author: |,MICHAEL E. KIRBY, Judge. | MICHAEL E. KIRBY, Judge.

text:
    Matthew R. TARIFA v. Iris D. RIESS, Eleanor D. Lund, Edgewood Pest Control, Inc., et al.
    No. 2002-CA-1179.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.
    Opinion Granting Rehearing Sept. 3, 2003.
    Robert A. Mathis, Newman, Mathis, Brady, Wakefield & Spedale, APLC, Me-tairie, LA for Plaintiff/Appellant.

      Alan Abadie, Chalmette, LA, for Defendants/Appellees (Iris Riess and Eleanor Lund).
    Edward E. Reynolds, Crawford A. Rose, III, Law Offices of Edward E. Reynolds, New Orleans, LA, for Defendants/Appellants (Edgewood Pest Control Co., Inc. and The Louisiana Pest Control Insurance Company).
    William E. Wright, Jr., Margaret L. Sunkel, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Third-Party Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   |,MICHAEL E. KIRBY, Judge.

In this redhibitory action for a reduction of the purchase price of a home, the trial court awarded the Plaintiff/Purchaser, Mathew Tarifa (“Tarifa”), the sum of $20,000.00, which was his cost in repairing the home in the way he saw fit. The trial court also found the notary who passed the act of sale liable to the Defendants/Third Party Plaintiffs/Vendors, Iris D. Riess and Eleonor D. Lund (“Riess” and/or “Lund”). We reverse the finding that the attorney/notary is liable, amend the assessment of liability, recalculate the award according to La. C.C. art. 2520 and affirm.

STATEMENT OF THE FACTS

The plaintiff, Mathew Tarifa, lived with his parents across the street from the Property in question, at 2812 Marietta St., Chalmette, Louisiana. The plaintiff was a friend of his next door neighbor, Ms. Hil-dred Davidson. In 1998, Ms. Davidson passed away and ownership of her home passed to her two daughters Iris | ¡.Reiss and Eleonor Lund. The purchaser/plaintiff and the sellers, Ms. Reiss and Ms. Lund, had known each other for all of the purchaser’s life.

Upon finding out from his mother that Ms. Reiss and Ms. Lund would be willing to sell the property located at 2813 Marietta St., Chalmette, Louisiana (the “Property”) for the sum of $45,000.00, he decided he would purchase it for a residence. The plaintiff entered into an Agreement to Purchase the Property from Riess and Lund on February 16,1998.

The Purchase Agreement was executed at Gulf Coast Bank. Mr. Riess provided the Purchase Agreement form and he filled in the handwritten portions including the statements that “THIS HOUSE IS SOLD IN ‘AS IS’ CONDITION” and “ALL COST IN CLOSING THIS SALE WILL BE PAID BY THE PURCHASER.” Mr. Riess chose the “as is” language. Riess and Lund requested the “as is” language because they “just did not want to be bothered with painting and remodeling a house to try and get more money for it.” At the time the Purchase Agreement was confected there was no discussion about a waiver of redhibition.

The Act of Sale took place on March 25, 1998, with Simone acting as the notary thereto. Simone is an attorney licensed in Louisiana with experience in representing banking institutions in real estate transactions and Omni Bank is his client. Simone acted as the closing attorney on the sale of the Property from Riess and Lund to Tari-fa at the request of Omni Bank, the bank through which Tarifa arranged financing for the purchase of the Property.

|30n March 23, 1998 at 12:48 p.m., Omni Bank faxed the closing documentation to Simone’s office. However, Simone’s office only received the bottom portion of what is now known to be a copy of the Purchase Agreement. The transmitted portion did not contain the contested “as is” language or the language relating to the payment of closing costs. After receiving the closing information from Omni Bank, Simone faxed the information to Magnolia Title Agency for preparation of a title abstract. In conformance with his duty to Omni Bank, Simone analyzed the Abstract and took the necessary measures, including obtaining an amended Affidavit of Death & Heirship in the Successions of John Leroy Davidson and Hildred Carpenter Davidson, to ensure that there was clear title to the Property. Thereafter, he prepared the Settlement Statement and Act of Sale in conformance with the information provided. Since he had not received the complete Purchase Agreement, he did not include the “as is” language in the Act of Sale nor did the Settlement Statement provide for the purchaser to pay all of the closing costs.

The Act of Sale on the Property took place on March 25, 1998 at Omni Bank. Present at the Act of Sale were Eleonore Lund, Iris Riess, Mr. Riess, Mathew Tari-fa, Tarifa’s father and Stephen Simone, the notary. At the Act of Sale Simone first went through the Settlement Statement. While he was going through the Settlement Statement Mr. Riess called to Simone’s attention that the Sellers, Riess and Lund, were not to pay any of the closing costs. Simone amended the Settlement Statement to reflect this change. Thus, contrary to custom, Riess and 14Lund did not pay any closing costs. Each seller received a check for exactly one-half the sale price. Thereafter, Simone went through the Act of Sale. At no time during the closing did any of the parties thereto tell Simone that the Property was to be sold “as is.” Neither Lund nor Riess nor Riess’ husband, the author of the “as is” language, inquired about or discussed the inclusion of an “as is” provision at the closing.

Also, at the closing of the Act of Sale, Riess and Lund submitted to the plaintiffs lender, Omni Bank, a clean termite certificate issued by Edgewood Pest Control, Inc. The house on the Property had been under contract since April 16, 1980 with Edgewood Pest Control, Inc. (hereafter “Edgewood”) for termite eradication. Plaintiff alleged he was told by sellers that the house was under termite contract and that there were no termite problems in the house.

REDHIBITION ACTION

Subsequent to the closing, Tarifa discovered extensive termite damage and active termites in the Property. The Louisiana Department of Agriculture inspected the Property on May 7, 1998 and found live termites in the house. As a result of the termite damage, the house was unsafe and unfit to live in as well as subject to possible cave-in.

On August 27, 1998, Tarifa brought a suit for redhibition and damages naming Riess, Lund and Edgewood Pest Control, Inc. as Defendants. On September 15, 1998, Riess and Lund asserted a cross-claim against Edgewood asUwell as a third party claim against Simone. The allegations against Simone are that he should have insured that he had the complete Purchase Agreement and that he had a duty to and should have prepared the Act of Sale in conformance with the Purchase Agreement, specifically including the “as is” language. The claim by Riess and Lund against Simone was for indemnity only. Thus, Simone could only be found liable to the extent Riess and Lund were found to have liability to Tarifa.

The entire matter went to trial on September 26, 2001. On October 16, 2001, the trial judge rendered Judgment in favor of Plaintiff Tarifa and against Edgewood in the amount of $20,000.00 plus legal interest and costs. Concerning the third party demand, the trial court further found in favor of Riess and Lund and against Simone in the amount of $2,500.00 plus legal interest and costs, even though Riess and Lund had not been found to have any liability to Tarifa.

On October 26, 2001, Simone filed a Motion for New Trial or, in the alternative, Request for Written Reasons for Judgment. By Judgment signed November 30, 2001, the trial court denied Simone’s Motion for New Trial. The trial court agreed to give, in writing, its findings of fact and reasons for Judgment against Simone pursuant to La. C.C.P. art.1917. The trial court never issued any written reasons. Simone filed a Motion for Suspensive Appeal.

\ ¿LEGAL ANALYSIS

Normally, the appellate court standard of review for factual findings is that of manifest error. Nevertheless, when the trial court commits legal error, de novo review is triggered. Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773; Guillory v. Wal-Mart Stores, 2001-127 (La.App. 3 Cir. 10/3/01), 796 So.2d 772; Roger v. Dufrene, 1997-1946 (La.App. 4 Cir. 9/9/98), 718 So.2d 592.

Pursuant to a third party demand for indemnity made by the vendors, the trial court awarded $2,500.00 plus legal interests and costs at the expense of the notary who passed the act. Nevertheless, the trial court did not find the vendors to be liable to the plaintiff.

Louisiana Civil Code article 2548 states:

The parties may agree to an exclusion or limitation of the warranty against redhibitory defects. The terms of the exclusion or limitation must be clear and unambiguous and must be brought to the attention of the buyer....

In the Purchase Agreement, were hand written the words: “This house is sold in ‘as is’ condition.” Such general language, when compared with La. C.C. art. 2548, does not waive the warranty against redhibitory defects. Creger v. Robertson, 542 So.2d 1090 (La.App. 2 Cir.1989). Even if the “as is” clause of the Purchase Agreement were included in the Act of Sale, it would still not have been sufficient to waive Mr. Tarifa’s warranty against redhibitory defects. Thus, the fact that the notary did not include the “as is” clause in the Act of Sale, cannot serve as a basis for holding him liable. Since the trial court’s basis for Mr. 17Simone’s liability is not legally sufficient, we reverse this part of the trial court’s Judgment.

La. Civil Code article 2520 treats the warranty against redhibitory defects, to wit:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

[Emphasis added.]

We conclude, as the trial court did, that the extensive termite damage within the House was non-apparent. See La. C.C. art. 2521. This is because the termite damage could not be seen prior to the removal of the sheetrock. Due to the necessity of replacing the studs and other interior structure of the House, such extensive termite damage can easily be classified as a redhibitory defect which merits a reduction in the price paid by the buyer.

