author: CLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Kimberly LAUFF.
    No. 06-KA-717.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 13, 2007.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Donald Rowan, Assistant District Attorneys, Gret-na, Louisiana, for Plaintiff/Appellee.
    Bruce G. Whittaker, Louisiana Appellate, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   CLARENCE E. McMANUS, Judge.

|pOn January 8, 2004, a Jefferson Parish grand jury returned an indictment against the defendant, Kimberly Lauff, for second degree murder, a violation of LSA-R.S. 14:30.1. The defendant filed a motion to suppress her statements and a motion to quash the indictment, which the trial judge denied. After the State amended the indictment to charge the defendant with manslaughter, the defendant pled guilty to manslaughter under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) and State v. Crosby, 338 So.2d 584 (La.1976), reserving her right to appeal all pretrial motions, including the motion to quash. Thereafter, the trial judge sentenced the defendant to imprisonment at hard labor for 40 years. This timely appeal follows.

Because the defendant entered a guilty plea, this factual statement is developed from the hearings on the motions to suppress and quash and other information in the record.

On November 8, 2003, at approximately 8:30 a.m., a dead baby boy was discovered in a trash receptacle at an apartment complex located at 4209 Arbor Court in Ken-ner. Detective Brian McGregor spoke to a resident of the complex, Randy Hebert, who is Lauffs boyfriend’s brother. Hebert related to Detective | ^McGregor that Lauff and her boyfriend were visiting his apartment on the evening before, and that the defendant went to the hospital after experiencing bleeding.

In her initial statement, made on November 8th to Detective McGregor, 23-year-old Kimberly Lauff explained the events leading up to the discovery of the baby’s body. She said that, while at the Hebert’s apartment, she began experiencing stomach cramps and thought she needed to use the restroom. While she was sitting on the toilet, a baby boy “popped out.” She caught the baby before he hit the water. She wiped him off with a towel and saw the child was not breathing. She cut the umbilical cord with some scissors that were in her purse and called for her boyfriend to come to the bathroom. The child was out of sight and wrapped in a towel when her boyfriend entered. There was blood all over the floor and she was bleeding profusely.' Her boyfriend told her that she needed to get cleaned up and then go to the hospital. She showered and put on clean clothes with the assistance of Mrs. Hebert. Lauff remarked to Mrs. Hebert that if Lauffs mother “found out about this,” Lauff would never see her children again.

Lauff kissed the child on the forehead and wrapped him up in a towel. She then put her bloodied clothes in a garbage bag. On the way to the car, she placed the bag containing her clothes in a trash can located outside the complex, put the child on top of the bag, and closed the lid. Lauff was admitted to the hospital at 2:36 a.m. on November 8, 2003, and underwent a D & C procedure.

At approximately 12:00 p.m. on November 8th, Detective McGregor went to the hospital, where he had an abbreviated conversation with Lauff. Detective McGregor read Lauff her rights, which she said she understood and she agreed to speak to him. Lauff denied giving birth and said she passed out. At that point, a nurse interrupted the conversation and told Detective McGregor that Lauff had |4been under a sedative. The nurse said that Lauff was probably clear of the sedative, but that they were waiting on Lauff to use the restroom. The nurse said the sedative would be out of her system at 12:30 p.m. Lauff agreed to go to the police department when she was discharged, and an officer brought her there at approximately 4:15 p.m. At this time, Lauff gave her second statement which was recorded.

Detective McGregor testified that Lauff was informed that she was under investigation for first degree murder. She waived her constitutional rights after another officer, Detective Cunningham, read them to her. She denied knowing that she was pregnant. Lauff claimed that the child was born dead and that she tried to resuscitate the baby by plucking his foot and rubbing his back to no avail. She stated that he never even opened his eyes.

After the statement, Lauff was released because the police did not have the autopsy results. However, Lauff was arrested on November 10, 2003, when the autopsy results revealed that the child was born alive and that the child’s death was ruled a homicide. In particular, the State’s forensic pathologist, Dr. Ross, found the child was 41 weeks in gestational age and died as a result of “homicidal violence and/or neglect including abandonment. Asphyxia due to suffocation/smothering is a likely cause of death.” Drug and alcohol screening detected ethanol in the child’s blood and vitreous. Cocaine was found in the child’s plasma, vitreous and gastric fluid.

Detective McGregor testified that, after Lauffs arrest on November 10, 2003, she was again advised of and waived her constitutional rights. Detective McGregor told Lauff that the autopsy indicated that the child was born alive and that the child’s death was a homicide. This third statement, LaufFs second recorded statement, was largely consistent with the first recorded statement, with | sthe exception of the fact that Lauff admitted she knew she was pregnant. She also said that the baby “flinched” after he was born. She became scared and immediately “wrapped” the baby up in a towel. She also told the officer that she wanted to die after giving birth because she felt she had “messed” her life up again, as well as the life of an innocent child.

Detective McGregor testified that, in both the recorded statements, Lauff cried periodically. However, he said she was very cooperative and coherent in both recorded statements and at the hospital.

In her first allegation of error, defendant alleges that the trial court erred in denying her Motion to Quash.

Initially, it is noted that the defendant’s appellate attorney states in the appellate brief that the trial judge’s denial of the motion to quash may be rendered moot, given the defendant’s decision to plead guilty to manslaughter and considering that the defendant asserted in her motion to quash that the “charges against the defendant may be more appropriate under manslaughter.” The defendant nevertheless contends that the trial judge erred in denying her motion to quash the indictment because the State’s evidence did not support the charged offense of second degree murder, particularly insofar as there was no evidence of specific intent to kill or to inflict great bodily harm.

In State v. Crosby, supra, the defendants were indicted for first degree murder and filed motions to quash the indictment on the ground that the statute was unconstitutional because it imposed the death penalty. At the completion of the State’s case, the defendants pled guilty to second degree murder, but reserved their right to appeal the pre-plea rulings of the trial court to which they objected. The Supreme Court stated as follows: “Since the defendants were not convicted of violating that statute, but instead pleaded guilty to second-degree murder, the ^assignment is without merit.” State v. Crosby, 338 So.2d at 592. (citation omitted).

In the present case, the defendant filed a motion to quash the indictment for second degree murder on the basis that the State lacked the evidence to prove the requisite specific intent. Since the defendant was not convicted of second degree murder, but instead pled guilty to manslaughter, we believe that the reasoning of State v. Crosby, is applicable to this allegation.

LSA-C.Cr.P. arts. 532 and 485 list the general grounds for quashing an indictment, which include the failure of the indictment to charge a punishable offense and when it appears from the bill of particulars that the offense charged was not committed or that the defendant did not commit it. State v. Jordan, 06-187 (La. App. 5 Cir. 9/26/06), 938 So.2d 805. The defendant filed her motion to quash under LSA-C.Cr.P. art. 532(5), which provides in pertinent part:

A motion to quash may be based on one or more of the following grounds:
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.

LSA~C.Cr.P. art. 485 provides:

If it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.

Both the Louisiana Supreme Court and this Court have consistently held that a motion to quash is, essentially, a mechanism to urge pre-trial pleas, i.e. pleas |7which do not go to the merits of the charge. State v. Byrd, 96-2302 (La.3/13/98), 708 So.2d 401, 411, cert, denied, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998); State v. Billard, OS-319 (La.App. 5 Cir. 7/29/03), 852 So.2d 1069, 1074, writ denied, 03-2437 (La.2/6/04), 865 So.2d 739. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. Billard, supra. A court considering a motion to quash must accept as true the facts contained in the bill of information and in the bill of particulars, and determine as a matter of law from the face of the pleadings whether a crime has been charged. Id. While evidence may be adduced on the motion to quash, such evidence may not include a defense on the merits. State v. Byrd, 708 So.2d at 411. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. Billard, supra.

