be granted if the trial court, after considering all of the evidence in the light most favorable to the party opposing the motion, finds that it points so strongly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on the issue.

It is our opinion, after reviewing the record, though that the trial court correctly granted a JNOV in this case. The jury concluded that Mrs. Angelle suffered a substantial shoulder injury because of the car accident caused by Delery’s negligence. It is our opinion, after our thorough review of the record, that considering the impact of this injury on Mrs. Angelle, the jury’s awards for physical and emotional suffering and loss of enjoyment of life were unreasonably and abusively low.

Even when reasonable inferences and factual questions are resolved in favor of the defendants, the record still indicates that, although Mrs. Angelle suffered from aches and pains related to osteoarthritis in her neck, back and right shoulder | inbefore the accident, the pain in her left shoulder is directly attributable to the car accident. When she was treated one time more than two years before the accident for pain in her left shoulder, her treating physician, who testified for the defense, attributed that pain to osteoarthritis, which is distinct from the rotator cuff injury that the MRI confirms is present in Mrs. Angelle’s left shoulder. Thus, we find that, even though he misstated the standard, the trial judge did not err in granting the JNOV as to the jury’s general damage award.

The next inquiry is whether the trial court abused its discretion in the amount of general damages awarded after granting the JNOV. General damages are those which may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993).

Vast discretion is accorded the trier of fact in fixing general damage awards. La. Civ.Code art. 2324.1. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at 1260. As the Louisiana Supreme Court explained in Youn:

Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award.

Id. at 1261.

InThe initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089. Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). Our exhaustive review of the record leads us to conclude that the trial court was not manifestly erroneous in its award. We find, therefore, that defendants’ assignment of error lacks merit.

The plaintiff, in her appellate brief, argues that the trial court and jury were clearly wrong in their award of general damages. She argues that the evidence presented at trial shows that, as a result of the accident, which was entirely Delery’s fault, she suffered a complete tear in her left rotator cuff, which prevented use of her left arm and eventually led to a rupture of the tendon in her right bicep. She argues that the awards for physical and mental pain and suffering were “woefully inadequate” to compensate her. Further, she argues that she should have been awarded damages since she had to undergo heart surgery as a prerequisite to the shoulder surgery, which she must undergo to repair the physical damage caused by the accident.

We agree with the plaintiff that the jury was clearly wrong in its award but we do not agree that the trial judge erred. With respect to plaintiffs claim that the award of $50,000.00 is “woefully inadequate” to compensate her, we reiterate that the trier of fact’s vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn, supra. We will not disturb the trial court’s award on appeal.

Finally, a plaintiff ordinarily may recover from the tortfeasor reasonable medical expenses, past and future, which he incurs as a result of an injury. White v. Longanecker, 93-1122 (La.App. 1 Cir.5/23/94); 637 So.2d 1213, 1218, writ denied, 94-1704 (La.10/7/94); 644 So.2d 640. Here, plaintiff suffered from aortic valvular stenosis, which required surgery. Based on the information presented in the record, it appears that the plaintiff would have eventually had to have this surgery, even if she had not been involved in this accident. We conclude, therefore, that the plaintiff failed to establish any causal connection between the car accident and her heart problem. Accordingly, we find no merit in plaintiffs assigned error.

For the foregoing reasons, we affirm the trial court’s ruling in this case. Costs of this appeal are to be paid by the defendants.

AFFIRMED.

      . The collision caused over $5300.00 in damages to plaintiff’s 1998 Dodge Neon.

      . After plaintiff rested and outside of the presence of the jury, the defense moved to dismiss Rachel Douglas, the owner of the vehicle that David Delery was driving when he collided with Mrs. Angelle. The trial judge granted the motion.

      . The jury awarded $7,000.00 for past, present, future pain and physical suffering; $3,000.00 for past, present, future mental pain and suffering; $5,000.00 for disability; and $5,000.00 for loss of enjoyment of life.

      . The jury awarded $4,245.00 for past medical expenses and $12,400.00 for future medical expenses.


author: LEDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Ty COLLINS.
    No. 02-KA-546.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Harry J. Morel, Jr., District Attorney, Kim McElwee, Assistant District Attorney, Hahnville, LA, for Plaintiff-Appellee.
    Frederick Kroenke, Louisiana Appellate Project, Baton Rouge, LA, For Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   LEDWARD A. DUFRESNE, JR., Chief Judge.

By this appeal, defendant, Ty Collins, challenges the trial court’s denial of his motion for mistrial. For the reasons which follow, we find no error in the ruling of the trial judge.

This ease arises out of an armed robbery which occurred in the early morning hours of June 11, 1999. On that date, defendant, along with Christopher Sanborn, robbed a Burger King restaurant located on Airline Highway in Destrehan. As the restaurant’s porter, Mattie Holmes, took the trash outside, she was approached by the two perpetrators, both armed with guns. Ms. Holmes was told that this was a “stick up,” and she was then forced inside and placed in a walk-in cooler. The two armed men proceeded to the manager’s office where they found John Carroll, the assistant manager, doing some paperwork. They ordered Mr. Carroll to open the safe, and after a few unsuccessful attempts, he was able to unlock it. During the course of the robbery, the men struck Mr. Carroll in the head with a gun, broke his ankle, and shot him twice. The two perpetrators fled the scene with the money from the safe.

Defendant was thereafter apprehended and charged by bill of indictment with attempted second degree murder of John Carroll, LSA-R.S. 14:27 and 14:30.1, and conspiracy to commit second degree of Mattie Holmes, LSA-R.S. |314:26 and 14:3o.!. However, the state subsequently amended the indictment to charge defendant with two counts of armed robbery, in violation of LSA-R.S. 14:64. The case proceeded to trial before a twelve person jury which found defendant guilty as charged on both counts. The trial court sentenced defendant, on each count, to ninety-nine years at hard labor without benefit of parole, probation, or suspension, to run concurrently. Defendant now appeals.