There are documents and testimony in the record that show visual checks had been performed, including the Wood Destroying Insect Report, that revealed no signs of termite infestation. This evidence lead the trial court to conclude that ground infestation was the means by which infestation occurred. Such ground infestation makes Edgewood liable, as they provided a contract to prevent termite infestation in this House.

|RThe agreed upon price for the Act of Sale was forty-five thousand (45,000.00) dollars, said Act of Sale was passed on March 25, 1998. This sum was a reduced price due to the fact that the purchaser and sellers all agreed the House required work.

Since the sale, plaintiff has expended greater than $20,000 in the repair and upgrade of this House, as well as other monies for adding onto the House. The monies expended for the addition to the House and the upgrade are of no concern for this matter, as the plaintiff only has a right to the difference in value of the home, had he known of the redhibitory defects prior to purchasing the House. To state otherwise, the entitlement to a reduction in price via La. C.C. art. 2520, is only meant to compensate for lost value due to non-apparent defects, in this case the termite damage to the studs and other wooden structures.

The trial court did not assign any liability to the vendors, Riess and Lund. Had the vendors been held liable for $20,000.00, due to the termite damage, then they could have collected from Edge-wood via their cross claim for indemnity based upon their contract. But, there is no basis in a redhibitory action to hold Edgewood liable to the purchaser without the vendors being liable. This is due to the fact that to hold someone liable via redhibition implies the contractual relationship of a sale. Here, the only sales contract exists between Mr. Tarifa, purchaser, and Ms. Riess and Ms. Lund, the vendors.

As La. C.C. article 2520 states, when quanti minoris is the relief sought, it is the difference between the actual value and the price paid that constitutes the relief. In this case the trial court committed legal error by awarding $20,000.00, which is the sum the plaintiff alleges it cost him to get this house in the condition he wanted it. The proper award should have been the difference between the actual appraised |9value of the house in the termite infected condition in which it was found and the amount Mr. Tarifa paid for the House.

The only expert testimony in the record that establishes the actual market value of the house, with the termite damage, was offered by Charles Ruffino. Mr. Ruffino was qualified as an expert in real estate appraisal and stated that the value of the House on 2813 Marietta Street was $36,000.00. Mr. Ruffino’s appraisal value was uncontroverted.

As stated earlier, the price paid was $45,000.00. So, by subtracting the actual value from the price paid we arrive at the sum of $9,000.00 ($45,000-$36,000= $9,000), which is the sum that should have been awarded to the plaintiff.

In awarding the sum of $9,000.00 to the plaintiff we note that the sellers are liable to the plaintiff. However, as the trial court found, due to the fact that the sellers had a contract with Edgewood to protect the Home from termite infestation, the sellers can collect that sum from Edge-wood, making Edgewood ultimately liable for $9,000.00.

Edgewood is hable because there is evidence in the record that they did not properly perform their duties under the contract to protect the Home against the termite damage that occurred. Specifically, Edgewood did not retrench the House for sixteen years, leaving the House vulnerable for ground infestation. There is also evidence that Edgewood did not comply with Louisiana regulations governing the distance between drilled holes for the application of termite pesticide. With this factual finding of the trial court we do not tamper.

In sum, plaintiff is entitled to an award of $9,000.00, for which the vendors are liable. Likewise, Edgewood is hable to the vendors for $9,000.00 for breach of contract, in not properly securing this House from termite infestation and damage. |in All other aspects of this Judgment, not to the contrary of the aforementioned, are affirmed, including the award of legal interest and costs.

REVERSED IN PART; AMENDED IN PART AND AFFIRMED.

ON APPLICATION FOR REHEARING

| MICHAEL E. KIRBY, Judge.

REHEARING GRANTED

We grant this rehearing to clarify our ruling that in addition to other amounts awarded, vendors owe plaintiff reasonable attorney’s fees via La. C.C. art. 2545. Likewise, Edgewood Pest Control Company is liable to the vendors for the reasons stated in our Judgment. Therefore Edge-wood is liable to the plaintiff, for the plaintiffs reasonable attorney’s fees.

The plaintiff argues in his application for rehearing that the 1993 Revision Comment (d) to La. C.C. art. 2541 should alter our Judgment. That Comment states:

Under this Article, in sales of immovable property the amount to be awarded is the amount necessary to convert an unsound structure into a sound one. Lemonier v. Coco, 237 La. 760, 112 So.2d 436 (La.1956[1959]).

Besides citing this 1956 case, plaintiff also cites, Billups v. Lyons, 2001-1654 (La.App. 4 Cir. 5/29/02), 821 So.2d 499, 507, writ denied 2002-1798 (La.10/14/02), 827 So.2d 424.

These cases are distinguished on their facts. Nevertheless, we also note that the characterization of a suit as using a contract theory of recovery as opposed to a li>tort theory can render similar, although not identical results. Liability and obligations result under both theories due to the occurrence of events, somewhat foreseen in contracts and more fortuitous in tort. The scope of damages in contract and tort are measured somewhat differently. Another difference seen here is that attorney’s fees are generally not available in a tort recovery as they are in a contract theory of recovery. La. C.C. art. 2545. This matter occurred within the context of two contractual disputes (i.e. the sales contract and termite contract), that is why we used a contractual analysis instead of that of tort.

Plaintiff was an expert in home repair/construction and had repaired over twelve homes with termite damage. Plaintiff/purchaser, had grown up around and in this home, and knew it required substantial repair. The purchase agreement and sales contract between the buyer and seller reflected an understanding that the house required substantial work and for this reason the price was well below market value. That was why an “as is” clause was included in the Purchase Agreement. Additionally, plaintiff made very extensive renovations to the home, that were far beyond a mere repair for termite damages. For example, the plaintiff extended and upgraded the entire roof of the house to cover the carport. Finally, plaintiffs expenses were not proven sufficiently, as defense counsel noted that many of the plaintiffs expenses were not related to repair of termite damage, but rather to the renovation and modernization of an old home.

The home was appraised by the lending bank for $67,000.00. The plaintiff/purchaser, who was friends with the sellers, agreed upon the price of $45,000.00, because both parties knew the home required substantial repair. Ms. | sRiess, one of the sellers, testified that upon learning of termite infestation, she offered to the plaintiff a rescission of the sale.

To hold the defendants/sellers, Ms. Iris Riess and her sister Ms. Eleonor Lund liable to the plaintiff for any more than $9,000.00 would violate the contract and the understanding between them.

Although there is no privity of contract between the plaintiff/purchaser and Edge-wood Pest Control, Edgewood becomes liable to plaintiff because it is liable to the vendors via its breach of contract with them.

Moreover, we note that in Billups v. Lyons, supra, we dealt with a recovery that relied on a tort theory and we properly assessed a percentage of fault upon the defendant pest control company. La. C.C. Article 2323.

In the matter sub judice the trial court assigned no written reasons nor did it orally assess any percentage of fault. Under the manifest error standard of review, we did not disturb the trial court’s finding of liability based on a breach of contract by the pest control company. However, to allow plaintiff to duplicate his recovery under a breach of contract by means of a similar tort theory is not permissible.

For the aforementioned reasons we clarify our opinion on rehearing by stating that Edgewood Pest Control Company is liable to the plaintiff for reasonable attorney’s fees by way of Louisiana Civil Code article 2545. Our decree remains the same.

REVERSED IN PART; AMENDED IN PART AND AFFIRMED.

      . After a search of the record, we did not find any written reasons issued by the trial court.

      . Galligan, Thomas, Contortions Along the Boundary between Contracts and Torts, 69 Tul. L.Rev. 457 (Dec.1994).

      . There was substantial evidence in the record that the termite infestation could have occurred due to a break in the slab, which would make another party liable.


source: Caselaw Access Project

author: hEDWIN A. LOMBARD, Judge. I,GORBATY, J.,

license: Public Domain

text:
    Demetrice RAYMOND and Wesley Raymond, on Behalf of her Minor Daughter, Teiera Raymond v. ORLEANS PARISH SCHOOL BOARD.
    No. 2003-CA-0560.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2003.

      Jacqueline L. Savoie, Newton K. Muhammad, Muhammad & Savoie, New Orleans, LA, for Plaintiff/Appellant.
    Yolanda Y. Grinstead, Donesia D. Turner, Bryan & Jupiter, New Orleans, LA, for DefendanVAppellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   hEDWIN A. LOMBARD, Judge.

STATEMENT OF THE CASE

On October 13, 1999, the plaintiffs/appellants filed their petition for personal injuries and damages. In the petition, the appellants alleged that Teiera Raymond, a seventh grade student at Sophie B. Wright Middle School in New Orleans, sustained injuries to her leg on October 4, 1998 (the correct date is October 5, 1998) while forced to participate in physical education class after she informed the teacher that her leg hurt.

Teiera had been limping, and when questioned by the physical education teacher as to the reason, she explained that her leg was hurting. The physical education teacher allegedly required her to participate in the football activities during the class period despite her reports of pain.

While trying to run, Teiera fell and could not get up. She was taken to the school nurse’s office and her grandfather was called to pick her up from school. Upon examination at the hospital later that day, the physician determined that her hip was broken and that she was unable to bear weight on the left leg. She was ^immediately admitted to the hospital and, that same day, had a closed reduction and percutaneous pinning of her left hip.

