author: JjMAX N. TOBIAS, JR., Judge.

text:
    Donald E. DELESDERNIER and Lea B. Delesdernier v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY d/b/a Blue Cross Blue Shield of Louisiana.
    No. 2003-CA-1135.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2004.

      Michael R. Delesdernier, Metairie, LA, for PlaintiffAppellee.
    John E.W. Baay II, Gieger, Laborde & Laperouse, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   JjMAX N. TOBIAS, JR., Judge.

This case involves a dispute over the denial of coverage for surgical procedures and medical care ostensibly covered under a conversion policy issued by Louisiana Health Services & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (“Blue Cross”) to the plaintiff, Donald E. Delesdernier (“Delesdernier”). Blue Cross denied coverage to Delesdernier for surgical procedures performed at Ochsner Medical Center and Ochsner Clinic (collectively “Ochsner”) on the grounds that the lifetime maximum benefits for major medical coverage had been exhausted. Deles-dernier sued Blue Cross, asserting that the principles of equitable estoppel should apply based upon the pre-approval of the procedures in question by Blue Cross as well as its acceptance of the premium payment subsequent to the date on which Blue Cross asserts the lifetime maximum was met.

On 15 December 1991, Blue Cross issued an Individual Conversion Comprehensive Major Medical Contract (“the policy”) to Delesdernier after his 1 ^employer cancelled the group insurance plan under which he had been previously insured. According to Blue Cross, the policy, schedule of benefits, and all endorsements to the policy were delivered to Delesdernier via U.S. mail. The terms of the policy itself do not provide a lifetime limit on benefits for comprehensive medical expenses. The Schedule of Benefits accompanying the policy, however, includes the following: “Comprehensive Medical Expense Maximum $20,000.00 per lifetime; $10,000 per calendar year.” The Schedule of Benefits provided in the record is dated 29 September 1998 and shows an “amended effective date” of 15 December 1991, the date on which the policy was issued to Delesdernier. Blue Cross claims that the Schedule of Benefits was mailed to Delesdernier contemporaneously with the policy; Delesder-nier does not recall receiving the Schedule of Benefits nor does he recall being notified that the lifetime benefit limit had been lowered from that of the original group policy under which he had been covered with his employer.

In December 1997, Delesdernier’s physicians recommended surgery to remove certain blockages. Delesdernier sehed-uled the surgical procedures for 13 and 18 February 1998 at Ochsner. On 12 February and 17 February 1998, a representative of Ochsner contacted Blue Cross to verify that Delesdernier was covered under a policy issued by. Blue Cross for the procedures to be performed on the respective next day. Each time the Ochsner representative contacted Blue Cross, coverage for Delesdernier was verified. The parties stipulated that a [ .^representative of Ochsner would have testified at trial that pre-certifications 'by a health insurance company are not guarantees of payment.

Delesdernier went ahead with the procedures recommended by his physicians and was notified by Blue Cross in an explanation of benefits dated 23 February 1998 that his maximum lifetime benefit of $20,000.00 had been exhausted in February 1998 and that they would not pay for the cost of the surgery that he had already undergone in February. Delesdernier stipulates that at no time prior to March 1998 was he advised that his lifetime maximum benefit was- $20,000.00 and that it had been exhausted. As a result of Blue Cross’ refusal to cover the surgical procedures, Delesdernier paid Ochsner $34,670.56 to satisfy the medical bills he had incurred. He asserts that even if the lifetime benefit policy limit was $20,000.00, he had actually received well over $20,000.00 in benefits from Blue Cross before February 1998 and that Blue Cross’ continued coverage and acceptance of his premium payments should act to estop it from denying coverage of the claims in question.

The parties submitted a detailed stipulation of testimony and several exhibits to the trial court. After taking the matter under advisement, the trial court entered judgment in favor of Delesdernier for the sum of $25,989.83 plus legal interest and costs of the proceedings. In its reasons for judgment, the trial court found that Blue Cross had previously paid benefits over and above the $20,000.00 limit, but that in spite of the exhaustion of the lifetime maximum benefits by Delesdernier that Blue Cross sought to enforce, it continued to receive premiums from him. The |4trial court noted that even if Blue Cross’ position was correct regarding the exhaustion of limits under the policy, it had been receiving a “gratuity” in premiums for some time from Delesdernier, who clearly was under the impression that he had medical coverage. The trial court further pointed out that Blue Cross had approved the surgical procedures prior to their being performed.

The trial judge reasoned that pursuant to the principle of equitable estoppel, or estoppel in pais, Blue Cross was not in a position to deny coverage for the medical procedures performed at Ochsner. The court cited Wilkinson v. Wilkinson, 323 So.2d 120, 126 (La.1975), in which the Supreme Court held that a party may be barred from asserting rights it might otherwise have by virtue of its voluntary conduct. The court enumerated the three elements of equitable estoppel as: (1) a representation by conduct or word by the party being estopped; (2) a justifiable reliance on that representation by another party; and (3) a change in the other party’s position or conduct to his or her detriment because of that reliance. Id. The court further quoted Maddox v. Keen, 33,-072, p. 5 (La.App. 2 Cir. 4/7/00), 756 So.2d 1279, 1283, in support of its judgment: “The doctrine of equitable estoppel is designed to prevent a miscarriage of justice by preventing one from taking a position contrary to his prior acts, admissions, representations, or silences when another has changed his position in detrimental reliance thereon.”

Although Delesdernier made a claim for statutory penalties and attorneys’ fees against Blue Cross for denying coverage for his surgeries, the trial court declined to award them, because it found that “[i]n this matter a literal interpretation of the policy would support the position of Blue Cross.” Therefore, the court only awarded Delesdernier the amount of those medical costs that would |Rhave been covered had Blue Cross’ actions not invoked the doctrine of equitable estoppel.

Blue Cross appeals the judgment of the trial court on three grounds: (1) the trial court erred when it found that equitable estoppel applied to the plaintiffs claim and in expanding the coverage defined in the policy; (2) the trial court erred when it found that a pre-admission certification of benefits constituted a guarantee to pay for the charges incurred; and (3) the trial court erred when it applied the coinsurance provision of the individual policy and failed to accept Blue Cross’ calculation of the benefits due pursuant to the terms of the policy. Delesdernier’s only assignment of error is the trial court’s failure to award statutory penalties and attorneys’ fees.

Blue Cross first argues that the doctrine of estoppel was improperly used in this case to expand coverage provided for in the policy and cites several cases in support of its argument. In Balehi Marine, Inc. v. Firemen’s Ins. Co. of Newark, New Jersey, 460 So.2d 16 (La.App. 1 Cir.1984), the First Circuit denied coverage to the plaintiff for the collapse of a steel building because the hazard of collapse was not one contemplated by the policy by its terms and because the policy required that any hazards beyond those outlined by the policy be reflected in endorsements to the policy. The court held that the theory of estoppel cannot be used to extend coverage “beyond that set forth in the policy.” Id. at 17-18, citing, Hunter v. Office of Health Services, 385 So.2d 928, 937-38 (La.App. 2 Cir.1980). We find that this case, however, and others cited by Blue Cross, are distinguishable from the matter at hand. In the cases cited by Blue Cross, the plaintiffs were seeking coverage for specific damages or hazards clearly not contemplated by the | fiterms of the policies in question.' The issue in the case sub judice is not whether Delesderhier’s medical expenses were covered expenses under the terms of the policy, but rather whether the amount of coverage had been exhausted and whether Blue Cross’ extension of coverage for several months and continued acceptance of premium payments caused Delesdernier to rely upon the continued coverage, thereby failing to secure additional insurance prior to undergoing the procedures recommended by his physicians.

Blue Cross further argues that the $20,000.00 lifetime maximum benefits amount was not. exceeded prior to February 1998, contrary to what the trial court indicated in its judgment, because Blue Cross separated the benefits paid for prescription drug costs, which totaled $5,681.72, from the major medical benefits, which totaled only $19,995.29 as of 27 January 1998. We reject Blue Cross’ argument on this point. Nowhere in the policy or in the Schedule of Benefits are prescription drug benefits excluded from the major medical benefits that are at issue. Blue Cross does not indicate whether the exclusion of prescription drug benefits are peculiar to this policy, or whether it is the general method for administering health insurance policies with lifetime maximum coverages. Whatever the reason for the segregation of benefits, it is clear that Delesdernier was not aware that prescription drug benefits were not included in the total amount of major medical benefits. No written statement to support Blue Cross’ position on |7this issue is in the record. In fact, under the terms of the policy, “Comprehensive Medical Expenses” are defined, in pertinent part, as:

c. Prescription drugs and medicines approved by the Food and Drug Administration or its successor for the condition being treated, which require a prescription by a Physician for use outside the Hospital.

