author: L GASKINS, J.

text:
    Linda JOHNSON, et vir., Plaintiff-Appellee, v. LSU MEDICAL CENTER, et al., Defendant-Appellant.
    No. 38,204-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Claude W. Bookter, Jr., Special Assistant Attorney Genera), for Appellant.
    Sutton & Sutton, by Bobby D. Sutton, Sr., Shreveport, for Appellee.
    Before GASKINS, CARAWAY and DREW, JJ.
   L GASKINS, J.

The defendant, Louisiana State University Medical Center (LSUM.C), appeals that portion of the trial court judgment which awarded lost future wages and earning capacity to the plaintiff, Linda Johnson. For the following reasons, we affirm.

FACTS

Mrs. Johnson was employed as the office manager for an ophthalmologist, Dr. Alan Richards. In late 2000 and early 2001, she developed a severe inflammation in her left eye that did not respond to treatment by Dr. Richards or Dr. Charles Lyon, another ophthalmologist practicing in the building. Dr. Richards referred Mrs. Johnson to Dr. James P. Ganley at LSUMC. In an attempt to treat her condition, Dr. Ganley injected a substance into Mrs. Johnson’s eye. The substance was improperly injected beneath the retina and into the vitreous of the eye, causing the retina to detach. Realizing his error, Dr. Ganley contacted Dr. Lyon, who performed emergency surgery that afternoon. He was able to save the eye, but the damage to the retina was permanent and Mrs. Johnson lost the sight in that eye.

Mrs. Johnson claimed that she recuperated from the surgery for six weeks, while performing some work at home. She then returned to work for Dr. Richards for several months. She claimed that she had trouble keeping up with her duties.

A bookkeeping error on her part came to light that had been ongoing for some time prior her injury. Apparently Mrs. Johnson had been double-posting Medicaid payments to Dr. Richards’ checking account for about two |2years. When the discrepancy was discovered, the account was overdrawn by $80,000 to $35,000. Also, Dr. Richards testified that Mrs. Johnson was not getting along with other members of the office staff. Dr. Richards demoted Mrs. Johnson and assigned her to work only part-time, without fringe benefits. Mrs. Johnson resigned, drew unemployment compensation for awhile, and later obtained part-time employment as a music librarian at her church.

In addition to the loss of vision in her eye, Mrs. Johnson suffered an aggravation of her fibromyalgia. She claimed that, as a result of her injury, she became depressed and required treatment and medication. She asserted that she is not able to work as she did before, that she is no longer as physically active, that she has sleep disturbances, and that she worries constantly about injury and loss of vision in her right eye.

A medical review panel was convened and determined that LSUMC did not deviate below the applicable standard of care. On April 9, 2002, Mrs. Johnson filed a petition for damages, claiming a permanent partial disability; lost earning capacity; lost employment capacity; loss of past, present and future wages; past, present, and future pain and suffering; and permanent emotional suffering. Her husband asserted a claim for loss of consortium.

On January 13, 2003, LSUMC entered a stipulation of liability, recognizing that Mrs. Johnson was given an injection for treatment of iritis that resulted in the loss of vision in the eye. LSUMC admitted that the standard of reasonable care was breached by failing to properly administer lathe injection and the breach was the sole and proximate cause of loss of vision in the left eye. The issue of the amount of damages remained contested.

Following a bench trial on February 24-25, 2003, the trial court made the following award of damages to Mrs. Johnson:

Past, present and future pain and suffering $300,000.00
Past lost wages 2,400.00
Present and future lost wages and
earning capacity 841,345.00
Medical expenses 45,892.05

Mr. Johnson was awarded $30,000 for loss of consortium and expert witness fees were granted. The total award was subject to the statutory cap of $500,000 under La. R.S. 40:1299.42. LSUMC appealed.

LOST FUTURE WAGES AND EARNING CAPACITY

LSUMC claims that the trial court erred in awarding future lost wages and earning capacity to Mrs. Johnson. This argument is without merit.

Legal Principles

Lost earning capacity is loss of a person’s potential and is not necessarily determined by actual loss. Gorton v. Ouachita Parish Police Jury, 35,432 (La.App.2d Cir.4/3/02), 814 So.2d 95, writs denied, 2002-1273 (La.8/30/02), 823 So.2d 950; 2002-1261 (La.8/30/02), 823 So.2d 952. The plaintiff need not be working or even in a certain profession to |4recover such an award. What is being compensated is the plaintiffs lost ability to earn a certain amount and she may recover such damages even though she may never have seen fit to take advantage of that capacity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App.2d Cir.12/19/01), 803 So.2d 1039, writ denied, 2001-0026 (La.3/9/01), 786 So.2d 735.

To ascertain whether a personal injury plaintiff should recover for lost earning capacity, the trial court should consider whether and how much the plaintiffs current condition disadvantages her in the work force. Among the factors to be considered are her physical condition before and after her injury, her age and life expectancy, the amount the plaintiff probably would have earned had she not been injured, and the probability that she would have continued to earn wages for the balance of her life. Lost income awards are speculative and cannot be calculated with absolute certainty. Therefore, the trial court is given broad discretion in setting an award for lost earning capacity. However, there must be a factual basis in the record. Gorton v. Ouachita Parish Police Jury, supra.

Credibility determinations, including the evaluation of expert testimony, are factual issues to be resolved by the trier of fact. Where the testimony conflicts, the fact finder’s reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review, even where the appellate court may feel that its own evaluations and inferences are more reasonable than those of the jury. Quinn v. Wal-Mart Stores, Inc., 34,280 (La.App.2d Cir.12/6/00), 774 So.2d 1093.

| sAn appellate court may not set aside a trial court’s factual findings unless they are manifestly erroneous or clearly wrong. For reversal on appeal, the appellate court must find (1) a reasonable factual basis does not exist in the record for the factual findings of the trial court and (2) the record establishes that the factual findings are clearly wrong and manifestly erroneous. The appellate court must do more than look at the record for evidence which supports or discredits the trial court’s findings. The reviewing court must review the entire record to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. In addition, the appellate court must decide if the trial court’s conclusions were reasonable. Even when the reviewing court may conclude that its own evaluations are more reasonable than the trial court’s the appellate court should not substitute its judgment for that of the trial court. Lewis v. State, Department of Transportation and Development, 94-2370 (La.4/21/95), 654 So.2d 311; Gorton v. Ouachita Parish Police Jury, supra.

Evidence and Testimony

Greg F. Johnson, Mrs. Johnson’s husband, testified that following the surgery to try to save the eye, his wife recuperated at home for approximately six weeks. Due to her eye surgery, Mrs. Johnson was not supposed to lift her head. She tried to work from home by putting a computer monitor on the floor. She was able to work for periods ranging from 15 minutes to one hour. Mr. Johnson carried materials back and forth for her.

| fiAccording to Mr. Johnson, once his wife returned to work, she had trouble keeping up with her duties. She was asked to begin training another employee to take over some of her responsibilities. Eventually, she was demoted, her hours were cut to two days per week, and her fringe benefits were terminated. Mr. Johnson acknowledged that his wife’s hours were cut due to a bookkeeping error on her part that occurred before her eye injury.

Mrs. Johnson testified that, as a result of the surgery, she now has a sponge behind her eye that must be kept lubricated. She still has pain in the eye and has fibromyalgia that was made worse by the stress and depression over the loss of vision in the eye.

Mrs. Johnson said that after returning to work following her injury, she had to use a larger computer screen and adjusted the level of the screen to eliminate glare. She stated that she was not able to keep up with her duties at work. She admitted that no physician has told her that she cannot work as an office manager.

Dr. Charles Lyon, Mrs. Johnson’s treating eye physician, testified that she has a 23 percent disability of her body as a whole due to the loss of her eye.

Dr. Alan Richards testified that Mrs. Johnson worked in his medical office from 1994 until August 2001. He stated that after the injury to her eye and resulting surgery, Mrs. Johnson worked at home some while she recuperated. He stated that she had problems communicating with other employees that were exacerbated by her eye injury.

|7Pr. Richards stated that his decision to reduce Mrs. Johnson’s hours was caused by a bookkeeping error of long duration that resulted in his office bank account being overdrawn by $35,000. He stated that he cut her hours back to two days per week on August 27, 2001, and she resigned on August 30, 2001.

Dr. Robert E. Goodman, a rheumatologist, testified by deposition that he began treating Mrs. Johnson in December 2000, about the time her eye inflammation began. She complained of pain in her legs and ankles, left knee, right hip, and low back. He was aware of her eye inflammation. Over the course of treatment, Dr. Goodman consulted with Dr. Richards and Dr. Lyon to rule out the possibility that the eye problem was connected with Mrs. Johnson’s joint and muscle complaints. No connection was found.