In the present case, the defendant requested the State to specify the subsection of the second degree murder section under which it intended to proceed. The State responded that it planned to proceed under LSA-R.S. 14:30.1 A(l), which requires the offender to have the specific intent to kill or to do great bodily harm. In response to the defendant’s question regarding what evidence the State intended to use to create an inference of specific intent, the State indicated it intended to prove the specific intent through the defendant’s two statements and open file discovery.

In her motion to quash and at the hearing on the motion, the defendant suggested that charges of manslaughter or partial birth abortion would be more appropriate instead of second degree murder. The defendant argued that there was no evidence of her intent to kill or to inflict great bodily harm. The defendant also argued that the State could not prove when the child took his first breath or whether the child was alive when placed in the trash can. The defendant pointed to |sthe difference of opinions on the cause of death between the State’s forensic pathologist Dr. Ross and expert witness Dr. Krouse. Dr. Ross specifically stated in his report that “Kimberly Lauff, by vaginal delivery, gave birth to a term male infant on the night of 7 November 2003. It was a live birth.” Dr. Krouse’s report opined that there was “ample evidence of live birth in the lung tissue.” He found that there was insufficient evidence to determine that the child died of suffocation or smothering, but that it could not be ruled out. He determined that the most likely cause of death was “maternal drug and alcohol use and abandonment in a dangerous environment following birth.”

At the hearing, the State responded that it believed it could prove the requisite specific intent through the defendant’s actions. The trial judge stated that he found the State’s answers to the bill of particulars were sufficient, and that the State had enough evidence to proceed. Immediately thereafter, the defendant pled guilty to manslaughter.

In the present case, defendant raised no issue regarding the sufficiency of the indictment. Also, she has not argued that the indictment was defective in failing to advise her of the specific crime with which she was charged, or that it failed to charge a valid offense. Rather, the issues raised in the defendant’s motion to quash relate solely to her guilt or innocence, in that she contends the State’s evidence could not prove the requisite intent for murder beyond a reasonable doubt. Because these issues are factual matters that relate to the merits of the case, they were not properly raised in a motion to quash. See, State v. Billard, 852 So.2d at 1074. We find that the trial judge properly denied the defendant’s motion to quash.

At the end of her assignment, the defendant asserts in two sentences that she was denied due process because the State was allowed to threaten the defendant into pleading guilty to manslaughter because the State over-charged the indictment. |9Notably, the defendant does not ask to withdraw her guilty plea as involuntary. Nor does she brief this position. According to Rule 2-12.4 of the Uniform Rules, Courts of Appeal, all specifications or assignments of error must be briefed and the appellate court may consider as abandoned any specification or assignment of error that has not been briefed. Restating an assigned error in brief without argument or citation of authority does not constitute briefing. State v. Inzina, 31,439 (La.App. 2 Cir. 12/9/98), 728 So.2d 458, 469. In State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764, 770, this Court found that the defendant failed to brief his position where he merely asserted his position, but failed to include argument or any legal citation in support thereof. The Fernandez court found that the assertions presented nothing for review on appeal. As in Fernandez, the defendant herein has not briefed this position and that it presents nothing for review on appeal.

In her second allegation of error, the defendant argues that the trial court erred in denying the Motion to Suppress. She contends that her statements were involuntary because her mental and physical conditions were impaired by the loss of blood and by the cocaine and alcohol she had consumed. The State responds that the trial judge properly denied the motion to suppress.

In order for a statement or confession to be admissible at trial, the State must affirmatively show that it was made freely and voluntarily, without inducements, threats, or promises. State v. Tate, 98-117 (La.App. 5 Cir. 5/27/98), 714 So.2d 252, 255-256. If the statement was elicited during custodial interrogation, the State must also prove that defendant was advised of his or her Miranda rights. See, State v. Tate, at 255. Intoxication only renders a statement involuntary when the intoxication is of such a degree that it negates the defendant’s comprehension and 11()renders him unconscious of the consequences of what he or she is saying. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866. The trial court’s conclusions on this issue will not be disturbed unless unsupported by the evidence. Id. A trial judge’s determination on the admissibility and his conclusions on the credibility and weight of the testimony relating to the voluntariness of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Quest, supra.

In the present ease, the defendant made three statements to the police: an abbreviated statement in the hospital at approximately 12:00 p.m. on November 8th; a recorded statement at the police department later on November 8th; and a recorded statement after she was arrested on November 10th. While the defendant contends that her intoxication and mental state rendered her statements involuntary, the record does not support that assertion. Although the child’s autopsy report indicated that there were levels of cocaine and alcohol in his body at birth, there was no evidence presented at the motion to suppress hearing that the defendant was rendered incoherent by intoxication at any time she spoke to the police.

In her appellate brief, the defendant claims that Detective McGregor “acknowledged that her mental state on the two times he spoke to her — on both November 8 and November 10 — was such that she could not complete her statement without breaking down “sobbing and crying,” citing to pages 127 and 131 of the record. However, this is not a precise characterization of Detective McGregor’s testimony. On cross-examination, Detective McGregor was asked whether the defendant cried during the first recorded statement. Detective McGregor denied that she cried for the duration and answered that “[s]he had her Iribouts and periods that she would cry, and sometimes she wouldn’t.” When asked, “if we had the tape to play, we would hear some of the sobbing and crying,” Detective McGregor replied, “Yeah, if it’s on the tape, yes sir.” Regarding the second recorded statement, Detective McGregor replied that the defendant’s demeanor was “[j]ust the same, she’d cry at times, and other times she wouldn’t.”

Further, Detective McGregor testified that the defendant understood she was under investigation for first degree murder, and that she was coherent and cooperative at the hospital, as well as during the successive recorded statements. In fact, Detective McGregor stated he could not discern from the defendant’s appearance that she had been given a sedative at the hospital, but left upon being advised that the sedative would definitely be cleared of the defendant’s body by 12:30 p.m. The defendant made the first recorded statement at 5:25 p.m. on November 8th, several hours later. It was two days later, on November 10th, when the defendant made her second recorded statement. Additionally, the defendant signed waiver of rights forms prior to making both recorded statements, indicating that she had been advised of her constitutional rights and that she wanted to waive them. The waiver of rights forms were introduced at the hearing.

After hearing Detective McGregor’s testimony and reviewing the waiver of rights forms, the trial judge could have concluded that the defendant’s statements were freely and voluntarily given. We find that the trial judge did not abuse his discretion in denying the defendant’s motion to suppress.

In her third allegation of error, the defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990) regardless of whether defendant makes such a request. Our review reveals the following error.

|iaThe record does not reflect that the defendant was properly advised of the prescriptive period for filing post-conviction relief. LSA-C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. During the plea colloquy, the trial judge stated that the defendant would have “two years from the date the sentence becomes final to file post-conviction relief applications.” This Court has held that the failure to advise a defendant that the prescriptive period runs from the time his conviction and sentence become final renders the advisal incomplete. See, State v. Roche, 05-237 (La.App. 5 Cir. 4/25/06), 928 So.2d 761, 767, 768, citing State v. Grant, 04-341 (La.App. 5 Cir. 10/26/04), 887 So.2d 596, 598. Moreover, the waiver of rights form contains incorrect advice regarding the prescriptive period for filing post-conviction relief because it informed the defendant that any post-conviction relief application had to be filed within “two (2) years of the date of this plea.” Accordingly, we remand this matter with instructions for the trial court to inform the defendant of the correct prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant after the rendition of this Court’s opinion and filing written proof that the defendant received the notice in the record. See, State v. Roche; State v. Grant, supra.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed. We remand the case to the district court with instructions for the trial court to correctly inform the defendant of the prescriptive provisions for seeking post-conviction relief.