On appeal, defendant asserts that the trial judge erred in denying his motion for mistrial when members of the jury testified that they felt threatened and intimidated by the actions of defendant’s brother. After the state and defense rested, but prior to closing arguments, one of the jurors voiced concerns to the bailiff about menacing gestures made by defendant’s brother in the courtroom. On that basis, the court convened a closed hearing which is recorded in a sealed transcript. In that hearing, the court interviewed the jurors individually to determine whether they felt intimidated and also whether they could give defendant a fair trial. After considering the testimony of the jurors, the trial judge denied defendant’s motion for mistrial stating as follows:

All right. I’m going to make the following findings based on what I’ve heard from the testimony of the individual jurors. Each of them said they can remain fair and impartial. They also indicated that they would not transfer any of this feeling that they received from the brother to the defendant. As a matter of fact, the jurors answered that they did not receive these types of intimidating stares from the defendant himself. So I do not believe that this will have a prejudicial impact on the defendant and we’ll proceed. The motion for mistrial is denied.

In State v. Bibb, 626 So.2d 913, 922 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188, this court discussed a defendant’s right to a fair trial by an impartial jury:

A defendant’s constitutional due process right of fair trial by an impartial jury may be violated if the trial jurors are subjected to influences which cause them verdict to be influenced by circumstances other than the evidence developed at trial. Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424 (1965); State v. Marchand, 362 So.2d 1090, 1092-1093 (La.1978). In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel. Turner v. Louisiana, 379 U.S. at 473, 85 S.Ct. at 550.
Initially in any trial, there is a presumption of jury impartiality. United States v. Winkle, 587 F.2d 705, 714 (5th Cir.), cert denied, 444 U.S. 827, 100 S.Ct. 51, 62 L.Ed.2d 34 (1979). However, any unauthorized communication, contact, or tampering directly or indirectly, made by a non-juror with a juror during a trial about the matter pending before the jury is deemed presumptively prejudicial, if not made in accordance with rules of court and the instructions and directions of the court made during the trial, with full knowledge of all the parties. The presumption is not conclusive, but the burden rests heavily upon the state to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to defendant. Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954); State v. Marchand, 362 So.2d at 1092. Prejudice may be shown by evidence that an extrinsic factual matter tainted the jury’s deliberations. Thus, an adequate demonstration of extrinsic influence upon the jury overcomes the presumption of jury impartiality and shifts the burden to the state to show that the influence demonstrated was not prejudicial. United States v. O’Keefe, 722 F.2d 1175, 1179 (5th Cir.1983); United States v. Howard, 506 F.2d 865, 869 (5th Cir.1975); State v. Sinegal, 393 So.2d 684, 687 (La.1981).

LSA-C.Cr.P. art. 775 states in part that a defendant’s motion for mistrial shall be ordered “when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial.” However, mistrial is a drastic remedy that is warranted only when the defendant has suffered substantial prejudice such that he cannot receive a fair trial. State v. Bates, 495 So.2d 1262 (La.1986); State v. Wingo, 457 So.2d 1159 (La.1984). The determination of whether actual prejudice has occurred lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion. State v. Sanders, 93-0001 (La.11/30/94), 648 So.2d 1272.

Applying this law to the instant case, we find that the state sufficiently established at the closed hearing that the contact with the jurors was harmless to |sdefendant and did not prejudice his right to a fair trial by an impartial jury. We have reviewed the sealed transcript and acknowledge that a few of the jurors genuinely felt intimidated by the stares of defendant’s brother. However, most of the jurors said they saw the look defendant’s brother gave them, but they were not intimidated or concerned about it. Moreover, each juror, when individually questioned by the trial judge, indicated that he or she could remain a fair and impartial juror. We further note that the trial judge assured the jurors that he was going to take steps to ensure their safety. He stated he was going to bar defendant’s brother from entering the courtroom, issue a restraining order preventing defendant’s brother from entering St. Charles Parish for the next five years, and seal all the names and addresses of the jurors. The trial judge also added that there were policemen present in the courtroom at all times.

Given these circumstances, we find that defendant was not prejudiced by the actions of his brother. Therefore, the trial court did not abuse its discretion by denying defendant’s motion for mistrial. This assigned error is without merit.

We have also reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent in this case.

For the reasons set forth herein, we affirm defendant’s conviction and sentence.

AFFIRMED

      . Christopher Sanborn, along with two other accomplices who waited outside during the robbery, were also charged in the bill of indictment. However, this appeal relates solely to Ty Collins.


author: J^CLARENCE E. McMANUS, Judge.

text:
    Jessie KAIGLER v. David W. OESTREICHER, II.
    No. 02-CA-544.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Cassandra Butler, Independence, LA, for plaintiff-appellant.
    Herbert V. Larson, Jr., New Orleans, LA, for defendant-appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

Plaintiff appeals the trial court’s judgment granting defendant’s exceptions of prescription and no cause of action. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1984, Plaintiff, Jessie Kaigler, filed a suit for workers’ compensation through then counsel Carl Barbier. Sometime later, defendant in this case, David Oestr-eicher assumed plaintiffs representation. Mr. Kaigler was awarded weekly compensation benefits along with “back due” benefits. These benefits were paid to plaintiff via defendant through 1999 with defendant’s attorney fees deducted from said payments. At some point in 1999, plaintiff complained to defendant that defendant was not sending timely payments to him. Defendant contended that the payments were being sent to his office on an irregular basis from plaintiffs former employer. From that point on, the checks were sent directly from the employer to plaintiff without any further deductions for attorney fees.

On March 19, 2001, plaintiff filed a petition for declaratory judgment and refund of attorney fees asserting that his attorney was only entitled to receive 20% of the first $10,000.00 paid in back due benefits and 10% thereafter. However, in order to receive these fees, defendant had to obtain court approval. Because defendant did not do so, plaintiff asked the court to decide whether the fee was authorized and return the fee if the court determined said fee was unauthorized. In response, defendant filed exceptions of prescription and no cause of action arguing plaintiffs petition was either 5, 10, 12 or 15 years too late depending on which prescriptive statute the trial court applied. Assuming arguen-do that a cause of faction exists in this ease, defendant noted plaintiff was at least aware of that cause of action when he first received his benefit checks minus attorney fees. Defendant contends that a cause of action does not exist because even if the attorney fees were unauthorized or unenforceable, plaintiff is not entitled to a refund of those fees by law.

