author: PARRO, J.

text:
    Oneita SMITH, as Curator of the Estate of Evelyn B. LeBlanc v. Darryl LEBLANC and Eva LeBlanc Miller.
    No. 2006 CA 0041.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 15, 2007.

      Mark D. Plaisance, Baker, for Plaintiff-Appellant Oneita L. Smith.
    Terry T. Dunlevy, Brent J. Bourgeois, Randy T. Cresap, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, Baton Rouge, for Defendants-Appellees Darryl LeBlanc and Eva L. Miller.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

lain this action for damages for breach of a fiduciary duty, the plaintiff appeals from a judgment sustaining the defendants’ peremptory exception raising the objection of res judicata based on a judgment of homologation entered in an interdiction proceeding. For the following reasons, we affirm.

Factual Background and Procedural History

On August 11, 2004, Oneita LeBlanc Smith (Oneita), as euratrix of the estate of her mother, Evelyn B. LeBlanc, filed a petition for breach of fiduciary duty and damages against her siblings, Darryl LeBlanc (Darryl) and Eva LeBlanc Miller (Eva), who had served as curator and un-dercuratrix, respectively, over the finances of their mother’s estate following her interdiction by a judgment dated April 16, 2002. During this time, Oneita served as temporary curatrix of the person of Evelyn LeBlanc. Following the court’s granting of Darryl’s motion to resign on July 18, 2008, Oneita was appointed curatrix of her mother, and David Smith, grandson of Evelyn LeBlanc, was appointed provisional undercurator.

In her petition for breach of a fiduciary duty and damages, Oneita alleged that Darryl and Eva had paid approximately $85,000 in legal fees from their mother’s-estate in connection with the interdiction proceeding, which was arbitrary, contrary to the best interest of the estate, and without court authority. She contended that in making these payments, Darryl and Eva breached their fiduciary duties to protect and safeguard the estate’s finances. Oneita further alleged that through their misrepresentation and misconduct, Darryl and Eva unlawfully distributed the funds of the estate and failed to provide an accounting, despite repeated requests to do so.

|sIn their answer, Darryl and Eva averred that' any and all disbursements made by them were properly reported in the interdiction proceeding in both an annual accounting and the final accounting, which was approved in a judgment of ho-mologation dated August 18, 2003. They urged that since the judgment of homolo-gation was now a final judgment, Oneita’s instant claims regarding the payment of attorney fees are barred by the doctrine of res judicata. They also took issue with the timeliness of Oneita’s filing of the instant action. Subsequently, Darryl and Eva filed a peremptory exception, setting forth the objection of res judicata based on the judgment of homologation. Furthermore, Darryl and Eva noted that Oneita had challenged these legal expenditures in the interdiction proceeding, but failed to pursue her claim or- to file an objection or traversal to the final accounting, prior to the signing of the judgment of homolo-gation.

Their exception was opposed by Oneita on the following grounds: (1) the judgment of homologation was an absolute nul-" lity due to the lack of proper service and/or notice to Oneita, which precluded her from being able to object to the final accounting or file a motion to traverse with respect to the petition for homologation; (2) Oneita had been unable to obtain information from financial institutions until her-appointment as curatrix in July 2003, which led to the discovery of expenditures to support her claim of fraudulent and inaccurate accounting; and (3) Oneita had not appeared in the interdiction proceeding-in the capacity of curatrix. Additionally, Oneita filed a motion for leave of court to file an amended petition to assert a claim for annulment of the judgment of homologation.

Following a hearing on the objection of res judicata, the trial court in oral reasons found that a suit to challenge service must be brought in a separate action for nullity of a judgment, rather than being attacked collaterally in an action for breach of fiduciary duty. Accordingly,' Oneita’s motion for leave of court to file a proposed amended petition to assert a claim for nullity was denied. Additionally, the trial court found that the instant action was precluded by the doctrine of res judicata based on the fact that Oneita could have raised, and had in fact raised, the issue of Darryl and Eva’s pactions in the interdiction proceeding during the course of the curatorship; however, Oneita abandoned or did not fully pursue that issue in the interdiction proceeding. Thus, Darryl and Eva’s exception was sustained, and Oneita’s instant action was dismissed with prejudice. Oneita filed a motion for new trial relative to the ruling on the exception. Following the denial of, that motion, Oneita appealed.

Applicable Law on Res Judicata.

The doctrine of res judicata is defined by LSA-R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Thus, to dismiss Oneita’s action for damages for breach of a fiduciary duty on the basis of res judicata, the court must find: (1) the judgment in the interdiction proceeding is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the suit for damages existed at the time of final judgment in the interdiction proceeding; and (5) the cause or causes of action asserted in the suit for damages arose out of the transaction or' occurrence that was the subject matter of the interdiction proceeding. See Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049, 1053.

The party raising the objection of res judicata bears the burden of proving the essential facts to support the objection. Diamond B Const. Co., Inc. v. Dept. of Transp. and Development, 02-0573 (La. App. 1st Cir.2/14/03), 845 So.2d 429, 435. The doctrine of res judicata is not discretionary and mandates that valid and final judgments be given effect. Id. The doctrine, however, cannot be invoked unless all its essential |fielements are present. It is strictly construed, and any doubt concerning its applicability is to be resolved against the party raising the objection. Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 01-0993 (La.App. 1st Cir.7/03/02), 867 So.2d 709, 713.

Valid, and Final Judgment

In pertinent part, the August 18, 2003 judgment, which is at the heart of Darryl and Eva’s objection of res judicata, provides:

Considering the foregoing Certificate of No Opposition, and
Due proof having been made before this Court that the Final Accounting of Darryl LeBlanc, Curator herein was served on Oneita LeBlanc Smith and on Eva LeBlanc Miller; that the legal delays for filing opposition made hereto have elapsed and that No Opposition has been filed.
IT IS ORDERED, ADJUDGED AND DECREED that the Final Accounting of Darryl LeBlanc is hereby approved and homologated.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Darryl LeBlanc be and he is hereby discharged as Curator and his bond shall be can- ■ celed by the Clerk of Court.

Initially, Oneita contended that this judgment does not support the sustaining of an objection of res judicata, because it is not a valid and final judgment based on the fact that it is an absolute nullity. In particular, she complained that she never received notice of Darryl’s intent to file a final accounting. Therefore, she sought to amend her petition in this case to collaterally attack the validity of the August 18, 2003 judgment. The propriety of this action was questioned by Darryl and Eva.

The nullity of a final judgment may be demanded for vices of either form or substance, as provided in LSA-C.C.P. arts. 2002 through 2006. LSA-C.C.P. art. 2001. A final judgment shall be annulled if it is rendered:

(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been, served with process as required by law and who has not waived objection to jurisdiction, or 'against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the -suit.

[(¡LSA-C.C.P. art. 2002(A). An action of nullity on these grounds may be asserted collaterally and at any time. LSA-C.C.P. art. 2002, Official Revision Comments— 1960, comment (e). Furthermore, a final judgment obtained by fraud or ill practices may be annulled. LSA-C.C.P. art. 2004(A). An action to annul a judgment on these grounds must be brought within one year of the discovery of the fraud or ill practices by the plaintiff in the nullity action. LSA-C.C.P. art. 2004(B).

A judgment is an absolute nullity when there exists a vice of form. See LSA-C.C.P. art. 2002, Official Revision Comments — 1960, comment (f). A person with interest may show such a nullity in collateral proceedings at any time and before any court, for absolutely null judgments are not subject to the venue and delay requirements of LSA-C.C.P. art. 2004. See Nethken v. Nethken, 307 So.2d 563, 565 (La.1975); Roach v. Pearl, 95-1573 (La.App. 1st Cir.5/10/96), 673 So.2d 691, 694; Knight v. Sears, Roebuck & Co., 566 So.2d 135, 137 (La.App. 1st Cir.), writ denied, 571 So.2d 628 (La.1990).

A final judgment obtained by fraud or ill practices is not an absolute nullity; the nullity must be properly decreed within the time prescribed. Knight, 566 So.2d at 137; see LSA-C.C.P. art. 2004(B). No specific provision was made in Article 2004 regarding the manner of asserting the grounds of nullity. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally. LSA-C.C.P. art. 2004, Official Revision Comments-1960, comment (d); see Knight, 566 So.2d at 137, citing Nethken, 307 So.2d at 565, and Pontchartrain Park Homes, Inc. v. Sewerage and Water Bd. of New Orleans, 246 La. 893, 168 So.2d 595, 597 (1964). Thus, the party praying for the nullity of a relatively null judgment must bring his action by means of a petition, and the adverse party must be cited to appear, as in ordinary suits. Knight, 566 So.2d at 137; see LSA-C.C.P. art. 1201; Ledford v. Pipes, 507 So.2d 9, 11 n. 1 (La.App. 2nd Cir.1987). A direct action can be brought by filing a separate proceeding or by the filing of a pleading in the same proceeding as that in which the offending judgment was rendered. Roach, 673 So.2d at 694; Knight, 566 So.2d at 137. The limitation 17envisioned by comment (d) to LSA-C.C.P. art. 2004 prohibits the issue from being raised by way of an affirmative defense, such as in the answer or by exception. Clearly, ¿ny of those methods would be a collateral attack, that is, an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling the judgment. Knight, 566 So.2d at 137; see Roach, 673 So.2d at 693-94; Succession of Schulz, 622 So.2d 693, 696 n. 3 (La.App. 4th Cir.1993), writ denied, 93-2605 (La.1/13/94), 631 So.2d 1161. The reason for this rule is that a relative nullity involves a factual issue which must be proven by evidence placed in the record. Ledford, 507 So.2d at 11.