CONVICTION AND SENTENCE AFFIRMED; CASE REMANDED.

      . In her second statement, Lauff told Detective McGregor that she had two other children, ages 4 and 5.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: McMANUS, Judge.

license: Public Domain

text:
    FAT TUESDAY CAFÉ, L.L.C., Sabrina A. Quave and Marcy M. Leal, Individually and on Behalf of Fat Tuesday Café, L.L.C. v. Cassandra FORET, House of Sweets, Ricky Pitre, Pitre’s Restaurant, and Ro-Ket, Inc.
    No. 06-CA-738.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 13, 2007.

      Doris T. Bobadilla, Andrea L. Albert, Galloway, Johnson, Tompkins, Burr & Smith, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Joel A. Levy, Attorney at Law, Marrero, LA, for Defendants/Appellees, Cassandra Foret and Barbara Lambert.
    George S. Ruppenicker, Attorney at Law, Harvey, LA, for Defendant/Appellee, Ro-Ket, Inc.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   McMANUS, Judge.

|sPlaintiffs, Fat Tuesday Café, Sabrina Quave and Marcy Leal, filed suit naming as defendants Cassandra Foret and House of Sweets, Ricky Pitre and Pitre’s Restaurant, Ro-Ket, Inc., and Barbara Lambert. In this appeal, plaintiffs challenge the trial court’s ruling which granted summary judgment in favor of Cassandra Foret and House of Sweets, and Barbara Lambert. For the reasons that follow, we affirm the trial court’s decision granting summary judgment in favor of Barbara Lambert. We reverse the trial court’s decision granting summary judgment in favor of Cassandra Foret and House of Sweets, and we remand the matter for further proceedings.

In August of 2001, plaintiffs and Cassandra Foret entered into an agreement in which plaintiffs agreed to purchase the name and the assets of House of Sweets for $35,000.00. Plaintiffs put down $4,000.00, and agreed to pay $1,000.00 per month, starting when their JEDCO loan was approved, or when they opened their business. Thereafter, the contract was renegotiated, and the purchase price was lowered to $25,000.00.

In addition, the plaintiffs entered into negotiation with Ricky Pitre, for a lease of the property in which House of Sweets was located. Pitre acquired the property from Barbara Lambert, who had obtained it on a bond for deed from Ro-jKet,4 Inc. The negotiated terms provided for rental payments of $1,000.00 and a term of three years, and that plaintiffs were to make repairs, including replacing the air conditioning, and the cost would be deducted from the rental payments of $1,000.00 per month. Plaintiffs took possession of the property in September. Plaintiffs alleged that the parties entered into an oral lease and, that they attempted to reduce the lease to writing, but were unsuccessful. Pitre alleges that the parties were negotiating a written lease, and that he allowed plaintiffs to take possession before the negotiations were concluded. Thereafter, the lease negotiations broke down, and he caused the plaintiffs to be evicted.

Plaintiffs took possession of the property in September of 2001, and they opened the business in December. The JEDCO loan was rejected at the end of January or the beginning of February. At that time, Ms. Quave notified Foret that the loan had been rejected. In March, the parties started to disagree and plaintiffs did not make a payment toward the purchase price.

Pitre evicted plaintiffs from the property at the end of March, 2002. Ms. Quave testified that she did not take any contents that were part of the sale between her and Ms. Foret when she left.

On July 30, 2002, plaintiffs filed suit seeking damages for breach of contract, breach of lease, fraud and negligence. Ms. Foret filed a reconventional demand for breach of contract, seeking payment of the purchase price.

Ms. Foret and Ms. Lambert filed motions for summary judgment, and plaintiffs filed a cross-motion. Pitre also filed a motion for summary judgment. After a hearing, the trial court denied plaintiffs motion and granted the motions filed by Ms. Foret and Ms. Lambert. The trial court found that there was a verbal agreement to sell the contents of the business for $25,000.00, that $4,000.00 was paid as a down payment, and that the balance of the purchase price was owed by |splaintiffs to Ms. Foret. The court further dismissed plaintiffs’ suit against Ms. Lambert. In a separate ruling, the trial court denied the motion for summary judgment filed by Pitre.

In this appeal, plaintiffs allege that the trial court erred in granting summary judgment in favor of Ms. Foret. Plaintiffs argue that the trial court erred in finding no genuine issues of material fact, and that there were issues of whether “Foret is owed anything, much less the full amount of $21,000.00.” Plaintiffs also allege that the trial court erred in finding Ms. Quave and Ms. Leal personally liable to Ms. For-et. In addition, plaintiffs allege that the trial court erred in finding that Pitre did not act as an agent for Lambert and Ro-Ket, and therefore Lambert should not have been dismissed from the suit.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Underwood v. Best Western Westbank, Inc., 04-243 (La. App. 5 Cir. 8/31/04), 881 So.2d 1271.

This Court’s review of a grant or denial of a motion for summary judgment is de novo. We ask the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. | fiOcean Energy, Inc. v. Plaquemines Parish Government, 04-0066 (La.7/6/04), 880 So.2d 1.

The trial court rendered judgment against plaintiffs on the reconventional demand filed by Ms. Foret. Thus, it was incumbent on Ms. Foret to prove her claim. Plaintiffs, through the deposition of Ms. Quave, established that they contracted with Ms. Foret to buy the contents of House of Sweets, for $35,000.00. After the parties discovered that some of the contents in the shop did not belong to Ms. Foret, the purchase price was renegotiated to $25,000.00. Plaintiffs took possession of the contents of the House of Sweets, renovated the location and opened the business. Thus, the undisputed facts show that plaintiffs entered into an agreement, received the goods, but did not pay the purchase price. The fact that plaintiffs left the goods when they vacated the property does not relieve them of the obligation to pay.

Nevertheless, plaintiffs allege that included in and an element of the contract of sale was Foret’s assertion that the video poker licenses did not expire until June of 2002, when the license actually expired in February. Foret contends that plaintiffs did not plead the video poker license in their petition.

The summary judgment granted relief on the reconventional demand, not the original petition. Therefore, Foret was obligated to present evidence to establish a prima facie case of the oral contract, its terms, and its breach. In her reconven-tional demand, Foret alleged that she entered into a contract of sale, and that despite delivery, the purchasers failed to pay the purchase price as set forth in the contract. She admits in her pleading that the contract of sale included use of the video poker machine, but makes no mention of the gaming license or its term. Since the contract at issue was an oral one, testimony was needed to establish the 17terms. Foret did not present any deposition or other testimony in support of her motion for summary judgment.

In support of their contention that For-et, and not they, breached the contract, plaintiffs presented the deposition testimony of Sabrina Quave. Quave stated that the parties entered into an oral contract, and that an essential element of the contract was a gaming license, which was valid until June. Plaintiffs began operating in December, and apparently collected video revenue for January and February. According to plaintiffs, Foret breached the contract of sale when she failed to deliver a license that did not expire until June.

We find that there are genuine issues of material fact as to the terms of the contract, and therefore the trial court erred in granting summary judgment in favor of Ms. Foret. Because we find that the trial court erred in granting summary judgment, we need not rule on plaintiffs’ allegation that the trial court erred in finding Ms. Quave and Ms. Leal personally liable.