Dr. Goodman continued to treat Mrs. Johnson through the loss of sight in her left eye. By April 30, 2001, Dr. Goodman determined that Mrs. Johnson had fibro-myalgia. Dr. Goodman noted that he prescribed medication for depression for a period of time. Although Dr. Goodman never imposed any work restrictions on Mrs. Johnson, he stated that if a patient is having eye problems, it can lead to depression and stress which exacerbate fibro-myalgia.

Dr. Richard Galloway, an expert in vocational rehabilitation, testified on behalf of Mrs. Johnson. Dr. Galloway reviewed Mrs. Johnson’s medical records and noted that she had been employed as the manager of a medical office. He found that upon her return to work after the injury, she had trouble doing her work. She did very little driving and doesn’t drive at all at | anight. She no longer reads as much and does not do as much “close work.” She now has problems with details; it is harder for her to judge distances and to perceive differences in color and in form. Hé opined that she could continue to do clerical work, but it would be slower and more laborious. Dr. Galloway testified that Mrs. Johnson would have trouble working an eight-hour day due to the loss of the sight in her eye, combined with her fibro-myalgia. He stated that she would be able to work part-time. Dr. Galloway noted that the Americans with Disabilities Act might not be very helpful to Mrs. Johnson in gaining workplace accommodations because it only applies to businesses with 15 or more employees.

Dr. Galloway stated that Mrs. Johnson would have problems with work requiring visual acuity. He said that she would have to work harder and would make more mistakes. According to Dr. Galloway, a combination of the loss of vision, fibromyalgia, and the loss of a “well-paying job” was affecting Mrs. Johnson emotionally. Dr. Galloway testified that if Mrs. Johnson now had to question prospective employers about the physical requirements of a job to determine whether she can do the work, then she has sustained a loss of capacity to do jobs.

On cross-examination, Dr. Galloway stated that he was under the impression that Mrs. Johnson resigned her position with Dr. Richards because she was having trouble doing her work as efficiently as she had before the loss of vision in the eye. He was not aware that her hours had been reduced shortly before she resigned.

| flJanet Papworth, an expert in rehabilitation, testified on behalf of the defendants. She stated that she met for four hours with Mrs. Johnson and spent another 30 minutes talking with her on the telephone. Ms. Papworth stated that she considered Mrs. Johnson’s injury as well as her extensive work history and concluded that Mrs. Johnson is self-imposed underemployed due to her concern about injuring her remaining eye.

Ms. Papworth noted that Mrs. Johnson has problems driving and is afraid that her retina will detach if she lifts more than 10 pounds. Ms. Papworth considered the possibility that Mrs. Johnson’s eye problem may have worsened her fibromyalgia. She concluded that the loss of vision in Mrs. Johnson’s left eye would not cause a loss of wage-earning capacity.

Dr. Melvin Harju testified concerning the lost wage analysis he conducted on Mrs. Johnson. He noted that the last full year that she worked for Dr. Richards, she earned $27,149. Dr. Harju then factored into his calculation Mrs. Johnson’s present part-time wages at $8 per hour. He determined that, based upon her life-work expectancy of 17.3 years, without fringe benefits, her lost wages totaled $821,345. Although questioned about Mrs. Johnson’s lost wages based upon her reduced wages and hours several days before her resignation, Dr. Harju stated that a proper calculation would more properly be based upon her earnings for the more than seven years she had been employed by Dr. Richards, rather than what he paid her the last few days she worked there.

| ^Discussion

In this matter, the trial court considered all the evidence and testimony, made credibility determinations, and concluded that Mrs. Johnson proved entitlement to damages for lost future wages and earning capacity.

The record shows that Mrs. Johnson returned to work at Dr. Richards’ office for several months after her eye injury and received a good job evaluation during that time. However, there was also testimony that during that time, she had trouble keeping up with her work and was training a fellow employee to take over some of her responsibilities.

The record shows that Mrs. Johnson was demoted due to a bookkeeping error that occurred before her eye injury. However, the evidence also shows that due to the loss of vision in her eye, Mrs. Johnson was not able to function as effectively at clerical work as she did before the injury. Further, the loss of sight in her eye caused depression, aggravated her fibromyalgia, and caused difficulty in driving and other routine daily tasks. She was also constantly worried about loss of vision in her remaining eye.

While Mrs. Johnson’s demotion and decision to leave her position with Dr. Richards may not have been attributable to the loss of vision in her eye, because of her injury, Mrs. Johnson has limitations that would make it virtually impossible for her to obtain similar employment and function on a full-time basis as effectively as she did before. Mrs. Johnson showed that her earning potential was damaged by this injury-

InSimply stated, although Mrs. Johnson left her position with Dr. Richards for reasons unrelated to her eye, she was not functioning on the same level as she was before her injury. Also, as a result of the injury, she lost the capacity to work full time as a medical office manager.

The undisputed elements of damages in this matter total $348,292.05. Although the trial court awarded more than $800,000 for lost and future wages and earning capacity, we note that due to the $500,000 statutory maximum for medical malpractice claims, the plaintiff realistically only had to prove $151,707.95 in lost future wages and earning capacity. Based upon the record before us, we find that Mrs. Johnson carried her burden of proof in this regard.

CONCLUSION

For the reasons stated above, we affirm the trial court’s judgment granting to the plaintiff, Linda Johnson, damages for lost future wages and earning capacity.

AFFIRMED.

      . LSUMC points out the typographical error in this amount. Dr. Melvin Harju testified that the value of the present and future lost wages and earning capacity was $821,345. LSUMC contends that this error is inconsequential due to the statutory cap of $500,000.

      . With the $500,000 statutory maximum for medical malpractice awards, in order to realistically reverse or amend the award, the defendant had to show that an award of $151,707.95 was not justified by the evidence in this matter. We pretermit any discussion of an award for lost future wages and earning capacity in excess of this amount.


source: Caselaw Access Project

author: _|_1LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee In the interest of Catherine SMITH, Defendant-Appellant.
    No. 38,192-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Jill Goudeau, West Monroe, for Appellant.
    Legal Services of North Louisiana, Inc. by Lee Aronson, for Appellee — -Louisiana Office of Elderly Affairs, Ouachita Parish.
    Before PEATROSS, DREW and LOLLEY, JJ.
   _|_1LOLLEY, J.

Catherine Smith (“Smith”) appeals a judgment of the Fourth Judicial District Court for the Parish of Ouachita in favor of the Office of Elderly Affairs for the State of Louisiana (“Elderly Protective Services”). The single issue is whether the facts and law operative herein support the interdiction judgment against Smith. For the reasons set forth below, we affirm the Judgment of Full Interdiction.

Facts

At the trial of the rule for Smith’s full interdiction, the parties declined to have the proceedings recorded by a court reporter. Because the testimony of the witnesses was not taken down in writing or recorded, and because there was no narrative of facts in the record, by Order dated October 16, 2003, this court gave Smith the opportunity to file a written narrative of facts, stipulated to and signed by counsel for appellant and appellee. The following is the parties’ Joint Stipulation of Facts:

Ms. Smith is a seventy-three year old white female. Elderly Protective Services received a report on Ms. Smith from the Sheriffs office. The report alleged that Ms. Smith was calling the Sheriffs office on a frequent basis making allegations that Ms. Smith’s niece was stealing from Ms. Smith and that these allegations were without merit.
As a result of this report, ANONA BOWIE, an employee of Elderly Protec-
tive Services, came into contact with Ms. Smith. Ms. Bowie noticed that Ms. Smith’s tongue and face were swollen and that Ms. Smith spoke non-stop about her niece stealing from her. Ms. Smith stated that the niece climbed through a window and stole things from Ms. Smith.
Ms. Bowie asked Ms. Smith about her face and tongue and Ms. Smith stated that she had stopped taking her medication and was now “going through detoxification with supplements.”
12Concerned about Ms. Smith’s health, Ms. Bowie continued her investigation and learned that Ms. Smith had been prescribed medicine for fluid retention and medicine for diabetes, and medicine for mental health and that Ms. Smith was not taking any of these medications.
Ms. Bowie continued her investigation and learned that Ms. Smith had, in fact, been calling the Sheriffs Office on a frequent basis making allegations that Ms. Smith’s niece was stealing from Ms. Smith and that these allegations were, in fact, without merit.
Ms. Bowie continued her investigation by contacting Dr. Sunil Prem, a doctor who had treated Ms. Smith in the past. This doctor told Ms. Bowie that Ms. Smith’s failure to take her prescribed medications could result in a life threatening situation.
Because of the life threatening nature of Ms. Smith’s medical condition, Ms. Bowie went to the Coroner’s Office. Ms. Bowie explained Ms. Smith’s situation to the Coroner and as a result, the Coroner issued an Order of Protective Custody.
Under the Order of Protective Custody, Ms. Smith was involuntarily taken and admitted to North Monroe Medical Center, Transitions Geriatric Psychiatry Unit.
That defendant’s treating physician at this facility was of the opinion that Ms. Smith has a long history of mental illness; that she suffers from Schizoaffec-tive Disorder; that she was admitted to the hospital for severe agitation; that she had been calling the Sheriffs Department frequently alleging that her niece was trying to steal things from her; that Ms. Smith has a history of noncompliance with her medications because she believes she is “well” and does not need medications; that she lacks insight into her problems; that she was continuing to refuse medications; that she continues to be paranoid; that she lacks decision making capacity with regards to her treatment and is unable to appreciate the consequences of not taking the treatment and medications for her illness.
The Doctor was of the opinion that the least restrictive medically appropriate placement for Ms. Smith is Monroe Manor Nursing Home, with the condition that Ms. Smith be mandated to take all medications prescribed to her by her treating physician.
IsMs. Smith was refusing such placement and is refusing to take medications.
As a result, Elderly Protective Services filed a Petition for Ex-Parte Order to Provide Emergency Protective Services as per R.S. 14:403.2(N)(1) on March 3, 2003. A temporary ex-parte order issued compelling Ms. Smith to comply with treatment, including placement at Monroe Manor Nursing Home. A hearing was set in that matter for March 14, 2003. Judgment for plaintiff was granted at this March 14, 2003 hearing, and an Order was issued compelling Ms. Smith to comply with treatment, including placement in Monroe Manor [to] be extended for a period not to exceed thirty (30) days as per R.S. 14:403.2(N)(2) and (F)(1)(e).
Also on this date, Elderly Protective Services filed a Petition for Preliminary and Full Interdiction. A hearing on the preliminary interdiction was set for April 7, 2003, and on that date, a Judgment of Preliminary Interdiction was granted. That provisional curator continued to maintain Ms. Smith’s placement at Monroe Manor Nursing Home. Petitioner, on April 7, 2003, filed a Motion to Set a Trial Date for the Permanent Interdiction. The court set the trial date for May 5, 2003.
On May 5, 2003, the hearing was held. Through stipulations and the testimony of Anona Bowie and Catherine Smith, all of the facts previously mentioned in this stipulation were introduced into evidence at that time. In addition, the following documents were introduced into evidence: the medical records of Catherine Smith, which includes but are not limited to a two (2) page Psychiatric Evaluation by Krishna Kambhampati, MD ... to “Elder Protective Services”; the Judgment of March 14, 2003 and the Judgment of April 7, 2003.
In addition to these facts and documents, the following facts were introduced into evidence:
The defendant’s spouse is no longer alive.
The names and address of the adult children of the defendant are Debbie Grabert, 1513 Cherry Street, Slidell, Louisiana 70460 and Barbara Johns, P.O. Box 425, Dittmer, Missouri.
The names and addresses of the nearest adult relatives are Jessie Conville, 103 Michael Avenue, Monroe, Louisiana 1471202 and Mr. and Mrs. John Dick Conville, 103 Michael Avenue, Monroe, Louisiana 71202.
Debbie Grabert, who is forty-seven (47) years old; was the proposed curator. Her domicile is Slidell, Louisiana, education is completed 11th grade and current address is 1513 Cherry Street, Sli-dell, Louisiana 70460. The reasons why the proposed curator should be appointed are: Barbara Johns, who lives ' in Missouri, is further away and all of the other relatives are not willing to take on this responsibility.
Barbara Johns was the proposed un-dercurator.
Plaintiff then rested and defendant’s attorney called Catherine Smith. Catherine Smith took the stand on her own behalf and testified as to her name and that her address was “South Grand Street.” Although her testimony was long-winded, rambling and non-responsive to many of the questions asked, of her, she did state that her hobby is studying medicines and that she is a “Sog” dietician.
Ms. Smith stated that she felt that her current and past residence has been broken into by thieves and burglars on a repeated basis and that she called 911 whenever she felt someone was entering her home. She stated that she believed that her former landlady stole from her. She stated that she believed her niece and other family members also stole from her.
Ms. Smith stated that “we got the worms from the bad meat” sometime in the late 1960’s but that she cured herself of “the worms.” Although difficult to follow, Ms. Smith stated that terrorists were somehow responsible for both the worms and the bad meat. Ms. Smith testified that she had been in a psychiatric hospital in Texas in the 1960’s and in 1972 and that she was prescribed Valium and that some of her doctors had tried to poison her and therefore the only medicines she wanted to take were “vitamins and supplements.”
Ms. Smith also stated that she did not trust her family because “too many comments were made.”

Following the interdiction hearing, a judgment was entered by the trial court ordering the full interdiction of Smith. Following the trial court’s judgment, Smith sent a letter to the trial court judge, wherein she expressed |sher dissatisfaction with the ruling. The trial court considered Smith’s letter a request for appeal, which was granted, and this appeal by Smith ensued.

Discussion

A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently either to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interest cannot be protected by less restrictive means. La. C.C. art. 389. Revision comment (d) to article 389, specifically states that:

A person is unable consistently to make reasoned decisions if, for example, he suffers from an infirmity which intermittently deprives him of reason. A person who experiences periodic deprivations of reason can inflict substantial harm to himself or his property during such bouts and is a candidate for full interdiction. In short, that a person suffering from an infirmity may experience lucid intervals does not render him ineligible for full interdiction.

The petitioner in an interdiction proceeding shall prove by clear and convincing evidence all facts justifying interdiction. La. C.C.P. art. 4548.

Since the determination of whether to order interdiction is a finding of fact, we will not set aside the trial court’s finding in the absence of manifest error or a clearly wrong determination. Interdiction of Cornwell v. Cornwell, 97-425 (La.App. 3d Cir.10/15/97), 702 So.2d 938, 940, citing, Stobart v. State through Dept, of Transp. and Development, 617 So.2d 880 (La.1993). When the trial court’s finding are based on determinations regarding the credibility of witnesses, the manifest error standard accords great deference to those factual findings, because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily | fion the listener’s understanding and belief in what was said. Rosell v. ESCO, 549 So.2d 840 (La.1989); Pope v. Prunty, 37,395 (La.App.2d Cir.08/20/03), 852 So.2d 1213, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137.

In the instant case, the trial court had the opportunity to observe Smith at the interdiction hearing. As noted in the stipulated facts, Smith’s testimony was “long-winded, rambling and non-responsive to many of the questions asked of her.... ” Furthermore, in addition to all of the facts in the joint stipulation of facts, the trial court had before it Smith’s medical records. After reviewing the stipulated facts and medical records, we detect no manifest error in the trial court’s decision to order full interdiction.

The fact that Smith had sought medical attention on occasions in the past (as argued by Smith) is simply some evidence of her ability to care for herself. However, the trial court obviously concluded that such evidence clearly was outweighed by the other evidence, including her life-threatening medical condition brought on by failure to take her prescribed medications, her paranoia, and her lack of appreciation of the consequences of not taking her medications. Furthermore, while we appreciate that Smith is elderly, and that old age alone does not equate to a need for interdiction, Smith’s problems went far beyond those of merely being elderly and having a harder time keeping “a constant train of thought.”

As for the truthfulness of Smith’s allegations of theft by her niece, we note that the stipulation of facts herein states that when Bowie, an employee of Elderly Protective Services, began to investigate Smith’s case, she 1Jearned that Smith had been calling the Sheriffs Office on a frequent basis making allegations that her niece was stealing from her “and that these allegations were, in fact, without merit.” Furthermore, the joint stipulation of facts indicates that Smith’s appellate attorney, by submitting the stipulation to this Court, was agreeing with the narrative of facts rather than obtaining a written narrative of facts from the trial judge. Under these circumstances, it would be inappropriate for us to entertain the argument that the trial court erred in concluding that Smith’s statements about her niece were false. Nevertheless, we observe that nothing in the record specifically indicates that the trial court reached such a conclusion, and that even without any testimony concerning Smith’s allegations against her niece, we could not conclude that the trial court erred in ordering interdiction based on the remaining evidence.

Conclusion

For the reasons set forth above, the trial court’s judgment is affirmed at Catherine Smith’s cost.

AFFIRMED.


author: 11 DREW, J.

text:
    Rosalyn JACKSON, Angela Jackson, Roy Jackson, Mark Jackson, and Karon Dewayne Brown, Respondents, v. MEDICAL TRANSPORTATION, INC., Rickey D. Green, and CNA Insurance Company, Applicants.
    No. 38,032-CW.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Mixon & Carroll, APLC, by James E. Mixon, James L. Carroll, Rosalyn Renae Jackson, Roy Jackson, Mark Jackson, Angela Jackson, and Karon Dewayne Brown, for Respondents.
    Rickey D. Green, pro se, for Respondent.
    Irwin, Fritchie, Urquhart & Moore LLC, by Gustave Alexander Fritchie III, Alan Dabdoub, CNA Insurance Co., and Medical Transportation, Inc., for Applicants.
    Before STEWART, PEATROSS and DREW, JJ.
   11 DREW, J.