Furthermore, summary proceedings are provided for in LSA-C.C.P. arts. 2591 through 2596. A summary proceeding is one which is conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all formalities required in ordinary proceedings. LSA-C.C.P. art. 2591. Summary proceedings may be used only in those matters in which the law permits them to be used. See LSA-C.C.P. art. 2592. An action for nullity of a final judgment, alleging fraud or ill practices pursuant to LSA-C.C.P. art. 2004, must be brought in an ordinary proceeding; there is no authority in law to bring such an action in a summary proceeding. See Johnson v. Vinson Guard Service, Inc., 577 So.2d 56, 59 (La.App. 1st Cir.1990), writ denied, 578 So.2d 915 (La.1991).

The instant suit clearly is not one brought by Oneita for the express purpose of annulling the August 18, 2003 judgment of homologation. Thus, the appropriateness of the collateral attack by her on the validity of that judgment depends on whether the August 18, 2003 judgment is an absolute nullity based on a vice of form set forth in LSA-C.C.P. art. 2002 or whether it is a relative nullity because it was obtained by fraud |Ror ill practices.

With respect to Darryl’s duties as a curator, we note the following. The curator shall expend that portion of the revenue from the property of the interdict as is necessary to care properly for his person or affairs. If the revenue is insufficient for these purposes, the curator may expend the capital of the interdict, with court authorization, in the manner provided by LSA-C.C.P. art. 4271. LSA-C.C.P. art. 4567. Relative to the curator’s post-judgment monitoring and reporting, LSA-C.C.P. art. 4569 provides:

A.A curator with responsibility for affairs of the interdict shall file an account annually, upon the termination of his office, and at any other time ordered by the court. A curator with responsibility for the person of an interdict shall file a personal report describing the location and condition of the interdict annually, upon the termination of his responsibilities, and at any other time ordered by the court. At the time of filing, the curator shall send copies of any required account or personal report by first class United States mail postage prepaid to the un-dercurator and any successor curator. The provisions of Articles 4393 and 4398 shall apply to accounts by curators.
B.The court may appoint an examiner at any time to review an account or personal report of the curator, to interview the interdict, curator, or under-curator, or to make any other investigation. At any time, the court may appoint an attorney to represent the interdict.

Article 4393 addresses the contents of an account by a tutor, and Article 4398 pertains to the cost of the accounting. No further reference is made in Article 4569 to any other procedural articles pertaining to an accounting by a tutor. In fact, by 2000 La. Acts, 1st Ex.Sess., No. 25, § 3, effective July 1, 2001, the legislature amended the law on interdiction and the curatorship of interdicts to eliminate the requirement that all accounts be served and homologated in accordance with LSA-C.C.P. arts. 4394 through 194396 pertaining to tutors. LSA-C.C.P. art. 4569, Revision Comments-2000, comment (a).

With the elimination of the requirement that all accounts be served and homologat-ed in accordance with LSA-C.C.P. arts. 4394 through 4396 pertaining to tutors, the curator is simply required to send a copy of a final account filed on the | intermination of his office to the undercurator and any successor curator by first class United States mail postage prepaid. Furthermore, the law no longer expressly provides for a designated period of time for the filing of an opposition to the final account.

The trial court, in a judgment dated July 18, 2003, granted Darryl’s motion to resign his position as curator and Eva’s motion to resign her position as undercuratrix. Additionally, Oneita was appointed as the sole successor curatrix of Evelyn LeBlane, and the judgment authorized the payment of $4,281.75 in legal expenses to Darryl’s attorney. The July 18, 2003 judgment was approved by counsel for Darryl and Eva, as well as by Joe Stevenson, as counsel for Oneita, “individually, etc.”

Clearly, under LSA-C.C.P. art. 4569(A), Oneita, the successor curatrix, was entitled to receive a copy by first class United States mail postage prepaid of the final account filed by Darryl, who had been allowed to resign his position of curator over the finances by the judgment dated July 18, 2003. Oneita contends on appeal that because she never received service of the petition for homologation, the August 18, 2003 judgment of homologation should be nullified pursuant to LSA-C.C.P. art. 2002(A)(2).

The appellate record contains a petition for homologation of the final account prepared by legal counsel for Darryl, which was filed on July 30, 2003. This pleading indicates it was sent to Oneita through her attorney of record, Mr. Stevenson, as authorized by LSA-C.C.P. art. 1313, by the United States mail, certified, with return receipt requested, as required by LSA-C.C.P. art. 4569(A). The record reflects that Darryl’s counsel filed a copy of the return receipt card, evidencing receipt on July 31, In2003, that had been attached to the mailing that had been forwarded to Mr. Stevenson. Moreover, the preamble to the August 18, 2003 judgment states that due proof was made before the court that the final account was served on Oneita and Eva and that no opposition had been filed.

In her appellate brief, Oneita conceded that notice of Darryl’s petition for homologation of the final account was sent to Mr. Stevenson by certified mail on July 30, 2003. However, Oneita urged that service on Mr. Stevenson was ineffective as to her in light of his filing a motion to withdraw as her counsel of record in the interdiction proceeding on July 25, 2003, which motion was allegedly granted by an order of the trial court dated August 6, 2003. Based on this alleged ineffective service, Oneita submitted that the August 18, 2003 judgment was an absolute nullity, capable of being attacked collaterally in the instant proceeding.

Since Mr. Stevenson’s motion to withdraw was not signed and approved by the court until after the petition for homol-ogation was filed and served on him, he was still technically Oneita’s attorney of record when service was made on her through him. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fees or expenses that have not been earned or incurred. Rules of Prof. Conduct, Rule 1.16(d). In withdrawing from the attorney-client relationship, an attorney unquestionably owes a duty to the client that he has represented not to waive any substantial right or do any other act, by assuming authority under his prior representation, which would be contrary to the interests of his former client. Sterling v. Jones, 255 La. 842, 233 So.2d 537, 539 (1970). Therefore, until such time as his motion to withdraw as counsel was |12acted on by the trial court, Mr. Stevenson had a duty to his client, Oneita, to notify her about the petition filed by Darryl. See Pyle v. Pyle, 00-55 (La.App. 3rd Cir.6/28/00), 769 So.2d 626, 628. Thus, service on Mr. Stevenson was proper as a matter of law.

The grounds of nullity enumerated in LSA-C.C.P. art. 2002 are exclusive as to vices of form. Hebert v. Hebert, 96-2155 (La.App. 1st Cir.9/19/97), 700 So.2d 958, 959. The alleged failure by her counsel of record to send notice to Oneita that the petition had been filed does not come within the purview of any of the grounds for nullity contained in Article 2002. See Pyle, 769 So.2d at 627-28.

Adequate notice is one of the most elementary requirements of procedural due process; it is fundamental to our system of laws that there be notice prior to trial, except in extraordinary cases, such as executory process. Davis v. Dunn & Bush Const., 01-2472 (La.App. 1st Cir.8/20/03), 859 So.2d 155, 158. In the absence of notice from Mr. Stevenson or otherwise of the filing of the petition of homologation, Oneita would have suffered a violation of her right to procedural due process. Consequently, the judgment of homologation would seemingly be improper as one obtained by fraud or ill practices, which would be subject to being annulled pursuant to LSA-C.C.P. art. 2004. See Davis, 859 So.2d at 158.

Since a final judgment obtained by fraud or ill practices is not an absolute nullity, Oneita’s attack on the validity of the August 18, 2003 judgment cannot be raised collaterally in her action for breach of fiduciary duty and damages. Therefore, we conclude that'the trial court was legally correct in denying Oneita’s request for leave of court to file an amended petition in these proceedings to assert a claim for nullification of the August 18, 2003 judgment. See Nethken, 307 So.2d at 565.

In light of the evidence of service of the petition on Mr. Stevenson, there is no vice of form or apparent defect in the interdiction proceeding that would cast doubt on the validity of the August 18, 2003 judgment and the presumption of its correctness. Furthermore, Oneita offered no evidence in opposing the objection of res judicata to otherwise establish the existence of a ground for nullity under LSA-C.C.P. art. 2002. The fact that Mr. Stevenson had previously filed a motion to withdraw as counsel of 11srecord, alone, does not clearly and convincingly establish that service on counsel of record was not effected under circumstances from which it can at least be reasonably presumed that notice resulting from such service would be communicated to the litigant so as to render service pursuant to Article 1313 fatally defective. Cf. Rawley v. Rawley, 357 So.2d 286, 289 (La.App. 1st Cir.), writ denied, 357 So.2d 1154 (La.1978), cert. denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978). Based on the record before us, we are unable to find that the trial court erred, manifestly or legally, in apparently concluding that Darryl and Eva met their burden of proving the presumed validity of the August 18, 2003 judgment.

Existence of Cause of Action

In order to be barred by the doctrine of res judicata in this case, the cause or causes of action asserted in the suit for breach of a fiduciary duty and damages must have existed at the time of the August 18, 2003 judgment in the interdiction proceeding. Oneita claimed that the cause of action for breach of fiduciary duty- did not exist at the time of the prior judgment, as it did not arise until after the interdiction proceeding was complete and final. According to Oneita, her filing of the motion for a detailed accounting in the interdiction proceeding did not prove the existence of a viable claim for breach of a fiduciary duty. In her appellate brief, Oneita urged that this motion simply sought to have herself reimbursed for the expenses paid by her on behalf of her mother, to have her mother’s trailer sold because it was unoccupied and uninsured, and to have Darryl and Eva provide an accounting.

Relative to the motion referred to by Oneita, we note the following. On November 6, 2002, Oneita, in her capacity as the curatrix of the person of Evelyn LeBlanc, filed a motion in the interdiction proceeding for the payment of expenses, removal/sale of the trailer, and an accounting. In her motion, Oneita, in pertinent part, alleged that:

she had not been provided with a full accounting of the source and use of her mother’s assets;
114Parryl had used her mother’s funds to pay his own attorney fees in matters not related to the interdiction proceeding in amounts which exceeded the costs of the interdiction; and
no application had been made by Darryl for the payment of any legal fees in this matter and no judgment was rendered ordering payment of legal expenses.