Finally, plaintiffs argue that the trial court erred in dismissing their claim against Ms. Lambert. It is asserted that in 1999, prior to the negotiations at issue, Lambert entered into a bond for deed contract with Ro-Ket, Inc. for the property at issue. Thereafter, Pitre acquired the bond for deed. In his deposition, Pitre states that he first leased the property, and then took over the bond for deed sometime in 2001. Plaintiffs offer nothing to contradict this testimony. Although plaintiffs allege that Pitre was the “authorized agent” of Lambert, they offer no evidence to support this allegation. We find no error in the trial court’s ruling dismissing Ms. Lambert from this suit.

|sFor the above discussed reasons, the trial court’s ruling granting summary judgment in favor of Barbara Lambert is affirmed. The trial court’s ruling granting summary judgment in favor of Cassandra Foret is reversed, and the case is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.


text:
    David B. WILLIS v. CITY OF KENNER.
    No. 06-CA-619.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 13, 2007.
    Robert E. Tarcza, James L. Harmon, George P. Vourvoulias, III, Tarcza & Associates, New Orleans, Louisiana, for Plaintiff/Appellant.
    Roy M. D’Aquila, Ronald J. Vega, Natalie R. Segura, D’Aquila, Volk, Mullins & Contreras, Kenner, Louisiana, for Interve-nor/Appellee Ideal Trailer Court, Inc.
    Christopher D. Weddle, Kurt C. Garcia, Kenner City Attorney’s Office, Kenner, Louisiana, for Defendant/Appellee City of Kenner.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

I:STATEMENT OF THE CASE

On June 1, 2005, the City of Kenner, Board of Zoning Adjustments (“Board”) rendered a decision at a public hearing in response to a variance request by Ideal Trailer Court, Inc. (“Ideal”) determining that a mobile home is not a “residence” under Section 15.02 of the City of Kenner Zoning Ordinance and approved a variance request regarding the method and manner in which the measurements were to be taken for an ordinance requiring that a truck stop not be located within 500 feet of a residence, residential district, or another truck stop. The minutes of the June 1, 2005 meeting of the Board were approved and adopted at the next regularly scheduled meeting of the Board on July 14, 2005.

On July 6, 2005, David B. Willis (‘Willis”) filed an Application for Writ of Cer-tiorari with the Twenty-Fourth Judicial Court for review of the Board decision. Ideal filed a Petition of Intervention in the matter and on August 8, 2005 filed an Exception of Prescription and Exception of No Cause of Action. Ideal alleged in its exceptions that the writ was not timely filed in the Twenty-Fourth Judicial District Court as required by La.R.S. 33:4727. Ideal also argued Willis was not aggrieved by the decision of the Board so he had no cause of action. A hearing on |4the exceptions was held on April 20, 2006. Judgment granting the exception of prescription was rendered on April 26, 2006. Willis now appeals that judgment.

For the reasons which follow, we affirm the trial court’s judgment granting the exception of prescription because the writ of certiorari was not timely filed in the Twenty-Fourth Judicial District Court by Willis.

DISCUSSION

La. R.S. 33:4727(E)(1) states:

Any person or persons jointly or severally aggrieved by any decision of the Board of adjustment or any officer, department, board, or bureau of the municipality, may present to the District Court of the Parish or City in which the property is affected is located a Petition, duly verified, setting forth that the decision is illegal, in whole or part, specifying the grounds of the illegality. The Petition shall be presented to the Court within thirty (30) days after filing of the decision in the office of the Board.

In addition, Section 21.05 of the City of Kenner Code of Ordinances provides:

Any person or persons, or any officer, department, board, bureau, or any other agency of the City of Kenner jointly or severally aggrieved by any decision of the board of zoning adjustments, may present to the civil district court of the Parish of Jefferson, within thirty (30) days after filing of the decision in the office of the Board, a writ of certiorari asking for such relief and under such rules and regulations as are provided for such matters in the appropriate legislation of the State of Louisiana.

According to La. R.S. 33:4727(E)(1) and Section 21.05 of the Kenner Code of Ordinance, the petition or writ of certiorari must be filed within 30 days after the filing of the decision in the office of the Board. The Board made their decision at the meeting held on June 1, 2005. According to the affidavit of Randolph J. Clement, the Director of the Planning Department for the City of Kenner, which was attached to the Exception of Prescription, the decisions rendered by the Board at the June 1, 2005 meeting were filed in the Board’s office on June 2, 2005. In ^addition, his affidavit states notices of the rendering of the decisions regarding the two variance requests by Ideal Trailer Court were sent to the attorney for Ideal.

Therefore, the decisions at issue in this case were filed in the office of the Board on June 2, 2005. Willis had thirty days from June 2, 2005 to file a writ of certiora-ri. The writ was filed with the Twenty-Fourth Judicial District Court on July 6, 2005, which is more than thirty days after the decision was filed in the Board’s office. Thus, we find the trial court correctly granted Ideal’s Exception of Prescription and we affirm the trial court’s judgment.

AFFIRMED.


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

text:
    ELEVATING BOATS, INC. v. PARISH OF PLAQUEMINES, Plaque-mines Parish School Board and Plaquemines Parish Sheriff’s Office.
    No. 2006-CA-1208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 2007.

      Eric J. Derbes, Albert J. Derbes III, The Derbes Law Firm, L.L.C., Metairie, LA, for Plaintiff/Appellee.
    Darryl W. Bubrig, Sr., District Attorney, 25th Judicial District, Parish of Plaquemines, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Plaquemines Parish School Board.
    Michael L. Mullin, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, LA, for Plaquemines Parish Government.
    Court Composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERlS, SR., and Judge MAX N. TOBIAS, JR.
   MAX N. TOBIAS, Jr., Judge.

| ¶ The defendants/appellants, Plaque-mines Parish Government and Plaque-mines Parish School Board (collectively referred to as “the defendants”), appeal from a judgment in favor of plaintiff/appel-lee, Elevating Boats, Inc. (“EBI”), which refunds to EBI sales and use taxes for the tax years 1992-94. For the reasons that follow, we affirm the judgment.

EBI is a manufacturer of boats, cranes, and related products located in St. Bernard Parish, Louisiana, for the purposes of liability for sales and use taxes. However, for the years 1992 through 1994, EBI paid its sales taxes to the defendants. This litigation arises out of EBI’s attempt to recover those taxes.

The defendants oppose refunding any taxes, arguing that the claim to some or all of the taxes is prescribed and that no refund should be allowed because payment of the taxes to the defendants was made in an effort to defraud St. Bernard Parish.

IgThe matter went to trial on 9 March 2005, and on 13 March 2006, the trial court entered judgment in favor of EBI in the total sum of $122,450.00 plus interest in accordance with La. R.S. 47:337.40, and all costs. The defendants were ordered to pay said amount according to their respective tax rates.

In its well-reasoned opinion upon which this court relies in substantial part, the trial court found that EBI’s claim for a refund had not prescribed. In so holding, the trial court relied on chapters contained in Plaquemines Parish Government Ordinance No. 174. A chapter entitled “REFUNDS AND REIMBURSEMENTS” contains the following provision:

SECTION 10.04. Where no question of fact or law is involved, and it appears that the records of the Governing Authority that any moneys have been erroneously or illegally collected from any dealer, or have been paid by any dealer under a mistake of fact or law, the Collector may, at any time within two (2) years of payment, upon making a record in writing of his reasons therefor, certify that any dealer is entitled to such refund and thereupon the Collector shall authorize the payment thereof from any appropriation available for such purposes.