The issues are whether plaintiffs’ initial wrongful death petition constituted an action seeking filiation to the decedent of the four illegitimate Jackson plaintiffs, and whether their amended petition expressly seeking filiation related back to the filing of the plaintiffs’ initial petition. This court granted a writ of certiorari and docketed this matter for decision after reviewing the writ application of defendants, Medical Transportation, Inc. and CNA Insurance Company. Defendants complained that the trial court erred in denying their Peremptory Exception of No Right of Action to the wrongful death and survival action filed by Rosalyn, Roy, Mark, and Angela Jackson and Roger and Karon Dewayne Brown, all of whom asserted they were children of the decedent, Roger Brown. For the following reasons, the judgment of the trial court overruling defendants’ exception is affirmed. The writ of certiorari is recalled, and the matter is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 2002, an ambulance, transporting Roger Brown from LSU Medical Center in Shreveport to a nursing home, entered the median of Interstate 20 in Ouachita Parish, careened out of control, overturned and burned. The plaintiffs alleged that Roger Brown, who was suffering from cancer at the time of the accident, sustained bruises and contusions, smoke inhalation, and exposure to the elements, which resulted in pneumonia contributing to and hastening his death on March 4, 2002. The death certificate listed Brown’s cause of death as cardiopulmonary arrest due to pneumonia and lung cancer. On September 30, 2002, plaintiffs sued ^Medical Transportation, CNA, and the driver, alleging the driver’s negligence.

The defendants’ answer denied causation and liability and specifically denied that the decedent was the legal father of the plaintiffs. Roger Brown was not listed as father on the birth certificates of Rosalyn, Roy, Mark, and Angela Smith Jackson. While the plaintiffs’ petition asserted the decedent was their father, the defendants’ answer denied that and demanded strict proof of the claimed relationship. In addition, the defendants expressly alleged that the plaintiffs (1) were not the decedents’ legal children, and (2) could not legally bring a wrongful death action. In response to interrogatories, the plaintiffs admitted that the decedent neither legitimated them by authentic act nor acknowledged them before a notary as his illegitimate children.

Medical Transportation and CNA filed an exception of no right of action on April 14, 2003, against Angela, Mark, Roy, and Rosalyn Jackson. The exception does not relate to the other two plaintiffs, Roger and Karon Dewayne Brown. The defendants argued that plaintiffs’ petition did not constitute a filiation proceeding for the Jackson plaintiffs. Defendants maintained that under La. C.C. art. 209(C), plaintiffs did not .file a timely filiation action so that they could recover damages for the decedent’s death. On May 21, 2003, the plaintiffs filed an amended petition asserting that the four Jackson plaintiffs were the illegitimate children of the decedent, who had informally acknowledged them during his life, which claims they intended to prove by clear and convincing evidence.

|sFollowing the hearing on the defendants’ exception, the trial court took the matter under advisement and thereafter rendered oral reasons in which the court overruled the exception. First, the trial court concluded that the plaintiffs’ initial petition constituted a filiation proceeding under La. C.C. art. 209(C) because:

• Plaintiffs alleged they were children of the tort victim, the decedent.
• The .four Jackson plaintiffs had a different last name from Roger Brown, the decedent, suggesting the possibility they were not born of a legal marriage.
• Defendants specifically denied the Jackson plaintiffs’ filiation, and raised as a defense, plaintiffs’ lack of filiation to the decedent tort victim.
• Depositions taken within a year of decedent’s death made defendants fully aware of plaintiffs’ contention concerning filiation.
• Defendants were not surprised, by the facts alleged in the amended petition.

Second, the trial court also found that the plaintiffs’ amended petition, filed more than a year after the decedent’s death, related back to the filing of the original petition, because the original petition gave fair notice of the factual situation out of which the amended petition arose, even though the amended petition sought different relief and stated a different cause of action.. The defendants, according to the trial court, had-full and adequate notice of the facts alleged in- the supplemental petition well before the amended petition was filed. The defendants then sought supervisory relief from this court.

DISCUSSION

La. C.C. art. 209 provides, in pertinent part:

|4B. A child not entitled to legitimate filiation nor filiated by the. initiative of the parent by. legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

A petition to intervene in a wrongful death/survival action was insufficient to constitute a petition for filiation in In re Bester, 2000-2208 (La.App. 4th Cir.9/18/02), 828 So.2d 644, writ denied, 2002-2579 (La.12/13/02), 831 So.2d 988. Two days after Bester’s death on April 27, 1993, his widow and two of his children brought an action to preserve the vehicle. On March 2, 1994, plaintiffs amended the lawsuit, named several defendants, and sought damages for his wrongful death and the survival action. On March 23, plaintiffs added another defendant. On March 16, 1994, Blanche Beason on behalf of her minor child, Jonathan Beason, intervened, alleged the decedent was his biological father and sought damages for his wrongful death. In response to defense interrogatories, Beason admitted he had not been legitimated or acknowledged by his father. The defense sought a summary judgment because Beason did not have a right of action for wrongful death, since Beason was not acknowledged and 1 Khad not timely sought filiation to the decedent. The Fourth Circuit Court explained:

... [Hjarsh, technical rules of pleading are not favored in Louisiana and ... courts should look beyond the style and caption of a party’s pleadings and construe them so as to achieve substantial justice. We also agree that a court may consider pleadings as constituting an action for filiation regardless of whether a party entitles them as such. Whether a particular pleading can reasonably be construed as an action for filiation, however, should be determined on a case-by-case basis.

In re Bester, 828 So.2d at p. 648.

The court noted that:

• The petition for intervention merely asserted a right of intervention by the decedent’s natural child who sought recovery for the alleged wrongful death of his biological father.
• The petition failed to plead any specific facts which supported Beason’s con-clusory claim of the decedent’s paternity.
• The intervention contained no prayer asking for recognition of Beason as a child of the decedent.
• Beason attached no documents to his intervention tending to prove his allegation that decedent was his father.

The Bester court concluded that the child’s petition was simply an intervention and could not reasonably be construed to be an action for filiation.

In Lewis v. Transocean Terminal Operators, Inc., 2002-0152 (La.App. 4th Cir.12/11/02), 834 So.2d 1180, writs denied, 2003-0080, 840 So.2d 572 (2003), 2003-0111 (La.3/28/03), 840 So.2d 572, the seven illegitimate children of the decedent, Brian Walker, filed a wrongful death and survival action on January 21, 2000, following his death on January 15, 2000. A succession proceeding was filed, which included an affidavit of death and heirship | (¡stating that the decedent had seven minor children who were the plaintiffs in the wrongful death and survival action. Neither the wrongful death petition nor the succession pleadings specifically prayed for filiation of the seven minor children. On March 19, 2002, an amended petition expressly seeking filiation was filed in the succession proceeding, and a judgment of filiation was rendered.

The Lewis court stated that for the seven illegitimate children to have a right of action for the wrongful death of Walker, they must have been filiated by the decedent. Under La. C.C. art. 209, a filiation action must be brought within one year from Walker’s death. Under the provisions of La. C.C.P. art. 1153, an amended petition may relate back to the filing of the initial 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, the amendment relates back to the date of filing the original pleading.

The Lewis court opined that, as long as the comparison of the amended petition to the original petition gave fair notice of the factual situation out of which the amended petition arose, the amended petition related back to the time of the original filing even if the amended petition sought additional relief. The original petition in the succession and the accompanying affidavit asserted the decedent was the father of the seven children, the decedent had never married, and the seven children had last names different from the decedent’s. Therefore, a person reading the petition and affidavit had fair notice of the factual situation (request for filiation) set out in the |7amended petition. For the foregoing reasons, the Leivis court concluded that the amended petition related back to the initial filing of the succession petition.

The Lewis opinion distinguished Thomas v. Sister of Charity of the Incarnate Word Shreveport, 97-1443 (La.7/8/98), 713 So.2d 466, in which one illegitimate child sued for wrongful death and filiation. More than one year after the death, four other illegitimate children filed an amended wrongful death and filiation petition. The petition of the additional four illegitimate children was untimely. Thomas, supra. The initial Thomas petition did not give fair notice of four additional illegitimate children in contrast to Lewis, in which the seven plaintiffs were named in all the pleadings. In addition, the Lewis opinion contrasted the result in Bester, supra, because Beason, the alleged illegitimate child, never filed an amended petition explicitly seeking filiation to the decedent.