Upon her return to school on October 19, 1998, her mother advised school personnel that Teiera could not go upstairs because the crutches restricted her movements. The school personnel nonetheless required Teiera to go upstairs to her classes resulting in her falling as she attempted the stairs. The fall aggravated her previous hip injuries.

PROCEDURAL HISTORY

On December 7, 1999, the Orleans Parish School Board (“School Board”) filed a dilatory exception for lack of procedural capacity, arguing that the parents of Tei-era did not allege their capacity as appointed tutors or their marital status. On December 20, 1999, the appellants filed their motion for leave to amend and to file their amended petition to show their qualifications as Teiera’s parents to bring this suit on her behalf, which the trial court granted on December 29, 1999. On January 13, 2000, the School Board filed its answer denying all allegations of negligence.

On May 21, 2002, the appellants filed their second amended petition for personal injuries and damages, including the allegations concerning the October 19, 1998 accident that occurred when Teiera returned to school following her hip surgery.

On May 22, 2002, the School Board filed its exception of prescription, arguing that a one-year prescriptive period for delictual actions for damages applied because the suit was filed more than one year after the alleged injury on October 5, 1998. On June 5, 2002, the School Board filed its answer to the second amended petition denying the additional allegations.

|4On August 21, 2002, the appellants filed their memorandum in opposition to the School Board’s exception of prescription, arguing that Teiera’s falls on October 5, 1998 and October 19, 1998 were related, and the claim did not prescribe until October 19, 1999. The appellants made several alternative arguments. First, the appellants argued that the prescriptive period was two years because the acts of the School Board rose to the level of a crime of violence against a juvenile under La. C.C. art. 3493.10 and La. R.S. 14:93. Second, the appellants argued that the prescriptive period was ten years because a contract existed between the School Board and the students to ensure their safety and the School Board breached the contract. Third, the appellants argued that the doctrine of contra non valentum should apply in this case as an exception to the general rules of prescription on the grounds that the appellants did not gain full knowledge of Teiera’s medical condition until months after the October 5,1998 fall, which resulted in surgeries in 1998 and 1999. Thus, they contended that prescription should not run until Teiera’s doctors have ascertained the full extent of her injuries, a process still ongoing.

On December 6, 2002, the trial court heard the exception of prescription. On January 7, 2003, the trial court signed the judgment maintaining the exception of prescription. On February 7, 2003, the appellants filed their petition and order for devolutive appeal.

ANALYSIS

The standard of review of a trial court’s finding of facts supporting prescription is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong. In re Medical Review Proceedings of Ivon, 2001-1296, p. 5 (La.App. 4 Cir. 3/13/02), 813 So.2d 532, 536. This court should determine whether the district court judgment is clearly wrong considering all the evidence. Hoerner v. Wesley-Jensen, 95-0553, p. 7 (La.App. 4 Cir. 11/20/96), 684 So.2d 508, 518. If the face of the petition shows the prescriptive period has already elapsed, the plaintiff has the burden of establishing that suspension, interruption or renunciation of prescription has occurred. Hoerner, 684 So.2d 508, 510, 95-0553, p. 3.

One-Year Prescriptive Period for Damages Arising from Tort

The appellants argue that the trial court erred in sustaining the School Board’s exception of prescription because the claim did not prescribe until October 19, 1999, one year after the second injury. We disagree.

Delictual actions generally are subject to a liberative prescription of one year, which commences to run from the day injury or damage is sustained. La. C.C. art. 3492. Prescription begins to run when damage to the plaintiff has manifested itself with sufficient certainty to support accrual of a cause of action. La. C.C. art. 3492; Cameron Parish School Bd. v. Acands, Inc., 96-0895 (La.1/14/97), 687 So.2d 84, 88.

The original petition for damages was filed on October 13, 1999, with the date of the alleged injury as October 5, 1998. The petition was clearly prescribed on its face. On May 21, 2002, the appellants filed their second amended petition alleging Teiera was injured on October 5, 1998 and on October 19, 1998. This petition was also clearly prescribed on its face unless it could be construed as relating back to the original petition.

In order for a second amended petition to relate back, the original petition must have been timely filed. See Ford v. Murphy Oil, U.S.A., Inc., 96-2913, p. 1 (La.10/10/97), 710 So.2d 235 (pointing out that because “amended pleadings will | ^relate back to the originally filed petition, prescription of the individual claims will not be an issue provided that the original petition was timely filed.”). See also Albert Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 233 (1969) (discussing Louisiana jurisprudence wherein supplemental amended petitions which added new parties, new or different causes of action, and new or different relief sought, were all deemed to relate back to timely filed petitions under La. C.C.P. art. 1153).

In the instant case, because the original petition was prescribed on its face, the second amended petition cannot be considered to relate back. Therefore, the second amended petition does not save the appellants’ cause of action from the one-year prescriptive period under Article 3492.

Ten-Year Prescriptive Period for Damages Arising from Contract

Appellants also argue that the prescriptive period should be ten years on the grounds that a contract existed between the School Board and Teiera to ensure her care and safety. We disagree.

La.C.C. art. 3499 delineates the prescriptive period for personal actions and applies to actions on contracts. The ten-year prescriptive period, however, applies “unless otherwise provided by legislation” or only in the absence of a legislative provision that establishes a shorter or longer period. Harrison v. Gore, 27-568, 27,254, p. 7-8 (La.App. 2 Cir. 8/23/95), 660 So.2d 563, 568, citing La. C.C. art. 3499, Revision Comment (b). The court in Harrison went on to discuss the distinction between actions on contracts and actions arising from a more general duty:

The nature of the duty breached determines whether the action is in tort or in contract. Roger v. Dufrene, 613 So.2d 947 (La.1993). The classical distinction between “damages ex contractu” and “damages ex|7delicto” is that the former flow from the breach of a special obligation contractually assumed by the ob-ligor, whereas the latter flow from the violation of a general duty owed to all persons. Davis v. LeBlanc, 149 So.2d 252 (La.App. 3d Cir.1963), and citations therein. Even when tortfeasor and victim are bound by a contract, courts usually apply the delictual prescription to actions that are really grounded in tort. See, e.g., Sterling v. Urban Property Co., 562 So.2d 1120 (La.App. 4th Cir.1990) (apartment tenant was sexually harassed by her landlord’s business partner; her action prescribed in one year)....

Harrison, 27-568, 27,254, p. 8, 660 So.2d 563, 568.

In the instant case, the appellants alleged that the School Board and its employees acted negligently toward Teiera when she was made to participate in physical education class after complaining of leg pain and after being made to walk on crutches upstairs to class after being notified of her limited mobility. Therefore, the alleged treatment of Teiera sounds in tort, not contract, and the ten-year prescriptive period for contracts is not applicable.

Contra Non Valentum

Also in the alternative, the appellants argue that the prescriptive period should be excused under the doctrine of contra non valentum. Courts created the doctrine of contra non valentem as an exception to the general rules of prescription. Wimberly v. Gatch, 635 So.2d 206 (La.1994). The doctrine of contra non va-lentem suspends prescription when the circumstances of the case fall into one of four categories: 1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; 2) where there was some condition coupled with a contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or 4) where some cause of action is not known or reasonably | sknowable by the plaintiff, even though his ignorance is not induced by the defendant. Wimberly, 635 So.2d 206, 211.

The appellant argues that the fourth category of contra non valentum should apply because Teiera did not gain full knowledge of her medical condition after her fall on October 5, 1998, and her doctors are still ascertaining her medical condition today. The Louisiana Supreme Court has explained that “[i]gnorance or misunderstanding of the probable extent or duration of injuries materially differs from ignorance of actionable harm which delays commencement of prescription.” Fontenot v. ABC Ins. Co., 95-1707 p. 8 (La.6/7/96), 674 So.2d 960, 964. The possibility of permanent damage is enough to start the prescriptive period, even though an ultimate prognosis can only be given later. Sumerall v. St. Paul Fire & Marine, Ins. Co., 366 So.2d 213, 214-215 (La.App. 2d Cir.1978).

In the instant case, Teiera was allegedly injured on October 5,1998, and she sought medical treatment that same day. When Teiera sought medical attention and submitted to surgery for her initial injury, she was on notice of possible permanent damage and the prescriptive period began to run even though her ultimate prognosis may remain uncertain. Therefore, there is no basis for application of contra non va-lentum in this case.

Two-Year Prescriptive Period for Damages Arising from Crime Of Violence

Finally, the appellants assert that the prescriptive period should be two years pursuant to La. C.C. art. 3493.10 because the treatment Teiera received at school amounted to cruelty to a juvenile, a crime of violence under La. R.S. 14:93.

Louisiana C.C. art. 3493.10, which was added by Acts 1999, No. 832, § 1, effective August 15,1999, provides:

UDelictual actions which arise due to damages sustained as a result of an act defined as a crime of violence under Chapter 1 of Title 14 of the Louisiana Revised Statutes of 1950 are subject to a liberative prescription of two years. This prescription commences to run from the day injury or damage is sustained.

A “crime of violence” is defined in La. R.S. 14:2(13) as follows:

“Crime of violence” means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as “crimes of violence”:
(a) ...
(b) ...
(nn) Second degree cruelty to juveniles

La. R.S. 14:2(13), as amended, Acts 2003, No. 637 (approved June 27, 2003) (emphasis added).