The following chapter, entitled “REMEDIES OF THE DEALER,” contains the provisions below:

SECTION 11.01. A right of action is hereby created to afford a remedy at law for any dealer aggrieved by the provisions of this ordinance; and in case of any such dealer resisting the payment of any amount found due, or the enforcement of any provisions of such laws in relation thereto, such dealer shall pay the amount 1 ¡¡found due by the Collector and shall give the Collector notice, at the time, of his intention to file suit for the recovery of the same; and upon receipt of such notice the amount so paid shall be segregated and held by the Collector for a period of thirty (30) days; and if suit be filed within such time for recovery of such amount; such funds so segregated shall be further held, pending the outcome of such suit. If the dealer prevails, the Collector shall refund the amount to the claimant, with interest at the rate of two per cent (2%) per annum covering the period from the date the said funds were received by the Governing Authority to the date of refund.
SECTION 11.04. If any dealer shall be aggrieved by any finding or assessment of the Collector, he may, within thirty (30) days of the receipt of notice of the assessment or finding, file a protest in writing signed by him or his duly authorized agent, which shall be under oath and shall set forth the reasons therefore, and he may request a hearing. Thereafter, the Collector shall grant a hearing to such dealer, if a hearing has been requested, and may make an order confirming, modifying, or vacating any such finding or assessment. The filing of any such protest shall not abate any penalty for non-payment, nor shall it stay the right of the Collector to collect the tax in any manner herein provided unless the dealer shall furnish security of a kind and in an amount satisfactory to the Collector. Appeals from the decision of the Collector shall be direct to any State, City or Federal Court of competent jurisdiction as provided for in Section 11.02.

The trial court held that rather than the two-year period provided by parish ordinance, the three-year period provided by state law controlled the prescription issue. La. R.S. 33:2718.1, enacted in 1984, provided in pertinent part:

A. (1) After three years from December 31 of the year in which the local sales and use tax becomes due or after one year from the date the local sales and use tax is paid, whichever is later, no refund or credit for overpayment shall be made unless a claim for credit or refund has been filed by the taxpayer with the political subdivision before the expiration of such period.

LThis section was repealed by the legislature in 2003 and replaced with the “Uniform Local Sales Tax Code” found at La. R.S. 47:337.77, which provides for refund of overpayments due to “error, omission, or a mistake of fact of consequence to the determination of the tax liability,” and La. R.S. 47:337.79 that contains the same three-year/one-year prescriptive period for refunds or credits. The trial court relied on Elevating Boats, Inc. v. St. Bernard Parish, 00-3518, p. 31 (La.9/5/01), 795 So.2d 1153, 1174, wherein the Supreme Court stated:

While up holding the state statute over the local ordinance in BP Oil [Co. v. Plaquemines Parish Government, 93-1109 (La.9/6/94), 651 So.2d 1322], we reasoned that a Parish ordinance could not be less beneficial to the taxpayer than state law required.

See also, La. Const, art. VII, § 16, which states: “Taxes, except real property taxes, and licenses shall prescribe in three years after the thirty-first day of December in the year in which they are due, but prescription may be interrupted or suspended as provided by law.”

In applying a three-year prescriptive period, the trial court found:

The action which makes the computation of this time period relevant is the filing of amended tax returns by EBI on October 24,1995. These were filed as a result of litigation instituted against EBI in St. Bernard Parish Land the supervisor of the sales tax department for the Government was asked not to act on them until the litigation was completed. That amended return tolled the running of the prescriptive period for three previous years — that is, for 1992, 1993, and 1994. While EBI claims a refund for all the years in question including 1991, the right of receiving a refund for that tax year prescribed on December 31,1994.

The trial court also rejected the defendants’ argument that the incorrect payment of taxes to Plaquemines Parish was fraudulent and not a mistake of fact or law. The trial court found no such proof.

The defendants have assigned two errors. First, the trial court applied the wrong prescriptive period to EBI’s claim for refunds and, second, the trial court was manifestly erroneous when it found that the defendants failed to prove fraud or bad faith on the part of EBI.

The application of one prescriptive statute over another is a question of law, thus requiring a de novo review. Cleco Evangeline, L.L.C. v. Louisiana Tax Com’n, 01-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353. Further, “the standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes ‘against prescription and in favor of the claim that is said to be extinguished.’ ” Katz v. Allstate Ins. Co., 04-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444, citing Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318, p. 12 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214 (quoting Louisiana Health Service and Indemnity Co. v. Tarver, 93-2449, pp. 11-12 (La.4/11/94), 635 So.2d 1090,1098).

The defendants argue that the trial court applied a state statute, La. R.S. 47:337.79, which became effective approximately nine years after the transactions Lat issue took place, and not the local ordinance in effect at the time the taxes were erroneously paid. However, the state statute in effect at the time of the transactions, La. R.S. 33:2718.1 (quoted above in pertinent part), is virtually identical to the language in La. R.S. 47:337.79, providing for a three-year prescriptive period. Thus, we find no merit in the defendants’ argument.

The defendants also contend that the trial court committed manifest error in failing to find that EBI acted fraudulently, thereby extinguishing its claim for refunds. The trial court’s finding of a lack of fraud was made after hearing all the testimony and reviewing the evidence entered at trial.

The manifest error standard of review requires that even where a reviewing court may believe that its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal where the record merely demonstrates conflicting testimony as to the facts at issue, and the fact finder chooses to believe one version, rather than the other.

Salvant v. State, 05-2126, pp. 19-20 (La.7/6/06), 935 So.2d 646, 660.

We have reviewed the record and do not find that the trial court was manifestly erroneous in finding that the defendants failed to prove fraud on the part of EBI. Therefore, we find this assignment of error to be without merit.

Based on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

      . While sales and use taxes were paid to both of the defendants, Plaquemines Parish Government was the collection agency for the school board.

      . In 1998, Article III of the Plaquemines Parish Code of Ordinances was amended to include section 14-164, entitled "Refunds for erroneous overpayments.” The section contains language virtually identical to that found in section 10.04, except for language allowing for repayment of taxes for "three (3) years from December 31 of the year in which the tax becomes due or within one (1) year from the date the tax was paid, whichever is later.” We agree with the defendants that section 14-164 does not apply to taxes paid erroneously before its enactment.

      . § 337.79. Prescription of refunds or credits
      A. After three years from the thirty-first day of December of the year in which the tax became due or after one year from the date the tax was paid, whichever is the later, no refund or credit for an overpayment shall be made unless a claim for credit or refund has been received by the collector from the taxpayer claiming such credit or refund before the expiration of said three-year or one-year period. The maximum amount, which shall be refunded or credited, shall be the amount paid within said three-year or one-year period. The collector shall prescribe the manner of filing claims for refund or credit.
      B. Provided that in any case where a taxpayer and the collector have consented in writing to an extension of the period during which an assessment of tax may be made, the period of prescription for refunding or crediting overpayments as provided in this Section shall be extended in accordance with the terms of the agreement between the taxpayer and the collector.

      . In doing so, the defendants relied on Elevating Boats, supra, in which the Supreme Court affirmed the trial court’s finding of fraud.


author: GREG G. GUIDRY, Judge.

text:
    La Shae JOHNSON v. WALMART.
    No. 06-CA-907.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2007.

      Joseph G. Albe, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Scott F. Davis, Attorney at Law, Metair-ie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

| ^Plaintiff, La Shae Johnson, appeals from the workers’ compensation judgment dismissing her claim against her employer, Wal-Mart Stores, Inc. For the reasons which follow, we affirm.

Plaintiff was hired by Wal-Mart on October 26, 2001, to work as a loss prevention officer. This job included surveillance of the store for shoplifters as well as the apprehension and detention of shoplifters. The Plaintiff alleges that she suffered work related injuries during the course and scope of her employment, while attempting to apprehend shoplifters on October 9, 2002, and February 5, 2003. As a result, she contends that she is disabled and entitled to supplemental earnings benefits (SEBs), medical expenses, attorney fees, and penalties. She argues that the trial court erred in finding that her claim had no merit and dismissing it.

|aThe Defendant argues to the contrary that Plaintiff did not carry her burden of proving disability causally related to the work accidents and, therefore, the trial court was correct in finding that her claim lacked merit. More particularly, the Defendant points out that Plaintiff was provided light duty work when medically restricted but was thereafter released to return to her regular duties. The evidence established that Plaintiff was injured prior to her employment and suffered no further disability from the alleged work accidents. She simply did not meet her burden of proof.