The Louisiana Supreme Court granted a writ in Reese v. State of La., Dept, of Public Safety and Corrections, 2002-1429 (La.App. 1st Cir.5/9/03), 845 So.2d 620, writ granted, 2003-1615 (La.10/17/03), 855 So.2d 744. The First Circuit concluded that the mere assertion that the plaintiffs were the children of the deceased, even when combined with different last names of the plaintiff children and deceased father, was insufficient to give fair notice of the general fact situation out of which a filiation action arose. The amended petition seeking filiation did not relate back to the timely filing of the initial wrongful death petition.

|sFoIlowing James Williams’ death on April 30, 2000, at Angola State Penitentiary, Donald' Reese and the minor James Nabornne (represented by his mother) sued on April 4, 2001, for wrongful death damages as decedent’s surviving children. The state filed a peremptory exception of no right of action that plaintiffs were not entitled to recover because they were not legitimate children, had not shown filiation, and had not timely filed a filiation action. Thereafter, plaintiffs filed an amended petition alleging formal acknowledgment or, in the alternative, informal acknowledgment. The initial petition stating that plaintiff was decedent’s surviving child with no other factual allegations concerning filiation was not sufficient to constitute an action for filiation, because it did not give fair notice of the situation out of which the filiation claim arose. Moreover, the First Circuit concluded that the amended petition requesting filiation did not relate back to the timely suit for wrongful death.

It is well established that Article 1153 permits amendment, despite technical prescriptive bars, where the original pleading gives fair notice of the general fact situation out of which the amended claim arises. Where there is some factual connexity between the original and amended assertions, together with some identity of interest-between the original and the supplemental party, amendment should be allowed.

Reese, supra, at p. 622. In addition to finding a lack of fair notice, the court found that filiation action did not arise out of the same conduct or occurrence; i.e., the state’s alleged negligence. The Reese appellate court found Lewis, supra, to be factually inapplicable.

[flOn February 20, 2004, the supreme court reversed the appellate decision and remanded the matter for further proceedings. Reese v. State of La., Dept. of Public Safety and Corrections, 2003-1615 (La.2/20/04), 2004 WL 318693. Justice Kimball in the opinion stated:

Pursuant to this article [La. C. C.P. art. 1153], so long as a comparison- of the amended petition to the original petition shows that the original petition gave fair notice of the factual situation out of which the amended petition arises, the amended petition will relate back to the date of the filing of the original petition and prescription with regard to the amendment is interrupted as of the filing date of. the original petition. Grior [Girior] v.. South Louisiana Med. Ctr., 475 So.2d-1040 (La.1985). Where there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and supplemental party, amendment should be allowed and excepted from the interests intended .to be protected by the prescriptive statutes. Baker v. Payne & Keller of Louisiana, Inc., 390 So.2d 1272, 1275 (La.1980); Tate, J., Amendment of. Pleadings in Louisiana, 43 Tul.L.Rev. 211, 234 (1969). The essence of interruption of prescription is notice. Gunter v. Plauche, 439 So.2d 437, 440 (La.1983). Thus, the question before this court is whether the allegations of the plaintiffs petition sufficiently put the defendants on notice that a filiation action was at issue in this case.

Following-the supreme court’s opinion in Reese, supra, we construe the Jacksons’ minimal assertion that the decedent was their father as sufficient to put filiation at issue in their action for damages. Under the facts of this case, the defendants clearly knew filiation was at issue and filed pleadings accordingly. Harsh, technical rules of pleading are not favored in Louisiana, and pleadings should be construed to achieve substantial justice. See, Reese, supra.

The Jackson plaintiffs should not be dropped out of court through a procedural trapdoor, notwithstanding their skeletal pleadings. This record clearly demonstrates that the Jackson plaintiffs intended their paternity to be |inat issue, and the defendants knew that from the outset. The Jackson plaintiffs should be allowed their day in court. The defendants are not surprised or prejudiced. The initial petition raised the issue of the Jackson plaintiffs’ paternity, and the amended petition specifically seeking filiation related back to the initial petition, which was an admittedly bare-bones “attempt” to set forth the paternity of the Jackson plaintiffs. See, La. C.C.P. art. 1153. Looking beyond the strict wording of the pleadings themselves results in justice being served.

DECREE

For the foregoing reasons, the trial court’s decision to overrule the defendants’ exception of no right of action is affirmed. The writ of certiorari granted by this court is recalled, and the matter is remanded for further proceedings in accordance with this opinion. .

WRIT RECALLED. TRIAL COURT’S DECISION OVERRULING THE DEFENSE EXCEPTION OF NO RIGHT OF ACTION IS AFFIRMED. REMANDED.

      . The mother of the minor child produced proof of decedent’s acknowledgment of the child and the trial judge dismissed the exception as to the minor child.


author: I,STEWART, J.

text:
    Richard Joseph BLANCHARD, Sr. and Patricia Stephens Blanchard, Plaintiffs-Appellants v. The ABC INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 38,005-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.
    Rehearing Denied April 1, 2004.

      Donald L. Kneipp, Monroe, for Appellants, Richard J. Blanchard, Sr. and Patricia S. Blanchard.
    Hayes, Harkey, Smith & Cascio, by Joseph D. Cascio, Jr., John C. Roa, Monroe, for Appellees, Clara M. Sartor, Coregis Ins. Co. and Snellings, Breard, Sartor, In-abnett & Trascher, L.L.P.
    Before STEWART, PEATROSS and DREW, JJ.
   I,STEWART, J.

The plaintiffs, Richard J. Blanchard, Sr., and Patricia Blanchard (the “Blanchards”), appeal a summary judgment dismissing their legal malpractice action against the defendants, Clara Moss Sartor, Coregis Insurance Company, and Snellings, Breard, Sartor, Inabnett & Trascher, L.L.P. The trial court found the underlying transaction or occurrence of this suit to be the same as that underlying a prior declaratory judgment action by the Blanchards. For the following reasons, we reverse the trial court’s judgment and remand for further proceedings.

FACTS

The Blanchards filed the instant action on July 10, 1998. Their petition alleges that they met with Sartor on May 27,1997, about their desire to transfer their residence in the River Oaks subdivision in Monroe, Louisiana, to their son in exchange for undeveloped property owned by him in the same subdivision. This exchange was contingent upon whether the undeveloped property could be resubdivid-ed to allow the Blanchards to construct a residence on half of the property and sell the remaining half to a third party. Sartor handled the resubdivision of the property, and the plat of resubdivision was filed in the public records of Ouachita Parish on July 31, 1997. The resubdivision resulted in the configuration of the undeveloped property into Lots 16 and 17, Block C, Unit 11 of the River Oaks Subdivision.

The petition further alleges that in August 1997, the Blanchards began construction of their new home on Lot 17. The exchange of property with their son was done on December 15, 1997. Thereafter, the Blanchards pfound an interested purchaser for Lot 16. This person was also interested in purchasing a portion of the property adjacent to Lot 16 and owned by the neighboring landowners, Charles Rand, Jr., and Jane Halan Rand (the “Rands”). On February 14, 1998, the Rands informed the Blanchards that a recorded deed from 1989 (the “1989 deed”) between themselves and a predecessor-in-title to the Blanchards prohibited the use of resubdivided Lot 16 as a separate building site. The Rands contended that the 1989 deed created a non-apparent predial servitude which they intended to enforce. According to the Blanchards’ petition, Sartor would not represent them in seeking to remove the cloud from their title unless they agreed to sign a waiver of their right to file a malpractice action. The Blanch-ards refused to sign a waiver. Instead, they filed a declaratory judgment action against the Rands on May 11, 1998, and then filed the instant malpractice action against Sartor, her law firm, and her insurer.

In the declaratory judgment action against the Rands, the Blanchards sought to have the court declare that the language in the 1989 deed did not create a predial servitude. In the instant malpractice action, the Blanchards sought damages for the loss of the sale of resubdivided Lot 16 and loss to the value of their property due to Sartor’s alleged failure to advise them of the non-apparent servitude. The defendants’ response to the malpractice suit was to file a number of exceptions, including an exception of prematurity based on there being no judicial determination as to whether the 13Blanchards’ title was in fact encumbered by a non-apparent predial servitude. The defendants also intervened in the declaratory action to argue that the language of the 1989 deed did not create a predial servitude.

Although the trial court ruled in favor of the Blanchards and intervenors in the declaratory judgment action, the judgment was reversed on appeal. In Blanchard v. Rand, 34,442 (La.App.2d Cir.3/2/01), 781 So.2d 881, writ denied, 2001-0897, 2001-0931 (La.6/1/2001), 793 So.2d 193, 194, this court concluded that the 1989 deed created a predial servitude prohibiting the development of multiple residential building sites. Upon the finality of this judgment, the malpractice action resumed.

