author: I,SOL GOTHARD, Judge.

text:
    CREATIVE RISK CONTROLS, INC. v. S.F. BRECHTEL, Jr., Management Services USA, Inc., (Delaware Corporation), Management Services USA, Inc., (Louisiana Corporation), Cannon Cochran Management Services, Inc., d/b/a Management Services, Inc., Sam P. Cannon, Grover C. Cone, Jr., John Remond, Jerry R. Armatis and Carl O. Ayestas, Jr.
    No. 01-CA-1150.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.
    Rehearing Denied May 19, 2003.

      William W. Hall, Metairie, LA, and Jerome M. Volk, Jr., Kenner, LA, for Plaintiff/Appellant (Creative Risk Controls, Inc.).
    Gary J. Giepert, Jack A. Ricci, New Orleans, LA, for Defendants/Appellees (Sam Cannon and Cannon Cochran Management Services, Inc.).

      T. Allen Usry, John F. Weeks, II, New Orleans, LA, for Defendants/Appellees (Management Services, USA, Inc., Grover Cone, Jr., Jerry R. Armatis and Carl 0. Ayestas, Jr.).
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   I,SOL GOTHARD, Judge.

Plaintiff, Creative Risk Controls, Inc., (CRC), filed suit against defendants for breach of contract; breach of fiduciary duty and usurpation of corporate opportunity; misappropriation of proprietary information and trade secrets; unfair trade practices; conversion, misappropriation and destruction of customer records; and shareholder liability. Defendants, Sam Cannon and Management Services, USA, Inc., filed a reconventional demand against CRC for bad faith claims. Defendant, Sheldon F. Brechtel, filed a reconventional demand.

Thereafter, all defendants filed a motion for summary judgment. The trial court granted summary judgment in favor of all defendants except Brechtel. After the denial of its motion for new trial, CRC filed this appeal.

FACTS

CRC is a Louisiana Corporation. It is a risk management company engaged in the business of providing risk management services and third party claims administration to clients. Bennett Powell and others formed CRC in January of |41992. In June of 1994, CRC entered into an Employment Agreement with Sheldon Bre-chtel, employing him as president of CRC. In August of 1995, CRC entered into an Employment Agreement with Grover C. Cone, Jr., employing him as Vice President/Claims Manager. Also in August of 1995, CRC entered into an Employment Agreement with John Remond, employing him as Safety and Loss Control Manager. Jerry R. Armatis was employed by CRC, part time, in sales. Carl 0. Ayestas, Jr. was retained by CRC as an independent contractor to assist in the handling of marine insurance risks.

Cannon Cochran Management Services, Inc. (MSI), a third party claims administration company, is a foreign corporation. Sam Cannon is the President of MSI.

The undisputed facts reflect that Powell hired Brechtel to run a branch of his insurance agency called Creative Risk Control (CRC). Thereafter, in September of 1995, Brechtel attended the Self-Insured Institute of American Conference. At that time, he met Cannon, who was interested in acquiring a casino business in Illinois. Cannon met with CRC personnel in New Orleans, in November, and followed that meeting with the letter dated November 29,1995.

In January of 1996, Brechtel and Arma-tis met with Cannon while in Las Vegas. Cannon expressed his desire that key people have ownership interest in any entity with which MSI would do business. Bre-chtel and Armatis related that they had asked Powell, but were denied. They began discussing the possibility of a new entity. Upon return to New Orleans, Powell again declined opportunity for ownership.

In late January, while in Chicago to meet with contracts of CRC, Brechtel also met with MSI personnel. Armatis, who had flown up at his own expense, was also present. At that time, they discussed the possibility of a joint venture.

IsAfter the January meeting, Cannon addressed a memo to Board of Directors, in which he stated his requirement for ownership and discussed a joint venture. In the memo he noted his concern that key people had no ownership interest in CRC, and he discussed the possibility that CRC’s employees would resign.

Brechtel resigned on February 12th, as did the other personnel. On February 14th, he formed Management Services USA, Inc. (La.MSUSA), a corporation organized under the laws of the State of Louisiana. That company never issued stock or conducted business, and it was dissolved in August of 1996. In March, Brechtel and the other ex-CRC employees formed MSUSA, LLC, whose assets were later transferred to Management Services USA, Inc. (MSUSA), a foreign corporation, licensed as a third party administrator by the Louisiana Commissioner of Insurance.

ALLEGATIONS

In the petition for relief, plaintiff alleges that Brechtel, Cone and Remond breached their respective employment agreements with CRC. CRC further alleges that these parties (or Brechtel) violated the non-competition clause of their employment agreements. CRC also alleges that Brechtel breached his fiduciary duty, and that Bre-chtel, MSUSA, MSI and Cannon committed acts which caused usurpation of corporate opportunity. Next, CRC alleged that Brechtel, Cone, MSUSA, MSI and Cannon misappropriated proprietary information and trade secrets. CRC further alleges violations of the Louisiana Unfair Trade Practices and Consumer Act against Bre-chtel, MSUSA, MSI and Cannon. Finally, CRC alleges shareholder liability against Brechtel, MSI, Cannon, Armatis and Ayes-tas for dissolution of La.MSUSA.

In his reasons for judgment, the trial court stated that his judgment “granted relief to all parties except Sheldon F. Bre-chtel, Jr. Brechtel, as President, assumed certain duties that the other officers/employees did not assume. Whether Bre-chtel | fibreached his contractual/fiduciary responsibilities should be resolved at trial on the merits.”

In this appeal, CRC alleges that the trial court erred in applying a double standard among CRC’s former employees, contrary to Louisiana law. CRC further argues that the trial court erred in granting summary judgment to some defendants while recognizing that disputed material issues of fact existed as to Brechtel, where those same issues of fact are equally disputed and material to its claims against all of the defendants. The trial court’s ruling denying the summary judgment in favor of Brechtel is not before us at this time. We limit the issues before us to whether the trial court erred in granting summary judgment in favor of the former employees, and the corporate defendants, without consideration of the correctness of the ruling against Brechtel.

ANALYSIS

A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. Summary judgments are now favored in the law and the rules should be liberally applied. Susanaribadi v. Johnson, 97-91 (La.App. 5 Cir. 9/17/97), 700 So.2d 886. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. LSA-C.C.P. art. 966; Perricone v. East Jefferson General Hospital, 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.
The mover bears the burden of proof. Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material factual issues remain. Perricone v. East Jefferson General Hosp., supra. Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; McVay v. Delchamps, Inc., 97-860 (La.App. 5 Cir. 1/14/98), 707 So.2d 90.

Schroth v. Seminole Supermarket, Inc., 02-318 (La.App. 6 Cir. 9/30/02), 829 So.2d 597, 598.

Plaintiffs first allege that the trial court erred in failing to find material issues of fact to the question of whether defendants Cone, Armatis, and Ayestas, and the ^corporate defendants, committed the intentional torts of unlawful breach of fiduciary duty, conversion, misappropriation and usurpation of corporate opportunities. CRC also alleges that the trial court erred in failing to find a breach of duty on the part of its former employees. Further, these alleged breaches of duty constitute an unfair trade practice. In support of its position, CRC cited the case of Cenla Physical Therapy & Rehabilitation Agency v. Lavergne, 94-1538 (La.App. 3 Cir, 5/3/95), 657 So.2d 175, 177, which stated that “employees under certain circumstances owe a fiduciary duty to their employer.” However, actions taken before termination of employment to prepare for a competing business do not necessarily constitute a breach of fiduciary duty or an unfair trade practice.

Our analysis of this matter is guided by the case of Nursing Enterprises, Inc. v. Marr, 30,776 (La.App. 2 Cir. 8/19/98), 719 So.2d 524, 527-8. In that case the court, citing the cases of United Group of Nat. Paper Distributors, Inc. v. Vinson, 27,739 (La.App. 2 Cir. 1/25/96), 666 So.2d 1338 and Wyatt v. PO2, Inc., 26,675 (La.App. 2 Cir. 3/1/95), 651 So.2d 359), said:

Acts which constitute unfair or deceptive trade practices are not specifically defined, but are determined on a case-by-case basis. Conduct is considered unlawful when it involves fraud, misrepresentation, deception, breach of fiduciary duty or other unethical conduct. A defendant’s motivation is a critical factor; the actions must have been taken with the specific purpose of harming the competition.
In determining what constitutes unfair competition, the court must balance the right of the employee to individual freedom on the one hand and the right of the employer to honest and fair competition and to protection of business assets and property in the nature of trade secrets on the other hand. Generally, in the absence of a contrary agreement, an employee is free to compete with' a former employer.
This court stated in United Group, supra:
Without a restrictive agreement, at the termination of her employment, an employee can go to work for a competitor or form a competing business. Even before termination, the employee can seek other work or prepare to compete, except that she may not use confidential information acquired by her from her previous employer. As noted by the court in Wyatt, \9¡supra, an employee’s involvement in forming a competitive entity, including the solicitation of business and the hiring of employees, prior to the terminating her current employment relationship, is not an unfair trade practice.
In addition, the solicitation of customers after the end of an employment relationship does not form the basis for a claim of unfair competition. Further, an employee who enters business in competition with her former employer necessarily utilizes the experience she acquired and the skills she developed while in her former employment.
Competition and free enterprise are favored. As long as conduct is neither unlawful nor offensive to public policy, persons are able to discuss changes of employment, effectuate a change in employment, plan to compete and take preliminary steps in furtherance of that plan.

As in Nursing Enterprises, Inc. v. Marr, supra, plaintiffs have alleged claims of unfair trade practices and breach of duty caused by defendants’ action in creating a competing business.