The trial court agreed with the defense and found:

From all of the above, the Court has concluded that Claimant was not a credible witness, that she was not in good health prior to her employment at Wal-Mart, that she was advised of her right to treat with a physician of her own ■ choosing and that she has presented no competent medical evidence to confirm her allegations of disability.. Additionally, other witnesses and other evidence had discredited or east serious doubt upon Johnson’s allegations of injury and ongoing disability.

In a workers’ compensation case, it is the claimant’s burden to prove a work-related accident and a resulting injury by a preponderance of the evidence. Ratliff v. Brice Bldg. Co., 03-624 (LaApp. 5th Cir.l1/12/03), 861 So.2d 613. While the court may view the circumstances from the perspective of the worker, the claimant’s burden of proof is not relaxed. Shaw v. Arc of St. Charles, 00-1193 (La.App. 5th Cir.11/28/00), 776 So.2d 542. The claimant’s testimony alone may be sufficient to satisfy this burden of proof, as long as there is no other evidence that discredits or casts serious doubt upon his version of the incident, and his testimony is corroborated by circumstances following the alleged accident. Ratliff, supra; Head v. Winn-Dixie, Inc., 01-467 (La.App. 5th Cir.10/17/01), 800 So.2d 992; Shaw, supra. Corroboration of the worker’s testimony may be provided by the | testimony of fellow workers, spouses, or friends. Corroboration may also be provided by medical evidence. Ratliff, supra; Shaw, supra. It is well settled that an appellate court may not set aside the factual findings of a workers’ compensation judge in the absence of manifest error or unless they are clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 13 (La.3/4/98), 708 So.2d 375, 380; Barbarin v. TLC Home Health, 02-1054, p. 3 (La.App. 5th Cir.4/29/03), 845 So.2d 1199, 1202; Campbell v. Gootee Const. Co., 99-913, p. 9 (La.App. 5th Cir.1/12/00), 756 So.2d 449, 453. Under the manifest error standard of review, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart v. State through DOTD, 617 So.2d 880 (La. 1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra; Rosell, supra.

Upon review, we find that the judgment reached by the workers’ compensation judge was reasonable and supported by the record before us. The record indicates that following the first incident on October 9, 2002, the Plaintiff was treated by Dr. Mark Juneau. Although Dr. Juneau was recommended through the employer, the record supports the trial court’s finding that Plaintiff was informed that she could select a physician of her choice. She informed her employer that she was satisfied with Dr. Juneau’s treatment.

|ROn January 10, 2003, Plaintiff returned to Dr. Juneau complaining of pain. Dr. Juneau concluded that he could find no objective evidence of spasm. Consistent in Dr. Juneau’s reports is the finding that Plaintiff underwent cervical fusion several years earlier. She suffers with occasional pain from that. After reviewing results from an MRI, he found that she was back to her pre-work injury condition, but this did entail some pain from the non-work related spinal fusion years earlier. Dr. Juneau released Plaintiff to regular duty work. On February 4, 2003, when Plaintiff again returned to Dr. Juneau with complaints of pain, Plaintiff was again advised by Dr. Juneau that she was capable of working at her regular duties. He acknowledged that because of her condition, having had a spinal fusion years earlier, she would suffer some pain and discomfort and wrestling with shoplifters would likely cause her some back pain. However, she had reached her pre-work injury condition. During this period, from October 9, 2002, through February 4, 2003, Plaintiff was provided light duty work and all of her medical treatment was approved and paid for by the Defendant.

On February 5, 2003, on her first day back to her regular duties, Plaintiff contends that she was again injured while trying to apprehend a shoplifter. She returned to Dr. Juneau on February 11, 2003. Dr. Juneau acknowledged in his report of February 25, 2003, that Plaintiff had been assigned a sedentary position and he found no medical reason why she could not do this light duty work. Plaintiff was medically released to return to work. On March 31, 2003, Dr. Juneau reported that Plaintiff did not require any further treatment.

On July 7, 2003, still reporting pain, Plaintiff sought treatment with a new physician, Dr. Leslie Hightower. His impression, following an examination, was that the Plaintiffs symptoms suggested “median neuropathy” and her headaches |fiwere “likely cervicogenic in nature.” She ultimately underwent another MRI of the cervical and lumbar spine on August 18, 2004.

The defense produced three separate reports from an expert, Dr. Robert Appleb-aum. The first report, dated June 1, 2004, followed an interview and examination of the Plaintiff. It was noted that the Plaintiff was complaining of pain in her neck, left shoulder, and lumbar area, as well as headaches. Following the interview and examination, it was the physician’s impression that at that time the patient showed equivocal mechanical and neurological findings which would suggest exaggeration of symptoms and possible malingering. A second report was submitted, dated August 30, 2004, following review by Dr. Ap-plebaum of an MRI performed on the Plaintiff on January 8, 2003, prior to the second work incident. Dr. Applebaum gave the opinion that the Plaintiff “does not have disease or damage involving the spinal cord or nerve roots and there is no need for further neurosurgical diagnostic or therapeutic procedures. I feel she could return to any occupation for which she is otherwise qualified.” Thereafter, in a follow-up report on October 27, 2004, Dr. Applebaum found that the MRI of August 18, 2004, was similar to the MRI from January 8, 2003, and again gave the opinion that the Plaintiff did not have disease or damage and could return to any occupation for which she was qualified.

Plaintiff sought treatment with Dr. Simmons in December 2003, who diagnosed her with chronic neck and back pain, spasms, and some numbness. He recommended that she be on full disability and that she see a neurosurgeon, particularly Dr. Kenneth Vogel, who had performed her fusion surgery.

17PIaintiff had earlier consulted Dr. Vo-gel and got a note from him dated June 17, 2003, stating:

Pt [patient] is post op [operative] lumbar interbody fusion. She remains disabled for gainful employment as per previous report. This remains unchanged.

This note tracks a similar note by Dr. Vogel dated May 31, 2001, before Plaintiff worked for Wal-Mart stating:

To whom it may concern, the above pt [patient] is post op [operative] disc excision and then L5 fusion. She finds it painful to work in her current capacity. She will be eval [evaluated] in follow up. She is disabled for gainful employment at this time.

Dr. Vogel’s post Wal-Mart injury note, tracking the pre-injury note clearly indicates that Plaintiffs problems existed before she ever worked for Wal-Mart, and continued unchanged after the alleged work incidents.

Finally, after Wal-Mart approved a neurology consult, Dr. Stefan Pribril noted in his June 8, 2004, report that the Plaintiff was complaining of pain in her lower back, left shoulder, left arm, and left leg, with numbness in her left arm and leg. He further noted that she was 29 years old, morbidly obese, and had sustained several injuries starting as long ago as 1996. In his September 16, 2004, report, Dr. Pribril indicated that he agreed with the findings of Dr. Applebaum. And in his December 12, 2004, report he found there was no evidence of a need for surgery. She was discharged and found not to be in need of further neurosurgical follow-up.

Upon considering the applicable law and record evidence in this case, we cannot say the findings by the workers’ compensation judge were manifestly erroneous or that he was clearly wrong in his factual conclusions, finding that the Plaintiff did not meet her burden of proving disability causally related to her work accidents. Medical reports from Drs. Juneau, Applebaum, Vogel, and Pribril all agreed essentially that the Plaintiff was at maximum recovery insofar as she was in | sthe same condition she was in before she started working at Wal-Mart which was a pained, perhaps at times, disabling condition due to the spinal fusion.