On November 13, 2002, the defendants filed a motion for summary judgment seeking dismissal of the malpractice action under La. C.C.P. art. 425, res judicata, and estoppel. The defendants asserted that the underlying transaction or occurrence was the same for the both the declaratory judgment action and the malpractice action, and that the Blanchards were required to assert both causes of action in one suit. By failing to do so, they waived their malpractice claims. The defendants also asserted that because the Blanchards changed their position regarding the servitude from one suit to the other, estoppel barred their malpractice suit.

The trial court granted the defendants’ motion for summary judgment. The trial court found there were no genuine issues of material fact and determined that the defendants were “entitled to judgment as a matter of law in that the underlying transaction or | occurrence is the same transaction or occurrence in the declaratory judgment action.” This appeal by the Blanchards followed.

DISCUSSION

Because this is an appeal from a summary judgment, we conduct a de novo review utilizing the same criteria that guide the trial court’s consideration of whether summary judgment is appropriate. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So.2d 1152; Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192. At issue is whether the instant lawsuit is barred because the Blanchards failed to assert all their causes of action in the prior declaratory judgment action.

La. C.C.P. art. ¿25 and Res Judicata

La. C.C.P. art. 425, the preclusion by judgment provision, provides that “a party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” Jurisprudence interpreting article 425 cautions that the failure to assert a mandatory cause of action, ie. one arising from the same transaction or occurrence that is the subject matter of the litigation, amounts to a waiver of that claim. Westerman v. State Farm, 2001-2159 (La.App. 1st Cir.9/27/02), 834 So.2d 445; Medicus v. Scott, supra; and Ensenat v. Edgecombe, 97-2239 (La.App. 4th Cir.3/11/98), 707 So.2d 1059, writ not considered, 98-1188 (La.6/19/98), 719 So.2d 473. However, this procedural rule is not mandatory; it will yield to the interests of justice. Craig v. Adams Interiors, Inc., 34,591 (La.App.2d Cir.4/6/01), 785 So.2d 997; Hudson v. City of Bossier, 33,620 (La.App.2d Cir.8/25/00), 766 So.2d 738, writ denied, 00-2687 (La.11/27/00), 775 So.2d 450.

The law of res judicata is set forth in La. R.S. 13:4231 as follows:

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 final 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 central inquiry in applying the doctrine of res judicata is whether the second action asserts a cause of action which arises out of the same transaction or occurrence that was the subject matter of the first action. Judicial economy and fairness are served by requiring the plaintiff to seek all relief and assert all rights arising out the same transaction or occurrence. La. R.S. 13:4231, Comments-1990; Hudson v. City of Bossier, supra.

This court has previously explained the scope of La. R.S. 13:4231 as follows:

La. R.S. 13:4231 embraces the broad usage of the phrase “res judicata ” to include both claim preclusion (res judi-cata ) and issue preclusion (collateral es-toppel). Under claim preclusion, a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue | ^preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense, has two different aspects: 1) foreclosure of relitigating matters that have never been litigated but should have been advanced in the earlier suit; and 2) foreclosure of relitigating matters that have been previously litigated and decided.

Hudson v. City of Bossier, 766 So.2d at 743.

In Hy-Octane Investments, Ltd. v. G & B Oil Products, Inc., 97-28 (La.App. 3d Cir.10/29/97), 702 So.2d 1057, the third circuit examined the meaning of “transaction or occurrence” as used in seven articles of the Code of Civil Procedure and La. R.S. 13:4231. Finding no specific definition for “transaction or occurrence” in the articles in which it is used, the court turned to other sources to define the phrase. The opinion states:

Some definitions are available, however. Black’s Law Dictionary defines “transaction” as, inter alia, “a broader term than ‘contract,’ ” and “a group of facts so connected together as to be referred to by a single legal name; as a crime, a contract, a wrong.” Among the definitions of “transaction or occurrence” found in 42 Words and Phrases, Supp. p: 201 (1997), is “whether pertinent facts of different claims are so logically related that issues, of judicial economy and fairness mandate that all issues be tried in one suit.” The federal courts have given the words • “transaction or occurrence” a broad and liberal interpretation in order to avoid a multiplicity of suits. All logically related events entitling a person to institute legal action against another generally are regarded as comprising a “transaction or occurrence.” (Citations omitted.)

Hy-Octane, 702 So.2d at 1060.

In moving for summary judgment, the defendants argued that both La. C.C.P. art. 425 and La. R.S. 13:4231 bar litigation of the Blanchards’ claims |7in their malpractice suit because those claims arise out of the same transaction or occurrence as the prior declaratory judgment action. Defendants argued that both suits involve the same property and the same deed. As such, all claims should have been asserted in the declaratory judgment action. Defendants make the argument for claim preclusion. They also cite two cases, Medicus, supra, and Westerman, supra, in support of their position.

Medicus, supra, involved a possessory action by Medicus against a neighboring landowner, Nathanael. Both parties’ titles derived from a common vendor. When Nathanael converted the matter to a peti-tory action, Medicus amended his petition to join the vendor as a defendant for purposes of having the boundary judicially fixed. This was met with an exception of res judicata by the vendor. Medicus had previously sued the vendor in quanti mi-noris alleging redhibitory defects, had settled that suit, and had signed a receipt and release discharging the vendor “from any and all actions, causes of action, claims, ... arising out of the sale.” The exception of res judicata was granted and affirmed on appeal. The basis for the ruling was both the existence of the signed release and the fact that both .the prior claim by Medicus against his vendor and the subsequent boundary claim arose from the vendor’s sale of the property to Medicus. For purposes of the exception of res judicata, the transaction underlying the subject matter of the litigation between Medicus and his vendor was the sale of the property.

. [ «The claims in Westerman, supra, arose from an automobile accident. Westerman sued the parties at fault in the accident and their insurer. The trial court assessed damages at $20,000, and the parties reached a compromise for payment of the $10,000 policy limits. Thereafter, Wester-man sued her own UM insurer, but the trial court dismissed the case based on preclusion by judgment under La. C.C.P. art. 425. The dismissal was affirmed on appeal. The appellate court determined that the suit against the UM insurer and the prior tort suit arose, from the same occurrence, namely, the automobile accident. By failing to assert the claim against her UM insurer in the first suit, Westerman waived that claim.

In opposing the defendants’ motion for summary judgment, the Blanchards argued that, while there is some factual overlap, the two actions are not based on the same transaction or occurrence. -The Blanchards asserted that the transaction or occurrence underlying the declaratory judgment action is the legal effect of 1989 exchange deed, whereas the instant action involves the propriety of the legal advice given by Sartor. ■

Unlike the situations in Medicus, supra, and Westerman, supra, the case sub judice and the prior declaratory judgment have no common transaction or occurrence underlying both suits. The causes of action asserted in Medicus and Westerman arose directly from the occurrences, the sale of the property and the automobile accident respectively, which formed the basis of the subject matter of the litigation. The accident entitled Westerman to sue both the parties at fault and her UM insurer for damages, |fland the sale of the property entitled Medicus to sue his vendor for claims arising from the sale.

Here, the causes of action asserted by the Blanchards in their two suits do not arise from the same transaction or occurrence. The 1989 deed executed between the Rands and the Blanchards’ predecessors-in-title is what entitled the Blanch-ards to file the declaratory action to determine whether that deed established a predial servitude. The transaction or occurrence that was the subject matter of the litigation in the declaratory action was the 1989 exchange deed and the dispute between the Rands and the Blanchards, neighboring landowners, regarding the meaning of that deed.

The instant malpractice suit arose from the lawyer-client relationship between Sartor and the Blanchards. The lawyer-client relationship entitled the Blanchards to assert the claims at issue in this litigation. The transaction or occurrence underlying the subject matter of this suit is the legal services performed by Sartor.

These two suits involve different issues of fact and law. • The declaratory action was limited to judicial interpretation of certain language in a deed, whereas this matter involves a determination of whether Sartor met the standard of care in rendering legal services and advice on behalf of the Blanchards. Even though Sartor’s legal services dealt with the same property that was the subject of the declaratory judgment action, this factual link is not what gave rise to either cause of action and does not require the assertion of both claims in one suit under La. C.C.P. art. 425. Because we |infind that this suit does not arise from the same transaction or occurrence as the prior declaratory judgment action, we conclude that neither La. C.C.P. art. 425 nor La. R.S. 13:4231 requires dismissal of the instant litigation. Accordingly, summary judgment should have been denied.

Finally, we find no waiver of the malpractice claims by the Blanchards. Based on our holding that the two actions did not arise from a common transaction or occurrence which would have required the Blanchards to assert all claims in one action, the Blanchards did not waive their malpractice claims by failing to assert them in the declaratory action or by otherwise failing to reserve their rights.