* * *

A close examination of the exhibits presented to the trial court reveals that the Explanation of Benefits mailed to Deles-dernier dated 5 December 1997 clearly states that the “lifetime benefits paid for Don” totaled $25,597.13 as of that date. There is no indication on that statement that his lifetime benefits had been exhausted and, indeed, Blue Cross continued to cover his medical expenses until the claim was made for the first surgery performed to remove Delesdernier’s blockages on 13 February 1998. The Explanation of Benefits dated 23 February 1998 codes every claim for benefits beginning with that surgery as “E64”, which is keyed to denote “your major medical lifetime maximum has been met.” In fact, it had ostensibly been met several months prior to that date, and it is not disputed that Blue Cross continued to collect premiums from Delesdernier through February 1998.

Blue Cross further asserts that even if the two surgeries performed in February are found to be subject to coverage under a theory of estoppel, the surgeries and treatments rendered at Ochsner in March 1998 are not similarly subject to coverage because Delesdernier was made aware of the exhaustion of |scoverage prior to the dates of those procedures performed in March 1998. The dates of the medical procedures and services rendered in March 1998, appear to be 2 March, 5 March, and 11 March. Blue Cross argues that Delesdernier could not have reasonably relied on coverage with Blue Cross when he scheduled these procedures, as he was notified in late February 1998 that his coverage with Blue Cross had been exhausted. Indeed, Delesdernier seems to admit in his brief that the primary motivating force behind his medical treatment in March 1998 was that his physicians strongly recommended that he receive the treatments at that time for the benefit of his health. Although the exact date upon which Delesdernier learned that his coverage was being discontinued is not ascertainable from the record, we note that in Delesdernier’s petition filed at the outset of this litigation alleges that:

Without notice and after the medical procedures were performed and medical cost incurred, Mr. Delesdernier was advised for the first time in late February of 1998 that defendant was denying the claim because Mr. Delesdernier’s major lifetime maximum has been met.

Although Delesdernier testifies through stipulation that he was not informed that his coverage was being terminated until March 1998, we find that his assertion to the contrary in his petition constitutes a judicial admission, which can only be revoked on the grounds of error of fact. La. C.C. art. 1853; see also, C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, p. 5 (La.12/3/03), 861 So.2d 156, 159. We note that no assertion has been made that the facts as originally plead by Delesdernier are incorrect factually; rather the later statement is merely a contradiction of the earlier assertion regarding when Delesder-nier knew that his coverage was being terminated. Such a subsequent contradiction is not sufficient to revoke the earlier allegation of fact. Id. at 3, 861 So.2d at 158.

|9A close examination of the record reveals that of the $34,653.11 in medical bills incurred by Delesdernier in February and March 1998,' $7,845.05 of those bills are for treatment rendered in March. As such, that portion of the medical bills in question is not subject to coverage under the policy under a theory of estoppel. Thus, the award to Delesdernier must be amended to reflect 75% of $26,808.06, or. $20,106.05.

Next, Blue Cross argues that De-lesdernier was not reasonably justified in relying on the pre-certification of the surgeries in question because it is clearly stated in the policy that the pre-admission certification process is not a guarantee of payment; rather, it is a check system for the hospital to determine .whether the procedure is medically necessary and that the setting and length of stay are appropriate. The policy provides the following regarding the pre-admission certification:

“Pre-Admission Certification” means a procedure which consists of review and certification by Us prior to an Inpatient Admission, that a proposed Admission is both Medically Necessary and appropriate as to setting and length of stay. It is based upon information provided by the Member’s Physician, Hospital, Designated Unit, or a representative thereof, applying medically accepted review criteria.
NOTE': The certification as to Medical Necessity and appropriateness of Inpatient care does not guarantee that the Contract in question will allow benefits. Contract provisions regarding eligibility, Exclusions/waiting periods will be applied once the actual claim is received.”

(Emphasis in original.) The language in the policy makes it clear that the pre-admission certification does not guarantee coverage. Further, the parties stipulated that, if called to testify at trial, a representative of Ochsner would have testified J^'ttjhat pre-certifications are not guarantees of payment.” Although Delesdernier may not have been aware of the distinction, he is charged with understanding the ramifications of a pre-admission certification, as they are clearly spelled out in the policy. Therefore, Delesdernier could not have justifiably relied on the pre-admission certification of his surgeries such that Blue Cross was estopped from denying coverage on the basis of the pre-admission certification.

Finally, Blue Cross argues that even if the disputed medical costs are found to be covered under the policy, the amount awarded by the trial court is excessive insofar as Delesdernier paid the total amount of the bills sent to him by Ochsner, which is substantially more than what Blue Cross would have been obligated to pay for those same bills under the policy. The policy provides, in pertinent part, as follows:

* * *
ARTICLE II — COMPREHENSIVE MEDICAL BENEFITS
* *
C. Insuring Agreement
1. After the Comprehensive Medical Expenses Deductible, as shown on the Schedule of Benefits, has been met the Plan agrees to pay the percentage amount (Coinsurance) as shown on the Schedule of Benefits for incurred Comprehensive Medical Expenses, up to the Benefit Period (calendar year) maximum as shown on the Schedule of Benefits....
* * *

|nThe Schedule of Benefits provided that Blue Cross would be responsible for 75% of the comprehensive medical expenses incurred by Delesdernier, after the deductible had been exhausted. At trial, Blue Cross presented a printout of the amount it would have paid for each item paid by Delesdernier if those charges had been covered under the policy. The policy, as amended in 1992, provides the following definitions:

“Allowable Charge” means the lesser of the submitted charge or the amount established by [Blue Cross], based on an analysis of Health Care Provider charges, as the maximum amount allowed for all such Health Care Provider services covered under the terms of this Contract. (Emphasis in original.)
* * X
“Comprehensive Medical Expenses” means the Allowable Charge for Medically Necessary services incurred by the Member which are prescribed by the attending Physician.

(Emphasis in original.) Other than a chart provided by Blue Cross, which effectively reduces the amount of the submitted medical charges in dispute by more than one-half, there is no further evidence provided by either party to guide this court in determining whether the “allowable charges” as detailed by Blue Cross are properly applied to the case at bar. The chart introduced into evidence by Blue Cross, without any further underwriting or accounting documentation in support, is self-serving and not sufficient to carry the burden of proof on this issue.

Blue Cross cites Adler v. Hospital Service Ass’n of New Orleans, 278 So.2d 177 (La.App. 4th Cir.1973) in support of its argument to reduce the award. In Adler, the plaintiff paid surgeons’ fees for procedures covered under the policy and submitted the bills to the defendant for reimbursement pursuant to the terms of the policy. The defendant paid only a portion of the bills submitted, arguing that the surgeons’ bills were higher than would be “customary and reasonable,” which is | iphow the policy in question described expenses for which it would be responsible. The testimony of the plaintiffs physicians revealed that, in fact, his bills for treatment were inflated from those that would have normally been incurred by another patient because the plaintiff was very demanding and “demanded and received more care than would be necessary for at least two, and probably three, other patients under identical circumstances.” Id. at 180. This court determined that the fees were not “customary and reasonable” and that the defendant was justified in refusing to pay the entirety of the claimed amount. The court, in its reasoning, found that “[its] conclusion, therefore, must be based on that fee which is customary and reasonable for the treatment which is customarily required by the average person because of his condition.” Id. No evidence has been submitted to suggest what fees would have been “customarily required by the average person because of his condition” and there has been no allegation that Delesdernier required care above and beyond what the average person would have required for identical treatment. We are mindful that even if Blue Cross were due a discount for some or all of these charges, Delesdernier was obviously not entitled to any such discounts and paid the entire amount of the submitted charges.

In fact, Delesdernier argues that although Blue Cross asserts that it would have only paid $15,891.67 for the disputed medical services, it did not elect to cover those charges and that now it should be held liable for the damages arising from its breach, which total $34,653.11. Delesder-nier cites no legal authority for this position, although his argument is suggestive of the language found in La. C.C. art. 2315. Delesdernier further reasons that Blue Cross had the opportunity to 1 ^participate in the pricing of the medical services provided by Ochsner, but that it walked away from the bills and left Deles-dernier to pay the full, uncontested amount.