CRC has first alleged that the trial court erred denying its breach of contract claim, based on the employment agreement signed by Cone. CRC alleged in its petition that the contract contains a non-competition clause. In this case, the clause at issue provides that the employee will “refrain from soliciting customers of Creative for any type insurance business” for a period of two years. In conjunction with this claim, CRC also alleges usurpation of corporate opportunity, alleging that MSU-SA obtained at least one account in direct competition with CRC.

Non-competition clauses are governed by La. R.S. 28:921. The provisions' of La. R.S. 23:921 are also applicable to non-solicitation clauses. “Bugs” Burger Bug Killers, Inc. v. Reiser, 463 So.2d 45 (La.App. 5 Cir.1985). Louisiana has a strong public policy disfavoring non-competition agreements between employers and employees. SWAT 21 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294; Bail Bonds Unlimited, Inc. v. Chedville, 01-1401 (La. App. 5 Cir, 10/29/02), 831 So.2d 403. Louisiana’s strong public policy restricting these types of agreements is based upon an underlying state desire to prevent an loindividual from contractually depriving himself of the ability to support himself and consequently becoming a public burden. Because such covenants are in derogation of the common right, they must be strictly construed against the party seeking their enforcement. SWAT 2k Shreveport Bossier, Inc. v. Bond, supra.

The clause at issue is a non-solicitation, and not a non-competition, clause, and only prevents the solicitation of customers of CRC. Accordingly, there is no breach of contract in working for a competing business.

CRC also objects to the dismissal of its claim for misappropriation of proprietary information and trade secrets, against Cone and MSUSA.

The Louisiana Trade Secrets Act, R.S. 51:1431, et seq, defines a trade secret as:

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The plaintiff in a trade secret case bears the burden of proving “both the existence of a legally protectable secret and a legal basis upon which to predicate relief.” Wyatt v. PO2, Inc., supra at 363.

The trial court found that plaintiff failed to provide any evidence to support these claims, stating that “Defendants have affirmatively established: that the customers of third-party administration firms are widely known in the industry; and that the rates and other information contained in brochures promulgated by CRC was made freely available to potential customers with no restrictions on its use.”

ImCRC next alleges that the trial court erred in finding no disputed facts and in dismissing the claim of unfair trade practices (Louisiana Unfair Trade Practices Act-LUTPA), against MSUSA, MSI and Cannon. In brief, CRC admits that these claims are based on the same factual allegations as its claims for breach of fiduciary duty and misappropriation of proprietary information. The trial court found, and we agree, that:

... CRC has failed to establish that any defendant utilized any information which would be classified as proprietary. One does not violate LUTPA by utilizing the experience acquired and the skills developed while in one’s former employment or profession. Moreover, the mere fact that each individual defendant brought with his knowledge of previous business contacts and relationships and specialized knowledge of the third-party administration business does not constitute a violation of LUPTA.

In their claims against MSI and Cannon, plaintiffs allege that they conspired with the officers of CRC in breach of fiduciary duty, usurpation of corporate opportunities, unfair trade practices and misappropriation of trade secrets. We have found however, that the undisputed facts do not support these claims. We are in agreement with the trial judge, who said that these defendants had no contract or legal relationship with CRC, and that there has been no evidence to show that these defendants acted in any illegal manner and no evidence of unfair methods of competition. Further, there was no evidence of any directive, request or knowledge by Cannon or MSI of any breaches of duty, usurpation of corporate opportunity, or alleged trade secret violations. Finally, plaintiff cannot support a claim for intentional interference with contractual relations, because CRC did not have a contract with any corporation in which Cannon of MSI was an officer. 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La.1989).

Finally, appellants allege that the trial court erred in finding no issues of material fact regarding shareholder liability. Defendants presented evidence to lushow that La.MSUSA never operated. Because the company never performed any acts, defendants cannot be hable for the acts of that company.

For the above-discussed reasons, we find no error in the trial court’s determination that there were no material issues of fact, and that the defendants’ were entitled to summary judgment as a matter of law. Accordingly, the judgment of the trial court dismissing defendants is affirmed.

AFFIRMED.

      . CRC compromised its claims with Remond and he was dismissed from this suit.


source: Caselaw Access Project

author: JJDREW, J.

license: Public Domain

text:
    James Roy FULLER, Jr., Executor of the Succession of Annie Mae Fuller Anderson, Plaintiff-Appellant, v. Wade R. BAGGETTE, Sr., et al., Defendants-Appellees.
    No. 36,952-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 2003.
    Rehearing Denied June 19, 2003.

      Blackwell, Chambliss, Henry, Caldwell, Cagle & Camp, LLP, by Sam 0. Henry III, Ronald Patrick Camp, West Monroe, for Appellant.
    Davenport, Files & Kelly, LLP, by Thomas W. Davenport, Jr., Monroe, for Appellees, Wade R. Baggette, Auburn Corporation, and Nancy W. Baggette.
    John Villars Baus, Jr., New Orleans, for Intervenor Appellee, New England Insurance Company.

      Before WILLIAMS, CARAWAY and DREW, JJ.
   JJDREW, J.

In this breach of fiduciary duty suit against the administrator of two successions, plaintiff appeals a judgment granting the administrator’s exception of prescription. We reverse.

FACTS

Helen Smith Fuller (“Helen”) died intestate on May 11, 1976. She was survived by only one descendant, her daughter Jo Anne Fuller (“Jo Anne”). Jo Anne administered some of the properties that had belonged to her mother, but she never opened her mother’s succession. Jo Anne died intestate on January 20, 1984, leaving as her only heirs one maternal aunt, Elizabeth Smith Collins (“Collins”), and two paternal aunts, Clara Fuller Tobin (“To-bin”) and Annie Mae Fuller Anderson (“Anderson”).

Plaintiff, James Roy Fuller, Jr. (“Fuller”), is Anderson’s nephew. Defendant Wade Baggette (‘Wade”) is the husband of defendant Nancy Baggette (“Nancy”), who is Anderson’s grandniece.

In order to fully appreciate the history of this case, it is necessary to chronicle the developments in the various successions involving this extended family.

FULLER SUCCESSIONS

Succession of Helen Fuller

Helen died intestate on May 11, 1976. Upon the nomination of Anderson and To-bin, Wade was appointed administrator of Helen’s succession on March 19, 1984. Claiming that Wade was not qualified under La. C.C.P. art. 3097 to serve as administrator, Collins petitioned for Wade’s removal, which the trial court declined to order. This court on rehearing | ^concluded that Wade was qualified to serve as succession representative; however, his appointment was voided because the petition seeking Wade’s appointment lacked an affidavit establishing the trial court’s jurisdiction. Succession of Fuller, 480 So.2d 754 (La.App. 2d Cir.1985). The Supreme Court reversed this court on the jurisdiction issue. Succession of Fuller, 482 So.2d 619 (La.1986).

On January 28, 1986, Wade, as administrator, petitioned the trial court for approval to sell all of the movable and immovable property of Helen’s succession at private sale. The sale price was $180,000, with the heirs named as buyers. Collins opposed the sale. The trial court ruled on September 28, 1989 that the sale would be permitted. Wade, his wife, and in-laws were to receive a total of one-third of the property for $60,000. Wade was also awarded compensation of $43,034.35 for his services as administrator.

Succession of Jo Anne Fuller

Jo Anne died on January 20, 1984. On January 25, 1984, Anderson retained Wade to represent her in Jo Anne’s succession and nominated him as administrator of the succession. Wade was appointed provisional administrator, serving from January 25 until October 31,1984, when Collins was appointed administratrix of Jo Anne’s succession. Collins had been appointed ad-ministratrix of the succession on March 6, 1984, subject to her qualifying. Collins was issued letters testamentary on October 31,1984.

| a Wade sought $170,000 from the succession for services he rendered as provisional administrator and attorney. The succession refused payment, so he sued. Wade was awarded $128,836 in fees and expenses for his services. This court deleted that portion of the award related to the attorney fees charged by Wade while serving as provisional administrator, and affirmed the remainder. See, Succession of Fuller, 501 So.2d 1017 (La.App. 2d Cir. 1987), unit denied, 504 So.2d 881 (La.1987).

In 1988, Anderson, Wade, Nancy, and Nancy’s parents filed suit against Collins and her lawyers. Among the allegations were that Collins and her attorneys allowed promissory notes to prescribe, incurred federal tax liability, and breached the duty of prudent management. The claims against Collins were settled. See, Anderson v. Collins, 26,142 (La.App.2d Cir.1/6/95), 648 So.2d 1371, writs denied, 95-0629 and 95-0783 (La.App.2d Cir.4/21/95), 653 So.2d 576.

Wade again became administrator of Jo Anne’s succession on April 30, 1990, after Collins resigned.

Consolidation Ordered

On April 22, 1986, Collins, in her capacity as administratrix of Jo Anne’s succession, filed a petition for possession in Helen’s succession. Unconditionally accepting the assets and liabilities of Helen’s succession, Collins argued that the assets of Helen’s succession would become the assets of Jo Anne’s succession because Jo Anne had been Helen’s only heir. Wade, in his capacity as administrator of Helen’s succession, responded with the exception of no right of action, which the trial court sustained.

|4In Succession of Fuller, 549 So.2d 878 (La.App. 2d Cir.1989), this court reversed the trial court, holding that during the administration of Jo Anne’s succession, Collins as administratrix had the exclusive right to collect any succession assets remaining in Helen’s succession through the exercise of any rights ordinarily available to Helen’s heirs. However, the supreme court granted Wade’s writ and reversed the judgment of this court. More importantly, the supreme court consolidated the successions and ordered that the case be remanded to the district court to “place the proper heirs in possession after due proceedings.” See, Succession of Fuller, 556 So.2d 47 (La.1990), rehearing granted, 556 So.2d 1289 (La.1990). The application for rehearing was later dismissed upon Wade’s motion. In re Succession of Fuller, 561 So.2d 499 (La.1990).