After a hearing, the trial judge granted defendant’s exceptions, stating:

Okay. I’m going to grant your Exception of Prescription. It is well past any time lines that the law allows. And just out of an abundance of caution, I’m also going to grant your Exception of No Cause of Action.
The law states it’s not enforceable; doesn’t say its not collectible.
Plaintiff now appeals this judgment.

DISCUSSION

The crux of plaintiffs argument is twofold. First, defendant did not obtain court approval for his fee making that fee somehow null and void even though the fee may not have been unreasonable or contrary to law. Second, workers’ compensation law does not assign a prescriptive period for questioning an attorney fee. Thus, plaintiff believes this action is not prescribed essentially because the fees were subtracted from his ongoing benefit payments and a fee was never approved by the Workers’ Compensation Judge, and he is entitled to a refund. In support he relies on McKinney v. Little, 95-177 (La.App. 3 Cir. 5/31/95), 660 So.2d 494. That case addresses the merits of plaintiffs claim that defendant’s attorney fees were unauthorized, not any prescription issues.

The potential prescriptive periods at issue are: La. Civ.Code art. 3492, which provides a liberative prescription of one year with prescription commencing from the day injury or damage is sustained; La. Civ.Code art. 3494, which provides a liber-ative prescription of three years for an “action for the recovery of compensation for services rendered, including payment of salaries, Uwages, commissions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board;” La. Civ.Code art. 3497, which provides a liberative prescription of five years; and La. Civ.Code art. 3499, which provides a liberative prescription of ten years for personal actions.

The prevailing jurisprudence indicates that the type or character of the action first must be determined in order to assess what prescriptive period is applicable to a particular action. Starns v. Emmons, 538 So.2d 275, 277 (La.1989). We find that the instant claim is akin to a personal action to rescind or reform a contract and, as such, prescribes in ten years. Shreveport Credit Recovery, Inc. v. Modelist, 33-369 (La.App. 2 Cir. 5/15/00), 760 So.2d 681 (finding that an action for overbilling against a law firm is a personal action and prescribes in ten years).

The instant case was initiated by plaintiff against his employer in 1984. Plaintiff received his benefit checks and apparently acquiesced to the payment of attorney fees until 1999. This suit was filed on March 19, 2001. The record does not contain any evidence of when plaintiff actually began to receive his benefit checks from defendant. The rule as to the exception of prescription is that the party urging it has the burden of showing that it has run on the claim asserted. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). However, once it is evident on the face of the pleadings that prescription has indeed run, the opposing party then has the burden of showing that the prescriptive period has been interrupted or suspended, or never commenced to run. Id.

It is clear on the face of the record that whatever claim plaintiff might have stated against the defendant has long since prescribed. On that showing, the burden shifted to plaintiff to show some interruption or suspension of prescription, or that prescription never began to run. Based on the record before this Court, we find that defendant met his burden to show that plaintiffs action has prescribed and that plaintiff has not shown that prescription was interrupted or suspended, or Rnever commenced to run. Accordingly, we decline to address the issue of whether plaintiffs petition for damages stated a cause of action against defendant in this case.

CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court sustaining the peremptory exception of prescription.

AFFIRMED.


author:
      | .MARION F. EDWARDS, Judge.
      1-iCANNELLA, J.,

text:
    In re INTERDICTION OF Josephine Mule HYMEL.
    No. 02-CA-484.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.
    Joseph P. Williams, Jr., Metairie, LA, for Appellant.
    Gregory A. Miller, Norco, LA, for Ap-pellee.
    Roch P. Poelman, New Orleans, LA, for Appellee/Intervenor.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and CLARENCE E. McMANUS.
   | .MARION F. EDWARDS, Judge.

In this case, plaintiff, Jan Luke Mule, executrix of the estate of James G. Mule, Jr., appeals a trial court ruling granting an Exception of Res Judicata on the issue of whether defendant, J.M. Hymel, has the legal capacity to execute juridical acts. For the following reasons, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

On February 8, 2000, in the 29th JDC for the Parish of St. Charles, James G. Mule, Jr., filed a Petition for Interdiction against his aunt, Josephine Mule Hymel, (“Hymel”), alleging that Hymel suffered from a mental disability which rendered her incapable of managing her property. The petition requested that the Court appoint an expert to examine Hymel and make a report as to her condition and that Hymel “be interdicted as to her property in order to prevent the dissipation of her assets.” Hymel filed an answer denying all of the allegations in the petition except for her name and domicile.

| .The trial court subsequently ordered Hymel to undergo the mental examination, and the examining doctor diagnosed Hy-mel with “Mental Retardation by history.” The examining doctor further concluded that, “... Hymel is incapable of effectively managing her affairs on her own and would benefit from the appointment of a guardian.”

On October 16, 2001, another one of Hymel’s nephews, Michael A. Mule, filed a Petition of Intervention in the case. On October 22, 2001, all parties to the interdiction proceedings filed a Joint Motion for Judgment, and presented a Consent Judgment to the court, which was signed by the by the District Judge on that same day. The Consent Judgment provided, in relevant part, that Hymel had the legal capacity to, “... execute any and all juridical acts, including, but not limited to, the agreement to sell/purchase and act of sale, and any and all other acts which she may be required to execute pertaining to ...” a parcel of property that Hymel owned in part with James and Michael Mule, which was in the process of being sold to Shell Oil.