Therefore, while we agree that Blue Cross may have had a right to discount a portion of the disputed medical expenses, we have no way of determining whether the costs as discounted by Blue Cross are accurate or reasonable. In light of the lack of evidence on this point, we cannot find that the trial court committed manifest error or was clearly wrong in awarding 75% of medical bills as submitted for which Blue Cross is responsible. This further supports our conclusion reducing the trial court’s award from $25,989.83 to $20,106.05, which is 75% of the medical bills incurred in February 1998.

The only assignment of error raised by Delesdernier lies in the trial court’s refusal to award penalties in his favor against Blue Cross. The trial court notes in its reasons for judgment that, according to a “literal interpretation” of the policy in question, Blue Cross was correct in limiting the benefits to Deles-dernier. Therefore, it follows that Blue Cross was neither arbitrary nor capricious in refusing to pay for Delesdernier’s medical treatments in February or March 1998. Delesdernier argues on appeal that Blue Cross was inconsistent in its actions towards him and that its conduct is sufficient to incur statutory penalties pursuant to La. R.S. 22:657, which provides, in pertinent part, that an insurer must pay all claims arising from health and accident policies issued in Louisiana within thirty (30) days from the date of the claim, unless “just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist.” La. R.S. 22:657(A). As the trial court noted, under a literal interpretation of the policy issued to Delesdernier, Blue Cross’ coverage had been exhausted. Therefore, it is 114arguable that “just and reasonable grounds” for refusing to pay the medical expenses in question existed. We find, therefore, that the trial court did not err in refusing to award statutory penalties and attorneys’ fees for Blue Cross’ failure to cover the disputed medical expenses.

In conclusion, we find that the trial court erred in awarding damages to Deles-dernier for those medical costs incurred in March 1998 and after, insofar as Delesder-nier’s judicial confession undercuts any theory of estoppel which might otherwise support the entire award entered by the trial court. We affirm the trial court’s award, however, for those medical expenses incurred by Delesdernier prior to and in February 1998, and find that the evidence supports an award of $20,106.05, or 75% of $26,808.06. Finally, we affirm the trial court’s refusal to award statutory penalties to Delesdernier.

AMENDED; AFFIRMED AS AMENDED.

      . The original group policy obtained through Delesdernier's employer had a lifetime benefits limit of $2,000,000.00. Although a copy of the policy has not been provided to the court, Blue Cross has not contested this assertion by the plaintiff.

      . Delesdernier's medical records are not made part of the record on appeal and there is no testimony regarding the specifics of his illness. For the purposes of this appeal, those specifics are not germane to the issues before this court.

      . The trial court awarded Delesdernier 75% of the medical costs he incurred in February and March 1998 that Blue Cross refused to cover, because the Schedule of Benefits provided that Blue Cross would pay 75% of the eligible comprehensive medical expenses after the deductible had been exhausted.

      . Monju v. Continental Cas. Co., 487 So.2d 729 (La.App. 5 Cir.1986) (insurance company not liable for sewer repairs where policy clearly excluded coverage for underground pipes); Rozas v. La. Hospital Service, Inc., 413 So.2d 364 (La.App. 3 Cir.1982) (insurance company not liable for treatment of an aneurysm and removal of blood clots were policy excluded "any disease of cerebro-vascular system; treatment for and complications therefrom”).

      . In its reply brief, Blue Cross suggests that the separation of prescription drug benefits from the major medical benefits was a "clerical error” and that the separation actually created a windfall to Delesdernier of over $5,000.00, which Blue Cross has not attempted to recover.

        . The record reflects that the last premium payment made by Delesdernier was dated 9 February 1998. Delesdernier maintains, and Blue Cross does not dispute, that the premium payment made on that date was for the policy period ending 15 March 1998. There is no evidence of any refund to Delesdernier of any portion of that premium payment in the record.

      . The figure $26,808.06 is $34,653.11 less $7,845.05 and represents the medical bills incurred in February 1998.

      . Louisiana Civil Code article 2315(A) provides: "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”


source: Caselaw Access Project

author: J^CLARENCE E. McMANUS, Judge.

license: Public Domain

text:
    SERVICE CENTER, INC. v. Darryl DOMINO and Dent Doctor, Inc.
    No. 03-CA-1121.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 10, 2004.
    Robert T. Garrity, Jr., Harahan, LA, for plaintiff-appellee.
    G. Patrick Hand, Jr., The Hand Law Firm, New Orleans, LA, for defendants-appellants.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

Darryl Domino (“Domino”) and Dent Doctor, Inc. (“Dent Doctor”) appeal the trial court’s judgment in favor of Service Center, Inc. (“Service Center”) for $3,789.78 plus interest and costs. For the reasons which follow, we affirm the trial court’s judgment.

In May 2001, Dagan Bonvillian (“Bonvil-lian”), Vice President of Service Center, and Joe Ordoyne.(“Ordoyne”), an employee of Dent Doctor, formed a trade of services agreement. Dent Doctor was to paint and restore Bonvillian’s Firebird automobile and Service Center was to fix a “blower motor” in Dent Doctor’s paint booth and repair the air conditioning units in the building. This agreement was oral and was not written.

Service Center successfully completed the work on the “blower motor”. Dent Doctor also successfully completed the restoration work on Bonvillian’s Firebird. Cliff Bonvillian, an employee of Service Center, then inspected the air conditioning units and determined that they could not be repaired. Service Center then offered to install a new central air conditioning system in exchange for Dent Doctor repainting Cliff Bonvillian’s 1981 Ford van. The air conditioning unit was | ¡¡successfully installed by Service Center and an invoice for the service was signed by Ordoyne. However, Dent Doctor did not perform the work on Cliff Bonvillian’s van.

Service' Center filed suit against Dent Doctor and Domino, the president and sole shareholder of Dent Doctor for the cost of the air conditioning system that had been installed, alleging breach of contract. A bench trial was held on February 13, 2003 and the trial court rendered a judgment in favor of Service Center and against both defendants in the amount of $3,789.78, which represented the full cost of the central air conditioning installation. The trial court further found that an invoice in the amount of $303.40, which represented the work done on the “blower motor”, had been satisfied and was not part of' the judgment. Dent Doctor and Domino now appeal this judgment and the award to plaintiffs.

On appeal, defendants argue that there was no contract between the parties because there was no agreement as to the object, price or thing to be done. Alternatively, defendants argue that Domino should not be held personally liable for his acts on behalf of the corporation because it would “pierce the corporate veil”.

We agree with the trial court that there was an agreement between the parties that Service Center would install the air conditioning unit and in exchange Dent Doctor would paint the van. Louisiana Civil Code Procedure Article 1927 provides:

A contract is formed by the consent of the parties established through offer and acceptance. ■
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.
Unless otherwise specified in the offer, there need not be conformity between the manner in which the offer is made and the manner in which the acceptance is made.

| ¿Service Center made the offer to Dent Doctor to install the air conditioning system in exchange for Dent Doctor painting the van. Dent Doctor accepted the offer by Service Center and then accepted the finished work and the air conditioning system. This agreement formed a contract between the parties. The air conditioner was installed .successfully and Or-doyne signed the invoice. Domino knew that Service Center was installing the air conditioner and- he did not object. Thereafter, Domino and Dent Doctor did not fulfill their part of the agreement by painting Bonvillian’s van. Therefore, we agree with the trial court and find that Dent Doctor breached the contract with Service Center. In addition, we agree with the trial court’s judgment awarding Service Center $3,789.78, representing the costs of the central air conditioner installation.

We also find that Domino can be held personally liable for the cost of the air conditioning unit. Domino personally owned the property, or building, in which the air conditioning system was installed. He approved the installation of the unit and enjoyed the benefit to his property. No “piercing of the corporate veil” is necessary in order to hold Domino personally liable. In addition, Domino answered the petition and failed to file a peremptory exception of no cause of action arguing that he is not personally liable. Therefore, the trial court correctly held Domino and Dent Doctor liable for the cost of the air conditioning system.

In accordance with the above, we affirm the trial court’s judgment in favor of Service Center in the amount of $3,789.78. We also order the defendants to pay the costs of this appeal and attorneys’ fees.