Based on these allegations, Oneita requested that the court order a full and detailed accounting and permit her to traverse such an accounting. She also sought to have the court determine if the funds used for legal fees and expenses were appropriate for the interdiction proceeding.

In his answer to applicable allegations of Oneita’s petition, Darryl averred that.(l) Oneita was not entitled to any more accounting than that which was presently being voluntarily furnished to her, (2) he had furnished and continued to furnish itemized “accounting” data to Oneita on a quarterly basis, and (3) he never converted any of Evelyn LeBlanc’s meager monies to his own personal use, nor had he squandered any of his mother’s monies or done anything with his mother’s monies that he did not feel was in his mother’s best interest. A hearing was conducted on Oneita’s motion on December 17 and 18, 2002; however, the issue pertaining to the payment of legal fees was not discussed.

By motion filed on February 14, 2003, Oneita sought to have Darryl and Eva removed from their curatorship positions for noncompliance with LSA-C.C.P. arts. 4562 and 4563. In her motion, she urged that upon their removal, she and Theresa Smith should be appointed as the curatrix and undereuratrix, respectively, of Evelyn LeBlanc. She further requested that Darryl be ordered to provide a full, written accounting of all of Evelyn LeBlanc’s assets, as well as an accounting of all fees, expenses, or other funds disbursed from the assets .of Evelyn LeBlanc. A hearing on this motion was set for March 31, 2003.

| ir,Oneita complained that the facts giving rise to the present suit for breach of fiduciary duty could not be obtained in the first proceeding. Yet, a portion of the July 10, 2002 judgment ordered that on request for copies of records by Oneita, any, and all financial institutions having records of Evelyn LeBlanc were to furnish to Oneita, at her cost, copies of the requested records. Moreover, allegations made by Oneita as early as November 2002 suggest that Oneita had knowledge of the actions that form the basis of the current claim for breach of fiduciary duty, which obviously arose out of the same transaction or occurrence as the prior claim. Therefore, we find no merit to her argument that it was not until she had been appointed sole curatrix and after Darryl filed a final accounting, that Oneita could have discovered the alleged fraudulent acts and mismanagement by Darryl and Evá giving rise to the cause of action for breach of fiduciary duty.

Identity of Parties

Oneita further attacks the sustaining of the res judicata exception based on the assertion that she did not appear in the prior proceeding as curatrix. For res judicata to apply in a subsequent proceeding, Oneita contends the parties in both suits must appear in the same capacity. In her appellate brief, Oneita submitted that she was serving as undercuratrix when Darryl was relieved as curator by the August 2003 judgment. She maintained that she did not appear in the interdiction proceeding as curatrix nor did she file any pleading in that capacity. Since this breach of fiduciary duty claim was urged by her in her capacity as curatrix of the person and the affairs of Evelyn Le-Blanc, we disagree. As noted earlier in this opinion, Oneita was appointed initially as sole temporary curatrix of the person of her mother, which appointment was later modified to co-temporary curatrix of the person of her mother by the July 10,' 2002 judgment. This latter judgment also ordered that “with regard to any of the Evelyn LeBlanc accounts (checking, savings, annuities or otherwise),” any and all financial institutions having records of Evelyn LeBlanc' shall furnish copies of such records to Oneita upon her request. Although Darryl was the- curator of the finances, or 11fiaffairs, of his mother, Oneita was authorized by the July 10, 2002 judgment to review all of her mother’s accounts by virtue of her position as a curatrix of the person of her mother. Therefore, she was acting in the capacity of a “curatrix” of her mother in both proceedings, even though her authority was expanded once she was appointed as the sole curatrix of the person and affairs of her mother by the July 18, 2003 judgment.

Essentially, Darryl argued that in acting in her capacity as curatrix of the person in the interdiction proceeding and as sole curatrix in the instant proceeding, Oneita was acting on behalf of the very same interest — the interdict and/or the interdict’s estate — -in urging the breach of the very same fiduciary duty. We note that there exists an identity of parties whenever the same parties, their successors, or others appear, so long as they share the same “quality” as parties. Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978); see Horrell v. Horrell, 99-1093 (La.App. 1st Cir.10/6/00), 808 So.2d 363, 374, writ denied, 01-2546 (La.12/7/01), 803 So.2d 971. Identity of parties is satisfied when a privy of one of the parties is involved. Burguieres, 843 So.2d at 1054 n. 3. In its broadest sense, “privity” is the mutual or successive relationship to the same right of property, or such an identification in interest of one person with another as to represent the same legal right. Noel v. Jumonville Pipe & Machinery Co., 245 La. 324, 158 So.2d 179, 184 (1963); see Five N Company, L.L.C. v. Stewart, 02-0181 (La.App. 1st Cir.7/2/03), 850 So.2d 51, 61-62; see also O’Bannon for O'Bannon v. Azar, 506 So.2d 522 (La.App. 1st Cir.), writ denied, 511 So.2d 1158 (La.1987); Middleton v. Parish of Jefferson, 97-324 (La.App. 5th Cir.1/14/98), 707 So.2d 454, 456, writ denied, 98-0403 (La.3/27/98), 716 So.2d 896.

The real party in interest in both proceedings is Evelyn LeBlanc. It is her legal rights and interests that are at issue in both. See Graves v. Fields, 35,411 (La.App. 2nd Cir.12/19/01), 803 So.2d 392, 395, writ denied, 02-0195 (La.4/12/02), 813 So.2d 405. Thus, the fact that Oneita chose to pursue the protection of those rights and interests first as curatrix of the person, then as the sole curatrix of her mother’s person and affairs, does not preclude the application of the doctrine of res judicata in this case. |17By claiming breach of a fiduciary duty on behalf of Evelyn LeBlanc, Oneita is appearing in the same capacity, and, thus, triggers res judi-cata application.

Conclusion

Therefore, we conclude that the trial court did not err in finding that Darryl and Eva satisfied their burden of proving the essential facts to support the objection of res judicata relative to Oneita’s claim for breach of fiduciary duty. For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed to Oneita L. Smith, as curatrix of the person and affairs of Evelyn B. LeBlanc.

AFFIRMED.

      . In a petition for interdiction filed on February 5, 2002, Eva sought to be appointed as curatrix of Evelyn LeBlanc and Darryl sought to be appointed undercurator. In a' separate petition filed on February 6, 2002, Oneita sought to be appointed as curatrix of Evelyn LeBlanc. These suits were consolidated by order dated February 21, 2002. Following a hearing, the trial court' by judgment dated April 16, 2002, ordered the interdiction of Evelyn LeBlanc and appointed Darryl as curator and Eva as the undercuratrix over the finances of Evelyn LeBlanc. In this judgment, the trial court also appointed Oneita as temporary curatrix and Theresa Smith as the temporary undercuratrix over the person of Evelyn LeBlanc, with these temporary appointments to be reviewed and re-evaluated within 90 days of the hearing date. On review, Eva was added as a temporary co-cura-trix of the person, and these temporary appointments were extended on a temporary-basis by judgment dated July 10, 2002. This judgment also ordered that, on request for copies by Oneita, any and all financial institutions having records of Evelyn LeBlanc were to furnish to Oneita, at her cost, copies of the requested records.

      . A “collateral attack” is an attempt to impeach the decree from one proceeding in another proceeding not instituted for the express purpose of annulling such decree. See Nethken v. Nethken, 307 So.2d 563, 565 (La.1975).

      . For example, a judgment of possession in a succession proceeding could not be annulled for fraud or ill practices in a petitory action in which that judgment forms part of the chain of title. Succession of Schulz, 622 So.2d 693, 696 n. 3 (La.App. 4th Cir.1993), writ denied, 93-2605 (La.1/13/94), 631 So.2d 1161.

      . Included in those matters is the homolo-gation of an account filed by a legal representative, and any opposition thereto, and matters in which the law permits summary proceedings to be used. See LSA-C.C.P. art. 2592(5) and (11).

      .We note that Oneita’s motion to amend her petition includes allegations setting forth grounds for both an absolute nullity and a relative nullity.

      . By virtue of LSA-C.C.P. art. 4393, the account of a curator shall contain the same matters required by LSA-C.C.P. art. 3333 for an account of a succession representative.

      . Prior to the 2000 amendment, curators, like tutors, were bound to serve an account in accordance with LSA-C.C.P. art. 4394, which provides:
      A copy of an account filed by a tutor, together with a notice that the account can be homologated after the expiration of ten days from the date of service and that any opposition must be filed before homolo-gation, shall be served in the manner provided for service of citation:
      (1) Upon the undertutor, if an annual account or other interim account is ordered by the court;
      (2) Upon the former minor, if a final account is rendered after expiration of the tutorship; or
      (3)Upon the successor tutor, if a final account is rendered after removal, resignation, death, or interdiction of a tutor.
      The filing of an opposition to the curator’s account was governed by LSA-C.C.P. art. 4395, which provides:
      An opposition to an account may be filed any time prior to homologation. An opposition shall be tried as a summary proceeding.
      If no opposition has been filed, the court may homologate the account at any time after the expiration of ten days from the date of service as provided in Article 4394.
      The effect of a homologation was determined in accordance with LSA-C.C.P. art. 4396, which provides:
      A judgment homologating any account other than a final account shall be prima facie evidence of the correctness of the account.