After the time for filing an appeal had elapsed on the Consent Judgment, Michael Mule filed a Motion for Summary Judgment asserting that the Consent Judgment conclusively established that Hymel has the capacity and is capable of entering into juridical acts, that there were no issues of material fact left for the court to decide at trial, and that Summary Judgment was appropriate for those reasons. In the alternative, Mule argued that the issue of Hymel’s capacity for entering into juridical acts was res judicata. After a hearing on the exception of res judicata, the court granted Michael Mule’s exception and dismissed the Petition for Interdiction by an order dated February 7, 2002.

James Mule filed a notice of suspensive appeal on March 6, 2002, but passed away on May 11, 2002. Jan Luke Mule, as the executrix of James Mule’s ^succession, substituted herself as. appellant, and converted the Suspensive Appeal into the present Devolutive Appeal.

LAW AND ARGUMENT

Appellant’s sole assignment of error is whether the trial court erred when it granted the exception of res judicata in regard to Hymel’s capacity to execute juridical acts.

In this case, plaintiff, James Mule, filed a Petition for Interdiction, which specifically sought that Hymel “be interdicted as to her property only.” [Emphasis provided]. Former La. C.C. art. 389.1, which was in effect at the time of the filing of the petition, stated:

When a person is declared incapable by reason of mental retardation, mental disability, or other infirmity under the provisions of Articles 389 or 422 of the Louisiana Civil Code, of caring for his own person or of administering his estate, a court of competent jurisdiction may appoint a limited curator to such person or his estate. Pending appointment of a limited curator, the court shall inquire into the specific abilities and disabilities of the incapacitated person and such limited curator shall have only those powers necessary to provide for the demonstrated needs of the incapacitated person. [Emphasis added].

Pursuant to the petition, under the above cited article, the only need sought to be met for Hymel was the interdiction of her property.

La. C.C. art. 390, which became effective on July 1, 2001 provides:

A court may order the limited interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity is unable consistently to make reasoned decisions regarding the care of his person or property, or any aspect of either, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.

In this case, the Consent Judgment entered into by all parties stated in relevant part:

... that Josephine Mule Hymel is hereby declared to have the legal capacity:
Is2. To execute any and all juridical acts, including, but not limited to, the agreement to sell/purchase and act of sale, and any and other acts which she may be required to execute pertaining to said property. [Emphasis added].
R.S. 13:4231, states:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The court in Terrebonne Fuel and Lube, Inc. v. Placid Refining Co., stated as guidance for reviewing a claim of res judi-cata: “The central inquiry is not whether the second action is based upon the same cause of action, but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action.”

As Michael Mule argues in his brief, the exception of res judicata is typically pled in subsequent actions. We are guided in this case, however, by revision comment (b) to L.S.A. — R.S. 13:4231, pertaining to the principle of issue preclusion, which “serves the interests of judicial economy by preventing relitigation of the same issue between the same parties.” To the extent that the Consent Judgment brought a final conclusion to a prayer for relief raised in the |fipetition, we find that res judicata is an appropriate vehicle to bar relitigation of that same issue, even if it is within the same proceeding.

In Section (B) of the 2000 Revision Comments to La. C.C. art 395, a “juridical act” is defined:

(b) A juridical act is a lawful volitional act intended to have legal consequences. It may be a unilateral act, such as an affidavit, or a bilateral act, such as a contract. It may be onerous or gratuitous. See Civil Code Article 3471 (Rev. 1982), Comment (c) (citing 1 A.N. Yian-nopoulos, Louisiana Civil Law System Coursebook Section 77 (1977)); 1 Planiol & Ripert, Treatise on the Civil Law, pt. 1, no. 265, at 187 (La.St.L.Inst.trans., 12th ed.1939).

In spite of the prayer in the petition to interdict Hymel, “as to her property only,” Appellant now argues that Hymel’s capacity to make juridical acts had never been contested in this case, and that the “occurrence” which is the subject matter of this litigation is actually Hymel’s lack of mental ability to consistently make reasoned decisions regarding the care of her person or property. Appellant asserts that the law of res judicata is not applicable to this case, and that to conclude otherwise, “would preclude in every case a limited interdiction of a person who has the capacity to perform all juridical acts, when such capacity is specifically recognized by law to be part of a limited interdict’s capacity.”

Conversely, Appellee, Michael Mule, asserts that Appellant’s original petition sought to restrict Hymel’s ability only to manage her property, and therefore her ability to pass certain juridical acts. Michael Mule further argues that the only way that the trial court could have granted the relief prayed for in the petition would have been to restrict Hymel’s ability to pass juridical acts, pursuant to La. C.C. art. 395. Michael Mule concludes that the Consent Judgment recognized that Hymel could pass all juridical acts, thereby ending the dispute in resolving all issues raised in the original Petition. After a review of the record, we agree.

|7La. C.C.P. art 891 requires that a petition contain a “concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation” and must conclude with a prayer for judgment for the relief sought. In this case, the petition specifically sought the remedy that Hymel be interdicted “as to her property only,” thereby depriving her of her ability to make juridical acts. The plain wording of James Mule’s petition did, in no way, seek other relief from the trial court, or attempt to aid Hymel with any other stated infirmity. We therefore find no error in the trial court’s determination that the consent judgment between the parties, which acknowledged Hymel’s ability to make “any and all juridical acts,” effectively extinguished plaintiffs cause of action, as stated in the original petition.

For the above stated reasons, the judgment of the trial court is affirmed.

AFFIRMED.

CANNELLA, J., dissents with reasons.

1-iCANNELLA, J.,

dissenting with reasons.

After reviewing the record, particularly the procedural history of the case, I disagree with the majority that the trial court judgment granting the Exception of Res Judicata should he affirmed. James Mule filed a petition to have his elderly aunt, Josephine Mule Hymel, interdicted as to her property. Another nephew, Michael Mule, intervened in the proceedings. During the course of the proceedings, while awaiting the outcome of a mental examination of Ms. Hymel, both Michael and James deemed it advisable to sell a certain parcel of property that they owned with Ms. Hymel. A “Consent Judgment” was presented to the court facilitating the sale of the property. The judgment provided in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that Josephine Mule Hy-mel in hereby declared to have the legal capacity”
1. To convey her interest in the property described below;
2. To execute any an all juridical acts, including, but not limited to, the agreement to sell/purchase and act of sale, and any and all other acts which she may be required to execute pertaining to said property. (Emphasis provided.)