AFFIRMED.


author: h SYLVIA R. COOKS, Judge.

text:
    Jay Anthony DUHON, et al. v. Dean Peter DUHON, et al.
    No. 03-898.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 18, 2004.
    Rehearing Denied March 31, 2004.

      Robert H. Matthews, New Orleans, LA, for Plaintiffs/Appellants Jay Anthony Du-hon, et al.
    Edward P. Landry Landry, Watkins, Repaske & Breaux, New Iberia, LA, for Appellee Oats & Hudson, Attorneys and Counselors at Law.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and GLENN B. GREMILLION, Judges.
   h SYLVIA R. COOKS, Judge.

David, Jay, and Dean Duhon are brothers who became business partners in a residential and golf club development project in Carenero, Louisiana. The project was to be constructed partially on family owned land and partially on land of an adjacent owner, Phylip Domingue. The brothers were to own the business venture one-third each, and to share profits from the sale of residential properties and the operation of the golf course equally.

From its inception, there were numerous problems. While the golf course became operational, it was short-lived and the business venture between the brothers fell apart. In an attempt to dissolve the project and settle the differences between the brothers, a meeting was hastily arranged at the law offices of Oats & Hudson on the evening of February 24, 1997. At the beginning of the meeting, Stephen Oats informed the brothers he could not represent any of them individually with regard to the dispute. The meeting continued into the early morning hours of February 25, 1997, when there was a tentative agreement reached between the brothers.- However, according to Dean Duhon, he informed his brothers he could not finalize any agreement without first discussing the matter with his wife, who was not present at the meeting. The tentative agreement was never reduced to writing. Dean Duhon described the meeting in his testimony as follows:

I know that Steve (Oats) had walked around with a pad, just kind of getting everyone’s complaints and what people wanted — what the three (3) of us wanted to see happen with the situation. And it — There was pretty much a general outline of where we were going to go, what we had all decided would be feasible if it worked out. And he kind of let us — The meeting kind of ended with, you know, “Okay. So far these are the guidelines we have. Let’s see if these are accomplishable.”
... some of the things that we were trying to accomplish was that my two (2) brothers would end up with the majority of the property or 1 ^everything in a line that the golf course was sitting on, the operational part of the. golf course. And I was to receive the seven (7) lots that are along Trappey Road as a builder. And we were trying to separate the properties. Generally speaking, that’s pretty much what was going to happen, “You take the property with the golf course, and I take my side.”

According to Dean, when he discussed the proposal with his wife the next morning, she informed him they were too heavily mortgaged for the proposal to be feasible for them. Dean then informed his brothers that his wife was not interested in the proposal submitted at the meeting; thus, they would not agree to the proposal.

As a result of Dean’s refusal to enter into the proposed agreement, a lawsuit was brought by David Duhon, Jay Duhon, and Marlissa Duhon (Jay’s wife) against Dean Duhon, Mary Louise Holden Duhon (Dean’s wife), the Oats & Hudson law firm and MidSouth National Bank (a party involved in the financing of the project). Prior to trial, plaintiffs settled their claims with MidSouth and it was dismissed from the lawsuit.

Oats & Hudson filed an Exception of Prescription based on the accrual of the peremptive period of La.R.S. 9:5605 as to any and all alleged acts of negligence. Oats & Hudson also filed an exception of no cause of action. After a hearing on the exceptions, the trial court granted the exception of prescription as to the alleged acts of negligence prior to the meeting of February 24-25, 1997, but denied the exception as to any acts of negligence which allegedly occurred at the time of the meeting. The court also denied the exception of no cause of action.

The case proceeded to trial. Because of the earlier ruling on the exceptions, the trial court excluded evidence of all of Oats & Hudson’s alleged acts of negligence pri- or to the February, 1997 meeting. When it became apparent that the claims against Dean and Mary Duhon could not proceed in tandem with the claims against Oats & [ oHudson before the same jury, plaintiffs elected to dismiss their claims against the Duhons and proceed against Oats & Hudson. After the close of plaintiffs’ case in chief, Oats & Hudson filed a motion for directed verdict alleging that the agreement in dispute was a “tentative, conditional agreement.” The trial court granted the motion. Following instructions from the court, the jury returned a verdict finding Oats & Hudson did not deviate from the standard of care at the meeting.

Plaintiffs filed a motion for new trial on two grounds: first, that the trial court’s exclusion of evidence regarding claims of negligence was based on an unconstitutional statute (La.R.S.9:5605) and prevented them from presenting evidence critical to their legal malpractice claim; and second, that the uncontradicted evidence relating to an attorney’s standard of care coupled with the trial court’s directed verdict on the existence of a tentative, conditional agreement mandated a finding that the defendant deviated from the standard of care in not reducing the agreement to writing.

The trial court denied the motion for new trial on both grounds, giving the following reasons:

It seems to me that there was sufficient evidence presented during the course of this trial for this jury to come out with this result. On the other hand, had the case been tried to me under the evidence presented, I would have found that there was a duty to write down, to document this tentative, conditional agreement, or explain why it was too nebulous to document where the terms and conditions were too incoherent to accurately document at that time.
But I don’t think that there is — that there was insufficient evidence for the jury to come to the conclusion that it came to.

The trial court also refused to declare La.R.S. 9:5605 unconstitutional, noting plaintiffs failed to raise the constitutionality issue pre-trial.

Plaintiffs appealed the trial court’s judgment, asserting the following 1¿assignments of error:

1. The trial - court erred in partially-granting defendant’s Exception of Prescription because La.R.S. 9:5605 is unconstitutional.
2. The trial court erred in excluding evidence critical to plaintiffs’ legal malpractice claim based on La.R.S. 9:5605 because that statute is unconstitutional.
3. The jury’s finding exculpating the defendant from fault was clearly contrary to the law and the evidence.
4. The trial court erred ' in denying plaintiffs’ motion for new trial because the verdict and judgment were clearly contrary to the law and evidence.

ANALYSIS '

In its first two assignments of error, plaintiffs attack the constitutionality of La. R.S. 9:5605. The effect of La.R.S. 9:5605 on this case, according to plaintiffs, is that its application prevented the jury from hearing the evidence that Oats 'had been involved in representing the family in developing the project" from the beginning. Instead, the jury was told that Oats was merely a “good Samaritan” attorney who at the last minute interjected himself into a family dispute to help out. The partial granting of defendant’s Exception of Prescription limited the jury to evidence of the February 24-25 meeting.

Plaintiffs argue La.R.S. 9:5605 is unconstitutional under Louisiana Constitution Article 2 and Article 5 because it subverts the Louisiana Supreme Court’s authority to regulate all facets of the practice of law and under Article 1, Sections 2 and 3 because it denies plaintiff equal protection and due process of laws. 1 ^Plaintiffs also contend the statute is violative of the Fourteenth Amendment of the United States Constitution. Although we find plaintiffs’ constitutional objections present interesting questions, we need not address them to resolve the present case.

Although plaintiffs theorize the jury would have reached a different result had it been informed of Oats’ prior involvement with the project, we find this argument speculative at best. Plaintiffs’ legal malpractice case was premised on Oats’ failure to document the tentative agreement reached at the meeting on February 24-25, 1997; however, this failure did not automatically require the jury to find Oats committed legal malpractice.

Plaintiffs do not seriously dispute that the tentative agreement reached in the early morning hours of February 25, 1997, could not have been signed that evening (even if reduced to writing) because indispensable parties were not present. Essentially, what plaintiffs are arguing is that Oats breached the standard of care by simply failing to document the tentative agreement in writing or in refusing to explain why the tentative agreement should/could not be reduced to writing.

Plaintiffs relied on the testimony of their expert, Bernard H. McLaughlin, Jr., to support their position that Oats deviated from the standard of care and breached the rules " of professional conduct. McLaughlin stated that he believed a written settlement agreement should have been signed at the culmination of the February, 1997 meeting. McLaughlin noted that in “[ajlmost all the mediations I do the [parties’] lawyers are present ...” None of the parties were represented by legal counsel at this meeting, and Oats informed all the parties present at the beginning of the meeting that he could not represent them in any further legal actions. In his testimony, McLaughlin repeatedly referred to the provisions of the Louisiana ^Mediation Act in reaching his conclusion that Oats deviated from the standard of care. As Oats & Hudson notes, this section of the Louisiana statutes did not become effective until January 1, 1998, which was after the meeting in question.