Tax Problems

A proof of claim filed in Jo Anne’s succession by the Internal Revenue Service (“IRS”) on October 29, 1984, showed that Jo Anne owed over $1,000,000 in unpaid income taxes. In April of 1985, the estate tax return for Jo Anne’s succession showed that the gross estate was worth $5,788,737 and that $644,097 was owed in estate taxes. However, an April 1988 letter from the IRS gave notice to Collins that there was an estate tax deficiency of over $4,445,000 in Jo Anne’s succession.

On January 8, 1990, Baggette, as the administrator of Helen’s succession, received a notice of levy from the IRS. At that time, Jo Anne Fuller owed over $1,650,000 in unpaid income taxes, penalties and interest. The levy attached to any interest held by Jo Anne in the movable property of | .^Helen’s succession. Also in January of 1990, Collins, as administra-trix of Jo Anne’s succession, received a notice of seizure from the IRS. Jewelry belonging to Jo Anne’s succession had been seized due to the nonpayment of income taxes.

Sale of Succession Assets

On March 29, 1990, Collins and Wade, in their administrative capacities, jointly petitioned the court for approval to sell immovable property (specifically a house, alley, and fourplex) located in Ouachita Parish, and movable property, except for personal jewelry, owned by the successions in indivisión. It was to be sold to Wade or his designee for $256,000. Judgment homologating this petition was rendered on May 22, 1990. Wade was administrator of both successions at that time.

On April 19, 1990, an act of sale was executed in which Collins sold her one-third interest in Jo Anne’s succession to Auburn Corporation for $15,000. On that same date, Collins also executed an act of sale in which she sold her one-third interest in Helen’s succession to Auburn Corporation for $15,000. The acts of sale were filed in the respective successions on April 30, 1990. Wade and Nancy are the shareholders and officers of Auburn Corporation.

On April 26, 1990, Collins and Wade, in their administrative capacities, jointly petitioned the court for approval to sell interests owned by the successions in immovable property located in Ouachita Parish. The property was to be sold at private sale to Auburn Corporation for $531,694.07. A judgment homologating this petition was rendered on | fiJune 4, 1990. At the time of the judgment, Wade was administrator of both successions.

On April 30, 1990, Collins petitioned the court for permission to sell all of the movable property of Jo Anne’s succession at private sale to Auburn Corporation for $475,821.62. Some of the movables had been seized by the IRS in January of that year. A judgment homologating the petition was rendered on May 17,1990. Wade was also administrator of Jo Anne’s estate at the time of judgment.

Wade, as administrator of Jo Anne’s estate, received a July 18, 1991, letter from the IRS which stated that the estate still owed $764,280.28 in estate taxes and interest.

Final Accountings

Wade completed his final accounting in Helen’s succession on June 14, 1994, for the period from January 1, 1990, to January 12, 1990. He reported that he had no funds remaining in his hands at the end of this accounting period. Judgment homolo-gating this final accounting was rendered on June 27,1994.

On June 20, 1994, Wade, as administrator of Jo Anne’s succession, filed Collins’ final accounting of her administration for the period from January 1, 1990, to April 29, 1990. Wade reported that there were no net funds remaining in the administra-trix’s hands on April 29, 1990. He also reported that as of April 29,1990, all of the property of Jo Anne’s succession, including the assets of Helen’s succession after the consolidation order, had been sold to satisfy the IRS income tax levy and |7seizure of January 1990. Wade stated that only ministerial duties remained for him as provisional administrator. Judgment homolo-gating this final account was rendered on July 1,1994.

ANDERSON SUCCESSION

Succession of Annie Anderson

On January 25, 1984, Anderson executed a power of attorney in favor of Wade. Five years later, Nancy obtained a power of attorney from Anderson which supplemented, but did not revoke, the one given earlier to Wade. The powers of attorney were held until Anderson’s death.

Anderson executed a statutory will on November 21, 1984, in which she named Wade as succession attorney and executor, named Nancy as alternative executrix, and left the bulk of her estate to six universal legatees: Wade, Nancy, Nancy’s parents, and two of her nephews. On July 22, 1986, Anderson executed an olographic will in which she revoked the statutory will and bequeathed her estate to her 11 nieces and nephews in equal portions. Anderson died on February 27, 1994, at the age of 93.

Nancy was appointed as provisional ad-ministratrix of Anderson’s succession on February 28, 1994. A petition to probate the statutory will was filed on March 9, 1994, and Nancy was confirmed as executrix at that time. Soon thereafter, several of Anderson’s nieces and nephews petitioned the court to probate the olographic will, revoke the statutory will, discharge Nancy as executrix and appoint Anderson’s nephew, James Roy Fuller, Jr., as dative testamentary executor. Nancy and Wade responded by seeking to |sannul the olographic will on grounds of undue influence, and challenging Fuller’s appointment. The trial court revoked the statutory will, vacated Nancy’s appointment, and confirmed Fuller’s appointment as dative testamentary executor. This court affirmed the judgment in Succession of Anderson, 26,947 (La.App.2d Cir.5/10/95), 656 So.2d 42, writ denied, 95-1789 (La.10/27/95), 662 So.2d 3.

Instant Proceedings

On June 26, 1996, James Fuller, in his capacity as the executor of the succession of Annie Anderson, filed suit against Wade, Nancy, and Auburn Corporation. Wade was sued individually and in his capacities as administrator and provisional administrator of the succession of Jo Anne Fuller, administrator of the succession of Helen Fuller, attorney, agent and attorney-in-fact of Annie Anderson pursuant to the power of attorney, and as President, Director, and stockholder of Auburn Corporation. Nancy was sued as a defendant individually and in her capacities as agent and attorney-in-fact of Annie Anderson through the power of attorney, and as Secretary-Treasurer, Director, and stockholder of Auburn Corporation.

James Fuller alleged in his lawsuit that defendants “defrauded, deceived and swindled” Annie Anderson of her inheritance of one-third of the assets belonging to the Succession of Helen Fuller, and her inheritance of one-third of the assets belonging to the Succession of Jo Anne Fuller. He further alleged that Wade, as legal representative of the successions of Helen Fuller and Jo Anne Fuller, illegally and fraudulently conveyed succession assets to Auburn Corporation for prices far below their fair |flmarket value. Fuller contended that in doing so, Wade breached his fiduciary duty to protect and preserve the assets of Jo Anne’s and Helen’s successions. He also asserted that Wade could have sold only a portion of the succession properties in order to satisfy the tax lien.

On October 2, 1996, defendants filed the exceptions of prescription and peremption. On May 22, 2000, the trial court granted the exceptions in part and denied them in part, ruling that in accordance with La. R.S. 9:5621, all actions against Wade except those that allegedly occurred in his capacities as administrator of Helen’s succession and Jo Anne’s succession had prescribed. In a supplemental ruling on June 15, 2000, the trial court decreed that all claims against Nancy and Auburn Corporation had prescribed. Judgment in accordance with the rulings was rendered on August 9, 2000. Fuller’s motion for new trial objecting to the dismissal of his claims against Nancy and Auburn was denied.

Fuller amended his petition to allege that Wade, Nancy, and Auburn Corporation had conspired to intentionally and willfully deceive Anderson out of her inheritance of one-third of the assets belonging to the successions of Helen and Jo Anne, making the defendants solidary obli-gors. Wade’s malpractice insurer, New England Insurance Company, later filed a petition for intervention in the suit.

On July 6, 2001, Wade filed a second exception of prescription, arguing that actions against him as administrator of Jo Anne’s succession, as well as against him as administrator of Helen’s succession after January 12, 1990, had prescribed. Wade urged that the prescriptive period in La. |1(IR.S. 9:5621 commenced when he no longer had an obligation to render a final account, ie., when the succession no longer had any assets.

The trial court rendered judgment on May 28, 2002, granting Wade’s exception of prescription. The court dismissed all of Fuller’s claims and actions against Wade in his capacity as administrator of Helen’s succession after January 12, 1990, as well as all of Fuller’s claims and actions against Wade in his capacity as administrator of Jo Anne’s succession. Fuller’s motion for new trial was denied.

Fuller appealed. Contending that Fuller’s appeal was from a non-final judgment, Wade filed a motion to dismiss the appeal. Wade’s motion to dismiss was denied by a panel of this court.

DISCUSSION

Res Judicata

Fuller argues in his initial assignment of error that the partial denial of Wade’s first exception of prescription, denied as to the claims relating to Wade’s service as succession administrator, had res judicata effect against Wade’s subsequent exception of prescription that was granted by the trial court. However, this first ruling did not have res judicata effect as it was an interlocutory ruling. A judgment is interlocutory when it does not determine the merits but only preliminary matters in the course of an action. La. C.C.P. art 1841. La. R.S. 13:4231 describes a judgment as having res judicata effect when it is a “valid and final judgment.” Gulfco Finance Co. v. Boyd, 29,-975 (La.App.2d Cir.10/29/97), 702 So.2d 342, writ denied, 97-2982 (La.2/6/98), 709 So.2d 742. Accordingly, this assignment of error is without merit.

Applicable Prescriptive Period

There is no question that there has been a history of strife between Wade and some members of his wife Nancy’s extended family. A review of this record reveals that some of Wade’s actions have been viewed suspiciously by two of the numerous trial judges who have ruled on the exceptions, motions, and petitions filed in the various successions.