Estoppel

In their motion for summary judgment, the defendants also asserted that the Blanchards should be estopped from litigating this suit because they are taking the opposite position to that taken by them in the declaratory judgment action. We find no merit in this contention.

Equitable estoppel is “the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct.” Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19; John Bailey Contractor v. State, Dept. of Transp. & Dev., 439 So.2d 1055 (La.1983). For estop-pel to apply, there must be: (1) a representation by work or conduct; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. John Bailey Contractor, supra. Estoppel is not |nfavored in our law. Id. Estoppel is generally a doctrine of last resort. Hotuard Trucking Co., Inc. v. Stassi, 485 So.2d 915 (La.1986), cert. denied, 479 U.S. 948, 107 S.Ct. 432, 93 L.Ed.2d 382 (1986).

The defendants claim that they intervened in the declaratory judgment action based on the Blanchards’ assertion that there was no predial servitude. However, the intervention was filed after the Blanch-ards filed the malpractice suit. Defendants were aware of the pending malpractice suit and cannot claim that they relied on the Blanchards’ contentions that the 1989 deed did not create a servitude as an indication that they would not pursue the claims of malpractice. The defendants were clearly on notice that the Blanchards held them responsible for the losses they allegedly suffered as a result of the alleged failure of Sartor to advise them of the possibility of a servitude affecting their plans for the property. By intervening in the declaratory action, the defendants sought to protect their own interests by arguing the position that would most benefit them in defending against the claims of malpractice. Accordingly, we find no basis for the defendants to have justifiably relied on the Blanchards’ representations in the declaratory judgment action, nor do we find that these defendants changed positions to their detriment based on any such reliance. The elements of estoppel are not met.

CONCLUSION

For the reasons set forth in this opinion, we reverse the judgment of the trial court which granted summary judgment in favor of the defendants, and we remand this matter for further proceedings.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, PEATROSS and DREW, JJ.

Rehearing denied.

      . The Blanchards initially referred to Sartor's insurer as "ABC Insurance Company” in their petition. They later amended the petition to name the correct insurer, Coregis Insurance Company.

      . The articles cited included La. C.C.P. arts. 425 (preclusion by judgment), 531 and 532 {lis pendens), 891 (petition formalities), 1061 (compulsory reconventional demand), 1071 (cross-claims), and 4845 (jurisdictional limits of city and parish courts). The court also referenced the use of the phrase “conduct, transaction, or occurrence” in La. C.C.P. art. 1153 dealing with when an amendment of a pleading relates back for prescription purposes.


author: JgLOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Henry A. DYKES, Sr., Appellant.
    No. 38,092-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2004.

      Randy S. Kravis, Davenport, Files & Kelly, by: Thomas Williams Davenport, Jr., Monroe, for Appellant.
    Jerry Jones, District Attorney, Cynthia Lavespere, Assistant District Attorney, for Appellee.
    Before BROWN, STEWART and LOLLEY, JJ.
   JgLOLLEY, J.

The defendant, Henry A. Dykes, Sr. (“Dykes”), was charged by bill of information with three counts of sexual battery of the juvenile A.G., in violation of La. R.S. 14:43.1(A)(1). After a trial by jury, Dykes was found guilty as charged. He was sentenced to serve ten years at hard labor without benefit of probation, parole or suspension of sentence on each count. Count two was ordered to run consecutively with count one, and count three was ordered to run concurrently with counts one and two. The defendant appeals his conviction and sentence. For the following reasons, we affirm.

FACTS

Dykes lived with Earlene Green (“Green”) for several years, including the time period between January 1, 2001, and July 31, 2001, during which time Green regularly babysat her grandchildren for her daughter-in-law, Tiffany Green, (“Tiffany”). The grandchildren included the victim, A.G. (born on April 11, 1996), and her two brothers. A.G. referred to the defendant as “Poppa” or “Poppa Henry.”

In late July 2001, Tiffany observed A.G. place two fingers between her brother’s legs and begin to “rub.” When questioned by her mother, A.G. stated that she was doing “what Poppa did every time she sat on his lap.” A.G. explained to her mother that when she sat on Poppa’s lap he put his fingers under her panties and rubbed. Tiffany and her husband took A.G. to pediatrician Barry Ricks, M.D. (“Dr.Ricks”) the next day. Dr. Ricks’ office alerted the Ouachita Parish Sheriffs Office, and A.G. was interviewed by Detective Jay Eller-man (“DetEllerman”) a couple of days thereafter. | .¡During this interview, A.G. placed a mark on the vagina of an anatomical drawing to show where Dykes touched her.

A.G.’s parents contacted L.M., one of Dykes’ two adult daughters. A subsequent investigation revealed that he fondled his daughter, L.M., beginning when she was eight years old until she turned fifteen. Dykes would touch L.M.’s vagina with his hand when she sat in his lap to watch television and when she sat next to him in the car. The abuse ended when L.M. told her mother about the abuse, which was not reported to the authorities.

Dykes was subsequently interviewed by Det. Ellerman during the course of his investigation in August 2001. After being advised of his Miranda rights, Dykes admitted to Det. Ellerman and Detective Jay Via (“DetVia”) that he fondled the victim on several occasions by placing his hand inside the victim’s underwear and rubbing her vagina. The most recent acts Dykes could remember occurred within a six-month period of time. Dykes even stated that one act occurred on a Tuesday at the end of July. He described three separate acts to the officers, and approximated that the fondling acts lasted about 15 to 25 seconds. He admitted that the fondling occurred while the victim sat on his lap in the recliner. Dykes also admitted that the fondling, sexually aroused him and brought back memories of molesting his adult daughter, L.M., when she was a child. However, he denied ever fondling his other daughter, L.J. Dykes’ statement was freely and voluntarily given, but he refused to give a recorded statement. After his statement, Dykes was arrested.

|4Pykes was charged by bill of information with three counts of sexual battery. Subsequently, the state filed two notices of intent to use evidence of other crimes in accordance with State v. Prieur, 277 So.2d 126 (La.1973), and a motion for a Prieur hearing. One notice alleged that the evidence of other crimes was admissible under La. C.E. art. 412.2 to prove that defendant committed similar crimes of sexual assault. The other alleged that the evidence of other crimes was admissible under La. C.E. art. 404(B) to prove defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.

At the Prieur hearing, the state sought to determine whether evidence was admissible under La. C.E. art. 412.2, as well as to determine, in the alternative, whether evidence was admissible under La. C.E. art. 404(B). The trial court granted the state’s motion to introduce evidence of other crimes. It found clear and convincing evidence through the. testimony of the defendant’s adult daughter, L.J., and the stipulation of his other adult daughter L.M., that the defendant committed acts of sexual fondling when the women were children. The court found that the evidence was admissible because it shows lack of accident, and possibly because it shows motive and other “independent means of relevancy.” It held that the probative value outweighed the prejudicial effect for the same reasons set forth in State v. Jackson, 625 So.2d 146 (La.1993), and limited the evidence to “nothing beyond” genital fondling. The court also found that there had been an adequate showing under Prieur of the notice of intent to use the prior sexual acts of the defendant. The court further held that the use of the evidence of | ¡¡similar crimes was admissible under La. C.E. art. 412.2 and that the article is procedural in nature and may be applied retroactively without violating the provisions against ex post facto laws.

Regarding the trial court’s ruling, Dykes filed an application for supervisory review with this court and by an order signed March 28, 2002, this court denied his writ, stating:

The evidence of other crimes is admissible under La. C.E. art. 404(B) to prove a plan to systematically engage in nonconsensual relations with young females as they mature physically. State v. Jackson, 625 So.2d 146 (La. 1993). “In addition, La. C.E.art. 412.2 apparently allows this evidence to be admissible.”

The trial of the matter proceeded, at which time the facts set forth herein-above were admitted into evidence. The state presented the trial testimony of A.G., and her mother, Tiffany. A.G. identified Dykes as “Poppa,” and related that when she was at Green’s house, she would sit in Poppa’s lap and he would touch her “private” inside her underwear, indicating her vagina. Dykes’ age at trial (63) and date of birth (September 10, 1939) were stipulated at trial.

L.M., who was forty-two years old at the time of trial, related the details of her father’s sexual abuse. L.J., the defendant’s other adult daughter, who was 38 years old at the time of trial, testified that the defendant fondled her vagina with his hand when she was a child. The abuse started when L.J. was about 5 years old and ended when she was about age 15 when she told her mother. The abuse was never reported to the police. L.J. also testified that she had observed the defendant fondling her sister, L.M., when L.M. was a child. At trial, Det. Ellerman and Pet. | fiVia related the details of their investigation, including the interviews with A.G. and Dykes.