Further, it is certainly reasonable that the jury may have found the February 24-25 meeting was far too spontaneous and chaotic to amount to a mediation. The meeting was not set up until the afternoon of February 24, 1997, when Jay Duhon spoke with Oats’ secretary to see if a meeting could be arranged. As stated earlier, there were no lawyers representing any of the parties. The meeting took place after hours, and there were no secretaries or assistants present. Two indispensable parties to the proceedings were not present, Mary Duhon and Marlissa Duhon. On cross-examination, McLaughlin admitted when parties to a mediation make it clear they will not sign an agreement without discussing it with other parties, there is no need to write up the agreement:

Q: We have one party — Look at it from a hypothetical sense. You have a mediation, if you want to call it a mediation. You’ve got one party that says and is telling us in this case, “I wasn’t signing anything.” You’ve got another party that wasn’t present who later says, “I’m not doing the deal.” And you’ve got the other two (2) — one of them which is agreeing that those arrangements were something that needed to be — those conditions needed to be completed before we had a deal. And then they find out soon after that that it didn’t work.
A: In that effect — I understand what you’re getting at. To that effect, if the conditions couldn’t be met, then, yeah, you don’t have a deal, but I don’t know if that relieves somebody’s underlying obligation to at least set it up to see if you could have arrived at a deal. And here there was no written agreement ever done.
Q: Oh, no, I understand that. But when you get to the end of a mediation that can’t be completed or somebody says, ‘You know, Mr. McLaughlin, I’m not going to sign that agreement tonight. I’m not 17agreeing to it. I’m not signing anything until I go talk to somebody else.”
A: That occasionally happens.
Q: And if that happened in this case, well, then no harm, no foul, you just had somebody—
A: If that happened in this case, then, there would be no need to write up that agreement.

Jay Duhon, when confronted with his earlier deposition testimony, begrudgingly admitted that he was aware that Dean required the approval of his wife before he could sign off on the tentative agreement.

David Duhon testified he referred to the February 24-25, 1997 encounter at the Oats & Hudson law offices as a meeting rather than an arbitration or mediation. He acknowledged that Oats had “no authority to make me sign” any agreement or to “force” the parties to do anything that night.

Dean Duhon testified he did not know the purpose of the meeting. When questioned as to why his wife was not present at the meeting, Dean stated he felt they were on the same page and he “can represent her and let her know what this meeting is about. And, you know, if she’s got some input when it’s over with, I’ll relay it and just kind of let you know what’s happening.” Dean also stated he was unaware that any agreement was to be signed that night. When asked if he was satisfied with the tentative agreement reached, Dean stated “[n]o, but I could see at 1:30 in the morning we wasn’t going to go much further.”

The standard for determining whether an attorney has been guilty of negligence or professional impropriety was set out in Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So.2d 239 (1972):

An attorney is obligated to exercise at least that degree of care, skill, and Isdiligence which is exercised by prudent practicing attorneys in his locality. He is not required to exercise perfect judgment in every circumstance.

The test is whether Oats’ actions or inac-tions fell below the applicable standard of care for attorneys in his locality. At trial, even plaintiffs’ expert could not unequivocally testify that Oats’ alleged failure fell below the applicable standard of care. Further, an attorney can only be liable to his client for damages caused by the attorney’s negligence in handling the client’s business, if the client proves by a preponderance of the evidence that such negligence is the proximate cause of the loss claimed. Toomer v. Breaux, 146 So.2d 723 (La.App. 3 Cir.1962); Arrington v. Law Finn of Aucoin & Courcelle, L.L.C., 02-642 (La.App. 5 Cir. 10/16/02), 832 So.2d 319; Bauer v. Dyer, 00-1778 (La.App. 5 Cir. 2/28/01), 782 So.2d 1133, writ denied, 01-0822 (La.5/25/01), 793 So.2d 162. The record in no way supports the allegation that Oats’ failure to document the tentative agreement was a legal cause of plaintiffs’ loss. Dean Duhon testified he would not have signed any agreement that night without first checking with his wife, who was a co-owner with him in the business venture. His wife, when informed of the substance of the tentative agreement, was adamant that it would not be acceptable to her and Dean.

Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). The issue which the reviewing court must resolve is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Even if the appellate court would have decided differently had it been the original trier of fact, the trial court’s judgment should be affirmed unless it is clearly wrong or manifestly erroneous. Id. Therefore, we will not disturb the jury’s verdict, nor will we overturn |9the trial court’s denial of the motion for new trial.

DECREE

For the foregoing reasons, the judgment appealed from is affirmed. Costs of this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

      . We do note that after-reviewing the record there were numerous references made in the testimony to Oats’ past involvement in the project. In. our view, plaintiffs' contention that the jury was fooled into believing Oats became involved at the last minute to help the family is not supported by the record.

      . Marlissa Duhon was present at the beginning of the meeting, but stayed only for a short time and was not present when the tentative agreement was reached.


author: JjMOON LANDRIEU, Judge Pro Tempore.

text:
    STATE of Louisiana v. Jeffery C. FORD.
    No. 2003-KA-1321.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 18, 2004.
    Rehearing Denied March 31, 2004.

      Eddie J. Jordan, Jr., District Attorney, Nick Orechwa, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge Pro Tempore MOON LANDRIEU).
   JjMOON LANDRIEU, Judge Pro Tempore.

STATEMENT OF CASE

The State filed a bill of information on August 13, 2002, charging Jeffery C. Ford with attempted aggravated rape in violation of La. R.S. 14:27(42). At his arraignment on August 19, 2002, he entered a plea of not guilty. The trial court found probable cause, and after a hearing on February 10, 2003, the motion to suppress the identification was denied. A twelve-member jury found Ford guilty as charged after a two-day trial on February 11 and 12, 2003. He was sentenced on February 28, 2003 to serve forty years at hard labor without benefit of probation, parole, or suspension of sentence. Ford’s motion for an appeal was granted.

For the following reasons, we affirm the defendant’s conviction and sentence.

STATEMENT OF FACT

A.C., the victim, testified at trial that about 1 a.m. on June 8, 2002, she and five colleagues, who were visiting New Orleans, stopped in the Pizzooria in the French Quarter. As her Mends took a table, she told them she was going to the bathroom. She walked down a narrow hallway, and when she opened the |2bathroom door, she realized that a man was right behind her. He entered the bathroom and locked the door. He said, “Shut the fuck up or I’m going to kill you” and grabbed her head and began knocking her against the wall. She pleaded with him not to hurt her, and he repeated his threat to kill her. He put his hands on her neck, pushing her against the wall, and she fell hurting her elbow. The defendant unzipped his pants and ordered her to move her skirt. However, she was wearing a “skort,” shorts that look like a skirt but that cannot be pulled up like a skirt. He got on top of her trying to insert his penis into her, but her clothing was in the way. She described him as very angry and herself as very frightened. When she moved her skort, “there was contact” but he did not penetrate her. She heard someone knocking on the door, and began screaming for help. The defendant again threatened to kill her. Trying to sound like a woman, he said to the person knocking, “I’m fucking peeing. Go away.” The person knocking left, and the defendant again tried to penetrate her. The knocking began again, and she began to scream. The defendant, who had gotten up and had his ear to the door, told her to “[pjretend your [sic] fucking peeing.” He opened the door and as he stepped out, A.C. rushed out the door. She saw her friends and began to cry. She described herself as bruised on her elbow, knee, and-leg, and bleeding from her cuts on her face and head.

She remembered that the defendant was wearing a fisherman’s hat, baggy shorts that came to mid-calf and a red shirt. He had high cheek bones and was slender. She stayed at the pizza parlor with her friend, Larry Shapiro, after her assailant left. About ten minutes later, Glen Wahl, another colleague, returned to the restaurant to get her so that she could identify the defendant. When the officers 13took a suspect from a police car and she saw his face, she “just went crazy” and began screaming at him.