In a September 28,1989, ruling, the trial court permitted Wade’s proposal as administrator to sell all of the movable and immovable property in Helen’s succession to the heirs for $180,000. The trial court stated:

At first blush, it would seem shocking that the succession representative would seek Court authority to sell at private sale all the property of the succession for $180,000 when, by a previous pleading, the same succession representative has indicated to the court that the same property has a value of over $600,000.

It was noted by the court that Collins, who had opposed the sale, failed to introduce evidence of the actual fair market value of the property or of the existence of a willing third-party purchaser. The court stated that it was convinced further administration of the succession would be detrimental to its successors, and that it believed the sale would bring about an earlier conclusion to the administration. Finally, the trial court recognized the “unusual rancor which has marked the simultaneous administration of the two successions. ...”

More accusatory were a different trial judge’s comments when | ^discussing Nancy’s qualification to serve as executrix in Anderson’s succession. In his June 3, 1994, ruling appointing Fuller as executor of Anderson’s succession, that trial judge stated:

Since her appointment on March 9, 1994, by this court as testamentary executrix of this succession, Nancy W. Baggette has completely ignored the requirements of La. C.C.P. art. 3285 relative to the sale of securities (stocks, investments) belonging to this succession with a value of $59,255.18, without first obtaining court authority.
Without first obtaining authority of this court, Nancy W. Baggette, as executrix of this succession, has paid debts of the succession. The explanation given by her for these allegedly illegal activities as testamentary executrix was that she did not know decedent had made another will. In fact, Nancy W. Bag-gette filed two (2) petitions in an effort to rectify her actions: a petition to ratify the sale of the securities and a petition to ratify her prior acts.
Nancy W. Baggette desires to retain her husband, Wade R. Baggette, as her attorney to represent her as executrix of this succession. Wade R. Baggette, as the executor of the successions of the late Jo Ann Fuller and the late Helen Smith Fuller, sold succession assets to his family owned corporation, Auburn Corporation. Subsequent thereto, Auburn Corporation sold a portion of these succession assets for huge profits. Auburn Corporation still retains ownership of a great portion of those assets acquired from the successions of Jo Ann Fuller and Helen Smith Fuller. The absorption of succession assets by a closely held corporation owned by Mr. and Mrs. Baggette, both of whom are bound by a high standard of fiduciary duty, causes the court great concern.
[Annie Anderson] was an heir of the late Jo Ann Fuller and Helen Smith Fuller. It is alleged that Wade R. Bag-gette, as executor of the successions of Jo Ann Fuller and Helen Smith Fuller, may have depleted the assets of those successions by virtue of sales to Auburn Corporation to the detriment of decedent who was an heir of both successions. The potential claim or claims of this succession against Wade R. Bag-gette for any possible depletion of such assets by the aforesaid sales create a conflict. Wade R. Baggette, as attorney for the executrix of this succession could not pursue any claims against himself as a result of his actions in selling assets of the successions of Jo Ann Fuller and Helen Smith Fuller.

|13It is obvious that Wade’s conduct has raised red flags in the past.

As administrator, Wade was obligated to comply with La. C.C.P. art. 3191, which sets forth the general duties of a succession representative:

A succession representative is a, fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.

Our emphasis. A succession representative has the duty as a prudent administrator to obtain the best price reasonably obtainable in a sale of a succession asset. Scurria v. Hodge, 31,207 (La.App.2d Cir.10/30/98), 720 So.2d 460, writ denied, 99-0011 (La.3/19/99), 739 So.2d 782. See also, La. C.C.P. art. 3197, which burdens the succession representative with the duty to close the succession as soon as advisable.

In addressing the issue of prescription, the parties relied on the two-year prescriptive period set forth in La. R.S. 9:5621, which provides:

Actions against any person who has served as curator of a vacant succession or as administrator, testamentary executor, or dative testamentary executor of a succession in this state, or against the surety on his bond, arising out of any act the succession representative, as such, may have done or failed to do, are prescribed by two years, reckoning from the day of the judgment homologating the final account.
This prescription shall not be suspended or interrupted because of the incapacity of the person who might bring the action, reserving to him his recourse against his tutor or curator.
This prescription does not apply to actions for the recovery of any funds or other property misappropriated by the succession representative nor to actions for any amount not paid in accordance with the proposed payments shown on the final account.

|14We note that in a minute entry and order granting the exception, the trial court referred to the passage of two years since the “alleged failure to act appropriately!;.]”

However, we believe that a different prescriptive period applies in this matter. We note that Fuller complained in his petition that Wade violated the fiduciary duty owed to Anderson and her heirs when serving as administrator. Actions based on breaches of fiduciary duties constitute personal actions which are subject to a liberative prescriptive period of ten years. La. C.C. art. 3499; Barksdale v. Lincoln Builders, Inc., 32,857 (La.App.2d Cir.6/21/00), 764 So.2d 223, writ denied, 00-2646 (La.2/9/01), 785 So.2d 821. The acts complained of took place in 1990. Thus, Fuller’s June 26, 1996, petition alleging Wade’s breach of his fiduciary duty was filed timely.

Even if this court were to apply the provisions of La. R.S. 9:5621, we would reach the same conclusion. The judgment homologating the final account of Helen’s succession was rendered on June 27, 1994. The judgment homologating the final account of Jo Anne’s succession was rendered on July 1, 1994. Fuller filed his petition within two years of these judgments.

Wade attempts to truncate the provisions of La. R.S. 9:5621 by arguing that the two-year prescription period began running on the date when he no longer had an obligation to account or render a final account. Wade contends that in regard to Helen’s succession, this would be after the hsSupreme Court consolidated the successions on January 12, 1990, because on that date the assets of Helen’s succession were merged into Jo Anne’s succession and became subject to Collins’ administration. In regard to Jo Anne’s succession,-Wade contends that because the petition for “bulk sale” of the succession assets had been filed before he became administrator on April 80, 1990, there were no assets in the succession for which he had a duty to administer and account. He argues that his only obligation was to perform the ministerial duties of implementing the bulk sales agreement. Thus, he urges that prescription as to the claims against him as administrator of Jo Anne’s succession commenced on May 1,1990, and ended on May 1,1992.

Wade’s argument flies in the face of the clear language of the statute. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9. Prescriptive statutes are to be strictly construed against prescription and in favor of the obligation sought to be extinguished. Bustamento v. Tucker, 607 So.2d 532 (La.1992). Of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read in such manner as to maintain the action. Elevating Boats, Inc. v. St. Bernard Parish, 00-3518 (La.9/5/01), 795 So.2d 1153; Lima v. Schmidt, 595 So.2d 624 (La.1992).

La. R.S. 9:5621 clearly states that the action is prescribed two years from the day of the judgment homologating the final account. It does not Instate that the prescriptive period commences when the administrator no longer has assets to administer. As noted above, this lawsuit was filed within two years of the judgment homologating the final accounts.

Unfortunately, it is not difficult for an unscrupulous succession representative to conceal his actions from heirs. For instance, La. C.C.P. art. 3335 provides that a copy of any account filed by a succession representative shall be served upon each heir. The final account in Jo Anne’s succession was filed on June 20, 1994. Service was made on Nancy (Wade’s wife) as executrix of Anderson’s succession, even though Fuller had replaced her as executor of Anderson’s succession earlier that month.

We additionally note that Wade incorrectly minimizes the role he played as administrator. Although Wade argues he no longer had assets to administer in Helen’s succession after the consolidation was ordered in January of 1990, it was over two months later that he and Collins, as succession representatives, first jointly petitioned the court to approve the sales of succession property about which Fuller now complains. Petitioning the court for approval of a sale is much more than a simple “ministerial” duty.

Although Wade was not administrator of Jo Anne’s succession at the time of the filing of the petitions for court approval of the private sales of succession assets, he was in this position on the dates of the judgments homologating the petitions. Thus, the three 1990 judgments homolo-gating the petitions all granted to Wade, acting in his capacity as provisional administrator of Jo Anne’s succession, the authority to sell succession |17assets. The acts of sale approved by these three judgments all listed Auburn Corporation as the buyer. The original petition in this matter referred to Wade and Nancy as being the directors and stockholders of Auburn. Thus, the sales to Auburn were tantamount to a sale by the fiduciary to himself. Such a sale must be closely scrutinized. See, Scurria v. Hodge, swpra.

Finally, we note the last paragraph of La. R.S. 9:5621, which states that the two-year period does not apply to actions for the recovery of any funds or other property misappropriated by the succession representative. If this is an action for the recovery of funds allegedly misappropriated by Wade, then the ten-year prescriptive period for breach of fiduciary duty actions applies. See, Succession of Granger v. Worthington, 02-0433 (La.App. 3rd Cir.10/30/02), 829 So.2d 1108, where the Third Circuit held that in instances of misappropriation by a succession administrator, the two-year period in La. R.S. 9:5621 does not apply; rather, the ten year prescriptive period in La. C.C. art. 3499 applies. See also, Succession of Moore, 97-1668 (La.App. 4th Cir.4/1/98), 737 So.2d 749, writ denied, 99-0781 (La.4/30/99), 743 So.2d 207.

The trial court was clearly wrong in granting Wade’s exception of prescription. Accordingly, the judgment is reversed.

DECREE

At appellee’s costs, the judgment is REVERSED.

APPLICATION FOR REHEARING

Before BROWN, C.J., WILLIAMS, CARAWAY, PEATROSS, and DREW, JJ.

Rehearing denied.

      . Jo Anne’s date of death has been incorrectly listed as January 10, 1984, in previous opinions by this court.

      . Clara Tobin, Anderson’s sister, died in 1985 after having executed a March 1984 will in which she left most of her estate to Wade, Nancy, and Nancy’s parents as universal legatees.