        A judgment homologating a final account has the same effect as a final judgment in an ordinary action.
      Provisions similar to LSA-C.C.P. arts. 4394 through 4396 govern the homologation of a final account by a succession representative. See LSA-C.C.P. arts. 3335-3337.
      By virtue of the applicable tutorship articles, a final account rendered after removal of a curator, but prior to July 1, 2001, the effective date of the 2000 amendment of the interdiction articles, had to be tried contradictorily against the successor curator if an opposition to the account was filed. Since the appearance of the successor curator was required, service by mail was not authorized, and sheriff's service was required. See Corbello v. Corbello, 171 La. 735, 132 So. 127, 128 (1930); Hail[Hall] v. Courtney, 180 La. 314, 156 So. 364, 366 (1934); see also LSA-C.C.P. arts. 1312-14; Johnson v. Johnson, 94-0018 (La.App. 1st Cir.11/10/94), 645 So.2d 1260, 1262. Thus, a question arises as to the procedural impact of the 2000 amendment. As a result of this amendment, sheriff's service of a copy of the final account and due notice regarding homologation of that account as contemplated by LSA-C.C.P. art. 4394 are no longer required by the Code of Civil Procedure. See LSA-C.C.P. art. 4569(A) and Revision Comments — 2000, comment (a).

      . Former LSA-C.C.P. art. 4554 made various Code of Civil Procedure articles pertaining to the tutorship of a minor, including Articles 4394 through 4396, applicable to the curator-ship of an interdict.

      . On motion of any interested person, or on its own motion, the court may remove a curator or undercurator from the office for good cause. Unless otherwise ordered by the court, removal of the curator or undercurator by the court is effective upon qualification of the appointed successor. LSA-C.C.P. art. 4568.

      . Darryl was discharged as curator by the August 18, 2003 judgment, which also approved and homologated his final accounting.

      . Although the judgment states that Oneita's motion to resign her position as undercuratrix was granted, there is no evidence in the appellate record that she was ever appointed and qualified as the undercuratrix. On the contrary, Eva was named undercuratrix of the finances in the April 16, 2002 judgment, and she filed her oath of office for that position on March 6, 2003, prior to the March 31, 2003 hearing that resulted in the July 18, 2003 judgment. Obviously, a clerical error was made.

      . A copy was also sent to Eva.

      . This date was set forth in Oneita's proposed pleading entitled “First Amending Petition for Breach of Fiduciary Duty and Damages.”

      . These documents are not included in the appellate record to which our review is limited. See B.W.S., Jr. v. Livingston Parish School Board, 06-1981 (La.8/16/06), 936 So.2d 181, 182 (per curiam).

      .A lawyer must comply with applicable law requiring notice to, or permission of, a tribunal when terminating a representation. Rules of Prof. Conduct, Rule 1.16(c).

      . The burden is on the party attacking service to establish otherwise by clear and convincing evidence. Franklin v. Franklin, 470 So.2d 634, 637-38 (La.App. 1st Cir.1985).

      . This motion triggered the filing of the following documents by Darryl and Eva: Eva's oath of office as to both positions held by her, Darryl’s oath of office, a detailed descriptive list of assets and liabilities as of March 8, 2002, a detailed descriptive list of assets and liabilities as of February 1, 2003, an annual accounting for the period of March 8, 2002, through March 8, 2003, and an acknowledgement/ratification affidavit by Darryl and Eva relative to the letters of curatorship and their oaths of office. Additionally, Darryl and Eva filed an opposition to Oneita’s motion.

      . Based on the record, Oneita was serving as the curatrix of the person of Evelyn LeBlanc at that time.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana v. Clifton R. BOUDREAUX.
    No. 2007-KA-0089.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 15, 2007.

      Charles Foti, Attorney General, Darryl W. Bubrig, Sr., District Attorney, Belle Chasse, LA, And Gilbert Y. Andry, IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MAX N. TOBIAS JR.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

I , STATEMENT OF THE CASE

On January 26, 2005, the defendant, Clifton R. Boudreaux, was indicted on three counts of aggravated rape, violations of La. R.S. 14:42, and six counts of molestation of a juvenile, violations of La. R.S. 14:81.2. The defendant entered pleas of not guilty to all charges at his arraignment on January 31, 2005. He withdrew those pleas on April 26, 2006. He then pled guilty to three counts of forcible rape, which charges were amended from the three counts of aggravated rape, and guilty as charged to the six counts of molestation of a juvenile. The court ordered a presentence investigation to be conducted. Sentencing occurred on June 20, 2006. The court sentenced the defendant to forty years at hard labor, without the benefit of probation, parole, or suspension of sentence for the first two years, on each of the three counts of forcible rape. As to the molestation charges, the court sentenced him to serve fifteen years on each count. The court ordered that all sentences run concurrently with each other. The defendant filed a motion to | ¡.reconsider on June 22, 2006 which the court denied on September 13, 2006. The defendant then filed a motion for appeal which was granted.

STATEMENT OF THE FACTS

Because the defendant entered guilty pléas, there is no trial transcript from which the complete facts of the offenses can be obtained. However, the record does contain material from which the basic facts can be obtained. In the defendant’s statement he admitted sexually molesting his ten-year old daughter S.C. over a three-year period, beginning when she was seven. The police report indicates that the victim told her aunt that, on October 25, 2004, her father molested her after she came home from school. The victim’s aunt, R.R., reported the matter to the sheriffs department. R:R. reported also that she suspected that there had been prior incidents of molestation, and the victim had reported one to her mother K.B. previously. However, K.B. had not taken the matter tó the authorities, but instead confronted the defendant who admitted to the allegation and promised not to do anything again. According to the victim’s videotaped interview, the defendant broke his promise and began abusing her again. The victim described multiple acts of molestation, vaginal and anal penetration, and incidents wherein the defendant forced her to engage in oral sex with him.

ERRORS PATENT

A review of the record for errors patent reveals that the sentence imposed 0n count nine is illegally lenient. Count nine was specifically charged in the loindictment as a violation of La. R.S. 14:81.2(D), 'while the other five counts of molestation of a juvenile, were specified to be violations of La. R.S. 14:81.2(C). The difference in the elements is that, under paragraph D, the incidents of molestation recur oyer a period of more than one year, while paragraph C does not reference multiple incidents or a long time period of abuse. As to penalties, both provide a maximum term of fifteen years. However, the minimum under paragraph C is one year with no prohibition on parole. Under paragraph D, the minimum sentence is five years, and at least five years of any sentence imposed must be served without benefit of parole, probation, or suspension of sentence.

Here the defendant specifically entered his guilty plea to count niné under paragraph D, and the court advised him of the correct penalty. Nevertheless, when the court sentenced him, it failed to include the statutory prohibition against parole, probation, or suspension of sentence for the first five years. However, Paragraph A of La. R.S. 15:301.1 provides that in instances where the statutory restrictions are not recited at sentencing, they are included in the sentence given, regardless of whether or not they are imposed by the sentencing court. Furthermore, in State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, the Louisiana Supreme Court ruled that paragraph A of the statute self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence, which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute. Hence, this Court need take no action to correct the district court’s failure to specify that the defendant’s sentence on count nine be served without benefit of parole, probation, or suspension of | ¿sentence for the first five years. The correction is statutorily effected. State v. Phillips, 03-0304 (La.App. 4 Cir. 7/23/03), 853 So.2d 675.

No other errors patent were found.

DISCUSSION

In his sole assignment of error, the defendant contends that the forty-year concurrent sentences imposed on the three counts of forcible rape are excessive. The maximum term of years which can be imposed under La. R.S. 14:42.1 is forty years, of which a minimum of two years must be served without benefit of parole, probation, or suspension of sentence.. In this case, the court denied parole, probation, and suspension of sentence for only the minimum first two years. Thus, although the defendant received the maximum term of years on each count, he did not actually receive the maximum possible penalty.

La. Const. art. I, § 20 explicitly prohibits excessive sentences; State v. Baxley, 94-2982, p. 4, (La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Brady, 97-1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272, rehearing granted on other grounds, (La.App. 4 Cir. 3/16/99); State v. Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461. However, the penalties provided by the legislature reflect the degree to which the criminal conduct is an affront to society. Baxley, 94-2984 at p. 10, 656 So.2d at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4 Cir.1987). A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering, and is grossly out of proportion' to the severity of the crime. State v. Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Baxley, 94-2984 at p. 9, 656 So.2d at 979; State v. Hills, 98-0507, p. 5 (La.App. 4 Cir. 1/20/99), 727 So.2d 1215, 1217.

A reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set. forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983). If adequate compliance with article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of this particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982).

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, 535, citing State v. Howard, 414 So.2d 1210 (La.1982).

Here, the trial court had the benefit of a presentence investigation report as well as the audiotape of the defendant’s confession and the videotape of the forensic interview conducted with the victim at the Children’s Advocacy Center. The record reflects that S.C. was not the first juvenile female with whom the defendant had tried to engage in sexual activity. In his interview the defendant admitted to attempting to molest his sister-in-law R.R., a step-sister, and a step-daughter from a previous marriage, all of whom were teen-agers at the time. Also, according to the presentence investigation report, the defendant’s first wife was | (¡sixteen when they became romantically involved; he was twenty. They married when she became pregnant, and in exchange for marrying her, her family did not press criminal charges against him.

The defendant’s criminal record was limited to convictions as a juvenile for burglary and criminal damage. As an adult, he had an arrest for simple burglary and an arrest in 1989 for contributing to the delinquency of a juvenile, but no prior felony convictions. The defendant reported that he had been molested multiple times as a child by an uncle, and thus believed for some time that sexual behavior with younger females was acceptable. He reported to the probation officer, and stated repeatedly and tearfully in the audio taped confession, that he learned that such behavior was sick and that he needed help to correct his behavior. However, he repeatedly denied ever penetrating his daughter with his penis (claiming any penetration was with his finger), insisting that, if she said he had, it was strictly accidental.