Four of A.C.’s colleagues testified. Larry Shapiro explained that they work at the same law firm and were in New Orleans for an internal firm meeting at the Ritz-Carlton Hotel. The group was walking down Bourbon Street toward Canal Street when they decided to go into a pizza parlor for a snack. Shapiro bought a hot dog from a vendor on the street while the rest of the party entered the pizza parlor and ordered. He went into the parlor and sat at the table with the group. Someone noted that A.C. had been in the bathroom for a long time. Christine Huebner went to investigate, and she returned to tell the group that she heard someone say, “I’m fing peeing.” Shapiro responded that A.C. would not say that, and he arid 'Christine walked back to the bathroom. When Christine knocked on the door, it opened and a man walked out. He said, “Everything’s cool,” as he walked past Shapiro. A.C. was behind him crying. Shapiro realized that something was wrong, and he turned to his friends who were about ten feet away and ordered them to “[g]et” the man. A.C. ran to Shapiro and collapsed; he described her as “weeping uncontrollably” and hyperventilating. She said, she had been choked until she could not breathe and her head had been hit against the wall and the floor repeatedly. Shapiro noticed red marks on her neck, bleeding cuts on her head and lips, and swollen eyes. Her clothes were disheveled. Shapiro asked a restaurant employee to call the police.

Christine Huebner told the court of knocking on the bathroom door and hearing a “very high voice” saying “[g]o away. I’m fucking peeing.” Some moments later she returned to pound on the door and call to her friend by name. An employee of the restaurant asked her if she wanted a key to the bathroom, and |4she answered affirmatively. Just then the door opened, and Huebner saw A.C. first. She was shaking uncontrollably and her face was bloody. Huebner pushed A.C. off to Larry Shapiro, who was next to her, and she grabbed the man behind A.C. by the shirt. She held onto him for about thirty seconds and told him he was not leaving. However, she realized he was taller than she and could harm her, and so she let go of his shirt. She called to the men she was with to catch the man. Huebner turned to A.C. and asked her if she had been raped. A.C. answered, “No. He tried to.” Shortly thereafter, Huebner went to Canal Street to identify the attacker. She looked into the back of the police car and saw there the same man she had seen exiting the bathroom at the pizza parlor.

Thomas May and Fred Adams, both members of the law firm group, testified that they were sitting in the pizza parlor when they realized that A.C. had been attacked and the man was leaving the building. They began chasing the man down Bourbon Street and then across Canal Street. Both described the man as wearing baggy shorts and a big shirt. Adams caught the man and struggled with him until the police arrived. Both Adams and May' testified that they never lost sight of the defendant, and that there were no friends of the defendant with him when he was apprehended.

. Dan McCluskey, the manager of the pizza parlor/bar at 200 Bourbon Street, testified that he was on duty on June 8, 2002 when the incident at issue here occurred. He was in an office and did not observe anything. He called the police to report an attempted rape. The tape of the telephone call was played for the jury.

Detective Brian Baudier of the Sex Crimes Unit testified that he investigated an attempted rape on June 8, 2002. He went to Canal and Baronne Streets where the alleged offender was being held. As the detective arrived on the scene, the | svictim was being escorted to the police car to identify the man being held there. The police officers had him step out of the car and she lunged at him while making a positive identification. The victim had “blood spatters” and some swelling on her face. The detective went to the establishment at 200 Bourbon Street to photograph the scene. He noticed red spots on the bathroom floor.

Officer Glen Blanche testified that he was driving on Canal Street when he saw two men fighting and another man flagging him down. He stopped and handcuffed both the men who were fighting. He described Ford as wearing a black shirt and black shorts with colored stripes. He was carrying no weapons. After Jeffery Ford was arrested, his picture was taken at Central Lockup. That picture was shown to the jury. He had a “slight mustache and hair on the chin” and gold teeth.

Linda Ford, the defendant’s mother, testified that she, her son and his friends went to the Superdome the night of June 7, 2002 to a fair. About midnight they walked down Canal Street, and at Bourbon Street she left them to return home. Her son and his friends intended to go to Chris Owens’ Nightclub. She testified that her son had on a red shirt and black pants with silver trim on the side that night. When shown a black shirt that he was wearing when arrested, she said that she did not recognize it.

Joseph Duplessis, an eighteen-year-old friend of the defendant, testified that he is a student at O. Perry Walker High School and that he has known the defendant since fourth grade. Duplessis described going to the fair at the Superdome with the defendant and his mother. Then he and Jeffery Ford went to Chris Owens’ Club to listen to music, and after standing in front of the club for about twenty minutes, they got change for the bus and went to Canal Street to |ficatch the bus. Jeffery was walking behind Joseph counting his change when Joseph heard the change fall. He turned around to see three white men beating Jeffery. Joseph panicked and began looking for Jeffery’s mother but could not find her. Joseph denied having anything alcoholic to drink that night or going into an establishment at 200 Bourbon Street.

Cedric Abron, a twenty-one year old friend of the defendant, testified to the same facts as Joseph Duplessis. However, on cross-examination, when asked if he remembered his testimony at the preliminary hearing where he said Jeffery Ford was arrested in front of Penny Land on Royal Street at about 3:00 to 3:30 a.m., Abron said he had been mistaken earlier and that Jeffery was attacked on Canal Street at an undetermined time.

ERRORS PATENT

A review of the record reveals no errors patent.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

Ford first argues that the trial court erred by denying the motion to suppress the identification.

In a recent opinion, State v. Haynes, 2002-1648 (La.App. 4 Cir. 4/30/03), 847 So.2d 653, this Court considered a similar issue and stated:

A defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of misidentification existed as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984) State v. Valentine, 570 So.2d 533 (La.App. 4 Cir.1990). One-on-one confrontations between the suspect and the victim, while not favored by law, are generally permissible when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for an- on-the-spot identification. State v. Robinson, 404 So.2d_[¿907, 909-910 (La.1-981). Such a process assures reliability and fosters prompt release of innocent suspects. Id.

Even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the- suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517.

The U.S. Supreme Court has set forth a five-factor test to determine whether 'a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Higgins, 01-368 (La.App. 5 Cir, 10/18/01), 800 So.2d 918; State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), .738 So.2d 161, 164. A trial court’s determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Bickham, 404 So.2d 929 (La.1981); State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01), 797 So.2d 764.

In instant case because Ford was apprehended after.being chased two blocks immediately after the commission of the crime, it was reasonable and appropriate to attempt to secure an identification immediately. See State v. Carter, 99-2234 (La.App. 4 Cir. 1/24/01), 779 So.2d 125.

IsLooking at the Manson factors, it appears there is no likelihood of misidentifi-cation. First, the victim, who testified that the incident lasted about fifteen minutes, had ample time to view her assailant; furthermore, Larry Shapiro and Christine Huebner also saw him leaving the bathroom. Thomas May and Fred Adams saw him walking out of the restaurant and chased him, never losing sight of him until he was apprehended. Second, as to the degree of attention, A.C. was,inches away from her assailant in a small bathroom for fifteen minutes, and her testimony indicates she paid very close attention to him.

Third and fourth, as to the accuracy and certainty of the description, all the witnesses, State and defense, described Ford as wearing baggy shorts and a red shirt. The victim remembered that he was wearing a fisherman’s hat and a red shirt. Larry Shapiro thought the assailant was wearing two shirts, one over the other, and one was red; he also remembered a hat pulled over the eyes. Christine Huebner identified a red and white shirt and a floppy, white sailor’s hat. She saw it fly from his head when he started running. Moreover, the defendant’s mother described his clothing as a red shirt and black pants with silver trim. Joseph Du-plessis agreed that Ford was wearing a red shirt, black pants, and a white “Kan-go” hat with a brim that encircled his head. None of the State’s witnesses remembered the defendant’s having any facial hair, gold teeth, or a tattoo. However, Ford testified her son had a small amount of hair on his chin and a thin mustache not shaped all the way across his lip. She said that he always shaves his facial hair “real neat and thin.”

|9The last of the Manson factors is the length of time between the crime and the confrontation. The victim testified that only ten minutes elapsed between the time she was freed from the bathroom and her friend Glen told her that the police wanted her to make an identification.

Thus, a review of the Manson factors indicates that the identification process was reliable.

In his brief, the defendant bases his misidentification argument on the fact that none of the witnesses noticed his gold teeth, facial hair, and tattoo, or that his black shorts had silver trim on the side. However, all the witnesses agreed that the defendant was wearing baggy shorts, a red shirt, and almost all noted the floppy hat. His picture at the time of his arrest was shown to the jury who was aware of the discrepancies in the descriptions. Furthermore, as noted above, his mother testified that he shaved his facial hair so that it was very thin. Accordingly, it does not appear that the witnesses’ failure to note the specific characteristics named by the defendant outweighs their positive identification testimony. The trial court did not err in denying the motion to suppress.