Additionally, the defense presented the trial testimony of A.G.’s teacher, Tanya Head (“Head”). She observed A.G. in kindergarten performing acts that had sexual connotations. These acts included touching other children “in their privates” and masturbation. Head also related that A.G. was very withdrawn during this time. At the conclusion of the trial, the defendant was convicted of all three counts of sexual battery.

A sentencing proceeding subsequently was held at which time the trial court meticulously set forth its reasons for sentencing in accordance with La. C. Cr. P. art. 894.1. The pre-sentence investigative report was noted, as was Dykes’ social and work history. The immense impact of the crimes on the young victim and her family was discussed, as evidenced by a letter to the court from the victim’s family. Also noted was the impact of the sexual abuse on Dykes’ own two daughters. In mitigation, the trial court considered Dykes’ health, income, age and lack of prior felony convictions. He was then sentenced to serve 10 years at hard labor without benefit of probation, parole or suspension of sentence on each count. Count two was ordered to run consecutively with count one, and count three was ordered to run concurrently with counts one and two. As an aggravating circumstance in support of imposition of the two consecutive sentences, the trial court noted Dykes’ attempt to repudiate his confession. The trial court stated that it would not sentence Dykes to 30 years (that is, three consecutive 10-year ^sentences) because of his health and circumstances. Dykes’ oral motion to reconsider sentence was denied, and he now appeals.

DISCUSSION

In his first assignment of error, Dykes argues that the trial court erred when it ruled admissible alleged other crimes evidence that Dykes had previously molested his two daughters.

The state concedes that a decision that was considered by supervisory writ can be considered on appeal, citing State v. Sharp, 35,714 (La.App.2d Cir.02/27/02), 810 So.2d 1179, writ denied, 2002-1736 (La.06/06/03), 845 So.2d 1081. However, the state contends that the record supports this court’s previous ruling that the other crimes evidence was admissible. In State v. Sharp, supra, this court reiterated the standard of review as stated by the Louisiana Supreme Court in State v. Humphrey, 412 So.2d 507 (La.1981):

When this court considers questions of admissibility of evidence in advance of trial by granting a pretrial application for supervisory writs (rather than deferring judgment until an appeal in the event of conviction), the determination of admissibility does not absolutely preclude a different decision on appeal, at which time the issues may have been more clearly framed by the evidence adduced at trial. Nevertheless, judicial efficiency demands that this court accord great deference to its pretrial decisions on admissibility, unless it is apparent, in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result •...

Because of the state’s concession, this court is therefore not faced with the issue of whether defendant is barred from raising this issue on appeal, but rather whether defendant’s first assignment .of error has merit. In that regard, Dykes specifically argues that the trial court erred when it |sruled that Article 412.2 of the Louisiana Code of Evidence should be applied retroactively to his case and that it did not violate the constitutional prohibition against ex post facto laws.

A review of the subsequent' trial record, however, reveals no additional evidence regarding the admissibility issue of Dykes’ prior crimes evidence that is patently erroneous or that would produce an unjust result. After careful review of the record, we concur with this court’s rationale when it previously denied Dykes’ writ in this case on the basis that the evidence of other crimes is admissible under La. C.E. art. 404(B) to prove a plan to systematically engage in nonconsensual relations with young females as they mature physically. See State v. Jackson, supra. Because we find that the contested evidence satisfies art. 404(B), we therefore pretermit further discussion of defendant’s first assignment of error regarding admission of evidence of other crimes under, the ex post facto application of La. C.E. art. 412.2.

In defendant’s next assignment of error, he contends that the trial court erred in ruling that the probative value of the alleged other crimes evidence out weighed its prejudicial effect. Specifically, he contends that the testimony from Dykes’ two daughters in which they indicated that he previously molested them was nonetheless inadmissible under both articles 412.2 and 404(B), because the probative value of this evidence was substantially outweighed by its unfair prejudicial effect.

For evidence of other, crimes to be admissible, the state must prove with clear and convincing evidence that (1) the other acts or crimes occurred |9and were committed by the defendant, (2) the other acts satisfy one of the requirements of La. C.E. art. 404(B)(1), i.e., motive, intent, knowledge, identity, absence of mistake or accident, and (3) the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, supra.

Foremost, at least one of the enumerated purposes in Article 404(B) “must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible.” State v. Kennedy, 2000-1554 (La.04/03/01), 808 So.2d 916, writ denied, 2002-2088 (La.01/24/03), 836 So.2d 43, citing State v. Jackson, supra, and State v. Ledet, 345 So.2d 474 (La.1977). Additionally, the evidence, even if independently relevant, must be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading of the jury, or by considerations of undue delay or waste of time. La. C.E. art. 403; see also State v. Moore, 278 So.2d 781 (La.1972). Finally, the requirements set forth in State v. Prieur, supra at 130, must be met. State v. Kennedy, supra.

Regarding the probative value/unfair prejudice balancing test in a situation similar to the instant case, the supreme court in State v. Jackson, supra, held:

We find that the time between the other crimes evidence and the offense charged is but one factor to be considered when balancing probative value, prejudicial effect and relevancy. Length of time between the offenses should not exclude otherwise admissible evidence unless the lapse strips the testimony of probative value. While there must be some connection between the crime charged and the other acts or crimes, the mere passage of time will not necessarily defeat admissibility. However, such a determination must be made on a case by case basis taking into account the peculiar facts of hpevery individual case with much discretion given to the trial judge. (Citations omitted.)

In the case at bar, Dykes’ sexually as-saultive behavior on two daughters was virtually identical to that inflicted on A.G. This improper sexual conduct was carried out in a similar manner and all three victims were approximately the same age when the sexual conduct commenced. In all cases, the young children were in defendant’s home and/or in his custody. The similarities warrant admissibility to show the occurrence of a crime through a common design. See State v. Taylor, 36,066 (La.App.2d Cir.06/12/02), 821 So.2d 633, writ denied, 2002-2068 (La.06/20/03), 847 So.2d 1222.

We find the record clearly supports the trial court’s ruling. Although urged by the defense as an important consideration, remoteness is but one factor to be considered in this balancing test. State v. Jackson, supra. Such determination must be made on a case-by-case basis taking into account the particular and peculiar facts of every individual case with much discretion given to the trial judge. The fact that the defendant fondled his adult daughters’ genitalia when they were the victim’s age is neither overly prejudicial nor too remote. We find the trial court properly limited the other crimes testimony to genital fondling and nothing beyond; therefore, we find this assignment of error is without merit.

In defendant’s last assignment of error Dykes contends that his total sentence of twenty years imprisonment with hard labor was cruel, excessive and unusual given his special circumstances. We disagree.

InThe test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art 894.1. State v. Landos, 419 So.2d 475 (La.1982), State v. Walker, 573 So.2d 631 (La.App. 2d Cir.1991). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App.2d Cir. 01/20/88), writ denied, 521 So.2d 1143 (1988).

There is no requirement that specific matters be given any. particular weight at sentencing. State v. Jones, 33,111 (La. App.2d Cir. 03/01/00), 754 So.2d 392, 394, writ denied, 2000-1467 (La.02/02/01), 783 So.2d 385; State v. Callahan, 29,351 (La. App.2d Cir.02/26/97), 690 So.2d 864, writ denied, 97-0705 (La.09/26/97), 701 So.2d 979.

|12Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, Sec. 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480.So.2d 288 (La.1985); State v. Bradford, supra. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App.2d. Cir.08/20/97), 700 So.2d 541; State v. Walker, supra.

The trial court imposed maximum sentences of ten years imprisonment at hard labor without benefits for the defendant’s convictions of three counts of sexual battery, two of which were ordered to run consecutively. The record more than adequately shows that the trial court was aware of the matters urged by the defense prior to imposing sentence, i.e., the defendant’s age and disabling medical condition. The fact that the defendant has a disability is not persuasive mitigation since his physical difficulties did not prevent him from committing the serious offenses he was found guilty of nor should they be used as an excuse to serve less jail time. State v. Graham, 35,184 (La.App.2d Cir.10/31/01), 799 So.2d 645.

113Moreover, based on this record, it cannot be said that the trial court imposed unconstitutionally excessive sentences upon Dykes, and therefore, we find that the two consecutive sentences are completely justified. Child molesters are amongst the most despicable and egregious of all offenders. When these despicable crimes and Dykes’ punishment are viewed in light of the harm done to society by sexual predators in general, and to this young, innocent victim in particular, his sentences do not shock the sense, of justice. State v. Hogan, supra; State v. Bradford, supra. The defendant’s maximum sentences are totally appropriate.because the instant crimes are the most serious violations of. the offense and Dykes is the worst type of offender. State v. Grissom, supra; State v. Walker, supra. We therefore find this assignment of error to be without merit.

CONCLUSION

For the foregoing reasons, Henry Á. Dykes’ convictions and sentences are- affirmed.

AFFIRMED.