The defendant clearly minimized his actions. For example in her statement, S.C. recounted that the defendant had proposed that she entice her friends into touching him in a sexual fashion while he pretended to be asleep. Thus, it is apparent that he was prepared to extend his activities beyond his family members. Also, at one point in his statement, the defendant placed blame on S.C. for an act of molestation, claiming that she enticed him by coming out of the shower in a towel and sitting down in a sexually inviting pose; he also contended that she sometimes was wearing only panties and a t-shirt, thus enticing him. Furthermore, S.C. recounted in her statement that he was able to keep her quiet |7about the abuse for some time by telling her that, if she told anyone, he would go to jail, she would have to go live with someone else, and her mother would take her little brother and no longer keep custody of her.

In the presentence investigation report, the probation officer noted that the defendant repeatedly suggested that he was not a typical pedophile because he did not wish to assert control and was not a repeat offender. Thus, it was clear that the defendant by the time of sentencing had still not faced up to the full nature of his crimes. Additionally, throughout the taped statement, the defendant implied that many of the incidents were spur of the moment and somehow beyond his control. The defendant never discussed his use of petroleum jelly which S.C. in her statement mentioned several times. S.C. told the interviewer that the defendant started using the jelly after S.C. complained of pain when the defendant was molesting or penetrating her. She said that he kept the jelly in his bedroom and would go and get it before he molested or raped her even in other areas of the house.

Again, the statements and presentence investigation report makes it abundantly clear that the defendant’s behavior constituted a long-standing and escalating pattern of molestation and rape of juvenile females. He began with minimal or consensual sexual contact with teen-aged girls and then escalated to anal and vaginal rape, as well as forced oral sex with his seven-year old daughter. He attempted to have his daughter lure her young friends into sexual contact with him, which the probation department in its professional opinion believed to be a | ¿‘classic example” of a pedophile. While admitting to many incidents of molesting his daughter, he denied any rape or intent to rape. He admitted to a few incidents involving other family members, but as noted by the probation officer, he only admitted to those incidents which were known to family and which they did not prosecute or report to the police. Although he expressed remorse in his statement, he had failed to seek any mental health or professional help when he had been found out on prior occasions, at most attending a church support group for victims of sexual abuse.

Finally, and perhaps the best indication of the fact that the defendant deserves the maximum punishment, is the defendant’s conduct at the time of his guilty pleas. The court, after explaining the elements of rape charges, asked the defendant to explain what he actually did that made him guilty of the offenses. The defendant responded, “I can’t recall. I just know I give a report, whatever y’all have, y’all have. I can’t recall what you have on it.” The court pressed the defendant, asking if he had any recollection of his offenses. The defendant said that he did not. Whatever remorse the defendant expressed on the audiotape of his statement, it appears that it was remorse for finally being prosecuted after years of sexually abusing children, not true repentance for what he had done.

During the sentencing proceeding, the trial court referenced the videotape of the victim’s statement, the defendant’s confession, the presentenee investigation report, and the factors under La.C.Cr.P. art. 894.1. He invited defense counsel to offer anything in mitigation, and the counsel suggested that the defendant was a sick man who had been out of control, “came clean,” and showed remorse. However, defense counsel also stated that he felt the presentence investigation report was “fairly accurate.”

|aThe defendant addressed the court when invited to do so. He stated that his daughter did not want to testify against him and was threatening to run away if forced to do so. The defendant claimed that he agreed to plead guilty without a sentencing agreement to spare her. However, he again contended that he never vaginally or anally penetrated the victim, and specifically noted that the physical examination done at Children’s Hospital did not show physical evidence of penetration. The defendant then gave an account of the night before S.C. told her aunt about the abuse. He said that he saw S.C. sleeping and became upset over the things he had done. He stated that he began to cry and ask God “to take this stuff’ so that he could break the “generational curse.” The next day the police came to the house, which he said was a relief, and that he then made the statement to the detective unburdening himself of his secrets. He insisted that if he thought he had penetrated his daughter, he would have told the detective he had, as the only way to cleanse himself was “to confess every, single [sic] thing that was ever done to me and from me.” [Emphasis applied.]

The defendant also told the court about having attended a support group at a church, but that he stopped going because he believed that he had a “grip” on it. He said that he stopped abusing his daughter for a while, but began again after an accident which caused him to become disabled.. The defendant once again, while trying to claim remorse, refused to take full responsibility for his actions, telling the court:

And in 2003, I was going through a lawsuit, and for the time that' I was home, for that year and a half going through the lawsuit, that is when these things had occurred. A long period of staying home, without Christ in my life, just being home. You know, around the situation for Satan to attack me if you will.
[inI lost my dad in that period and just things evolved from there. I was just a mess. And I had to get my life straight, and that was the only way I do it, was to come clean and get my life straight.

The defendant emphasized his own status as a victim. He never mentioned his wife or young son, S.C.’s brother, and the consequences for them. He only briefly mentioned S.C. and that was to brag about the letter he wrote her telling her not to feel bad about reporting the abuse and advising her that, if somebody else ever hurts her, she should tell. The balance of what he wrote to S.C. was to tell her the things that had happened to him in his childhood and that he was ashamed at the time to tell anyone. Again, he quite clearly views everything through the prism of himself with no apparent consideration for any of the people who had suffered or were continuing to suffer because of his actions.

The court recognized the limitations on the defendant’s remorse when it imposed sentence, noting his refusal to admit his actions at the time of the plea. The court noted that the victim in her interview was quite explicit regarding what was done to her, and that the details she provided convinced the court that penetration occurred. The court noted the defendant’s history of inappropriate actions his “whole life.” The court noted that, if not for the State’s offer to reduce the charges, the defendant would receive a life sentence or possibly even a death sentence. The court acknowledged that the defendant’s own experience of being molested might explain why he became a molester, but the court felt it was not of consequence at this time. In the court’s analysis, the fact that the defendant was once a victim of abuse was overwhelmed by the fact that the defendant molested his victims solely for his own gratification. In the court’s opinion, the defendant is essentially a sociopath who worried only about his own desires and gratification | nwith no regard for his victims. Finally, the court discussed at some length the consequences on S.C. of the abuse she suffered at the hands of her father.

The reasons given by the trial court show sufficient compliance with La.C.Cr.P. art. 894.1. The next inquiry is whether the sentence is excessive in light of sentences imposed by other courts in similar circumstances.

In State v. Gray, 36,389 (La.App. 2 Cir. 9/18/02), 828 So.2d 176, as in the instant case, the defendant pled guilty to two counts of forcible rape involving the same victim in a plea agreement which reduced the offense from aggravated rape, and received the maximum forty-year sentences to run consecutively. - The sentences were upheld because the record supported the trial court’s myriad reasons for imposing the maximum sentences, including the defendant’s lengthy criminal history which included crimes of violence against women, his claim that the women came on to him, the bargain which substantially reduced his sentencing exposure, the risk of great bodily harm to the victims, and the emotional impact the crimes had on them.

In State v. Adkins, 31,300 (La.App. 2 Cir. 11/9/98), 721 So.2d 1090, the defendant was indicted on three counts of aggravated rape of females under the age of twélve, and was convicted by a jury of two counts of forcible rape. The third count, which' involved his own daughter, resulted in a not guilty verdict; the victims on the guilty counts were his girlfriend’s daughters. The Second Circuit on appeal upheld the sentences of forty years on each count with two years without benefit of parole, finding that the record amply supported the trial court’s belief that the defendant' was the worst type of offender. The court noted the victims’ emotional trauma and that the defendant’s actions constituted aggravated rape for which he should have received life sentences. Furthermore, the trial testimony and | ^information from the PSI showed that he violated his paternal role in the family unit that he repeatedly raped and threatened the victims, “who were part of a family unit in which he was the only father figure. The violation of the paternal role is, needless to say, egregious.” Id., p. 11, 721 So.2d at 1096.

■ In State v. Brown, 33,501 (La.App. 2 Cir. 6/21/00), 764 So.2d 197, the forty-year sentence imposed, after the State reduced the charge from aggravated rape and the defendant pled guilty, was upheld. The defendant was classified as a fourth offender, and the trial court, with the benefit of a presentence investigation report, gave adequate reasons for the sentence.

In State v. Charles, 626 So.2d 404 (La.App. 4 Cir.1993), this Court upheld two forty-year sentences for forcible rape (one as second-felony habitual offender), with the first two years of each to be served without benefit of probation, parole or suspension of sentence, along with a maximum twenty-year sentence for attempted forcible rape, with all three sentences to be served consecutively, where the victim was the thirteen-year-old daughter of the defendant’s girlfriend. As in the instant case, the trial court gave extensive reasons for imposing the sentence.

In State v. Rasberry, 564 So.2d 740 (La.App. 2 Cir.,1990), the court upheld a forty-year sentence, with only the first two years imposed without benefit of probation, parole or suspension of sentence, where a father was convicted of the forcible rape of his eleven-year old daughter. The father had allegedly begun molesting his daughter when she was nine, and it continued at the rate of two or three times per week until he was arrested. As in the instant case, the trial court gave extensive reasons for the sentence.

In State v. Jackson, 597 So.2d 1188 (La.App. 5 Cir.1992), the court upheld a forty-year sentence for forcible rape, twenty years of which was to be served without |1sbenefit of probation, parole or suspension of sentence, where the victim was a fourteen-year old female and the defendant was an adult. Again, as in the instant case, the trial court gave extensive reasons for .imposing sentence.

In State v. Greer, 553 So.2d 892 (La.App. 4 Cir.1989), this Court upheld a forty-year sentence for forcible rape, without benefit of probation, parole or suspension of sentence, where the defendant broke into the victim’s home while she slept, placing a pillow on her head and sitting on it after she screamed. Once again, the trial court gave extensive reasons for imposing the sentence on the first-offender defendant.