I find it clear that the “Consent Judgment” was for no other purpose than to facilitate the legal sale of the property at a time while the interdiction proceedings were pending and the legality of the sale at that time might be called into question. In no way do I find that it finally resolved all issues 12relevant to the interdiction proceeding. The “Consent Judgment” does not, in my view, satisfy the requirements for sustaining an exception of res judicata as to the interdiction proceedings and, therefore, I dissent from this Court’s contrary decision.

      . La. C.C. art. 389.1, was vacated by the amendment and re-enactment of Title IX of Book I of the Louisiana Code of 1870 by Acts 2000, 1st Ex.Sess., No. 25 § 1, eff. July 1, 2001.

      . 95-0654 (La.1/16/96), 666 So.2d 624, 632.


author: UCHEHARDY, J.

text:
    Angeline M. SINGLETON, Wife of/and Glen A. Singleton, Individually and on Behalf of Their Minor Children, Javon A. Singleton, Mark A. Singleton, Ravon A. Singleton, Garen A. Singleton, and Precious J. Singleton v. ST. CHARLES PARISH, Morris Zeringue and Rusty Rebowe.
    No. 02-CA-590.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 26, 2002.

      Jan P. Jumonville, Metairie, Counsel for Plaintiffs-Appellants, Angeline M. Singleton, wife of/and Glen A. Singleton, et al.
    Alan A. Zaunbrecher, Metairie, Counsel for Defendants-Appellees, St. Charles Parish, Morris Zeringue, and Rusty Re-bowe.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   UCHEHARDY, J.

Plaintiff, Glen Singleton, appeals the dismissal of his suit for slander, defamation, and intentional infliction of emotion distress against St. Charles Parish, Rusty Rebowe, and Morris Zeringue. We affirm.

Singleton was employed by the St. Charles Parish Department of Recreation as a maintenance worker from 1993 to July 13, 1999. Morris Zeringue was a temporary foreman who was Singleton’s supervisor from time to time when Singleton’s regular foreman was absent. Rusty Re-bowe was the director of the department.

Singleton filed suit against the Parish, Zeringue and Rebowe in December 1998, alleging that Zeringue made intentionally false statements about him to Rebowe claiming Singleton used foul and abusive language toward him, placed false information in Singleton’s personnel file to that effect, and maintained the truth of his false statements following Singleton’s grievance hearing, resulting in the false allegations being maintained in his personnel record. Singleton alleged that Rebowe failed to investigate the veracity of Zeringue’s allegations, falsely told 13others that Singleton would be fired, and acted in concert with Zeringue to harass Singleton and intentionally inflict emotional distress on him.

Singleton alleged numerous additional incidents involving Zeringue and/or Re-bowe, in which both allegedly made false statements about him to others, retaliated against him for complaining, applied a higher standard of rules and regulations to him than to other employees, and generally created a hostile work environment.

He alleged the Parish of St. Charles is vicariously liable for the acts of its employees, Zeringue and Rebowe.

Singleton asserted that as a result of the defendants’ behavior he suffered disabling injuries to his mind, including severe major depression, daily suicidal thoughts, disturbed appetite and sleep, nightmares, crying spells, severe anhedonia and emotional outburst, stress, and acute emotional distress and turmoil. He sought damages for pain and suffering, disability, loss of enjoyment of life, medical expenses, and loss of income.

The matter was tried by the district judge on August 15, 17, and 27, 2001. Plaintiff presented numerous witnesses. At the close of plaintiffs case, the defense made a motion for involuntary dismissal, which was denied. The defense then call plaintiff under cross-examination, but presented no further witnesses. After holding the matter under advisement for some time, the court issued a judgment in favor of the defendants, dismissing plaintiffs’ demands.

In written Reasons for Judgment, the court found that there was “a definite personality conflict” between Singleton and Zeringue and that Zeringue treated Singleton differently than other employees. The court concluded, however, “even |4accepting all Singleton’s testimony as true,” that the conduct of which Singleton complained did not rise to the level of egregious conduct necessary to support a claim for intentional infliction of emotional distress. The court did not find the defendants’ behavior “extreme or outrageous” or that it would “result in distress that a reasonable person could not endure.” On that basis, the court denied the claim for intentional infliction of emotional distress.

As for the charges of defamation, the court found the remarks allegedly made by Zeringue were statements of opinion that did not give rise to a cause of action for defamation. Thus, the court also denied the claim for defamation.

On appeal, Singleton asserts (1) the trial court erred in finding that the conduct of Zeringue and Rebowe did not rise to the level of egregious conduct necessary to support a claim for intentional infliction of emotional distress and (2) the court erred in finding that the statements of Zeringue and Rebowe were opinions that did not give rise to a cause of action for defamation.

Facts

Plaintiff testified that he first had a problem in 1993, when he was wrongly accused of stealing some plywood from a lumber yard. The lumber yard owner thought plaintiff was involved a making “deals” using parish property. The lumber yard owner later admitted he was mistaken and the charges were dropped. Nevertheless, plaintiff was suspended from his job for three days without pay, for misuse of parish property (using his work truck to haul the plywood, which was his personal property) and misuse of parish time (running errands to the lumber yard while on duty at his job). Plaintiff said he had permission from his permanent supervisor, Don Muller, to run the errand on his break and to use the Parish truck, but the suspension was upheld.

I.Jn 1995 there was an incident in which plaintiff complained to his councilman about the failure of the Public Works Department to repair potholes on his street. While plaintiff was on duty one day he drove his parish vehicle to the Public Works yard. He was confronted by Rusty Eusea, supervisor of the Public Works Department, who shook his fist at him aggressively and admonished him for “going over his head” about the road repair. Plaintiff jumped back and fell against his truck. He was off work on worker’s compensation for three months after that incident. He complained about Eusea’s behavior to Rebowe, but Rebowe indicated he did not believe Eusea would behave that way and took no action.