As can be ascertained from the recent amendment, the legislature has only recently expanded the definition of “crime of violence” to include crimes that do not involve the intentional use of, or threatened use of, force. In addition to “second degree cruelty to juveniles,” the newly amended list includes “stalking” (mm). At present, therefore, the intent of the legislature apparently was to lengthen the normal prescriptive period to encompass a few crimes outside those involving direct physical violence or the threat of force (i.e., cruelty to juveniles and stalking). The instant case, if pleadings had been timely filed, may indeed have presented a situation that was envisioned by the legislature when amending the statute.

|inIn the instant case, Teiera was injured in 1998, before the August 1999 implementation of La. C.C. art. 3493.10. The appellants filed suit, however, in October 1999, which was subsequent to the effective date of the code article. When the original petition was filed, however, it sounded solely in tort and asserted the injury by the School Board as the insistence of the physical education teacher for Teiera to participate in the class activity. The two-year prescriptive period of Article 3493.10 would apply to the instant case only if the School Board’s actions were construed to rise to the level of a “crime of violence” as defined by statute or by jurisprudence and if such statute were in effect at the time of the initiation of the suit against the School Board or within the prescriptive period of that cause of action.

The above list of crimes of violence in La. R.S. 14:2(13) is illustrative only. Coates v. Day, 2000-2164, p. 2-3 (La.App. 1 Cir. 12/28/01), 804 So.2d 893, 894. The Louisiana Supreme Court has recently discussed “crime of violence” in Boland v. Kleinpeter, 2001-3287, p. 6 (La.6/21/02), 820 So.2d 489, 493. In Boland, the defendant helped a friend, who confessed to killing a neighbor, hide knives stolen from victim’s house. The Louisiana Supreme Court evaluated the defendant’s actions and found that such did not fit the definition of a crime of violence. Similarly, in Donahue v. Williams, 01-537, p. 4 (La. App. 5 Cir. 10/17/01), 800 So.2d 929, 931, the court found that La. C.C. 3493.10 did not apply because it was not in effect at the time of Donahue’s injury or when she filed suit. Furthermore, the damage that Donahue allegedly suffered, intentionally providing false information that resulted in Donahue’s wrongful imprisonment in a hospital, was not the result of a crime of violence by Williams.

InNeither of these cases provides the necessary guidance for the instant case, however, resulting in our conclusion that we are presented with a case of first impression under the unique circumstances herein.

Appellants reference La. R.S. 14:93 to support their argument that the School Board’s actions were negligent and thus constituted a “crime of violence” as to Teiera. Louisiana R.S. 14:93 provides in pertinent part:

A. Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.

We find that the recent amendment of La. R.S. 14:2(13) to include subsection (nn) indicates that the legislature intended that “crimes of violence” encompass cruelty to juveniles. The express wording of La. R.S. 14:93, i.e., the “criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused” applies to the unique facts of the instant case, however, such amendment was not in effect at the time of the instant injury and the lengthened prescriptive period resulting from the finding of a crime of violence may not be applied retroactively.

We note, however, that the School Board owes a duty of care to the students who attend its schools. In the instant situation, a student was injured during a school activity because a teacher allegedly ignored the student’s protests of pain and required her to participate in a high-impact physical activity that resulted in her fracturing her hip. Then, that same student was re-injured upon her return to the same school following surgery for the initial school-related injury. The requirement for the convalescing student to climb the stairs to attend classes, | ^.especially in light of the mother’s alleged request for her daughter not to try to go upstairs while still on crutches, accepting the facts pleaded as true, constitutes negligence on the part of the school personnel. If all of these allegations could be proven at trial, the School Board’s conduct likely would rise to the level of negligent cruelty to Teiera.

Under the circumstances presented herein, we believe that the two-year prescriptive period of Article 3493.10, under different procedural circumstances, would apply because the School Board’s actions appear to constitute a “crime of violence” to a juvenile. Unfortunately, however, this conclusion is merely dicta given the untimely filings in this matter.

Retroactivity of La. R.S. 14(2)(13)(nn)

In order for the exception of prescription to be defeated, the newly amended subsection of La. R.S. 14(2)(13)(nn), which now includes cruelty to a juvenile as an enumerated crime of violence, would have to be applied retroactively. For the reasons that follow, such retroactive application is impossible under the circumstances presented.

Prescriptive limitations relate to the remedy and are usually treated as procedural and applied retroactively. Falgout v. Dealers Truck Equipment Co., 1998-3150 p. 11 (La.10/19/99), 748 So.2d 399, 407, citing Lott v. Haley, 370 So.2d 521, 523 (La.1979). The Louisiana Supreme Court has explained:

It is well established that statutes of limitation are remedial in nature and as such are generally accorded retroactive application. However, statutes of limitation, like any other procedural or remedial law, cannot consistently with state and federal constitutions apply retroactively to disturb a person of a pre-exist-ing right.

Lott v. T.J.Haley, M.D., 370 So.2d 521, 523 (La.1979).

The retroactive application of a prescription statute was recently discussed in Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518 (La.9/5/01), 795 So.2d 1153, in which the Louisiana Supreme Court noted:

Finally, regarding prescription statutes, Planiol states: When a law modifies the duration of a prescription, either to lengthen it or to shorten it, prescriptions already accrued are not disturbed by it, but those which are running are affected by the change.

Elevating Boats, Inc., 2000-3518, p. 13-14, 795 So.2d 1153, 1163.

The court continued to explain:

The rationale for such decisions [that apply prescription statutes retroactively] is that the application of a new, extended prescriptive period does not negatively affect any rights that have accrued in favor of any party, for two reasons. First, ... Second, this rule permitting the extension of prescriptive periods applies only to those prescriptive periods still running on the date of the statute’s enactment. This is so because after the prescriptive period on an obligation has run, an obligor gains the right to plead prescription. In such as situation, that right to plead prescription has already accrued and application of a lengthened prescriptive period to revive the obligation, and effectively remove the right to plead prescription, would “modify or suppress the effects of a right already acquired.” 1 Planiol, supra at § 243. Thus, we have noted that the Legislature is without the authority to revive a prescribed claim. See Bouterie v. Crane, 616 So.2d 657, 664 n. 15 (La.1993); Hall v. Hall, 516 So.2d 119, 120 (La.1987).

Elevating Boats, Inc., 2000-3518, p. 14-15, 795 So.2d at 1163-64 (emphasis in original); see also Chance v. American Honda Motor Co., 93-2582 (La.4/11/94), 635 So.2d 177 (refusing to apply the statute retroactively to revive an already-prescribed cause of action).

In the instant case, the alleged injuries occurred in 1998. When the original petition was filed alleging tort damages, it was prescribed on its face. Although the plaintiffs counsel filed the first amended petition within the two-year time frame, that first amended petition involved merely the parents’ procedural capacity | Uissue raised by the defendant in its first exception. The second amended petition was not filed until May 21, 2002, and this petition was the first pleading to allege that the School Board’s tortious conduct also included the October 19, 1998 re-injury that occurred when Teiera returned to school on crutches and was required to attempt going upstairs despite her mother’s warnings and requests for Teiera not to go upstairs. Thus, even if we were to find that the two-year prescriptive period applied in this case, that period also had elapsed by the time the plaintiffs counsel filed the amended petition alleging facts that would support construing the School Board’s actions as a crime of violence.

The original petition was prescribed on its face under the one-year tort prescriptive period and the second amended petition was also filed untimely even under the two-year period. At the time the second amended petition was filed, the School Board had obtained a vested right in being able to assert the exception of prescription. Therefore, based upon the jurisprudence of this State and due to the procedural mistakes discussed herein, La. R.S. 14(2)(13)(nn) may not be utilized to revive the appellants’ claim.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court maintaining the exception of prescription.

AFFIRMED.

GORBATY, J., concurs with reasons.

I,GORBATY, J.,

concurring with reasons.

I respectfully concur. The majority opinion discusses the two-year prescriptive period for damages arising from crimes of violence, pursuant to La. C.C. art. 8493.10, and concludes that it would apply, if not for the untimely filings in this matter. I feel that the examination of the merits of the applicability of La. C.C. art. 3493.10 is unnecessary, given the fact that the pleadings were not filed within the prescriptive period set forth in that statute. Accordingly, for these reasons, I concur in the result reached by the majority.

      . The medical records submitted in this case indicate the alleged injuries occurred on the date of admission to the Medical Center of New Orleans, which was October 5, 1998. The school board points out in its brief that October 4, 1998 was a Sunday. This court takes judicial notice of this fact, and the October 5, 1998 date will be used herein as the alleged date of the first injury.

      . Act 637 provides as introduction: "An Act to enact R.S. 14:2(13)(gg), (hh), (ii), (jj), (11), (mm), (nn), and (oo), relative to crimes of violence; to add certain crimes to the listing of crimes designated as crimes of violence; .... ”

      . As noted above, the alleged date of injury was October 4, 1998 (actually was October 5, 1998), and the petition was filed on October 13, 1999. Thus, the one-year tort prescription period had already elapsed when the petition was filed.


author: ^MICHAEL E. KIRBY, Judge.

text:
    Darius S. MIMMS, Sr. v. Phaedra A. BROWN.
    No. 2002-CA-1681.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2003.