      . It is of no consequence that Fuller does not urge this prescriptive period in his assignment of error. See discussion of La. C.C.P. arts. 2129 and 2164 in Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017.


author: liMOORE, J.

text:
    Thomas D. CUPIT, Sr., et al., Plaintiff-Appellants, v. The STATE of Louisiana, Defendant-Appellee.
    No. 37,110-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Theus, Grisham, Davis & Leigh, LLP, by Charles H. Heck, Sr., Monroe, Dennis Hennen, Monroe, for Appellants.
    Richard Ieyoub, Attorney General, Paul Boudreaux, Jr., Special Assistant Attorney General, for Appellee.
    Johnson, Stiltner & Rahman, by Patricia J. Delpit, for Intervenor/Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   liMOORE, J.

The plaintiffs, Thomas and Marjorie Cu-pit, appeal a jury verdict that rejected their personal injury claims against the state of Louisiana, arising from a rear-end collision in which Mr. Cupit was involved on the Interstate in West Monroe, Louisiana. For the reasons expressed, we affirm.

Factual and Procedural Background

The accident happened on the bright, hot midmorning of July 18, 1994, on the eastbound side of Interstate 20, just west of the South 5th St. on-ramp in West Monroe. Running through West Monroe, the Interstate has two lanes; however, the South 5th St. entrance creates a third lane on the right side. This lane continués over the bridge but is an exit-only lane for the Jackson Street exit in Monroe. Between the west and eastbound sides, there is a short, solid concrete barrier and, on top of this, a small “glare” fence. Also, shortly before the South 5th St. entrance, the Interstate makes a curve to the left. A state policeman testified that this was so the bridge could cross the river at a right angle.

Cupit was driving east in his employer’s 1988 Chevy pickup truck in the right lane at about 55-60 mph. He approached the South 5th entrance and saw several vehicles trying to merge into his lane. He testified that he looked to make sure he could shift to the left lane. It was safe, so he started to move over. He testified, however, that he rounded the curve and suddenly saw that the vehicle ahead of him in the left lane, a 1977 Chevy pickup driven by Gladys Vines, was virtually at a standstill. Unable to stop, he rammed into the back of Ms. Vines’ truck and then spun into the concrete barrier, sustaining serious injuries. Propelled forward, Ms. Vines’ truck | ¡¡¡struck the rear of the car in front of her, a Mercury Cougar driven by 15-year-old Cindy Estep.

Ms. Estep and Ms. Vines were driving slowly because ahead of them in the left lane was a street sweeper operated by the State Department of Transportation and Development. Ms. Vines described crawling behind Ms. Estep at 5-6 mph for about 10 minutes, unable to change lanes because of heavy traffic, but both she and Ms. Estep could see the sweeper and stopped before running into it. (Even after the impact, Ms. Estep’s car did not strike the sweeper, which continued its route across the river.) Another witness, Robert Gammell, was driving behind Cu-pit. In a deposition he said he saw the vehicles collide, but at trial he admitted he only saw them coming to rest. All these witnesses — Ms. Estep, Ms. Vines, and Gammell — insisted there were no lights of any kind on the sweeper; Ms. Vines’ daughter, a passenger in the front seat of her truck, corroborated this. They also testified that they saw no utility vehicle (or “shadow truck”) following the sweeper with an arrow board. Ms. Vines’ husband, who was driving another pickup some distance ahead of his wife, testified that he saw an arrow truck driving ahead of the sweeper.

Willie Hardwell, who was driving the sweeper, described his daily inspection routine and admitted that on the day of the accident, the arrow board on the sweeper was not working, but he was positive that all the other safety lights were functioning. He took the sweeper to the mechanic’s shop; his supervisor, Vernon Trichell, told him to use the sweeper anyway, as he would be followed by a shadow truck with an arrow board mounted on its |c.cab; Trichell corroborated this. Johnny Ray Willis, who drove the shadow truck, confirmed that the sweeper’s arrow board was broken, but all its other lights, as well as his own arrow board, were working. Both HardweU and Willis testified that the shadow truck kept a fairly steady distance of four to five car lengths behind the sweeper and never got ahead of it.

Donald Tolar, the state’s district engineer administrator, was accepted as an expert in traffic engineering and highway maintenance. He testified that a street sweeper drives at an average of 4-5 mph and confirmed that the procedure followed on July 18, 1994 met the department’s policy and the standards of the Louisiana Maintenance Handbook. The state’s traffic engineering and accident reconstruction expert, Dr. Joseph Blaschke, testified that the state’s procedure complied with the La. Maintenance Handbook and a federal guide, the Manual on Uniform Traffic Control Devices (“MUTCD”). Based on his accident reconstruction, he concluded that Cupit should have been able to see the slow vehicles ahead of him and should have stopped before rear-ending them. He ascribed the accident to Cupit’s “driver error.” Cupit did not present any accident reconstruction evidence.

As a result of the accident, Cupit sustained extensive injuries, including a smashed hip and deep lacerations to both hands. Six months after the accident, he underwent a hip replacement, resulting in a 26% total disability. He testified that he still has a trigger finger that keeps him from gripping tools properly. Because of his injuries he had to quit his job as a tanker driver and handyman at Magnolia Petroleum; he has done two short |4stints as a truck driver but had to give these up because he cannot stay seated for long periods of time. He also had to give up the “fix-it” business he ran from a large shop behind his house in West Monroe.

Cupit and his wife filed this suit against the state, urging theories of strict liability and negligence. They sought damages for Cupit’s medical expenses, loss of wages and earnings capacity, permanent disability and general damages; they also claimed Mrs. Cupit’s loss of consortium. The state asserted plaintiffs fault and comparative fault, and demanded a jury trial. The accident occurred while Cupit was on the job, so his employer’s compensation carrier, LWCC, intervened to recover indemnity, medical and rehabilitation benefits paid on his behalf. At the time of the pretrial statement, these payments exceeded $90,000. Jury trial took place over five days in April and May 2002.

In response to special interrogatories, the jury found (1) the street sweeper in this case did not pose an unreasonable risk of harm, and (2) the state was not negligent and responsible for this accident. The district court rendered judgment on June 21, 2002, rejecting all claims of the Cupits and LWCC. Cupit filed a motion for new trial or, alternatively, JNOV. After arguments, the court denied this motion without reasons on September 5, 2002.

Cupit brought this appeal, contesting the June 21 judgment by four assignments of error. LWCC filed a letter adopting Cupit’s position.

| sDiscussion: Breach of Duty

By his first assignment of error, Cupit urges the jury committed manifest error in failing to find an unreasonable risk of harm in the “presence of a street sweeper within the custody of the state without lights in a vision obscured curve on the interstate without warnings to motorists.” By his second assignment, he urges the state was negligent.

The argument is intensely factual, bearing down on the testimony of Cupit, Ms. Estep, Ms. Vines, her daughter and husband, and Gammell, all of whom maintained that the sweeper had no arrow board or any other fights or warnings, and that the shadow truck was not riding behind the sweeper. Accepting this scenario, Cupit urges that the sweeper did not comply with the La. Maintenance Handbook or the MUTCD and therefore breached its duty of care to Interstate motorists like himself.

The state responds that the jury’s findings were reasonable and not manifestly erroneous. The state contends that its sweeping operation met the standard of care. Traweek v. Jackson, 30,248 (La.App. 2 Cir. 2/25/98), 709 So.2d 867. It disputes each of Cupit’s factual assertions, citing Willis and Hardwell’s testimony as adequate support for the findings that the sweeper’s rear and top fights were working and that the shadow truck was behind the sweeper. The state also submits that there was no visual obstruction, as every other vehicle on the Interstate managed to stop without rear-ending anything. Finally, the state argues that Cupit called no expert to contradict the opinion of Donald Tolar and Dr. Blaschke that the sweeping operation complied with the La. Maintenance Handbook and MUTCD and Rthus met the proper standard of care.

The state owes the duty of maintaining public roads in a safe condition to prevent exposure of the public to unreasonable dangers. La. R.S. 48:35. This includes providing proper safeguards or adequate warnings of dangerous conditions on the highway, including those engendered by ongoing road repair. Traweek v. Jackson, supra.

Breach of duty is a question of fact, or a mixed question of law and fact; the reviewing court must accord great deference to the facts found and the inferences drawn by the finder of fact. Boykin v. Louisiana Transit Co., 96-1932 (La.3/4/98), 707 So.2d 1225; Harris v. Carter, 33,951 (La.App. 2 Cir. 10/4/00), 768 So.2d 827, writ denied, 00-3056 (La.1/5/01), 778 So.2d 602. A trial court’s finding of fact may not be reversed absent manifest error or unless clearly wrong. Lasyone v. Kansas City Southern R., 00-2628 (La.4/3/01), 786 So.2d 682, and citations therein. The issue is not whether the jury was right or wrong, but whether its conclusion was a reasonable one. If the jury’s findings are reasonable in fight of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). As in Lasyone, supra, a manifest error review is applicable to the fact-driven determinations of the instant case.

The La. Maintenance Manual establishes the minimum requirements for a moving operation, faster than 2 mph in multi-lane and two-lane roads:

|7Work Vehicle Mounted With:
Warning Sign
Flashing Amber Light
(Flags Optional)
NOTE:

On multi-lane road a flashing arrow board is optional.

NOTE:
If sight obstructions exist along the intended route, a second vehicle is required for traffic control. The rear vehicle is equipped with warning sign and flashing amber fight. Flags are optional.

Compliance with this regulation is sufficient to discharge the state’s duty of reasonable care to warn motorists of street sweeping operations. Traweek v. Jackson, supra.

Dr. Blaschke also testified that under the MUTCD, a mobile operation is one moving 3 mph or faster; a street sweeper in a high speed or high traffic area should be followed by a shadow truck equipped with a flashing arrow display.