While the Plaintiff produced some evidence that she remains in pain and has lumbar spasms, headaches, and numbness, through the reports of Drs. Hightower and Simmons, the overwhelming evidence supports the Office of Workers’ Compensation findings that the Plaintiff has a serious back condition from the spinal fusion she underwent several years ago which causes her continued pain, discomfort, and disability. Further, the evidence established that her condition was not made worse by the work accidents that allegedly occurred at Wal-Mart nor was her current disability caused by those events.

Similarly, her argument that she was wrongfully denied SEBs between her first and second Wal-Mart accident lacks merit. The Plaintiff provided evidence that she worked less hours during some of those pay periods than she normally worked before the accident. She testified that she missed work sometimes because of pain. However, Dr. Juneau had released the Plaintiff to light duty work during that time period. Light duty work was provided for her by Wal-Mart. In May 2001 Dr. Vogel indicated that the Plaintiff found it painful to work. Dr. Vogel’s June 2003 note indicated her condition remained unchanged. Thus, we find no error in the workers’ compensation judge’s implicit finding that the Plaintiff did not meet her burden of proving that the reason she worked less hours during that time was causally related to the Wal-Mart accident.

As stated above, it is well settled that, where there is a conflict in the evidence, we cannot conclude that the factfinder’s reasonable evaluation of credibility and reasonable inferences of fact are manifestly erroneous or clearly wrong. The findings by the Office of Workers’ Compensation judge, that the Plaintiff was not credible, that she was not in good health prior to her employment |9at Wal-Mart, that she was advised of her right to choose her physician and chose to continue with Dr. Juneau, and that she did not meet her burden of proving ongoing disability causally related to her work accidents, are amply supported by the record. Therefore, we find no manifest error in the judgment.

Accordingly, we affirm the workers’ compensation judgment rendered in favor of Wal-Mart Stores, Inc. and against La Shae Johnson, dismissing her claims against Wal-Mart with prejudice.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Clifton G. RICHARDSON v. WHITNEY NATIONAL BANK.
    No. 06-CA-803.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2007.
    Clifton G. Richardson, I.P.P., Vacherie, LA, for Plaintiff/Appellant.
    Clay J. Legros, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿Plaintiff, Clifton Richardson, brings this appeal from a trial court judgment granting summary judgment to defendant Whitney National Bank (Whitney). The judgment further dismissed Mr. Richardson’s claims against Whitney and ordered him to pay $750.00 to Wdiitney in attorneys’ fees. Whitney filed an answer to the appeal in this Court, seeking an increase in attorneys’ fees. For reasons that follow, we affirm the judgment of the trial court as rendered.

The record before us shows that Mr. Richardson, appearing in proper person, filed a “Petition For Refund And Interest Including Damages Due to Petitioner,” in which he alleged that “Whitney took $22,818.37 from his account without authorization. The petition alleges that Mr. Richardson authorized Wdiitney to make a loan in the amount of $20,000.00 to Faye Hooker on February 25, 2004. Mr. Richardson asserts that the loan proceeds were to be taken from his deposit account, payable on October 25, 2004 at an interest rate of 9.5%. Mr. Richardson |aalso alleges he authorized Whitney to make a payment of $37,051.31 to Dean Morris on Mr. Richardson’s behalf to pay for a piece of property in Convent, Louisiana purchased at a sheriffs sale. Mr. Richardson asserts that after those two disbursements, his account balance should have been $22,818.37. For reasons which are not clear from the petition, Mr. Richardson is demanding that Whitney replace that amount to his account.

Documents attached to the petition show that on February 25, 2004, Faye Hooker borrowed $20,000.00 from Mr. Richardson. The hand written contract further shows that the borrowed amount was to be paid back by October 25, 2004 at a rate of 9.5% interest from “funds generated from Teacher (sic) Retirement System of La.” Also attached to the petition is a statement from the Teachers’ Retirement System of Louisiana that shows that Ms. Hooker had a balance of $76,002.37 in her “DROP” account on December 1, 2003, and a disclosure statement showing that Ms. Hooker borrowed $20,000.00 from Whitney at an interest rate of 4.230% to be paid in one payment of $20,183.96 on April 21, 2004.

Whitney filed an exception of vagueness, which was granted by the trial court in a judgment that gave Mr. Richardson time to amend his petition. In response, Mr. Richardson filed a “Petition For Refund And Interest Including Damages Due To Petitioner For Fraud And Embezzlement By Whitney National Bank From Plaintiff Account,” in which Mr. Richardson alleged that Whitney embezzled $22,818.63 from his bank account.

Whitney filed an answer to the petition in which it asserted that it held a promissory note executed by Faye Hooker and Clifton Richardson dated February 25, 2004 in the original amount of $20,000.00. Further, Whitney asserted that Mr. Richardson executed an assignment of deposit account agreement, also dated February 25, 2004, wherein he pledged a certificate of deposit account as security |4for the note. Whitney maintained that, when the note matured, it exercised its option to accelerate the balance and to offset from the certificate of deposit in the amount complained of by Mr. Richardson in his petition. Whitney also made a reconven-tional demand against Mr. Richardson for filing a frivolous lawsuit, and a demand for contractual attorneys’ fees.

Mr. Richardson answered Whitney’s answer and attached certain documents, including the promissory note, the assignment of deposit account, and the disclosure statement from Whitney to Mr. Richardson. On all of the documents Mr. Richardson has handwritten notations indicating that the signatures on the documents are not genuine, but rather “fraud by Whitney National Bank.”

Whitney filed a motion for summary judgment on the merits of plaintiffs petition, and the reconventional demand for frivolous prosecution of a lawsuit. That motion was granted by the trial court, and is the subject of this appeal.

In support of it motion, Whitney attached documents, including an affidavit from Debra Lassere, the bank officer who handled Mr. Richardson’s transactions. The affidavit states that Mr. Richardson was a customer of Whitney, and maintained an $80,000.00 certificate of deposit with the bank. Whitney made a loan to Mr. Richardson and Ms. Hooker on February 25, 2004. Mr. Richardson agreed to pledge his certificate of deposit as consideration for the loan. A promissory note was signed in the amount of $20,083.82, which included the principal amount, credit life insurance and a documentation fee. At the closing Ms. Hooker and Mr. Richardson received a check for $20,000.00. That check was negotiated at Whitney and substituted for two cashier’s checks, one for $15,000.00 to Ms. Hooker and one for $5,000.00 to Mr. Richardson. Ms. Lassere further testified that the terms of the promissory note were that it was to be paid in one payment due on April 21, 2004. When the note was not timely paid, Ms. Lassere | ^contacted both Ms. Hooker and Mr. Richardson and requested that they come into the bank to sign a renewal note. Mr. Richardson refused to do so and the note went into default. Thereafter, Whitney exercised its right of offset on the certificate of deposit, which by that time only had a balance of $20,088.93. That amount was applied to the loan and the remainder of indebtedness was forgiven.

Documents to support this testimony are attached to the motion, and include the promissory note, the disbursement request and authorization, two disclosure statements, the assignment of deposit account, and copies of the cashier’s checks. Whitney also provided several other affidavits attesting to the fact that both Mr. Richardson and Ms. Hooker signed all the documents in the presence of the affiants.

Whitney also presented the deposition of Faye Hooker. Ms. Hooker stated that she needed a loan to save her home, but could not qualify on her own because of her credit history. She asked her friend, Mr. Richardson, for help. Mr. Richardson agreed to lend her some money with the agreement that it would be repaid in one year with her “DROP” money. Ms. Hooker identified the signatures on the documents presented by Wdiitney as hers and Mr. Richardson’s, and admitted getting phone calls from the bank regarding the overdue payment on the loan. Ms. Hooker testified that she thought Mr. Richardson was lending her the money out of his account. She stated that she paid the money back to Mr. Richardson and she thought he would then put the money back into his account at Whitney.