      Thailund Porter-Green, Simmons, Pit-man & Legros, Jeanerette, LA, for Plaintiff/Appellant.
    Crystal L. Craddock-Posey, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY).
   ^MICHAEL E. KIRBY, Judge.

In this matter, Mr. Darius Mimms, Sr. appeals certain rulings of the trial court judgment of May 31, 2002 relating to issues of child custody and visitation.

Mr. Mimms and Ms. Phaedra Brown are the parents of a minor son, Darius Mimms, Jr., who was born on March 8, 1995. Mr. Mimms and Ms. Brown were never married. The relevant procedural history of this case is as follows: On April 8, 1996, Mr. Mimms filed a petition to establish custody and child support. On May 8, 1996, the parties entered into a consent judgment granting the parties joint custody of the minor child, with Ms. Brown designated as the primary domiciliary parent, and awarding Mr. Mimms visitation every other weekend, alternating holidays and extended time during the summer.

A subsequent judgment on Mr. Mimms’ rule to establish custody was rendered on November 22, 1996, along with a judgment implementing the joint custody plan. These judgments did not alter the joint custody arrangement with Ms. Brown as primary domiciliary parent and with Mr. Mimms being granted ^visitation every other weekend, alternating holidays and extended time in the summer, but included more details than the May 8, 1996 judgment.

On November 23, 1996, Mr. Mimms filed a motion asking that Ms. Brown be required to post bond to ensure her compliance with the court’s visitation order. Mr. Mimms also filed a rule for contempt and a request for attorney’s fees in that motion. This motion alleged that Ms. Brown habitually failed to comply with the court’s orders regarding Mr. Mimms’ visitation rights. Ms. Brown was ordered to show cause at a hearing on December 16, 1996 as to why she should not be held in contempt of court and ordered to post a bond to ensure her compliance with the court’s visitation order. On the date of the hearing, Ms. Brown failed to appear in court. After a hearing on Mr. Mimms’ motion, the trial court found Ms. Brown in contempt of court for violating the visitation order, and issued an attachment directed to the Orleans Parish Sheriffs Office to produce Ms. Brown in court on December 20, 1996 but specified that Ms. Brown not be incarcerated. Ms. Brown was also ordered to post bond in the amount of $1,000.00 to ensure future compliance with the visitation order. The trial court also ordered Ms. Brown to pay attorney’s fees and costs of the contempt proceedings.

On February 18, 1997, the trial court issued a second attachment directed to the Orleans Parish Sheriffs Office to produce Ms. Brown in the court on March 24, 1997. This second attachment directed the Sheriffs Office to incarcerate Ms. Brown. On April 14, 1997, Ms. Brown filed a motion for new trial, alleging that she had never being served with notice of the December 16, 1996 hearing. After a 1 shearing on March 24, 1997 at which both parties were present, the trial court rendered an interim judgment ordering Ms. Brown to post bond and pay attornéy’s fees as ordered at the December 16, 1996 hearing and ordering that Mr. Mimms’ visitation with the minor child continue as previously implemented.

On August 13, 1997, Mr. Mimms filed a motion for change of custody, citing Ms. Brown’s continued interference with Mr. Mimms’ visitation rights and alleged threats against Mr. Mimms by members of Ms. Brown’s family. On November 18, 1997, Mr. Mimms filed a motion for provisional custody of the minor child pending the hearing on his motion to change custody, and he also filed another rule for contempt and request for attorney’s fees. On November 20, 1997, the trial court rendered an interim judgment, changing the previous visitation schedule to allow each parent alternating weeklong physical custody of the minor child until further orders of the court.

On December 8, 1997, Mr. Mimms filed another motion for provisional custody, along with another rule for contempt and request for attorney’s fees. In this motion, Mr. Mimms alleged that Ms. Brown was not complying with the terms of the November 20,1997 interim judgment.

On March 27, 1998, the trial court rendered judgment holding Ms. Brown in contempt of court and gave her a suspended sentence of ten days in the Orleans Parish Prison. The court also ordered Ms. Brown to pay attorney’s fees and costs to Mr. Mimms, and continued the visitation schedule of alternating weeklong visits with each parent. The court ordered Ms. Brown to post bond in the amount of | ¿$1,000.00, as previously ordered by the court on December 16, 1996, to ensure her future compliance with the visitation order.

On June 17, 1999, after a hearing on Mr. Mimms’ rule for contempt and motion for change in custody and other ancillary matters, the parties entered into another consent judgment whereby they agreed that Ms. Brown would continue to be the domiciliary parent. This consent judgment also stipulated that Ms. Brown was in contempt of court for failure to follow previous visitation orders, and would receive a thirty day sentence that was suspended on the condition that she fulfill certain obligations within specified time frames. These conditions included payment of certain fines and costs, attendance at a co-parenting class and the posting of a bond to ensure future compliance with the court’s orders. The judgment set forth a visitation schedule whereby Mr. Mimms has the minor child every other weekend, alternating holidays and extended time during the summer.

On December 10, 1999, Mr. Mimms filed another motion for contempt against Ms. Brown, alleging that she did not comply with the conditions set forth in the June 17, 1999 judgment, and that she continued to disobey the visitation orders of the court. On February 2, 2000, the trial court rendered judgment finding Ms. Brown in contempt of court for failure to follow previous orders of the court, and ordered that an attachment issue and that Ms. Brown be jailed for thirty days or until posting a cash bond in the amount of $3,500.00. The court transferred interim domiciliary custody of the minor child to Mr. Mimms pending a hearing to determine custody. The court appointed Leslye Hunter, L.P.C. to evaluate the | ^parties to aid in the court’s determination of domiciliary custody and visitation rights.

On October 31, 2000, the trial court signed a judgment rendered in open court on May 3, 2000 naming Ms. Brown as the domiciliary parent of the minor child. In this judgment, Mr. Mimms’ visitation rights were expanded to include visitation with the minor child from Tuesday afternoon after school until Thursday morning when the child is returned to school. Mr. Mimms was also granted visitation with the child every other weekend, and each party was granted two weeks of uninterrupted visitation with the child during the summer. Ms. Brown was found in contempt of court, and ordered to pay attorney’s fees of $1,565.00 and to post a surety bond in the amount of $1,000.00. On February 2, 2001, the trial court reiterated the previous visitation schedule set forth in the October 31, 2000 judgment, and added other details relevant to the implementation of the visitation schedule. The court reiterated its earlier appointment of Leslye Hunter as custody evaluator and ordered the parties to undergo evaluation by Ms. Hunter.

On May 31, 2002, the trial court signed a judgment that is the subject of the instant appeal. In that judgment, the court again named Ms. Brown as the domiciliary parent of the minor child. Mr. Mimms was granted visitation with the child every other Thursday from the time he picks the child up from school until Monday morning when he returns the child to school. Mr. Mimms will also have summer visitation with the child each year starting on the day after school ends for summer vacation until July 17[th].

|fiMr. Mimms appeals the trial court’s judgment signed on May 31, 2002. The May 31, 2002 judgment was rendered following a hearing that occurred on March 7, 2001 and September 4-5, 2001.

At the hearing, the first witness was Ms. Peggy Rizzo, the secretary at St. Joseph Central School, which is attended by Darius, Jr. She brought the child’s school records, which were admitted into evidence. These records included, among other items, court orders regarding visitation, the visitor’s log, a list of the child’s absences and notes explaining absences from Ms. Brown and medical professionals.

The next witness was Mr. Mimms. He testified that Ms. Brown has habitually thwarted his court-ordered visitation with his son, and has also denied him almost all telephone access to his son. Mr. Mimms stated that after the court issued an interim order establishing an arrangement whereby either Ms. Brown was to transport the child to Mr. Mimms or Mr. Mimms was to pick the child up from school on his visitation dates, Ms. Brown responded by not transporting the child to Mr. Mimms or by withdrawing him from school early on those dates or not taking him to school at all. He produced a list of dates in which his son was absent from school, and suggested that the absences were efforts by Ms. Brown to thwart his visitation rights. He stated that he refused Ms. Brown’s requests that he pick up the child from her house after the interim court order was issued requiring Ms. Brown to transport the child to Mr. Mimms’ house or allowing Mr. Mimms to pick up the child from school. He explained that his lawyer instructed him not to ^deviate from that order, because prior to the rendition of that order, he would go to Ms. Brown’s house to pick up the child and she would refuse to allow the child to go with him unless he presented her with a child support check at that time.

Mr. Mimms testified that his reason for asking that domiciliary custody be transferred to him is because he understands the importance of a mother and father in his child’s life, but the child’s mother does not feel the same way. He further stated that as an alternative to his request to be named domiciliary parent, he is asking for reasonable visitation without interference from the mother.

On cross-examination, Mr. Mimms admitted that he has not always paid his child support in accordance with the terms of the court orders. He said he does not pay any of his son’s school tuition, and acknowledged that at times his son was not allowed to attend school because of non-payment of tuition. Mr. Mimms denied that his son has chronic asthma, and said he does not know about his son’s medical problems because Ms. Brown does not keep him informed. He said his son has needed medical attention while in his care only one time for ringworm on his head.