The experts agreed that a street sweeper drives at an average of 4-6 mph. Ms. Vines and her daughter gauged their speed behind the sweeper at 5-10 mph; Hardwell admitted that at times he may have dropped as low as 3 mph. This evidence shows that the sweeper was a moving operation under the La. Maintenance Manual and a mobile operation under the MUTCD.

The testimony as to which lights were functioning on the sweeper was conflicting. Ms. Estep testified that driving directly behind the sweeper, she saw it had no fights of any kind. Ms. Vines, in the next following vehicle, also testified that she saw no fights on the sweeper; she was somewhat corroborated by her daughter and her husband, who was | sdriving a separate vehicle some distance ahead of his wife. Gammell testified that from a distance, he saw flashing fights and assumed they were on the sweeper, but when he got close enough he saw no fights on the sweeper. Cupit testified that he never saw the sweeper.

By contrast, Hardwell testified that the arrow board was out of service but the broom lights, back fights and dome fight were all working. Willis, the driver of the shadow truck, also testified that the sweeper’s arrow was out, but its dome fight and tail fights were working. Both Hardwell and Willis were positive about the fights. Tolar, the district administrator, testified that if all the sweeper’s fights had been out, it would not comply with the La. Maintenance Manual and he would not send it on the road. He did not say that he personally inspected the sweeper, but indicated that the other fights must have been working because he sent it out with the “optional” shadow truck.

Based on this record, the jury was entitled to accept the direct testimony of Willis and Hardwell, and the inferences provided by Tolar, that the sweeper’s dome fight and back fights were working. The opposite view is rational but the jury’s decision to reject it is not manifestly erroneous. Lasyone, supra; Stobart v. State, 617 So.2d 880 (La.1993).

The same rationale governs whether the shadow truck was behind or ahead of the sweeper. Ms. Estep and Ms. Vines testified that they were directly behind the sweeper, not the shadow truck; Mr. Vines testified he saw an arrow truck in front of the sweeper; Gammell saw fights on a vehicle that may have been ahead of the sweeper. Hardwell and Willis were | flpositive that the shadow truck remained behind the sweeper at all times, and Tolar, the district administrator, was adamant that this was their normal practice. Admittedly, if Willis was behind the sweeper, it is hard to understand his claim that he did not hear the 55-mph rear-end collision and chain-reaction crash which must have occurred a short distance behind him. Nevertheless, the jury’s decision to accept the state’s version is not unreasonable. Lasyone, supra; Stobart v. State, supra.

In fight of these findings, the jury was entitled to conclude that the state’s sweeping operation complied with the La. Maintenance Manual and did not pose any unreasonable risk of harm to other motorists on the Interstate. Traweek v. Jackson, supra.

This argument that the state breached its duty of care lacks merit.

Causation

By his second assignment, Cupit also contends that the jury erred in failing to find that the state’s conduct caused his damages. In support, he argues that after seeing the police photographs at trial, Dr. Blaschke admitted the accident probably occurred “a little further to the east” than he had assumed. Because the expert mis-reckoned the actual site of the accident, Cupit contends that his opinion regarding causation should be disregarded. Cupit also argues that because of heavy traffic conditions and the curve in the road, he was not responsible for causing the accident.

The state urges that the jury was not plainly wrong to accept Dr. Blaschke’s opinion that the accident resulted from Cupit’s driver error, especially in light of Cupit’s admission that he took his eyes off the road | inmomentarily before he switched lanes. The state stresses that Cupit called no expert to dispute Dr. Blaschke’s calculations and conclusions. Finally, the state contends that as the rear driver in a rear-end collision, Cupit is presumed to be at fault. Traweek v. Jackson, supra.

The finding of causation, like the finding of an unreasonable risk of harm, is factual and subject to manifest error review. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606; Methvin v. Ferguson, 35,138 (La.App. 2 Cir. 9/26/01), 796 So.2d 712.

Dr. Blaschke presented a cogent theory of how the accident occurred. He testified without contradiction that there was a sight distance of at least 600 ft. at all points in the curve. He calculated that driving 55 mph, Cupit should have been able to stop his truck within 225-270 ft., allowing for a normal reaction time of Vh seconds and a coefficient of friction of 0.7. Dr. Blaschke also noted that Cupit told Sgt. Aldridge, a West Monroe police officer, that he “looked away for a moment” before changing lanes, and when he looked back, Ms. Vines was “practically stopped directly in front of him.” The police report was not offered in evidence, but Sgt. Aldridge confirmed that Cupit told him this in the ambulance. Dr. Blaschke thus found that sight obstructions (curve and glare fence) did not play a part in the accident, a conclusion supported by the numerous photos of the Interstate offered in evidence. These disclose that the road makes a broad turn to the left, but no “blind curve.”

InThe jury was surely cognizant of the curve and glare fence, as well as the dense traffic present at the time of the accident, and perhaps that Cupit changed lanes as a courtesy to vehicles trying to enter the Interstate from South 5th St. However, the jury could also find that Cupit caused the accident by looking at traffic on the entrance ramp instead of scanning the left lane before moving over. On this record, the jury was entitled to accept Dr. Blasch-ke’s theory that driver error caused the accident. Notably, Cupit offered no alternative accident reconstruction theory. Based on this record, the jury was not plainly wrong to find that the state’s conduct was not negligent and did not cause Cupit’s injuries.

For these reasons, Cupit’s argument that the jury should have found causation lacks merit.

Other Assignments of Eiror

By his third assignment, Cupit urges the district court erred in denying his motion for JNOV or, alternatively, new trial. Because of the alleged manifest error in the jury’s verdict, Cupit argues the judge abused his discretion in failing to grant one of these motions.

A new trial shall be granted when, inter alia, the verdict or judgment appears clearly contrary to the law and the evidence. La. C.C.P. art.1972(l). The decision to grant a new trial is discretionary, but cannot result from the judge’s disagreement with the verdict. The verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Davis v. Wal-Mart Stores Inc., 00-0445 (La.11/28/00), 774 So.2d 84. In other words, the judge cannot usurp the jury’s fact-finding role. Martin v. h?Heritage Manor South, 00-1023 (La.4/3/01), 784 So.2d 627. For the reasons already discussed, the jury was entitled to accept the state’s account of the facts surrounding the accident and its expert’s theory of causation. The verdict is supportable by a fair interpretation of the evidence and the court did not abuse its discretion in denying a new trial.

For similar reasons, JNOV was not warranted. The facts and inferences in this record do not approach the “strong and overwhelming” standard of showing that reasonable persons could not have reached a verdict in the state’s favor. Joseph v. Broussard Rice Mill, 00-0628 (La.10/30/00), 772 So.2d 94; Smith v. American Indem. Ins. Co., 598 So.2d 486 (La.App. 2 Cir.), writ denied, 600 So.2d 685 (La.1992).

By his fourth assignment, Cupit contests the court’s failure to award damages for the injuries and expenses sustained by him and his wife. Because we have found that the state has no responsibility or liability, we pretermit any consideration of damages. Bison v. Primrose, 30,011 (La.App. 2 Cir. 12/10/97), 705 So.2d 249, writ denied, 98-0090 (La.3/13/98), 713 So.2d 471.

These assignments lack merit.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are assessed to the plaintiffs, Thomas D. Cupit Sr. and Marjorie Cupit.

AFFIRMED.

      . The daughter, Ms. Crocker, is developmentally disabled and her deposition provides very few details about the accident.

      . In a pretrial statement, counsel listed S.C. Walker as Cupit's accident reconstructionist, stating that either he or another reconstruction expert "will offer testimony at trial.” R.p. 73. However, the plaintiff did not call Mr. Walker or any other expert in accident reconstruction to testify.


author: I,PEATROSS, J.

text:
    Bonnie Mae JONES, Plaintiff-Appellant, v. BROOKSHIRE GROCERY COMPANY, Defendant-Appellee.
    No. 37,117-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 14, 2003.

      Anthony J. Bruscato, Monroe, for Appellant.
    Hudson, Potts & Bernstein, L.L.P., by Jay P. Adams, Monroe, for Appellee.
    Before CARAWAY, PEATROSS & MOORE, JJ.
   I,PEATROSS, J.

In this trip and fall case, Plaintiff, Bonnie Mae Jones, age 74, claims that her foot got caught in a wrinkle in the rug at the exit of a Brookshire grocery store causing her to fall to her knees and then flat on the floor, sustaining injuries. Finding that Ms. Jones failed to satisfy her burden under La. R.S. 9:2800.6, the trial court entered judgment in favor of Defendant, Brookshire Grocery Company (“Brook-shire”), dismissing Ms. Jones’s claim with prejudice. Ms. Jones appeals and, for the reasons stated herein, we affirm.

FACTS

On December 15, 2000, Ms. Jones was shopping in a Brookshire store in Monroe with her friend, Jonell Minter. Mrs. Minter drove Ms. Jones, who was widowed in 1998, to the grocery store every week. On this particular day, Mrs. Minter finished her shopping before Ms. Jones and went to a neighboring store to shop and then to her car to wait for Ms. Jones. As Ms. Jones exited the store, accompanied by courtesy clerk Tony Powell, she stumbled and fell when she began to cross a large mat adjacent to the exit doors. These large mats are rubber-backed and are placed at each entrance/exit and in other areas of the store as needed. It had been raining earlier in the day and was periodically misting.