There is ho merit in this assignment.

ASSIGNMENT OF ERROR NUMBER 2

The defendant next argues that the evidence was insufficient to support his conviction for attempted aggravated rape. Rather, he maintains that the evidence is sufficient only for a verdict of attempted forcible rape.

When assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt as to each of the essential elements of the crime | incharged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987).

In addition, when circumstantial evidence forms the basis of the conviction, the evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred from reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. La. R.S. 15:438 is not a separate test from Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), but rather is an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

La. R.S. 14:42, aggravated rape, is defined as:

a rape committed upon a person sixty-five years or older or where the anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists, the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.

An attempt occurs when a person has the specific intent to commit a crime and does an act tending directly toward the accomplishing of his object. La. R.S. 14:27.

In the instant matter, it appears the evidence was sufficient under La. R.S. 14:42(1) and (2). The victim resisted the defendant, and he pushed her down. He h unzipped his pants, took out his penis, got on top of her, and tried to penetrate her. She testified that she was threatened with death and actually injured.

In his brief, the defendant argues that this case is similar to State v. Parish, 405 So.2d 1080 (La.1981), where the defendant charged with attempted aggravated rape was convicted of attempted forcible rape. That case involved a man entering a woman’s apartment on the pretense of getting change for the laundry and then seizing her, threatening her, and dragging her toward the bedroom. . However, in Parish the defendant changed his mind .before reaching the bedroom and simply left the apartment. The Supreme Court considered the fact that the woman had not been fondled or subjected to any sexual indignity and the man had .• not unzipped his pants; the court held that attempted forcible rape rather than attempted aggravated rape was the proper conviction. The court noted that the two crimes are “virtually identical” and that the only distinction between the two is the “degree of force employed and the extent to which the victim resists.” . Id., 405 So.2d at 1085.

State v. Parish can be distinguished from the case at bar in that Parish never unzipped his pants or took them off and did not get on top of the victim; he did not touch her breasts or genital area. Id., 405 So.2d at 1086. In contrast, Jeffery Ford did subject his victim to sexual abuse: he knocked her down on a dirty bathroom floor, got on top of her, and attempted to rape her. He also beat her head against the floor and choked her. Only Huebner’s continual knocking on. the bathroom door kept him from completing the sex act.

• |i?As the State points out in its brief, this Court upheld a jury verdict of attempted aggravated rape where the defendant broke into the victim’s apartment, beat her, dragged her into the bedroom, threw her on the bed, exposed his penis, and demanded she remove her underwear. State v. White, 621 So.2d 884 (La.App. 4 Cir.1993). He then made lewd statements to her as he fondled himself. He continued to beat the victim in the head and threatened to .kill her. When the defendant argued that the evidence supported a finding of attempted forcible rape, this Court stated:

it is within the province of the jury to determine the degree of force employed in a particular case and to determine whether the act constituted aggravated, rather than forcible rape.

Id., 621 So.2d at 888.

As in the instant case, the jury had the responsive verdict of attempted forcible rape before it in White but found that the degree of force used amounted to attempted aggravated rape.

Viewing the evidence in the case at bar in the light most favorable to the prosecution, it appears that any rational trier of fact could have found the essential elements of attempted aggravated rape.

There is no merit in this assignment.

ASSIGNMENT OF ERROR NUMBER 3

The defendant next argues that the trial court erred in not instructing the jury about penalties for aggravated and forcible rape.

However, the well-established rule concerning such jury instructions was stated in State v. Jackson, 450 So.2d 621, 633-34 (La.1984):

When the penalty imposed by the statute is a mandatory one, the trial judge must inform the jury of the penalty on the request of the defendant and must permit the defense | 13to argue the penalty to the jury. State v. Hooks, 421 So.2d 880 (La.1982); State v. Washington, 367 So.2d 4 (La. 1978). In instances other than when a mandatory legislative penalty with no judicial discretion as to its imposition is required following verdict, the decision to permit or deny an instruction or argument on an offense’s penalty is within the discretion of the trial judge.

In the case at bar, neither the statutes for attempted aggravated rape nor those for attempted forcible rape provide for a mandatory penalty. The sentence for attempted aggravated rape is ten to fifty years without benefit of parole, probation, or suspension of sentence, and for attempted forcible rape, it is not less than two and one half nor more than twenty years with at least one year imposed without benefit of parole, probation, or suspension of sentence. Thus, because there was no mandatory sentence, the trial court had the discretion to deny the defense’s request for jury instructions as to the possible sentences involved.

There is no merit in this assignment.

ASSIGNMENT OF ERROR NUMBER 4

In this assignment, the defendant argues that his counsel’s performance was constitutionally deficient for failing to insure the appropriate jury instruction on possible penalties was given. The defendant maintains that because the jury could not return a verdict for aggravated rape without instruction on the penalty for that offense, counsel provided ineffective assistance by not objecting to the trial court’s refusal to so instruct the jury. However, the defendant was never charged with, prosecuted on, or sentenced for aggravated rape, and thus, this argument is completely immaterial. Ford was charged with attempted aggravated rape, and, as noted above, in such cases the court is not required to charge the jury on penalties.

This assignment has no merit.

| uFor the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The defendant's first name is incorrectly spelled Jeffrey in some of this Court’s documents.

      . The State offered a red shirt as an exhibit; however, the police report described a black shirt, and at trial a black shirt was shown to the defendant’s mother who said it did not belong to her son.

      . These quotes are from Justice Dennis's dissent to the original Opinion in which the majority affirmed the conviction for attempted aggravated rape; after a rehearing, however; Justice Dennis wrote the majority opinion which found that attempted forcible rape was the proper verdict.


author: | JAMES L. CANNELLA, Judge.

text:
    Gai NGUYEN v. Wing Ming FOK and State Farm Mutual Automobile Insurance Company.
    No. 03-CA-744.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 23, 2004.
    Rehearing Denied March 22, 2004.

      David V. Batt, Bradley S. Groce, Lob-man, Carnahan, Batt, Angelle & Nader, New Orleans, LA, for Appellants.
    Joel R. Waltzer, Bruce C. Waltzer, Waltzer & Associates, New Orleans, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   | JAMES L. CANNELLA, Judge.

The Defendants, Wing Ming Fok, Lillian Fok and State Farm Mutual Automobile Insurance Company (State Farm), appeal from a judgment in favor of the Plaintiff, Gai Nguyen, in an automobile collision case. We affirm.

The accident occurred on May 22, 2000 in Harvey, Louisiana. While attempting to leave the parking lot of a grocery store, the Plaintiff was struck by a car insured by State Farm and driven by Defendant, Lillian Fok. State Farm paid the Plaintiffs property damages. Subsequently, on April 4, 2001, the Plaintiff filed suit for personal injuries against Wing Ming Fok and State Farm, as the insurer of the automobile. Wing Ming Fok is the husband of Lillian Fok and was not involved in the accident. Lillian Fok was not named a Defendant, initially.

The trial was held in Second Parish Court for the Parish of Jefferson on May 14, 2002, September 9, 2002, and November 19, 2002. During trial, it became apparent to Plaintiff that Wing Ming Fok was the wrong Defendant and that Lillian Fok, his wife, was the proper Defendant. At the conclusion of the trial, the Defendants filed a Motion for Involuntary Dismissal, which was deferred by the trial judge. The case was continued and on November 5, 2002, the Plaintiff filed a motion to amend the petition to substitute as Defendant, Lillian Fok for Wing | aMing Fok. State Farm filed an opposition in which it also alleged that the action was prescribed. The parties argued the issue in the November 19, 2002 hearing, following which, the trial judge ordered them to brief the procedural issues. The case was taken under advisement. On February 25, 2003, the trial judge rendered a judgment granting the motion to amend the petition, denying the exception of prescription and motion for involuntary dismissal, and awarding the Plaintiff $15,630 in damages.

On appeal, the Defendants first assert that the trial judge erred in granting the motion to amend and in allowing the amended petition to relate back to the filing of the original petition. Second, they contend that the trial judge erred in finding that the claim against Lillian Fok was not prescribed. Third, they assert that the trial judge violated Lillian Fok’s due process rights by rendering a judgment against her without providing her an opportunity to answer the allegations or present a defense. Fourth, they allege that the trial judge erred in rendering a judgment against Lillian Fok because she was not cited and served with the amended petition, in violation of La.C.C.P. art. 1201. Fifth, they contend that lacking citation and service, the trial judge did not have personal jurisdiction over Lillian Fok, as required by La.C.C.P. art. 6. Sixth, the Defendants assert that the trial judge erred in denying their motion for involuntary dismissal.