Mr. Mimms’ mother, Viola Mimms, testified that she has observed many of her son’s visits with her grandson. She said her grandson enjoys being with his father. She said she has not seen her grandson seriously ill, except for one time when he was hospitalized for asthma problems. She knew that her grandson was on asthma medication.

|RMs. Brown’s sister, Chandra Brown, testified that she lives with Ms. Brown and her son. She stated that Darius, Jr. has chronic asthma and has had surgery twice for chronic ear infections. She testified that the child’s absences from school have mostly been due to illness, but some absences were due to non-payment of tuition. Ms. Chandra Brown stated that her sister has not tried to interfere with Mr. Mimms’ visitation with his son, but said that her sister sometimes does not have a method of transportation to deliver the child to the father.

Ms. Brown’s mother, Eloise Brown, was the next witness. She essentially corroborated her daughter, Chandra Brown’s testimony regarding Darius, Jr.’s health problems and the child’s mother’s problems with transportation. She also denied that Phaedra Brown has ever interfered with Mr. Mimms’ visitation with his son. Ms. Brown’s friend, Consuela Colton, also testified that Ms. Brown never interfered with Mr. Mimms’ visitation.

The next witness was Morris F.X. Jeff, Jr., a licensed social worker who was accepted by the court as an expert in family counseling. He testified that he had one meeting with Ms. Brown and her son the day before trial, and he admitted that he has never met Mr. Mimms. Based on his observations, he stated that he thought it would be devastating to the child if his mother were no longer his primary caretaker. He admitted that he usually favors the mother in child custody disputes. His opinion is that a situation in which custody between the parents is alternated every seven days is not stabilizing to the child. He stated that he believes that in |amost eases, the best situation is for the mother to have domiciliary custody, with the father having “enormous” amounts of visitation.

The final witness was Ms. Phaedra Brown. She testified that she has never attempted to prevent or frustrate Mr. Mimms’ visitation with their son. She said she has had difficulty in coordinating visitation because of transportation problems. She said she has asked Mr. Mimms to pick up their child at her house but he always refuses. She said her son has missed a lot of school for illnesses, including asthma problems, and surgeries for ear problems. She obtained notes from her son’s doctor for many of those illnesses, and those notes were introduced into evidence. Ms. Brown testified that she believes Mr. Mimms does not always treat their son’s medical conditions properly. She said Mr. Mimms tells her that the child is not sick when he is in his care. She stated that some of the child’s school absences have been due to non-payment of tuition.

Ms. Brown testified that she believes she should continue to be the domiciliary parent because she has been the child’s primary caretaker since his birth. She vowed to cooperate with Mr. Mimms in rearing their child together if the court awarded joint custody, and named her the domiciliary parent. She requested that the court order Mr. Mimms to provide transportation for his son’s visits.

On cross-examination, Ms. Brown admitted to being found in contempt of court on several occasions for non-compliance with Mr. Mimms’ court-ordered visitation, but she claims she was not properly served with notice of the contempt 110proceedings. She admitted that Mr. Mimms has missed visitation time with his son, but said it was because of his refusal to pick up his son at her house. She agreed that one of the earlier judgments in this case stated that if the child is not picked up at school by Mr. Mimms, then Ms. Brown is to transport the child to Mr. Mimms’ house. She stated that her opinion is that the visitation schedule in which the child stays with his father every other weekend and every Tuesday afternoon until Thursday morning is disruptive to the child.

On appeal, Mr. Mimms argues that the trial court erred in continuing domiciliary custody with Ms. Brown, arguing that her continued non-compliance with Mr. Mimms’ visitation is not in the child’s best interest. He also argues that Ms. Brown is jeopardizing her son’s education based on his allegation that she is keeping the child out of school in order to thwart Mr. Mimms’ ability to exercise his visitation rights. In Evans v. Lungrin, 1997-0541, p. 12-13 (La.2/6/98), 708 So.2d 731, 738 (emphasis in the original), our Supreme Court set forth the burden of proof for the modification of a custody judgment as follows:

[T]he paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. However, in actions to change custody decisions rendered in considered decrees, an additional jurisprudential requirement is imposed. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95); 653 So.2d 48, writ denied, 95-1488 (La.9/22/95); 660 So.2d 478. A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Hensgens, 653 So.2d at 52. When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is “so deleterious to the child as to justify In a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986), reh’g denied (Sept. 11, 1986).
However, in cases where the original custody decree is a stipulated judgment, such as when the parties consent to a custodial arrangement, and no evidence of parental fitness is taken, the heavy burden of proof enunciated in Bergeron is inapplicable. Hensgens, 658 So.2d at 52. Instead, where the original custody decree is a stipulated judgment, the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child. Hensgens, 653 So.2d at 52.

In the instant case, the original custody decree was a stipulated judgment because the parties consented to the custodial arrangement and no evidence of parental fitness was taken. Therefore, the “material change of circumstances” and “best interest of the child” burden of proof applies, and not the heavy burden of proof enunciated in Bergeron.

A trial court’s determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Mire v. Mire, 1998-1614 (La.App. 4 Cir. 3/24/99), 734 So.2d 751. While Mr. Mimms presented evidence showing that the minor child had a large number of absences from school, Ms. Brown presented evidence showing that many of these absences were due to illness or non-payment of tuition. The trial court apparently rejected Mr. Mimms’ contention that the sole purpose of the minor child’s absences from school was for Ms. Brown to prevent Mr. Mimms from exercising his right to visitation.

| ^Furthermore, in oral reasons for judgment after the hearing, the trial court noted Ms. Brown’s contempt citations for non-compliance with Mr. Mimms’ court-ordered visitation, and advised her in strong terms that future non-compliance with court orders would not be tolerated by the court. The trial court also expressed disappointment with both parents for allowing their negative feelings for one another to interfere with their obligation to work together for the benefit of their child. However, the trial court apparently accepted Ms. Brown’s testimony that she would cooperate with Mr. Mimms in the future, and did not find that her previous non-compliance with court orders constituted a material change in circumstances. We find that the trial court did not abuse its discretion in continuing Ms. Brown’s designation as the domiciliary parent because Mr. Mimms did not satisfy his burden of proving that there has been a material change in circumstances.

In his second argument, Mr. Mimms states that the trial court erred in not admitting the evaluation report of Les-lye Hunter, LCSW, into evidence in lieu of her live testimony. Mr. Mimms points out that the trial court appointed Ms. Hunter to evaluate the parties to aid the court in determining custody. According to Mr. Mimms, Ms. Hunter evaluated the parties and submitted her report to the court in September 2000. Earlier trial dates on which Ms. Hunter was available to testify were continued. Counsel for Mr. Mimms states in his brief that on August 21, 2001, Judge Piper Griffin indicated to the parties that because Ms. Hunter was the court-appointed evaluator, any party that objected to her findings had to subpoena and pay for Ms. Hunter’s appearance at trial. Counsel for Mr. Mimms stated at the September 4-5, 2001 hearing that she relied on that instruction from Judge Griffin, |13and did not subpoena Ms. Hunter to testify because Mr. Mimms did not object to Ms. Hunter’s findings and wanted the report to be admitted into evidence.

The record on appeal does not include a transcript of the August 21, 2001 hearing. La. R.S. 9:331(B) states:

The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

It is undisputed that Leslye Hunter’s testimony was not offered at the March 7, 2001/September 4-5, 2001 hearing. Ms. Brown objected to the admission of Ms. Hunter’s report as inadmissible hearsay. The trial court did not allow the report into evidence.

Even though Ms. Hunter was the court-appointed mental health professional, La. R.S. 9:331(B) entitled Ms. Brown to cross-examine her in court. Due to Ms. Hunter’s unavailability at trial, Ms. Brown was unable to exercise her right to cross-examination, and the report was properly disallowed.

Mr. Mimms’ next argument is that the trial court erred in not making executory previous sentences of jail time for Ms. Brown’s contempt citations for non-compliance with Mr. Mimms’ visitation. He argues that on three different occasions, the trial court suspended Ms. Brown’s jail sentences pending any further contempt citations for non-compliance. He contends that Ms. Brown’s subsequent contempt citations should have revoked the suspension of her sentence of jail time on previous contempt citations.

I uThe willful disobedience of a lawful judgment constitutes constructive contempt of court. La. C.C.P. art. 224(2). La. C.C.P. art. 227 states that the punishment for contempt is set forth in La. R.S. 13:4611, which provides in pertinent part:

(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts, and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.

After reviewing the record, we find that the trial court did not abuse its discretion in not making executory previous sentences of jail time for Ms. Brown’s contempt citations.

In his next argument, Mr. Mimms contends that the trial court erred in not seizing the bond on deposit in the registry of the court to ensure Ms. Brown’s future compliance with court orders. This decision was also clearly within the discretion of the trial court, and we find no abuse of that discretion.

Finally, Mr. Mimms argues that the trial court erred in decreasing his visitation time, when Ms. Brown did not file formal pleadings asking that Mr. Mimms’ visitation time be decreased. Since the original consent judgment in this case was rendered, the visitation schedule has been modified several times by the trial court in interim judgments. None of these judgments were considered | ir,decrees; therefore, in reviewing the modification to the visitation schedule set forth in the May 31, 2002 judgment currently on appeal, we must determine whether there was a “material change of circumstances” necessitating this modification and whether the modification was in the “best interest of the child.”