Mr. Powell testified that Ms. Jones was walking to the exit slightly ahead of him and on his right. He saw Ms. Jones suddenly stumble and fahj^to her knees with her knees landing on the mat and the toes of her shoes remaining on the hard floor surface. She then fell flat on the floor. Mr. Powell turned and called to the assistant store manager on duty, Mark Bryan, for assistance. Mr. Bryan was standing at a checkout counter, but did not see Ms. Jones fall as he had his back to the area where the fall occurred. Meanwhile, Ms. Jones got to her feet unassisted, noticing that her right foot was caught in a wrinkle or buckle at the edge of the mat. Mr. Bryan asked Ms. Jones if she was hurt, to which she replied that she was probably all right, but her knees and lower back were hurting. Mr. Bryan testified that he requested that Ms. Jones remain in the store while he filled out an accident report; however, she declined, stating that she was shocked and embarrassed and wanted to get home. Accompanied by Mr. Bryan, Mr. Powell loaded Ms. Jones’s groceries into Mrs. Minter’s vehicle and the two left.

Mr. Bryan also testified that Ms. Jones stated immediately after the fall that she tripped and fell, but that she did not know what caused her fall. He further testified that, after seeing Ms. Jones to her vehicle, he immediately returned to the store and inspected the area where she had fallen. He saw no wrinkles or buckles or anything else that could have caused her to fall; and, according to Mr. Bryan and Mr. Powell, the mat was flat when they returned to the store. Neither Mr. Bryan nor Mr. Powell straightened the mat after Ms. Jones’s fall.

Shortly after the accident, Mr. Bryan asked Mr. Powell to write a narrative of what had happened since he did not have the necessary ^information from Ms. Jones with which to complete the “Customer Report of Accident” form. Mr. Powell’s narrative indicates only that Ms. Jones stumbled and fell just inside the exit door. It does not mention what caused the fall or the existence of a wrinkle or buckle in the mat. Mr. Bryan also testified that he took photographs of the area “a few seconds” after the fall, which revealed no wrinkling or buckling in the mat.

Ms. Jones testified that, as she was walking out of the store, she felt something grab her foot and then she fell to her hands and knees. She did not see a wrinkle or buckle before she fell, but noticed it only after she had fallen and was getting back up. She acknowledged that there was nothing foreign on the floor and that nothing prevented her from seeing a wrinkle or buckle in the mat. She did not know how long the alleged wrinkle or buckle had been there or how the mat became wrinkled or buckled. She did testify that the alleged wrinkle was “obvious” and that “anyone could see it;” however, a complete reading of her testimony indicates that she was referring to the wrinkle as she saw it after getting up from the fall, not before the fall.

Mrs. Minter testified that she had not noticed a wrinkle in the mat when she left the store shortly before Ms. Jones. Both Mrs. Minter and her husband testified that, both before and since the accident, they have, on 1 ¿occasion, noticed the mats at the exit of Brookshire to be wrinkled or buckled, but they also noticed employees smoothing them out.

Mr. Powell testified that it is part of his job duties to monitor the mats and that he is vigilant in doing so. He stated that he did not notice the condition of the mat as he and Ms. Jones walked toward the exit and he did not see any wrinkle or buckle after Ms. Jones’s fall. He did not see anything that she could have tripped or fallen over. Mr. Powell testified that he looks at the mats periodically all day long.

Mr. Bryan testified that it is the duty of the cashiers and courtesy clerks to continually monitor the entrance and exit areas, including the mats. He acknowledged that sometimes the mats will buckle or the edges will flip up if someone is scuffing or shuffling their feet; however, when this happens, the employees straighten out the mats. He maintained that Ms. Jones did not tell him at the time of the accident that a wrinkle in the mat caused her to fall, nor did anyone else tell him at that time that there was a wrinkle in the mat or that any such wrinkle caused Ms. Jones to fall.

Mr. Bryan did fill out an accident report approximately three weeks after the accident (January 5, 2001) when Ms. Jones came back in the store to talk with him because Medicare had inquired about whether there would be a third-party pay- or on her medical bills. Much argument is made over the significance of the information recorded on this accident report because Mr. Bryan’s testimony at trial regarding Ms. Jones’s fall differs from the | ^responses he wrote on the accident form. For example, for the customer’s version of how the accident occurred, Mr. Bryan recorded, “was walking out foot went under wrinkle on rugs & customer fell in front of exit door.” He then recorded for the description of the condition of the location of the fall that, “rugs in front of door & had wrinkle in rugs.” In addition, he marked “no” in response to the question of whether he inspected the location after the accident. When questioned at trial about the responses on the accident form, Mr. Bryan testified that, when Ms. Jones returned to the store three weeks after her fall, he simply recorded her comments or her “version” of how she tripped and fell. Both Mrs. Minter and Ms. Jones agreed that Mr. Bryan asked questions of Ms. Jones and recorded her answers. Mr. Bryan admitted that he had filled out the report incorrectly, explaining that he was not very familiar with the accident form as he had only filled out a few over his 13 years of employment with Brookshire.

As previously stated, after watching the witnesses testify and hearing all of the evidence, the trial court found that Ms. Jones failed to meet her burden under La. R.S. 9:2800.6 and it provided thorough written reasons for judgment. Specifically, the trial court found that Ms. Jones failed to prove the existence of any wrinkle in the mat. Significantly, the trial court noted that Ms. Jones could only speculate that a wrinkle existed prior to her fall and that it was this alleged wrinkle that caused her to stumble. Further, the court pointed out that it was possible to conclude under the evidence presented that Ms. Jones may have caused a wrinkle by “moving her feet either into or over the mat.” The trial court further held that, even assuming |Ba wrinkle was present, Ms. Jones failed to prove that the store had actual or constructive knowledge of any such wrinkle as she could only speculate as to how long the alleged wrinkle had been there or what had caused it. Finally, the trial court found that, even if a wrinkle was there and caused Ms. Jones’s fall, the employees of the store exercised “reasonable care by constantly monitoring the area.” Accordingly, the trial court dismissed Ms. Jones’s claim with prejudice.

On appeal, Ms. Jones raises the following three assignments of error:

1. The trial court committed manifest error in concluding that Ms. Jones failed to prove that a wrinkle caused her fall.
2. The trial court committed manifest error in concluding that Ms. Jones failed to prove that the store owner had actual or constructive knowledge of the wrinkle. Alternatively, the trial court committed legal error in concluding that a store owner with constructive knowledge of a dangerous condition can avoid liability by proving the existence of a regular clean-up schedule.
3. This Honorable Court should review the evidence de novo and should award damages to Ms. Jones.

DISCUSSION

Merchant liability for slip or trip and fall cases is governed by La. R.S. 9:2800.6, which places a heavy burden of proof on plaintiffs in claims against a merchant for damages arising out of a fall on the premises. La. R.S. 9:2800.6 provides, in pertinent part, as follows:

§ 2800.6. Burden of proof in claims against merchants
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a | Treasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

A plaintiff must prove each of three elements set forth in section B; failure to prove any of these required elements will prove fatal to a plaintiffs claim. White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081; Alexander v. Wal-Mart Stores, Inc., 96-1598 (La.App. 3d Cir.2/4/98), 707 So.2d 1292, writ denied, 98-0572 (La.4/24/98), 717 So.2d 1169. The supreme court in White, supra, held that, in addition to proving each of the above three elements, a plaintiff must “come forward with positive evidence showing that the damage causing condition existed for some period of time and that such time was sufficient to place a merchant defendant on notice of |sits existence.” White, supra. See also Turner v. Brookshire Grocery Company, 34,562 (La.App.2d Cir.4/4/01), 785 So.2d 161, citing Rodgers v. Food Lion, Inc., 32,856' (La.App.2d Cir.4/5/00), 756 So.2d 624, writ denied, 00-1268 (La.6/16/00), 765 So.2d 339; Davis v. Wal-Mart Stores, Inc., 31,542 (La.App.2d Cir.1/22/99), 726 So.2d 1101. This element is referred to as the “temporal” element. Absent some showing of the temporal element, there can be no inference of constructive knowledge. While there is no bright line time period, a plaintiff must show that the condition existed for “such a period of time.” Kennedy v. Wal-Mart Stores, Inc., 98-1939 (La.4/13/99), 733 So.2d 1188.

Merchants are required to exercise reasonable care to protect those who enter the store, keep the premises safe from unreasonable risks of harm and warn persons of known dangers. Turner, supra; Ward v. ITT Specialty Risk Services, Inc., 31,990 (La.App.2d Cir.6/16/99), 739 So.2d 251, writ denied, 99-2690 (La.11/24/99), 750 So.2d 987; Leonard v. Wal-Mart Stores, Inc., 97-2154 (La.App. 1st Cir.11/6/98), 721 So.2d 1059. Although the owner of a commercial establishment has an affirmative duty to keep the premises in a safe condition, he is not the insurer of the safety of his patrons. Turner, supra; Ward, supra; Tanner v. Brookshire Grocery Company, 29,276 (La.App.2d Cir.4/2/97), 691 So.2d 871. A store owner is not hable every time an accident happens. Turner, supra; Ward, supra; Leonard, supra.

The merchant’s duty of care requires that reasonable protective measures, including periodic inspections, are undertaken to ensure that the | premises are kept free from substances or conditions that might cause a customer to fall. See Hardman v. The Kroger Company, 34,250 (La.App.2d Cir.12/6/00), 775 So.2d 1093; Ward, supra; Stevens v. Winn Dixie of Louisiana, 95-0435 (La.App. 1st Cir.11/9/95), 664 So.2d 1207. Whether measures taken are reasonable must be determined in light of the circumstances of each case. Hardman, supra; Ward, supra. As noted by the court in Stockwell v. Great Atlantic & Pacific Tea Co., 583 So.2d 1186 (La.App. 1st Cir.1991) (citations omitted), the degree of vigilance must be commensurate with the risk involved, as determined by the overall volume of business, the time of day, the section of the store and other relevant considerations.