AMENDMENT OF THE PETITION

La.C.C.P. Art. 1151 allows a plaintiff to amend the petition without leave of court after the answer has been filed or within 10 days after it has been served. Otherwise, it may be amended only by leave of court or by written consent of the adverse party. La.C.C.P. Art. 1153 provides that an amended petition will relate back to the original petition “When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. ...”

|4In Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), the Louisiana Supreme Court established the criteria for determining when an amendment to add or substitute a party relates back to the original petition to defeat prescription. In that slip and fall case, the plaintiff mistakenly sued “Alexandria Mall” rather than “Alexandria Mall Company”, a partnership which actually owned the premises on which the plaintiff fell. Plaintiffs sought to amend the petition to name the correct party after the prescriptive period for bringing the action expired. The trial judge sustained an exception of prescription brought by the defendant and the court of appeal affirmed. The Ray court reversed. In holding that the amended petition related back to the original petition and the action was not prescribed, the court analyzed the federal law interpreting the federal rules of civil procedure. The Ray court noted that “Rule 15(c) alters the generally accepted rule that a new defendant may not be added after prescription has run, and the facts of each case must be viewed carefully subject to the following caveat: this rule does not apply where the amendment seeks to add new and unrelated defendants, since this would be tantamount to assertion of a new cause of action.” Ray, 434 So.2d at 1086. {Emphasis added}

Under Ray, the an amendment to the petition relates back to the original petition when:

(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.

Ray, 434 So.2d at 1087. See also: Giroir v. South Louisiana Medical Center, Div. of Hospitals, 475 So.2d 1040, 1042 (La.1985). [In Giroir, the amendment changed the capacity of one of the plaintiffs and added other claims.]

In Ray, the court found that the defendants had “engaged in a smokescreen of legalistic maneuvering in order to dodge judicial resolution of the merits of the plaintiffs claim.” Ray, 434 So.2d at 1086. Citing comments made by the late Henry McMahon, one of the chief redactors of the then new Louisiana Code of Civil Procedure, the court quoted,

“The new code embodies procedural rules designed to permit the trial of a case to serve as [the] search for the truth, and to have [the] decision based on the substantive law applicable, rather than upon technical rules of procedure.” Amendment of pleadings plays a central role in assuring that the pleadings are not an end in themselves, but only the means of properly presenting the case for full judicial resolution on the merits. The express purpose of arts. 934 and 1153 is to allow amendment of the petition to remove the grounds for the peremptory exception whenever possible and where dismissal of the suit should not be in the interests of justice.
[Citations omitted]

In this case, the amended claim arose out of the same transaction or occurrence and Lillian Fok had notice of the action. Both she and State Farm knew or should have known that but for a “mistake” concerning her identity, the action would have been brought against her since she was the driver of the car. From the commencement of the case, her actions were scrutinized. Her husband’s involvement was never an issue. Furthermore, Lillian Fok accepted service when the petition was initially served by the Plaintiff. As an insured under the automobile liability insurance policy, she would expect to be defended by State Farm. Furthermore, she meets the relationship test as she is Wing Ming Fok’s wife and cannot claim to be an entirely new Defendant. Thus, since the facts here ^satisfy the criteria set forth in Ray, we find that the trial judge did not err in granting the Plaintiffs motion to amend the petition, in finding that the claim against Lillian Fok relates back to the filing of the original petition, in denying the exception of prescription, and in denying the motion for involuntary dismissal.

DUE PROCESS

The Defendants argue that Lillian Fok was denied due process because she was deprived of an opportunity to answer the Plaintiffs allegations or present a defense. State Farm asserts that it did not represent her during the proceedings or at trial. The Defendants also argue that Lillian Fok was denied due process because she was not served with the amended petition.

The record reflects that State Farm was fully aware, long before trial, that the driver was not Wing Ming Fok, but his wife Lillian Fok. In this appeal, State Farm claims that everyone involved in the proceedings also knew that Ming Wing Fok was not the driver. That is not reflected in the record. The Plaintiff argued at the hearing on the amended petition that he was unaware that Wing Ming Fok was a different person because, in the Oriental community, a person may have both an American and Oriental name. The transcript shows that this mistake was only rectified after the Plaintiff rested her case. When the Defendants called Lillian Fok to testify on the second day of trial on September 9,2002, the trial judge questioned her about her identify when she gave her name. At that time, Lillian Fok informed the court that Wing Ming Fok was her husband. Prior to then, everyone appears to have thought Lillian Fok was the same person as Wing Ming Fok. State Farm never notified anyone of the error and, in fact, the record reflects that State Farm acted as if Lillian Fok were the client and the named Defendant from the inception of the case. Counsel made comments referring to her as State Farm’s client in the ^depositions of Lillian Fok’s parents, who were passengers in the car, in questioning the Plaintiff during trial, and in the closing argument on November 19, 2002. In addition, Lillian Fok was seated at the defense table next to counsel and the trial judge, in speaking to Lillian Fok after she testified, referred to counsel for State Farm as “your counsel.” State Farm filed a generic answer to this suit and pursued typical discovery for a simple, uncomplicated automobile accident case and it actively defended the action. Under these facts, we cannot see how Lillian Fok was prejudiced by not being named a Defendant originally or how she is prejudiced by the amendment. Thus, we conclude that Lillian Fok was not deprived of her due process rights by the amendment.

The Defendants also contend that Lillian Fok was deprived of due process because she was not served and cited with the amended petition and thus, the judgment is a nullity. Under La.C.C.P. art. 1201 A, the amended petition is subject to citation and service requirements. C.C.P. art. 1201 C requires a request for service and citation of the amended petition to be made within 90 days of the filing of the amended petition.

The record here reflects that the Plaintiffs requested service and citation of the amended petition on Lillian Fok within the allotted time period. When service and citation is requested by a party, the parish clerk’s office must issue the citation and must deliver it to the sheriff for service. La.C.C.P. art. 252. The record does not reflect a return of service, although it was requested timely by the Plaintiff. Nevertheless, the Defendants are not entitled to a reversal on this basis.

The declinatory exception of insufficiency of service must be pleaded prior to answer and, “prior to or along with the filing of any pleading seeking relief ... ”La.C.C.P. art. 928. Exceptions must be in written form and comply with the form of pleadings. See: C.C.P. art. 924. When the grounds of the declinatory | Rexception can be removed, the judgment sustaining the exception must allow the plaintiff an opportunity to remove the objection. La.C.C.P. art. 932,

In this case, the Defendants alleged that the matter was prescribed in the post-trial brief in opposition to the amended petition. The Defendants did not file a declinatory exception of insufficient service at any time prior to or with the exception -of prescription or prior to the judgment. The Plaintiff had no opportunity to remove the objection. Thus, we find that the exception was waived.

PERSONAL JURISDICTION

The Defendants next contend that the trial judge did not obtain personal jurisdiction over the person of Lillian Fok due to lack of citation and service.

La.C.C.P. art. 6 A(3) provides that the declinatory exception of lack of personal jurisdiction is waived unless pled timely. The Defendants failed to file a declinatory exception of lack of jurisdiction in this case prior to judgment being rendered. Again, the Plaintiff was not presented with an opportunity to remove the objection. Consequently, this exception was also waived.

Accordingly, the judgment of the trial court is hereby affirmed. Costs of the appeal are to be paid by the Defendants.

AFFIRMED.

      . In Giroir, the court stated, "Because La. C.C.P. art. 1153 is based on Federal Rule of Civil Procedure 15(c), its doctrinal commentaries and judicial interpretations are strongly persuasive as to the meaning and application of the Louisiana article.” Giroir, 475 So.2d at 1042.

      . The parents' depositions were taken through an interpreter in June of 2002 in lieu of trial because they had to return to their homeland in Hong Kong.

      . We also note that neither she nor State Farm suffered prejudice by the lack of citation and service. State Farm vigorously defended the case and Lillian Fok was involved from the beginning. She was not prejudicially surprised by the amendment and State Farm argued the propriety and legality of the amendment at the hearing in November.