Plaintiff testified that after Zeringue was made temporary foreman in 1995, he frequently criticized plaintiffs work, talked down to him, ridiculed him, smirked at him, watched him like a hawk, and Med about plaintiffs reporting in between job assignments. Plaintiff said his fellow workers told him Zeringue belittled him. Plaintiff felt that no matter to whom he complained, nobody Mstened, including Re-bowe.

Several of plaintiffs coworkers testified they heard Zeringue say that plaintiff was lazy, didn’t want to work, and worked slow. Several, however, indicated that Zeringue behaved in similar ways to other workers. At least one coworker admitted hearing Zeringue use profanity in connection with plaintiff, with remarks such as that Glen Singleton didn’t do a “F-ing” thing and that he was a lazy “M-F.”

Plaintiff and two coworkers testified to a meeting in which Rebowe announced that someone had put sugar into the gas tank of a compressor and admonished the workers. Plaintiff and his witnesses stated that Rebowe looked at plaintiff while stating the Department “would not take a downfall,” which plaintiff and the witnesses construed as an implication that plaintiff was the perpetrator. | However, plaintiff testified he had been with one of the other witnesses during the entire time and, thus, could not have committed the vandalism.

One witness testified to an incident in 1997 when Zeringue was reading a newspaper article about someone being arrested. Zeringue accused plaintiff of being “in jail” and a criminal, which was not true.

In 1996, plaintiff applied for the position of Grass Cutter. He said Zeringue told him that his brother, Steven Zeringue, was going to get that position. In fact the position was awarded to Steven Zeringue. Plaintiff felt he should have gotten the position because he had seniority and he was qualified to operate the equipment.

On several occasions plaintiff was written up for being tardy. He testified that Zeringue refused to accept his reasons for being late, although they were valid and despite the fact that Zeringue relaxed his standards for other employees who were tardy. Plaintiff said Zeringue also refused to fill in the “Reason for Being Tardy” section on the forms before plaintiff signed the slips.

Plaintiff also testified that he was falsely written up for using threatening language to Rebowe. The incident arose after a disagreement between Zeringue and plaintiff over a tardy slip issued to plaintiff. They went to Rebowe’s office to settle it. After Rebowe talked to Zeringue, Rebowe issued an Employee Warning based on accusations by Zeringue that plaintiff had used foul and abusive language toward him. Plaintiff denied he had done so.

In February 1998, plaintiff used personal time to take one of his sons to the hospital for medical tests. He requested the time as a vacation day from Rebowe. Rebowe gave him permission and told him to tell Zeringue he was leaving. Plaintiff told Zeringue he was leaving, but would be coming back. According to plaintiff, Ze-ringue lied to • Rebowe and denied that plaintiff had told him he was |7leaving. When plaintiff returned to the job later that day, Rebowe admonished him for failing to . tell Zeringue. Rebowe placed a warning in plaintiffs personnel file.

Plaintiff filed an in-house grievance to remove the warning he had received for allegedly using foul and abusive language toward Zeringue. Despite the testimony of four witnesses on behalf of plaintiff at the grievance hearing, the personnel officer, Sandra Zimmer, recommended to the parish president that the warning remain in plaintiffs file. Her recommendation was approved. Although plaintiff filed a petition for appeal to the civil service board, no action was ever taken on his appeal and it was never set for hearing.

Plaintiff testified that Rebowe put negative letters about him in his personnel file complaining of his behavior, which he was not allowed to see, and of which he learned only through this litigation.

In May or June 1998, Zeringue falsely reported to Don Muller that plaintiff had failed to chalk a field (i.e., draw chalk lines on a baseball diamond), as he had been ordered to do. On another occasion when Zeringue was acting as foreman in Muller’s absence, he ordered plaintiff to widen the field between the baseball bases, although plaintiff told him that was not the way Muller wanted it done. When Muller returned he was annoyed and ordered the field redone. Muller commented to plaintiff that Rebowe let Zeringue do whatever he wanted.

In August 1998 plaintiff informed Ze-ringue he needed an emergency vacation day to take his son to the doctor. However, Zeringue failed to report his request to Rebowe’s office.

On August 17, 1998, Zeringue ordered plaintiff to mow a baseball field while the grass was wet. Plaintiff told him that Muller always wanted the grass-cutting delayed until the dew had dried. Zeringue insisted he proceed mowing immediately, however. As a result, plaintiff was reprimanded later in the day by RRebowe for doing a poor job. Rebowe told him the field looked like “shit” and ordered him to remow it. Rebowe refused to listen to plaintiffs explanation, while Zeringue stood watching plaintiff with his arms folded and a smirk on his face. According to plaintiff, Rebowe also approached him in a threatening manner and ordered him to “do a good job.”

As a result of the mowing incident, plaintiff forgot to place an official request for a vacation day with Rebowe to cover the time he had taken off. On August 21, 1998 he received his pay sheet, showing he had been docked pay for the day he took off. When he went to Rebowe’s office to request the emergency vacation day, Re-bowe refused. As plaintiff was leaving the office he told Rebowe, “Don’t worry about it, God take care his people.” Rebowe wrote him up, stating plaintiff had threatened him.

Plaintiff was very upset after that incident. That was the last day he worked. After spending a weekend brooding, losing his temper with his children, and being very depressed, he checked himself into River Oaks Hospital.