The sentence in the instant case does not appear to be that disproportionate to other sentences imposed in similar circumstances.

In summary, the trial court in this case more than adequately justified the sentences imposed. The record fully supports those sentences. Although in the brief counsel argues that the defendant, in his statement, demonstrated remorse, explained how he tried to fight his impulses, and did not blame the victim, the record shows otherwise as discussed above. The defendant appears to be one of the more egregious offenders for whom maximum sentences are reserved. This assignment of error lacks merit.

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Originally, the defendant had been charged on all counts in a bill of information filed under case number 04-6327. The defendant successfully quashed the bill on the grounds that violations of La. R.S. 14:42 must be charged in an indictment. All of the pleadings from case number 04-6327 were later transferred to the instant case.

      . Any references to the victim's name in this opinion will be to her initials, S.C., only. Her mother's initials are K.B.; her aunt’s initials are R.R.

      . A synopsis of the interview the victim gave to a forensic interviewer is contained in the supplemental police report. The full interview is on the videotape which has been made a part of this record.

      .Also, in order to be eligible for parole after five years, the defendant must have the approval of a licensed mental health professional who has examined him.

      . Similarly, when discussing the attempted molestation of his sister-in-law R.R. when she was fifteen, the defendant stated that his wife was pregnant at the time and that R.R. "... was a tease ..., you know, like coming on to you, and all. And so, I fell for that, you know, and all."

      . The record indicates that the defendant and K.B., S.C.’s mother, were married twice. In the period between their marriages, the defendant was married to another woman, who after their divorce married the defendant’s brother. Thus, this woman is both the victim’s former step-mother and her aunt. Initially after the defendant’s arrest, S.C. lived with her aunt R.R. and then- back with her mother. Later, she went to liver with her uncle and her aunt-stepmother with K.B.’s consent, while K.B. maintained custody of S.C.'s younger brother.


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

text:
    Hamid MASSIHA v. Franklin BEAHM, LAMMICO, and ABC.
    No. 2007-CA-0137.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 15, 2007.

      John J. Jackson, III, Metairie, LA, for Plaintiff/Appellant.
    Herbert J. Mang, Jr., Tara S. Bourgeois, Eric E. Helm, Mang Bourgeois, Lip, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

| jThe plaintiff^appellant, Hamid Massiha, M.D., appeals the summary judgment granted by the trial court to the defendant/appellee, Louisiana Medical Mutual Insurance Company (“LAMMICO”). After reviewing the record and applicable law, we affirm the trial court’s judgment.

Dr. Massiha performed breast augmentation surgery on Janice Turner, who later was diagnosed with breast cancer. On 2 June 1988, Ms. Turner filed a medical malpractice complaint with the Patients’ Compensation Fund Oversight Board (“PCF”), requesting review of her claim against Dr. Massiha for his alleged failure to timely diagnose her breast cancer. LAMMICO, Dr. Massiha’s medical malpractice insurer, assigned. Franklin Beahm, Esq., to represent him. On 17 July 1989, the medical review panel found that Dr. Massiha’s failure to diagnose Ms. Turner’s breast cancer was a deviation from the applicable standard of care.

Ms. Turner filed suit against Dr. Massiha and his insurer. On 5 June 1992, a jury found that Dr. Massiha’s treatment of Ms. Turner fell below the applicable standard of care. Soon thereafter, present counsel was retained by Dr. Massiha as | ^additional counsel to overturn the unfavorable jury verdict. Motions for new trial and for judgment notwithstanding the verdict were filed on Dr. Massiha’s behalf and denied by the trial court. Dr. Massiha subsequently asked LAMMICO to replace Mr. Beahm, which request was granted by LAMMICO; Mr. Beahm was notified of Dr. Massiha’s request on 18 October 1993. A suspensive appeal was filed with the Louisiana Fifth Circuit Court of Appeal; the court upheld the verdict against Dr. Massiha.

On 13 June 1995, Dr. Massiha filed the instant legal malpractice action against Mr. Beahm and LAMMICO. On 8 September 2000, Mr. Beahm filed exceptions of prescription and peremption, and a motion to dismiss on the grounds of peremption, which were sustained by the trial court on 17 November 2000. The claim against Mr. Beahm was dismissed with prejudice pursuant to La. R.S. 9-.5605.

| c,LAMMICO subsequently filed an exception of peremption/prescription arguing that Dr. Massiha’s action against it should be dismissed with prejudice pursuant to La. R.S. 9:5606. In the alternative, LAMMICO argued that the one-year prescriptive period applicable to delictual actions, see La. C.C. art. 3492, be applied. On 27 October 2006, the trial court sustained the exception of prescription based on article 3492 and dismissed LAMMICO with prejudice. The instant appeal followed.

The sole issue on appeal is whether the trial court should have permitted Dr. Massiha the opportunity to amend his petition to assert a contractual cause of action against LAMMICO. Dr. Massiha contends that the trial court’s failure to do so was error on its face. If allowed, Dr. Massiha claims he would have stated more clearly that his action against LAMMICO sounded in contract, which would have removed it from the dictates of La. R.S. 9:5606. In addition, Dr. Massiha maintains that the statute does not apply because LAMMICO is not an insurance agent. We agree that La. R.S. 9:5606 does not apply to LAMMICO because it is not an insurance “agent, broker, solicitor, or other similar licensee.... ” La. R.S. 9:5606.

Article 934 of the Louisiana Code of Civil Procedure provides:

|4When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.-

While article 934 permits a plaintiff to amend the petition to remove the objection, the decision to permit an amendment is within the sound discretion of the trial court and, therefore, will not be disturbed. absent a showing of manifest error or abuse of discretion. Gates v. Hanover Insurance Co., 218 So.2d 648, 652-53 (La.App. 4 Cir.1969). Where a plaintiff may be able to remove the grounds of defendant’s peremptory exception so as to properly state a cause of action, he/she should be afforded an opportunity to amend the petition. Evans v. Detweiler, 466 So.2d 800, 803 (La.App. 4 Cir.1985). Amendment, however, is not permitted when it would constitute a vain and useless act. Doe v. Entergy Services, Inc., 608 So.2d 684, 687 (La.App. 4 Cir.1992); Kosak v. Trestman, 03-1056 (La.App. 4 Cir. 12/3/03), 864 So.2d 214.

In Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91, 93-94 (La.App. 4th Cir.1970), this court stated:

The same matter was passed on in Gates v. Hanover Insurance Company, supra, wherein the court in rejecting the demand stated:
‘We can conceive of no amendment by which their alleged cause of action against the sheriff, based on his vicarious liability as the superior officer of Deputy Mackles acting in the discharge of official duties, can be removed under our jurisprudence. In fact they do not propose to so amend but rather they propose, if allowed to do so, to change completely their basis of suit and now allege a different cause of [^action. They propose to allege a cause of action against the sheriff not based on his vicarious liability for the tortious acts of his deputy, but grounded on his primary liability as a tort feasor personally. This would not be an amplification or clarification of the allegations of the original petition, but a change of substance; the allegation of a different cause of action. This is not the kind of amendment contemplated by the article.’
Therefore we are of the opinion that the trial court was correct in maintaining the exception of no cause of action and dismissing plaintiffs suit without leave to amend. [Emphasis added.]

In Reno v. Perkins Engines, Inc., 98-1686 (La.App. 1 Cir. 9/24/99), 754 So.2d 1032, writ denied 99-3058 (La.1/7/00), 752 So.2d 863, the plaintiff brought a redhibition action after purchasing allegedly defective screw turbo engines manufactured by the defendant. The trial court sustained the defendant’s exceptions of prescription, but denied the plaintiffs request to amend his petition to set forth a cause of action for breach of contract. On appeal, the First Circuit stated:

And in Malin [v. Andrus Homes, 610 So.2d 223 (La.App. 3 Cir.1992) ], when the plaintiff attempted to amend her redhibition action to add a claim for breach of contract and thus defeat prescription, the court stated: “Under its clear wording, La. C.C.P. art. 934 does not contemplate allowing an amendment to state an entirely different cause of action with a longer prescriptive period in order to remove the effect of the peremptory exception.” [Id. at 225.] We agree with the second [see Riddle v. Simmons, 626 So.2d 811 (La.App. 2 Cir. 1993), writ denied, 93-2920 (La.4/29/94), 637 So.2d 459] and third circuits and find that the trial court herein did not err in ignoring the breach-of-contract claim asserted in the third supplemental and amended petition and denying plaintiffs motion for new trial.

Id. at p. 5, 754 So.2d at 1035-36.

|fiIn the instant ease, Dr. Massiha alleges in his petition that:

IX.
LAMICO [sic] contributed to Dr. Massiha’s injuries because said company denied Dr. Massiha’s request that another attorney represent him even though Dr. Massiha found that Defendant [Mr. Beahm] was callous and did not seem to care about the case.
X.
As a result of the negligence of the parties involved, Plaintiff has suffered monetary damages as a well as damage to his reputation and professional image.

The petition contains no reference to a contractual cause of action against LAM-MICO. In addition, Dr. Massiha has not introduced any evidence into the record to demonstrate that he has a contractual right to request a change of counsel appointed by LAMMICO to defend him from medical malpractice claims. He argues that he should have been allowed to amend his petition to “clarify that the suit against the insurer was for breach of its contractual obligation to provide plaintiff with ' a competent defense.” We find, however, that the petition contains nothing to clarify and thus, we find that amending the petition would be a vain and useless act.

In light of the jurisprudence of this circuit, as well as the first, second, and third circuits, we find that the trial court did not abuse its discretion or commit |7reversible error when it granted LAMMICO’s exception of prescription and. dismissed Dr. Massiha’s lawsuit with prejudice. Consequently, we affirm the judgment of the trial court.