A trial court’s findings regarding liability for damages caused by a slip and fall accident at the defendant’s place of business, as well as the presence of comparative fault, are factual determinations that will not be disturbed absent manifest error or unless clearly wrong. Barton v. Wal-Mart Stores, 97-801 (La.App. 3d Cir.12/10/97), 704 So.2d 361; Myles v. Brookshires Grocery Co., 29,100 (La.App.2d Cir.1/22/97), 687 So.2d 668. In addition, whether a condition existed for a sufficient period of time that a merchant should have discovered the condition is a fact question; however, there remains the prerequisite showing of some time period. Kennedy, supra.

After our thorough review of the entire record in the case sub judice, we find no manifest error in the trial court’s findings that Ms. Jones failed to prove the existence of a wrinkle in the mat or that the store was reasonable |1flin its efforts to keep the exit area clean and free of hazards. In addition, and most significantly, we can find no evidence whatsoever regarding the temporal element, or the length of time the wrinkle, if any, existed prior to Ms. Jones’s fall. We now turn to Ms. Jones’s first assignment of error.

In her first assignment of error, Ms. Jones argues that the trial court erred in finding that she failed to prove that a wrinkle in the mat caused her fall. In fact, the trial court actually found that Ms. Jones failed to prove the existence of a wrinkle at all or that such wrinkle caused her fall. We find ample evidence in the record to support this reasonable conclusion of the trial court. No employee of Brookshire testified that they saw a wrinkle in the mat before or after Ms. Jones fell. Mr. Powell, who was walking slightly behind and to the left of Ms. Jones did not see a wrinkle in the mat. Even Ms. Jones admitted throughout her testimony that she did not see a wrinkle in the mat before she fell and that there was nothing in the area that might have obstructed her view of any such wrinkle. It was not until after she fell and was getting up that Ms. Jones noticed that her foot was caught beneath the mat. Even then, however, she did not state this wrinkle as having been the cause of her fall. Further, Mr. Bryan testified that the mats can sometimes wrinkle or flip up on the edges from the shuffling of feet as one begins to cross the mat. In light of this testimony, we cannot say that the trial court’s conclusions that Ms. Jones was only speculating that it was a wrinkle that caused her fall and that “it cannot even be said that the wrinkle did not occur as a result of Ms. Jones moving her feet either into or over the mat” are manifestly erroneous or clearly wrong.

InMs. Jones urges this court to place significance on the incorrectly completed or altered accident report created by Mr. Bryan three weeks after the accident when Ms. Jones returned to the store after Medicare’s query regarding a third-party payor of her medical bills. In his testimony, Mr. Bryan explained the recorded information and alleged alterations on the accident report, stating that he had merely recorded Ms. Jones’s version of the accident on the form. Ms. Jones and Mrs. Minter corroborated Mr. Bryan’s testimony in this regard. Mr. Bryan also admitted that he had not correctly filled out the form. The trial court was able to view the demeanor of Mr. Bryan and chose to credit his testimony regarding the circumstances of Ms. Jones’s fall and the completion of the accident report. We find no error in the trial court’s conclusion in this regard.

In her second assignment of error, Ms. Jones urges that the trial court manifestly erred in finding that she did not prove that the store owner had actual or constructive knowledge of any wrinkle in the mat. Initially, we note that, assuming there was a wrinkle in the mat prior to Ms. Jones’s fall, there is no evidence in the record which suggests that there was actual notice to the store owner of a wrinkle. Ms. Jones, therefore, must rely on constructive notice, which requires satisfaction of the temporal element, or proof that the dangerous condition existed for such a period of time that it would have been discovered had the merchant exercised reasonable care. Again assuming that any wrinkle existed prior to her fall, there was no evidence that any customer or Brook-shire employee reported seeing a wrinkle prior to Ms. Jones’s fall. As previously mentioned, even Ms. Jones | ^testified that she did not see a wrinkle prior to her fall. Further, there is no evidence whatsoever of how any such wrinkle was created or how long it had been there.

Ms. Jones submits that constructive notice existed when Mr. Powell assumed the responsibility of assisting her from the checkout counter, out of the store and to her vehicle. She argues that Mr. Powell had an unobstructed view of the mat and should have seen the alleged wrinkle and prevented the accident. We disagree. It is true that a courtesy clerk is charged with the responsibility of monitoring the condition of the entrance to and exit from the store. Mr. Powell testified that he was vigilant in performing this duty and was observing these areas periodically on the day of the accident. He testified that he walked in and out of the store many times that day and did visual inspections each time. Mr. Powell did not, however, have an unobstructed view of the mat where Ms. Jones fell as he was pushing her loaded grocery cart toward the exit door. He was walking slightly behind and to the side of Ms. Jones and, therefore, it would have been difficult for Mr. Powell to be constantly aware of the conditions on the floor directly ahead of Ms. Jones. We find Ms. Jones’s argument unpersuasive on this issue and agree with the trial court’s statement that

[t]he law does not require [a courtesy clerk] to constantly look down at the floor as he walks and tries to assist a shopper with their groceries, as this would be unreasonable. The law only requires reasonable protective measures including periodic inspections.

In Robinson v. Brookshires # 26, 33,713 (La.App.2d Cir.8/25/00) 769 So.2d 639, this court dealt with a case involving very similar facts |13wherein the plaintiff tripped and fell over an alleged “pucker” in a mat placed in the produce section of a Brook-shire store. With no evidence of actual notice, the plaintiff in Robinson had to show that the pucker in the rug existed for such a period of time so as to allow constructive notice to be established. As in the present case, the plaintiff in Robinson testified in her deposition that she did not see the pucker prior to her fall. She further stated that she had no idea how long the pucker had been there; but, because of its size (approximately 2Jé inches high), she opined that it must have been that way for a long time. Unlike the present case, however, a Brookshire employee and another witness in Robinson testified by deposition that they saw the pucker in the rug before plaintiffs fall and witnessed the fall. In Robinson, this court concluded that the evidence produced in opposition to Brookshire’s motion for summary judgment fell short of “factual support sufficient to establish a credible possibility that the condition existed long enough that it would have been discovered if Brookshire had exercised reasonable care.”

Ms. Jones’s showing regarding the temporal element in the case sub judice falls short of the evidence produced in Robinson. In fact, there exists only Ms. Jones’s speculation that there was a wrinkle and that such wrinkle caused her fall and there is no evidence concerning the length of time the wrinMe, if any, had existed prior to the fall. In summary, a trial court’s determination of whether a merchant had constructive notice of a condition creating an unreasonable risk of harm to customers is a factual finding that |14inay not be set aside on appeal absent a showing of manifest error and we find no such error to exist in this case.

Finally, we find that it was reasonable for the trial court to conclude that the utility of the mats outweighs the risk of a trip and fall such as what allegedly happened in this case. The mats involved in this case have a high utility for absorbing rain water from customers’ feet as they enter the store and provide a non-slip surface in other areas of the store. The mats are rubber-backed to prevent slippage and are rotated and cleaned on a weekly basis. Mr. Bryan agreed that the mats occasionally wrinkle or buckle if a string of many grocery carts is pushed over the mat or if a person shuffles their feet when walking over a mat. He noted, however, that most carts are returned to the store from the parking lot one at a time by the courtesy clerk assisting each customer. He further explained that, in the event a mat becomes wrinkled, the employees are prompt in straightening the mats. As previously stated, both the cashiers and the courtesy clerks are responsible for continuously monitoring the entrance and exit areas for safety and cleanliness. Significantly, Mr. Bryan testified that, in his 13 years of employment with Brookshire, this is the only accident of this type (tripping over a wrinkle or buckle in a mat) of which he was aware. We believe that the trial court properly concluded that Brookshire’s efforts to keep the exits safe and clean were reasonable and effective.

11fiIn fight of these conclusions, we pre-termit any discussion of Ms. Jones’s alternative arguments, request for de novo review and award of damages.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Defendant, Brookshire Grocery Company, dismissing the claim of Plaintiff, Bonnie Mae Jones, is affirmed at Plaintiffs cost.

AFFIRMED.

      . A courtesy clerk’s job duties include bagging groceries at the checkout, assisting customers to their vehicles and returning the grocery carts to the store. In addition, as discussed later in this opinion, a courtesy clerk is also charged with the responsibility of monitoring the entrance to and exit from the store for cleanliness and safely hazards.

      . These photographs were apparently placed in a file in the office of the store and were not located until the time of Mr. Bryan's deposition. They were produced at that time. Ms. Jones places significance on the "late” production of the photographs, arguing that the photographs were part of a conspiracy to alter evidence regarding the circumstances of her accident. The trial court apparently placed little significance on the photographs, not even mentioning the same in its nine-page reasons for judgment. We are inclined to agree with the trial court that the existence of the photographs does not materially affect the resolution of this case and the production of the photographs at Mr. Bryan's deposition afforded Ms. Jones ample time to respond to and defend against any evidentiary value the photographs held.

      . According to Ms. Jones, Brookshire’s policy requires a manager to complete an accident report within three days of an accident, which obviously was not done in the present case.

      . We note that this is not a case where a merchant places an inherently and unreasonably dangerous product, the mat, in the store which causes an injury to a customer. No evidence was presented regarding any unreasonably dangerous properties of the mat itself and no argument has been made to that effect. To the contrary, Mr. Bryan testified as to the high utility of the mats and the low risk of falls or injuries related to the mats. In addition, recall that Mrs. Minter and her husband both testified that they shop frequently at Brookshire stores and rarely see the mats wrinkle; but, on the occasions when they have noticed wrinkles, the store employees promptly straighten the mats.