Acting on the advice of his psychiatrist, plaintiff did not return to his job with the Recreation Department after his hospitalization. He continued to attend ball games at Recreation Department facilities, however, and he related several incidents that occurred while he was off work in which he felt humiliated by Rebowe. On one occasion Rebowe sent a police officer to him on the field to make him move from where he was standing; another time Re-bowe sent an officer to make plaintiff pay admission to a game in which plaintiff thought he had been allowed in free. Re-bowe encountered plaintiff in public places several times, talking to other Recreation Department workers; each time Rebowe made a point of greeting and shaking hands with the other workers while ignoring plaintiff.

| ¡¿Plaintiffs wife and children testified to changes in his behavior and temperament at home. They stated he became withdrawn, moody, and isolated himself; he had temper displays that had not occurred before; he no longer participated in his children’s sports activities; his sex life with his wife was affected.

After plaintiff resigned from the Recreation Department, he was hired by Monsanto for nearly twice the hourly wage he had earned working for the Parish.

Intentional Infliction of Emotion Distress

Singleton contends that the conduct directed to him was not an isolated instance, but was extreme and outrageous conduct by his temporary foreman and superior, who had the power and authority to affect his job. He argues their actions “reasonably can be characterized as a conspiracy” to have Singleton fired or cause him to resign. He points out that the defendants made false accusations, took employment action to destroy his record with the Parish, penalized him financially, ridiculed him, threatened him, applied a different standard to him, belittled him to his co-workers, treated him differently than other workers, and repeated these actions over the years until Singleton finally broke down mentally. He contends no reasonable person could be expected to endure this emotional distress without breaking down mentally.

Defendants-appellees, St. Charles, Ze-ringue and Rebowe, assert that Singleton has sought damages and/or worker’s compensation numerous times for alleged physical and/or mental injuries, with several of the matters involving frivolous claims against his employers, made immediately after he had been |10suspended or terminated for various reasons. Defendants argue this pattern continued in the present case, noting that Singleton was cited for tardiness on several occasions and for several instances of employment misconduct and, after prior suspension, he was again suspended without pay for threatening his boss, Rusty Rebowe, on August 21, 1998. Defendants assert Singleton failed to report any accident or injury, but instead presented himself several days later to River Oaks Hospital, without a doctor’s referral, for treatment for self-diagnosed depression. He returned home after five days at River Oaks and, according to his wife, returned “pretty much to normal” within a month. He told his doctor he was working and earning money; he started several renovation and work projects, but he never returned to his job as a maintenance worker at the St. Charles Parish Recreation Department. Defendants assert that under the manifest error rule, plaintiff cannot establish that the trial court was clearly wrong in its factual determinations regarding his failure to establish his claim for intentional infliction of emotional distress.

The leading case on the standards for proving intentional infliction of emotional distress is White v. Monsanto, 585 So.2d 1205 (La.1991), which set out the following principles:

In order to recover for intentional infliction of emotional distress, a plaintiff must establish that the conduct of the defendant was extreme and outrageous, that the emotional distress suffered by the plaintiff was severe, and that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. 585 So.2d at 1209.

InThe conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be converted into a tort; on the contrary, “some safety valve must be left through which irascible tempers may blow off relatively harmless steam.”...
The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests .... Thus, many of the cases have involved circumstances arising in the workplace... .A plaintiffs status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger....
On the other hand, conduct which may otherwise be extreme and outrageous, may be privileged under the circumstances. Liability does not attach where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress.... Thus, disciplinary action and conflict in a pressure-packed workplace environment, although calculated to cause some degree of mental anguish, is not ordinarily actionable. Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time....
The distress suffered must be such that no reasonable person could be expected to endure it. Liability arises only where the mental suffering or anguish is extreme....
The defendant’s knowledge that plaintiff is particularly susceptible to emotional distress is a factor to be considered. But the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.... It follows that unless the actor has knowledge of the other’s | ^particular susceptibility to emotional distress, the actor’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.
Liability can arise only where the actor desires to inflict severe emotional distress or where he knows that such distress is certain or substantially certain to result from his conduct... .The conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry, or the like. [Citations omitted.]

585 So.2d at 1209-1210.

In White v. Monsanto, the court found that the plaintiff failed to establish her right to recover for an intentional tort. Plaintiff was subjected to a one-minute outburst of profanity directed at three employees by a supervisor in the course of dressing them down for not working as he thought they should. The court held that behavior was not sufficient “extreme and outrageous conduct” as to constitute intentional infliction of emotional distress:

The vile language used was not so extreme or outrageous as to go beyond all possible bounds of decency and to be regarded as utterly intolerable in a civilized community. Such conduct, although crude, rough and uncalled for, was not tortious.... The brief, isolated instance of improper behavior by the supervisor who lost his temper was the kind of unpleasant experience persons must expect to endure from time to time. The conduct was not more than a person of ordinary sensibilities can be expected to endure. The tirade was directed to all three employees and not just to plaintiff specifically. Although the evidence certainly supports a finding that plaintiff was a decent person and a diligent employee who would not condone the use of vulgar language and who would be upset at being unjustifiably-called down at her place of work, there was no evidence that she was particularly susceptible to emotional distress, or that McDermott had knowledge of any such susceptibility. It was obviously his intention to cause some degree of distress on the part of the employees, but there is no indication that his spontaneous, brief, intemperate outburst was intended to cause emotional distress of a severe nature.

585 So.2d at 1210-1211.

White v. Monsanto established a high threshold for evidence of intentional infliction of emotional distress. Nicholas v. Allstate Ins. Co., 99-2522, p. 1 (La.8/31/00), 765 So.2d 1017, 1019. In Nicholas, the plaintiff was an insurance agent whose territorial sales manager, Monie, told another employee he wanted Nicholas’ “scalp on [his] tepee pole” and to expand his review of low-producing agents so that Nicholas would become the lowest peer group performer. 99-2522 at pp. 16-17, 765 So.2d at 1028. The court found there was no doubt that Monie had singled out Nicholas from his peers for corrective review; yet, although the tactic seemed “arbitrary and without compassion,” the court could not say that the conduct rose to the “high threshold of extreme and outrageous conduct.” 99-2522, p. 17-18, 765 So.2d at 1028. Even the fact that Monie used the term “scum” to refer to the lower-producing agents, “though demeaning and inappropriate,” was insufficient, because Nicholas did not show the language was directed at him individually or that he heard it when Monie uttered the term.