AFFIRMED.

MURRAY, J., Concurs in the Result.

      . See Turner v. Massiah [sic], 94-29 (La.App. 5 Cir. 7/1/94), 641 So.2d 610, affirmed in part and reversed in part, 94-2548 (La.6/16/95), 656 So.2d 636.

      . La. R.S. 9:5605 states in pertinent part:
      A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

      . La. R.S. 9:5606 states in pertinent part:
      A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

      . Having read Dr. Massiha's petition we find that the only cause of action asserted against LAMMICO sounds in tort.

      . LAMMICO has answered' the appeal and has set forth two assignments of error in the event this court reverses the trial court’s judgment. Because we are affirming the lower court's decision, we pretermit discussion of LAMMICO’s assigned errors.


author:
TERRI F. LOVE, Judge.
      BAGNERIS, J.,

text:
    Keoka PARQUETTE v. CERTIFIED COATING OF CALIFORNIA, INC. and Markel Insurance Company.
    No. 2006-CA-1527.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 22, 2007.

      Robert G. Harvey, Sr., Law Office of Robert G. Harvey, Sr., APLC, New Orleans, LA, and Albert J. LeBeouf, Albert J. LeBeouf, A.P.L.C., Abita Springs, LA, for Keoka Parquette.
    Craig R. Nelson, Nelson Fay, LLC, and Harry T. Lemmon, New Orleans, LA, for Certified Coatings of California, Incorporated, and Evanston Insurance Company.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD.
   TERRI F. LOVE, Judge.

11 This appeal arises from an accident on the Crescent City Connection Bridge where a broken cable struck a vehicle during the performance of bridge maintenance. Keoka Parquette was driving her vehicle when a steel cable struck her vehicle, allegedly caused her injuries. Keo-ka Parquette filed suit against Certified Coatings of California, Inc., the contractor performing the work, and, its insurer, Evanston Insurance Company. Keoka Parquette then filed a motion for partial summary judgment and/or to strike the affirmative defense of third-party negligence and for expedited rehearing. The trial court granted the partial motion for summary judgment and prohibited Certified Coatings of California, Inc. from introducing evidence of third-party negligence or defectiveness of the steel cable. The jury found in favor of Keoka Par-quette and awarded damages. Certified Coatings of California, Inc. appeals the trial court’s granting of the partial motion for summary judgment and the jury’s verdict. We find that the partial motion for summary judgment and damage awards were proper and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 23, 2003, Keoka Parquette (“Ms. Parquette”) was driving to work across the Crescent City Connection Bridge (“CCC”) when a half-inch steel cable, bused for work on the CCC, snapped and struck her vehicle. Ms. Parquette allegedly sustained physical and mental injuries as a result.

Ms. Parquette filed a petition for damages against Certified Coatings of California, Incorporated (“Certified Coatings”), the contractor,, and Markel Insurance Company (“Markel”), whom she believed to be Certified Coatings’ insurer, alleging that Certified Coatings’ negligence caused her injuries. Ms. Parquette asserted that a “vice, defect, and/or ruins” existed on the CCC in the area where Certified Coatings performed work. Certified Coatings’ insurer, erroneously referred to as Markel, was Evanston Insurance Company (“Evanston”). Ms. Parquette also plead the doctrine of res ipsa loquitor.

Certified Coatings and Evanston (“Defendants”) asserted that “the acts of third persons not named in this lawsuit caused or contributed to the accident.” Certified Coatings identified the supplier of the cable as Nautilus Supply Company (“Nautilus Supply”) and stated, during discovery, that “[n]one of the thousands of feet of cable supplied to Certified Coatings ever wore down and snapped like the cable made the subject of this lawsuit....” Certified Coatings further alleged that Nautilus Supply “failed to supply subject cable which was fit for intended purpose” and that the cable “obviously had an inherent flaw and/or defect at the time it was supplied.”

The parties filed a joint stipulation, stating in pertinent part, “[a] cause of the accident that is the subject of this litigation was the negligence of Certified Coatings of California, Inc.” Thereafter, Ms. Parquette filed a motion in limine regarding the spoliation of evidence. The trial court deferred a ruling until trial. Ms. Parquette then filed a motion for partial summary judgment and/or to strike the affirmative defense of third-party negligence and for expedited hearing. Certified IsCoatings opposed the motion and offered the affidavit of its president and submitted the documentary evidence of the cable’s specifications and order forms showing that Certified Coatings had obtained the cable from Nautilus Supply. '

The trial court granted Ms. Parquette’s motion for partial summary judgment and ordered that Certified Coatings “may not introduce any evidence to support their claim of third-party negligence of Nautilus Supply or the defectiveness of the cable as a proximate cause of the accident made the subject of this lawsuit.” The trial court ruled that there was no just reason for delay of entry of a final judgment pursuant to La. C.C.P. art. 1915(B)(1). Certified Coatings timely appeal followed. Due to the pending appeal, Certified Coatings filed a motion to continue trial, which the trial court denied.

After a three-day jury trial, the jury awarded Ms. Parquette $800,000 for past and future physical pain and suffering; $100,000 for past and future mental pain and suffering; $80,000 for future medical expenses; $36,000 for lost wages/income up to trial; $100,000 for loss of enjoyment of life; and $68,000 for medical expenses up to trial. The trial court judge entered judgment on the verdict. Certified Coatings combined this appeal with the appeal on the motion for partial summary judgment.

Certified Coatings asserts the trial court erred by granting the motion for partial summary judgment and preventing the presentation of evidence regarding third-party evidence and asserts that the.damage awards were abusively high and unsupported by the evidence.

STANDARD OF REVIEW

Summary judgments are reviewed using the de novo standard. Huggins v. Gerry Lane Enters., Inc., 06-2816, p. 3 (La.5/22/07), 957 So.2d 127, 128. The trial court will grant a motion for' summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mover bears the burden of proof. La. C.C.P. art. 966(C)(2).

“The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded it in awarding damages.” Cascio v. Downing, 06-0570, p. 12 (La.App. 4 Cir. 4/4/07), 957 So.2d 795, 803. “[A]n appellate court may conclude that the award is inadequate (or excessive)” after reviewing the particular facts and circumstances of a case. Id.

Appellate courts review factual findings of the trial court or jury using the “manifest error” or “clearly wrong” standard. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The appellate court must determine if the factfinder’s decision was a reasonable one. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). “The rationale for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses, as compared with the appellate court’s access only to a cold record, but also upon the proper allocation of trial and appellate functions between the respective courts.” McElveen v. City of New Orleans, 03-1609, p. 4 (La.App. 4 Cir. 9/14/04), 888 So.2d 878, 881. “[Wjhere two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883.

PARTIAL MOTION FOR SUMMARY JUDGMENT

This Court held that “a motion for summary judgment should not be | Kdetermined based on testimony that is ‘mere speculation.’ ” Skinner v. Derr Constr. Co., 05-0816, 05-0817, p. 9 (La. App. 4 Cir. 7/26/06), 937 So.2d 430, 436, quoting Jones v. Estate of Santiago, 03-1424, p. 10 (La.4/14/04), 870 So.2d 1002, 1008. Further, in Keller v. Messina, 05-745, p. 5 (La.App. 3 Cir. 2/1/06), 921 So.2d 1162, 1165, the court held that the speculative evidence failed “to indicate that the defendants” would be able to demonstrate comparative fault at trial.

In the case sub judice, Certified Coatings’ alleged evidence of Nautilus’ negligence consists of a receipt for the purchase of the allegedly defective cable, the testimony of Certified Coatings’ president, and the testimony of employees that the ends of the cable- appeared frayed following the accident. The record indicates that no experts or anyone other than Certified Coatings examined the cable, which has since been lost. Additionally, no experts would testify at trial regarding the allegedly defective nature of the cable. We find Certified Coatings’ evidence speculative.

The trial court prevented Certified Coatings’ presentation of Nautilus’ negligence. However, the trial court held that “[t]his Judgment does not preclude defendant from using evidence as to the physical properties of the cable,” which encompasses the evidence possessed by Certified Coatings. Thus, we find that the partial motion for summary judgment was properly granted.

QUANTUM

The jury awarded Ms. Parquette $800,000 for past and future physical pain and suffering; $100,000 for past and future mental pain and suffering; $80,000 for future medical- expenses; $36,000 for lost wages/income up to trial; $100,000 for loss of enjoyment of life; and $68,000 for medical expenses up to trial. The jury did not award Ms. .Parquette damages for future lost wages or loss of earning | (¡capacity. Certified Coatings contends that the awards for general damages, future medical expenses, and past income were excessive. Ms. Parquette avers that the jury erred in refusing to award future lost wages and loss of earning capacity.

Ms. Parquette

Ms. Parquette testified that she attended some classes at Delgado towards a major in nursing prior to the accident. At the time of the accident, she stated that she felt that “death had arrived.” Ms. Parquette testified that she “no longer wanted to drive” after the accident. Further, Ms. Parquette was out of work for over a year.

A few days after the accident, Ms. Par-quette allegedly started to experience some pain. She went to see Dr. William Alden (“Dr. Alden”), as referred by her attorney, with complaints of pain in her neck, numbness, shaking, tingling, nervousness, and headaches. Dr. Alden recommended medication and therapy treatment. He also referred Ms. Parquette to a psychiatrist, Dr. Roger Anastasio (“Dr. Anastasio”). Later, Dr. Alden recommended x-rays and an MRI. Ms. Parquette testified that the MRI took thr'ee and a half hours, due to her “nervousness” and “fright.” The MRI revealed a bad disk in her neck that was pinching a nerve.