While it is true that the issue of modifying the visitation schedule was not included in formal pleadings filed by either party, the testimony offered on this subject at the March 7, 2001/September 4-5, 2001 hearing enlarged the pleadings to allow modification of the visitation schedule. In Mr. Mimms’ own testimony, he stated that he was requesting a reasonable visitation schedule as an alternative to his request to be named the domiciliary parent. Furthermore, Ms. Brown testified, without objection, that the visitation schedule in effect following the judgment rendered in open court on May 3, 2000 and signed on October 31, 2000 was disruptive to her son.

Under that schedule, Mr. Mimms had visitation with his son every other weekend from Friday afternoon to Sunday afternoon, every week from Tuesday afternoon to Thursday morning, and two weeks in the summer. Under the new schedule set forth in the May 31, 2002 judgment, Mr. Mimms has his son every other weekend from Thursday afternoon until Monday morning, and one-half of the summer. Although the new schedule eliminates the middle of the week overnight visits, it expands his bi-weekly weekend visits from two nights to four nights and expands the amount of time that Mr. Mimms’ son will stay with him in the summer. The trial court stated that it was necessary in this case to establish a different schedule where the visitation periods were longer and uninterrupted.

The trial court apparently accepted Ms. Brown’s testimony that the visitation schedule in effect following the judgment rendered in open court on May 3, 2000 |1fiand signed on October 31, 2000 was disruptive to the minor child. The trial court is in the best position to evaluate the credibility of the witnesses, and we find that its evaluations were reasonable.

We find that the disruption to the child’s life caused by the previous visitation schedule is a material change in circumstances warranting the modification of the visitation schedule. We also find that the modified schedule is in the best interest of the child. The trial court did not abuse its discretion in modifying the visitation schedule.

For the reasons stated above, we affirm the trial court judgment.

AFFIRMED.

      . Only Mr. Mimms appealed the trial court judgment of May 31, 2002. Child support is not an issue in the instant appeal, so the procedural history of this case will not include references to child support.

      . It is noted that none of the judgments rendered in this case prior to May 31, 2002 ordered Mr. Mimms to pay school tuition.

      . Neither party should interpret this ruling as condoning non-compliance with court orders, either past or future.


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

text:
    Frederick C. KRAUS, Jr. v. Doris M. WHEAT and Searcy E. Wheat.
    No. 2003-CA-0393.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2003.

      Walter R. Woodruff, Jr., Eric A. Bopp, Edward S. Bopp-A Law Corporation, Ara-bi, LA, for Plaintiff/Appellee.
    Charles W. Dittmer, Jr., Metairie, LA for Defendant/Appellant.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   JjMAX N. TOBIAS, JR., Judge.

The defendant, Doris M. Wheat (“Ms. Wheat”), appeals from a judgment entered against her on 4 September 2002. For the reasons set forth below, we affirm the judgment.

The plaintiff, Frederick C. Kraus, Jr., filed the instant action on 16 May 2000, seeking to invalidate an inter vivos donation by him of immovable property located at 2112 Farmsite Road, Violet, Louisiana, to Ms. Wheat on 6 October 1997. Mr. Kraus contended that the donation was procured by fraud and undue influence and was null pursuant to La. C.C. arts. 1478, 1479, and 1498. In addition, Mr. Kraus sought the return of over $16,000.00 from Ms. Wheat, which Mr. Kraus contended was a loan; Ms. Wheat claimed that the money was a donation and, therefore, irrevocable.

DThe case was tried to the trial court on 3 June 2002. On 4 September 2002, the court rendered judgment in favor of the plaintiff, stating in its reasons for judgment:

Mr. Kraus was a vulnerable, elderly man who had recently lost his wife of forty-three years. Although neighbors, Mrs. Wheat did not become close to plaintiff until his wife became ill. After Mrs. Kraus’ death, Mrs. Wheat took an active role in Mr. Kraus’ affairs, i.e., advising him on different matters and facilitating the opening of Mrs. Kraus’ succession. This Court was convinced by the testimony that Mr. Kraus trusted Mrs. Wheat and was misled and unduly influenced by her assertions that the document he was signing was necessary in order to give her authority to take care of his needs. In spite of the fact that the act was made in writing and before a notary, Mr. Kraus carried his burden of proof pursuant to civil code articles 1479 and 1483 to nullify the donation based on duress and the undue influence exerted by defendant.
This Court was also convinced by the testimony at trial that the $16,415.57 which plaintiff gave Mrs. Wheat in July of 1997, represented a loan, not a donation. Although this transaction was not documented in writing, Mr. Kraus did keep records showing (5) payments made by Mrs. Wheat totaling $550.00. These payments represent evidence that Mrs. Wheat was attempting to repay the funds and acknowledging the transaction as a loan.

Ms. Wheat assigns four errors for review. First, she argues that the trial court erred in finding that the donation of immovable property was procured by undue influence; second, that the court erred in finding that the money given to her by Mr. Kraus was a loan and not a donation; third, that the trial court erred in awarding interest from date of judicial demand; and finally, that the trial court erred in not crediting the virile share of Searcy Wheat. However, before considering the assignments of error, we address the peremptory exception of prescription filed by Mr. Wheat in this court. See La. C.C.P. art. 2163.

In addition to finding that Mr. Kraus carried his burden of proof pursuant to La. C.C. arts. 1479 and 1483, the trial court also held that Mr. Kraus could and did l.qinvalidate the donation of immovable property by a showing of ingratitude by the donee, Ms. Wheat. See La. C.C. arts. 1559(1), which provides that a donation inter vivos may be invalidated based on the “ingratitude of the donee,” and La. C.C. art. 1560(2), which states that the ingratitude can take of the form of “cruel treatment” by the donee towards the donor. Ms. Wheat contends that because an action for revocation for cause of ingratitude must be brought within one year from the date of the act of ingratitude, the instant matter is prescribed and must be dismissed.

In opposing the exception, Mr. Kraus points out that the trial court also found that he had carried his burden of proof under La. C.C. arts. 1479 and 1483 and that he never invoked article 1560 as a cause of action. Thus, the action was timely filed.

We agree with Mr. Kraus. A review of the petition reveals that Mr. Kraus filed the instant lawsuit pursuant to La. C.C. arts. 1478, 1479, and 1498. Actions to reduce excessive donations are subject to a five-year prescriptive period. La. C.C. art. 3497. Thus the petition was timely filed. The fact that the trial court also found a cause of action for ingratitude is of no moment, as it also found that Mr. Kraus had carried his burden of proof pursuant to the codal articles under which he filed suit. Therefore, Ms. Wheat’s exception of prescription is overruled.

Ms. Wheat argues that the weight of the testimony compels a finding that Mr. Kraus knew that he was donating his immovable property to her and that she did not mislead or unduly influence him. Ms. Wheat argues that only Mr. Kraus’ self-serving testimony supports that trial court’s judgment. We review the trial 14 court’s factual findings pursuant to the clearly wrong/ manifestly erroneous standard.

Article 1479 of the Louisiana Civil Code provides for the nullification of a donation that is procured through undue influence:

A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the donee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.

Furthermore, Comment (b) to article 1479 provides in pertinent part:

[E] very one is more or less swayed by associations with other persons, so this Article attempts to describe the kind of influence that would cause the invalidity of a gift or disposition. Physical coercion and duress clearly fall within the proscription of the previous Article. The more subtle influences, such as creating resentment toward a natural object of a testator’s bounty by false statements, may constitute the kind of influence that is reprobated by this Article, but will still call for evaluation by the trier of fact. Since the ways of influencing another person are infinite, the definition given in this Article is used in an attempt to place a limit on the kind of influence that is deemed offensive. Mere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own. La. C.C. art. 1483 states:
A person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if, at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.

|BWhen seeking to annul a donation on the basis of undue influence, this court has held that it is not sufficient to merely show that the donee exercised some degree of influence over a donor; instead, the challenger must show that the donee’s influence was so substantial that the donee substituted his or her volition for that of the donor. Succession of Tanner, 2002-1570 (La.App. 4 Cir. 2/5/03), 836 So.2d 1280. Because Ms. Wheat was Mr. Kraus’ neighbor, and not related to him by blood, Mr. Kraus had to prove undue influence by a preponderance of the evidence, rather than the more strenuous burden of clear and convincing evidence. See La. C.C. art. 1483.

Mr. Kraus testified that his wife died suddenly after over 38 years of marriage; he was then 75 years old and devastated, requiring a prescription of anti-depressants. They were not able to have children and lived alone. Mr. Kraus stated that his wife did everything for him and their home; all he had to do was work and bring home his check. The Krauses and the Wheats had been neighbors for about 30 years, but not too friendly because his wife did not get along with Ms. Wheat. After his wife’s death, Ms. Wheat began to help him around the house.

Mr. Kraus did not plan on immediately opening his late wife’s succession. However, Ms. WTieat said that it was better for him to take care of it immediately. Ms. Wheat took him to see a lawyer, Mark Bonura, who handled the matter. The succession of Mr. Kraus’ late wife was filed on 10 September 1997.

On 6 October 1997, Ms. Wheat phoned Mr. Kraus and informed him that they were going to Betty Marchand’s office to sign some papers. Mr. Kraus had never met Ms. Marchand, but was told that she was Ms. Wheat’s notary public. Ms. Wheat told him that they were going over there “to sign some papers, me thinking that it was taking care of me as she promised my wife she would send Rover meals and do stuff like that.” He believed this to be the case, because Ms. Wheat had previously cared for elderly people at different times in her home until they died.