The court concluded, “Although Monie’s technique may be subject to criticism because it was demeaning, inappropriate, and not fully justified, we cannot say that it was outrageous conduct or conduct which went beyond the bounds of decency.” Id. The court commented further, “Again, although we might question Monie’s motives, we recognize that disciplinary action and conflict in a pressure-packed workplace environment, though calculated to cause some degree of mental anguish, are not ordinarily actionable.” 99-2522, p. 20, 765 So.2d at 1030.

114Reviewing the defendants’ actions in the light of these principles, we are unable to find any manifest error in the trial court’s findings that the conduct of which plaintiff complains did not fit within the parameters set out in White v. Monsanto, supra, and its progeny. Therefore, plaintiff failed to prove his claim for intentional infliction of emotional distress.

Defamation

Regarding his defamation claim, Singleton asserts the trial court erred in finding that the words used against Singleton were not defamatory because they were opinions. He argues:

[T]he words used and implied by Ze-ringue and Rebowe are defamatory per se because the words, by their nature, tend to injure Glen Singleton’s personal and professional reputation. The undisputed evidence was defendants either told or stated in front of other co-workers that Mr. Singleton was a criminal, accused him of being in jail, lazy, slow, didn’t want to work, didn’t do a “f_ thing,” or a damn thing, did a lousy job on the baseball fields and claimed he used foul and abusive language.

Singleton contends such words clearly state facts or are opinions that imply certain facts exist.

Defendants argue that the trial court’s ruling denying the defamation claim was not manifestly erroneous. Defendants contend a review of the testimony will show no witness testified that Zeringue called Singleton a “criminal” or said that he was “in jail,” as alleged by Singleton. Further, they note that Singleton introduced no evidence of falsity of any statement positively attributed to Zeringue (e.g., that Singleton was “lazy”). Defendants also argue that plaintiff failed to prove that any statements were made with malice and failed to introduce evidence that plaintiff sustained injury or damage due to any defamatory statement attributed to defendants.

1S “In order to prevail in a defamation action, a plaintiff must necessarily prove four elements: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Trentecosta v. Beck, 96-2388 (La.10/21/97), 703 So.2d 552, 559. The plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages. Sassone v. Elder, 626 So.2d 345, 350 (La.1993).

A pure statement of opinion based totally on the speaker’s subjective view, which does not expressly state or imply the existence of underlying facts, usually is not actionable in defamation, because falsity is an indispensable element of any defamation claim and a purely subjective statement can be neither true nor false. Bussie v. Lowenthal, 535 So.2d 378, 381 (La.1988).

“In sum, an expression of opinion is actionable only if it implies the existence of underlying facts ascertainable by a reasonable person with some degree of certainty, and the implied factual assertions are false, defamatory, made with actual malice, and concern another.” Fitzgerald v. Tucker, 98-2313, p. 12 (La.6/29/99), 737 So.2d 706, 717.

“[T]he crucial difference between statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s or writer’s opinion, or as a statement of existing fact.” Mashburn v. Collin, 355 So.2d 879, 885 (La.1977).

Here, the direct testimony from plaintiffs co-workers regarding allegedly defamatory statements was as follows: Brent White heard Zeringue say that plaintiff was “lazy” and “didn’t want to work.” Paul Tyler testified Zeringue used to say plaintiff was “lazy.” Marcus Mott said one day when Zeringue was reading | ifithe newspaper, “[H]e said that Glen had went to jail for somebody was in his house, somebody had did a crime or whatever.... He was holding somebody in his house...that had did a crime.” Steven Walker testified that “pretty much every day,” Zeringue said “things like Glen works slow. He gets the job done but he works slow.” Henry Pierre said he heard Zeringue say that Glen Singleton “didn’t do a F’ing thing, that he was a lazy M-F.”

Reviewing these statements, we find the statements regarding plaintiff being lazy or not wanting to work are clearly expressions of opinion. As such, they can be neither true nor false.

Regarding the statements alleged to imply that plaintiff had been in jail, we find the evidence unclear as to what was said. In one part of Mott’s testimony, Mott appeared to be saying that Zeringue said that plaintiff was in jail for having someone at his house who committed a crime. That was followed, however, by Mott’s statement that plaintiff “was holding somebody in his house.. .that had did a crime.” The evidence is unclear as to exactly what Zeringue said and, therefore, the allegation that Zeringue called plaintiff a criminal was not proven.

For the foregoing reasons, the judgment is affirmed. The parties are assessed their own costs for this appeal.

AFFIRMED.

      . Also plaintiffs in the action are Singleton's wife, Angeline, and his children, asserting claims for loss of consortium. Because the bulk of the claimed damages are Glen Singleton's, for ease of reference we refer to him as “plaintiff” in the singular.

      . The last day Singleton actually worked was August 21, 1998; on August 24, 1998 he was admitted voluntarily to River Oaks Hospital fer treatment of depression. After his hospitalization he did not return to work. He tendered a formal resignation on July 13, 1999.

      .Plaintiff requested a jury trial, but the Parish refused to waive its statutory immunity to trial by jury.

      . At the time of trial, plaintiff was no longer working at Monsanto because he was injured in a fall at work and had to undergo surgery. He stated he was still recovering at the time of trial.

      . Singleton admitted to several instances of claims against former employers.

      . We note that plaintiff-appellant’s brief cited the circuit court's decision in the Nicholas case—Nicholas v. Allstate Ins. Co., 30-735 (La.App. 2 Cir. 5/28/99), 739 So.2d 830—but failed to inform us that the court of appeal’s decision was reversed by the supreme court (see the citation footnoted here). Similarly, plaintiff-appellant’s brief cited the circuit court decision in LaBove v. Raftery, 99-1414 (La.App. 3 Cir. 4/19/00), 759 So.2d 240— without noting that it was reversed by the supreme court at 00-1394 (La.1 1/28/01), 802 So.2d 566.