Dr. Alden then referred Ms. Parquette to Dr. Kenneth Vogel (“Dr. Vogel”), who requested an MRI of her back, cervical myelogram, and a CAT scan. She stated that the test results required surgery. Prior to the surgery, doctors warned her that she would suffer, from pain for the rest of her life and that another surgery might be required after she got older. Ms. Parquette stated that the warnings made her feel “unhappy” and that she was “better being dead.” The surgery removed a disk from her neck, replaced it with a bone, and then fastened it to her spinal cord. 17Ms. Parquette testified that she had permanent restrictions on “hyper-, bending her neck repeatedly, cervical strain, bending, consecutively,” and that she could not lift anything over thirty-five pounds without increasing the pain.

On cross-examination, Ms. Parquette stated that she was not presently seeing a psychiatrist because of Hurricane Katrina displacement and that all treatment stopped as of July 2005. She also testified that she was making more money now than she was before the accident. Ms. Parquette stated that she still has uncontrollable muscle spasms and arm pain. As to disability, Ms. Parquette testified that she was ten to fifteen percent disabled. Finally, Ms. Parquette stated that she takes Goody’s, Tylenol, and ibuprofen as needed for pain and headaches.

Dr. Alden

Dr. Alden, an expert in internal medicine, testified that he first examined Ms. Parquette on May 28, 2003, with complaints of neck pain, numbness in her left hand, left foot, pain, and some nervousness. Following a physical examination, Dr. Alden diagnosed Ms. Parquette with “coup-contra-coup and posttraumatic stress, cervical strain, thoracic strain, left hand strain, and left foot strain.” Ms. Parquette continued to have pain and numbness at her second appointment with Dr. Alden. After the visit, Dr. Alden testified that he referred her to Dr. Anastasio and told her to continue physical therapy. Dr. Alden stated that he ordered a cervical MRI after Ms. Parquette’s fourth visit. The MRI revealed a herniation between the C4 and C5 vertebrae, which Dr. Alden testified was consistent with the accident. He referred Ms. Parquette to a neurosurgeon, Dr. Vogel, for .surgical evaluation. Dr. Alden further stated that more likely than not, Ms.. Parquette’s injuries- were from the accident.

Dr. Vogel

| sDr. Vogel, Ms. Parquette’s expert in neurosurgery, testified that he examined Ms. Parquette for pain, muscle spasms, and numbness. He stated that his findings were related to the accident. Dr. Vogel suggested a myelogram CAT scan for a “more definitive diagnosis.” Dr. Vo-gel testified that the myelogram revealed a spur and disk mixed at the C4-C5 vertebrae and a disk protrusion at the C5-C6 vertebrae. Dr. Vogel “[ojffered and anticipated an anterior cervical fusion at the C5-6 level” where Ms. Parquette’s spinal cord was indented. Six weeks after the surgery, Dr. Vogel suggested that Ms. Parquette begin physical therapy. Further, he stated that surgery might be needed in the future on the C4-C5 injury, which would cost approximately $57,000 to $60,000.

At maximum medical improvement, Dr. Vogel testified that Ms. Parquette would be unable to lift, push, or pull anything over thirty-five pounds. He stated that she had ten to fifteen percent whole body impairment. Due to this, Dr. Vogel stated that Ms. Parquette would probably have difficulty getting through nursing school, but that she would be able to find a job upon graduation. Finally, Dr. Vogel stated that Ms. Parquette’s injuries do not prevent her from working full-time.

Dr. Robert Steiner

Dr. Robert Steiner (“Dr. Steiner”), the defense expert in orthopedic medicine, testified that he performed an examination of Ms. Parquette. He stated that the MRI showed a mid-line bulge at the C4-C5 vertebrae, but no- C5-C6 vertebrae problems. His x-rays revealed a cervical fusion at the C5-C6 vertebrae. Dr. Steiner stated that he saw no reason for the C5-C6 fusion. On cross examination, Dr. Steiner acknowledged a protrusion at the C4-C5 vertebrae, but reiterated that he did not think the cervical fusion at the C5-C6 was warranted.

| JDr. Richard Roniger

Dr. Richard Roniger (“Dr. Roniger”), the defense expert in psychiatry, testified that he did not think Ms. Parquette suffered from posttraumatic stress disorder. However, Dr. Roniger stated that Ms. Par-quette was still having symptoms in 2005, when he examined her.

CPA Testimony

John Theriot (“Accountant Theriot”), Ms. Parquette’s CPA and CFA expert, testified that Ms. Parquette’s past loss of wages/earnings was $37,477. He stated that she had a future loss of wages/earnings of $136,787. As for medical expenses, he calculated a future loss of medical as $8,114 with additional money needed if a future surgery was required. On cross examination, Accountant Theriot stated that he used June 2004 to June or July 2005 as his computation time. Further, he testified that he was unaware that Ms. Parquette was only taking Tylenol and Advil. This information, he stated, made his future medical calculations incorrect.

Dan Cliffe (“Accountant Cliffe”), the defense CPA expert in economic analysis, testified that Ms. Parquette’s past loss of wages/earnings was $25,930. Accountant Cliffe did not calculate any future loss because he stated that Ms. Parquette can perform the same job that she had prior to the accident.

As to general damages, the jury heard testimony from Ms. Parquette regarding her physical and mental suffering as a result of her injuries. The jury also heard testimony from Dr. Alden, Dr. Vogel, Dr. Steiner, and Dr. Roniger regarding their respective diagnoses and treatment of Ms. Parquette. Ms. Parquette stated after learning about her surgery, that she was “better being dead” and that she was ten to fifteen percent disabled. Dr. Vogel testified that he performed a cervical fusion on Ms. Parquette to relieve most of her symptoms from the disk |inprotrusion and that Ms. Parquette may need surgery in the future to correct the spur and disk mix at the C4-C5 vertebrae. Dr. Steiner acknowledged the disk protrusion, but stated that he did not think cervical fusion was necessary. Finally, Dr. Roniger testified that he did not think Ms. Parquette suffered from posttraumatic stress disorder, but that she was exhibiting psychological symptoms. The jury was in the best position to weigh the credibility of Ms. Par-quette and the experts in order to determine that $900,000 was a reasonable award.

Accountant Theriot calculated Ms. Par-quette’s future medical expenses at $8,114 with additional money required if a future surgery became necessary. However, when calculating the total, Accountant Theriot included the cost of prescription medication and not the cost of Tylenol, Advil, or Goody’s that Ms. Parquette was actually taking for pain. Dr. Vogel testified that a future surgery would cost around $57,000 to $60,000. Dr. Vogel also stated that $8,114 was a reasonable amount for Ms. Parquette’s future prescriptions. Accordingly, the jury weighed the credibility of the information and awarded $80,000 for future medical expenses.

The jury awarded $36,000 for lost wages/income up to the trial date. Accountant Theriot stated, taking into account what Ms. Parquette had earned, that her past loss of wages was $37,477. Accountant Cliffe testified that Ms. Par-quette’s past loss of wages was $25,930. Considering the jury’s position to better ascertain the credibility of 'witnesses and the conflicting testimony, we do not find that the award of $36,000 was unreasonable.

We do not find that the general damages, future medical expenses, and past income awards were unreasonable. The jury weighed the opinions from opposing experts and Ms. Parquette. It is un-controverted that she suffered physical and | ^mental harm and that she could not work for one year as a result of the accident.

The jury did not find that Ms. Parquette was entitled to awards for future lost wages or loss of earning capacity. Accountant Theriot stated that Ms. Par-quette’s future lost wages would be $136,787. Accountant Cliffe testified that he did not calculate any future lost wages because Ms. Parquette can perform the same job that she had prior to the accident. The jury heard testimony as to Ms. Parquette’s intent to become a nurse; she attended one year of pre-nursing courses at Delgado. However, Dr. Vogel testified that finishing nursing school may be difficult due to Ms. Parquette’s weight lifting restrictions; but, that once she graduated she could obtain a nursing position that did not require heavy lifting. Ms. Parquette was employed, at the time of trial, with a higher salary than that prior to the accident. Accordingly, given the jury’s ability to weigh the credibility of testimony, we do not find that the jury committed manifest error or abused its discretion in refusing to award damages for future lost wages or loss of earning capacity.

DECREE

For the above mentioned reasons, we affirm the trial court judgments.

AFFIRMED.

BAGNERIS, J., dissents with reasons,

BAGNERIS, J.,

dissenting.

U respectfully dissent from the majority opinion, as I would find that the trial court erred when it granted plaintiffs motion for partial summary judgment, striking defendants’ defense of third-party negligence. Louisiana law provides that defendants are entitled to have damages apportioned among all persons causing injury to plaintiff and thus, the trial court erred when it denied defendants the opportunity to present their evidence regarding the defective condition of the cable to the jury. See La. C.C. Art. 2323 . Further, the Louisiana Supreme Court in Dumas v. State ex rel. Dept. of Culture, Recreation & Tourism, 2002-0563 (La.10/15/02),828 So.2d 530, held that La. C.C. Art. 2323 “clearly requires that the fault of every person responsible for a plaintiffs injuries be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.” Id. at p. 11, 828 So.2d at 537. In the instant case, defendants specifically pled the fault of third parties as a cause of the plaintiffs accident and injuries as an affirmative defense in its answer to plaintiffs petition for damages. Pursuant to La. C.C. Art. 2323, and the Louisiana Supreme Court’s holding in Dumas, defendants were entitled to present evidence regarding the defective condition of the cable that snapped to the jury, and the jury should have determined whether any nonparty tortfeasors should bear a portion of the fault in this case. Therefore, I would find that the trial court erred as a matter of law by granting the partial summary judgment striking defendants’ defense of third-party negligence and keeping the issue from the jury.

      . The president of Certified Coatings is a mechanical engineer.

      . Louisiana Civil Code Article 2323 states in part:
      A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
      B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injuiy, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.