Upon arriving at a used car lot where Ms. Marehand conducted her notary business, Mr. Kraus was told to sign what he believed was a medical power of attorney. He did not read the document and its contents were not discussed and/or explained to him. He testified that neither of the attesting witnesses was present when he signed the paper.

Sometime in 1999, Mr. Kraus received his homestead exemption and for the first time saw evidence of Ms. Wheat’s ownership in his home. He investigated further and discovered that what he had signed was not a medical power of attorney, but a donation of the home in which he had lived since 1972. When he confronted Ms. Wheat, she threatened to put him out of the house.

This account was supported by the testimony of Anna Franson, who had been in a long-term relationship with Mr. Kraus’ son. She confirmed Mr. Kraus’ depressed emotional state following the death of his wife. During their many telephone conversations, he told Ms. Franson that a lady next door had promised to take care of him and that Ms. Franson did not have to worry about him being alone. In that conversation, Mr. Kraus stated that he signed some papers so that could occur.

While visiting Mr. Kraus in March 1998, Ms. Franson finally learned the true nature of the papers signed by him. She overheard an argument between Mr. Kraus and Ms. Wheat, wherein Ms. Wheat stated: “If you keep this up, I’m going to throw you out of the house.” Ms. Franson told Mr. Kraus about what she had 17heard and he reluctantly told about the unintended donation. He was upset and ashamed that he had allowed this to occur.

Ms. Wheat testified that Mr. Kraus offered to donate his home to her on numerous occasions because he did not want his heirs to receive the house after his death. Finally, after attempting to dissuade him, she agreed. However, before the donation could take place, Mr. Kraus had to open his wife’s succession so that he could be put in possession of the house. Ms. Wheat’s notary public, Betty Marehand, referred Mr. Kraus to a lawyer, Mark Bonura, to handle the succession.

Mr. Bonura testified that Mr. Kraus stated that he wanted to put the house in Ms. Wheat’s name so she could leave it to her grandchildren. Mr. Bonura also testified that Mr. Kraus knew what he was doing and was not overcome with grief.

After the succession was completed, Mr. Kraus and Ms. Wheat went to Ms. Mar-chand to sign the donation document. Ms. Marehand testified that before the donation was executed, she determined that Mr. Kraus knew what he was doing and wanted to donate the property to Ms. Wheat. Ms. Wheat’s daughter, Alicia Treadaway, was also present at the signing of the act of donation, and testified that Mr. Kraus clearly stated that he wanted to donate the property to Ms. Wheat.

“It is the task of the trial judge to determine the credibility of the witnesses and this determination will not be disturbed absent manifest error.” Sevier v. United States Fid. & Guar. Co., 497 So.2d 1380, 1382-83 (La.1986) (quoting Boustany v. Fluid Dynamics, Inc., 392 So.2d 750, 751 (La.App. 3 Cir.1980)). As the Supreme Court explained in Stobart v. State of Louisiana, Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993), “where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.”

| «In the instant matter, the trial court heard conflicting testimony and made a decision based on its consideration of all the evidence presented. Obviously, the trial court found Mr. Kraus and Ms. Franson to be more credible than Ms. Wheat and her witnesses. We do not second-guess the trial court’s credibility determinations and set aside findings of fact that are not clearly wrong based on the evidence that is in the record. This assignment of error has no merit.

The second assignment of error concerns the trial court’s determination that money totaling $16,514.57 was a loan from Mr. Kraus to Ms. Wheat and not a gift. The basis of this decision by the trial court was the testimony of Mr. Kraus and the fact that Mr. Kraus kept records showing five payments by Ms. Wheat totaling $550.00.

Mr. Kraus testified that Ms. Wheat came to him in July 1997, begging him for a loan because her credit card was at its limit and her creditor was threatening to seize her home. In order to arrive at a figure, he and Ms. Wheat’s daughter went over the outstanding bills. The loan was given in two amounts, a check for $14,347.57 drawn on Mr. Kraus’ bank and $2,068.00 in cash. Ms. Wheat told him that she would pay off the loan by paying $100.00 per month, but ultimately she only repaid $550.00. One condition of the loan was that they would not tell Ms. Wheat’s husband about the transaction.

When Ms. Wheat approached Mr. Kraus in 1998 for a second loan of $6,000.00, he turned her down because she was not paying him back for the first loan as she promised. On another occasion, she tried to exchange sex for Mr. Kraus’ certificates of deposits; Ms. Wheat said that she would give the interest |flaccruing on the certificates to Mr. Kraus every month. However, Mr. Kraus refused the offer.

Both Ms. Wheat and her daughter testified that the money was not a loan, but a gift. Ms. Wheat testified that he gave her the money because he wanted to help out her family. It was not until much later that he raised the issue of repayment. Ms. Wheat testified that when she would go to the casino and win money, she would often give it to Mr. Kraus. These amounts were to give something back to him and not repayments as Mr. Kraus testified.

The trial court ruled in Mr. Kraus’ favor on this issue, again choosing to believe him over Ms. Wheat and her daughter. In light of the evidence in the record, this decision is not clearly wrong or manifestly erroneous. Consequently, this assignment of error is without merit.

Next, Ms. Wheat contends that the trial court erred by awarding interest from the date of judicial demand, rather than from the date of judgment. On the other hand, Mr. Kraus argues that interest should have begun on the date that the loan was due, which was well in advance of the date of judicial demand. For the following reasons, we find no error by the trial court.

As recognized by the Second Circuit in Mini Togs Products, Inc. v. Wallace, 513 So.2d 867, 873 (La.App. 2 Cir.), writs denied, 515 So.2d 447 (La.1987), 515 So.2d 451 (La.1987):

Although the issue as presented to us in this case is whether legal interest should run from date of judicial demand or from date of judgment, neither of those dates are specifically mentioned in the codal articles providing for legal interest on debts or claims arising out of contracts. Cases involving disputes over the time of commencement of legal interest have often been resolved by reference to the time the debt was due, or when the obligor was put in default, or when the claim became |10liquidated or ascertainable. Often the dispute has been whether legal interest commenced to accrue upon judicial demand or at an earlier date.

We also note that in Alexander v. Burroughs Corp., 359 So.2d 607, 613 (La.1978), the Supreme Court stated:

One of the incidents of the obligations of contracts is that the one who violates those obligations is liable for damages “which the other party has sustained by his default.” C.C.1930 [now art.1994]. Damages are due “from the moment” of an active violation of a contract (C.C. 1932 [now art.2015]) and from “the time that the debtor has been put in default” when the breach has been passive. C.C. 1933 [now art.1989], A debtor may be put in default “either by the commencement of a suit, by a demand in writing ...." or in other ways. C.C.1911 [now art.1991]. The damages due for delay in the performance of an obligation to pay money are called interest. “C.C.1935 [now art.2000]. “All debts shall bear interest at the rate of seven per centum per annum from the time they became due, unless otherwise stipulated.” C.C. 1938 [now arts.2000, 2924],

This means that claims arising from a contract bear judicial interest from the date of judicial demand or from such earlier date when the claim became ascertainable and due. A claim for repayment of a loan is a contract.

In the instant case, the parties did not agree on a date that the entire sum would be due, only that Ms. Wheat would pay Mr. Kraus $100.00 per month until the entire debt was extinguished. Therefore, we do not find that the trial court erred by awarding interest from the date of judicial demand, 16 May 2000. We note that at the rate of $100.00 per month, it would have taken Ms. Wheat in excess of thirteen years to repay the money. This assignment is meritless.

| T1 Finally, Ms. Wheat contends that the trial court erred in not allowing credit for the virile share of her husband against whom judgment was entered on 13 December 2001. That judgment provided that the house would be returned to Mr. Kraus, but that Ms. Wheat would keep the money. Only Ms. Wheat was granted a new trial on all issues. Consequently, the judgment against Mr. Wheat is final.

Although the pleadings name Mr. Wheat as a party defendant, the testimony establishes that Mr. Wheat was unaware of the loan made to his wife by Mr. Kraus. In addition, and more importantly, Mr. Wheat has a judgment in his favor on this issue. Thus, as between Mr. Wheat and Mr. Kraus, the matter is resolved and Ms. Wheat is not entitled to a credit. Consequently, this issue is without merit.

For the reasons above, we affirm the judgment of the trial court. All costs of this appeal are assessed against Ms. Wheat.

AFFIRMED; PEREMPTORY EXCEPTION OF PRESCRIPTION OVERRULED.

      . Suit was originally filed against Ms. Wheat and her husband, Searcy E. Wheat. On 13 December 2001, a judgment was entered against both defendants, as the result of a settlement agreement by the parties. Ms. Wheat moved for new trial on the basis that her consent was compromised due to medications that she was taking; the motion was granted and the judgment was set aside only as to her. Mr. Wheat did not appeal from the 13 December 2001 judgment; thus it is final as to him only. This opinion concerns only the judgment of 4 September 2002 entered against Ms. Wheat. Further, we note that Mr. Wheat did not testify in the 3 June 2002 trial

      . The trial court relied on the testimony that once Mr. Kraus learned that he had donated his immovable property to Ms. Wheat and confronted her, she threatened to put him out of his home.

      . As noted in footnote 1 above, Mr. Wheat did not testify at the trial.

      . See also La. C.C. art. 2000: "In a contract action, when the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due.”