Mr. Richardson did not file an opposition to the motion for summary judgment. In brief to this court, he repeats the allegations of his petitions and asserts that the signatures on the documents presented by Whitney are not authentic. Mr. Richardson offers nothing to support his claims.

|fiLa. C.C.P. art. 966 provides that a summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. Summary judgments are now favored in the law and the rules should be liberally applied. Nutt v. City of Gretna, 00-1864 00-1865 (La.App. 5 Cir. 5/16/01), 788 So.2d 617, 619. Once the mover has made a prima facie showing that the motion shall be granted, the burden shifts to the adverse party to present evidence demonstrating that material issues of fact remain. Perricone v. East Jefferson General Hospital, 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, his response, by affidavits or as otherwise provided by law. The party must set forth specific facts showing that there is a genuine issue of material fact for trial. Elmwood MRI, Ltd. v. Paracelsus Pioneer Valley Hosp., 01-764 (La.App. 5 Cir. 12/26/01), 806 So.2d 743, 747.

Given the evidence presented to the trial court and the applicable law, we find that the trial court was correct in granting summary judgment in favor of Whitney on the merits of the embezzlement claim and we affirm that portion of the judgment.

Mr. Richardson also objected to the “word ‘frivolous’ to describe his case,” and argues the trial court erred in finding his petition to be frivolous. Mr. Richardson also assigns the award to Whitney of $750.00 in attorneys’ fees as error. Whitney has answered the appeal seeking an increase in the award of attorneys’ fees to $6,599.05.

In its reconventional demand, “Whitney sought attorney fees under two theories, contractual and as a sanction for the filing of a frivolous lawsuit. In its ^motion for summary judgment, Whitney asked for a judgment on both the merits of Mr. Richardson’s petition and the issue of attorneys’ fees. The only evidence used to support the amount of attorneys’ fees requested was contained in the deposition of Ms. Lassere. That statement consisted only of a lump sum with no breakdown of the amount or supporting documents. As previously stated, Mr. Richardson did not oppose the motion for summary judgment on either issue.

This Court cannot determine from the record whether the trial court made the award as a sanction for filing a frivolous lawsuit, or as a result of a contractual obligation. The judgment does not make that clear, and the record contains no transcript of the hearing on the motion for summary judgment.

La. C.C.P. art. 863 allows an award of reasonable attorneys’ fees, after a hearing, when a party files a frivolous pleading. A trial court’s imposition of sanctions pursuant to La. C.C.P. art. 863 will not be reversed unless clearly wrong or manifestly erroneous. Alombro v. Alfortish, 02-1081 (La.App. 5 Cir. 4/29/03), 845 So.2d 1162, 1168; writ denied, 2003-1947 (La.10/31/03), 857 So.2d 486.

It is well established that attorneys’ fees can be a contractual obligation. Both the promissory note and the assignment of certificate of deposit contain clauses allowing attorneys’ fees. The promissory note contains the following language:

ATTORNEYS’ FEES; EXPENSES. If lender refers this Note to an attorney for collection, or files suit against me to collect this Note, or if I file for bankruptcy or other relief from creditors, I agree to pay Lender’s reasonable attorneys’ fees.

The assignment of deposit account contains the following clause:

ATTORNEYS’ FEES; EXPENSES. Grantor agrees to pay all of Lender’s costs and expenses, including Lender’s reasonable attorneys’ fees and Lender’s legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay someone else to help enforce this Agreement, and the Grantor shall pay the costs and expenses of such enforcement. Costs and expenses include ^Lender’s reasonable attorneys’ fees and legal expenses whether or not there is a lawsuit, including reasonable attorneys’ fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Grantor also shall pay all court costs, in addition to all other sums provided by law. This Agreement also secures all of these amounts.

Because it appears that the trial court followed the law pursuant to La. C.C.P. art. 863, and that Whitney did not present evidence sufficient to establish that the attorneys’ fees requested were “reasonable” in accordance with the above clauses in its contracts, we cannot find error in the trial court’s award of $750.00 in attorneys’ fees.

For the foregoing reasons, the judgment of the trial court is affirmed as rendered.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    BEEVERS & BEEVERS L.L.P. v. Elizabeth Smyth SIRGO.
    No. 06-CA-841.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2007.
    Wiley J. Beevers, Raylyn R. Beevers, Steven M. Mauterer, Michael F. Somoza, Attorneys At Law, Gretna, LA, for Plaintiff/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

12Plaintiff, Beevers and Beevers, L.L.P. (“Beevers”), appeals from a trial court judgment granting defendant’s exceptions of improper venue and transferring this case to St. Tammany Parish. For the reasons stated herein, we reverse the trial court’s judgment and remand the case for further proceedings.

FACTS AND PROCEDURAL HISTORY

On October 11, 2005, Beevers filed a “Petition on Open Account” in the 24th Judicial District Court for the Parish of Jefferson against defendant, Elizabeth Smyth Sirgo (“Ms. Sirgo”). In its petition, Beevers asserts that it performed legal services in connection with Ms. Sirgo’s divorce and child support litigation and it maintained an open account with Ms. Sirgo for these services. Beevers contends that Ms. Sirgo has not paid the balance due on this account, which is $31,370.74 plus interest and attorney fees, and it seeks recovery of these sums. A retainer agreement signed by Ms. Sirgo and Mr. Beevers, which set forth Beevers’ rates and other terms and conditions of representation, was attached to the petition.

On January 24, 2006, Beevers filed an amended petition, in which it amended the title of the original petition to read, “Petition for Breach of Contract |sand/or in the Alternative Open Account.” In the amended petition, Beevers raises breach of contract claims against Ms. Sirgo, asserting that Ms. Sirgo violated the contractual terms of the retainer agreement when she failed to pay the balance on her account.

On January 26, 2006, Ms. Sirgo filed a declinatory exception of improper venue, asserting that Jefferson Parish is an improper venue for this lawsuit, because she is domiciled in St. Tammany Parish and the proper venue for suits on open account is the parish in which the defendant is domiciled. On February 17, 2006, Ms. Sir-go filed a declinatory exception of improper venue as to the amended petition, contending that plaintiffs case is a suit on open account, not breach of contract and thus, the only permissible venue in this suit is St. Tammany Parish.

On April 7, 2006, the trial court held a hearing on defendant’s exceptions. On April 19, 2006, the trial court signed a judgment granting Ms. Sirgo’s exceptions of improper venue and transferring the case to the Twenty-Second Judicial District Court for the Parish of St. Tammany. On May 1, 2006, Beevers filed a Motion for New Trial, which was denied by the trial court on July 14, 2006. Beevers appeals.

DISCUSSION

On appeal, Beevers asserts that the trial court erred in granting defendant’s exceptions of improper venue. It asserts that the trial court relied solely on this Court’s decision in Chehardy, Sherman, Ellis, Breslin & Murry v. Amerasia Co., Inc., 96-384 (La.App. 5 Cir. 11/14/96), 694 So.2d 355, which held that the general rales of venue set forth in LSA-C.C.P. art. 42 apply to suits on open account. Beevers argues that the written contract between the parties supercedes the general venue articles set forth in the Louisiana Code of Civil Procedure and |4the holding of Chehardy, Sherman, Ellis, Breslin, & Murry v. Amerasia Co., Inc., supra, and thus, venue is proper in Jefferson Parish.

Venue means the parish where an action may properly be brought and tried under the rules regulating the subject. Boes Iron Works, Inc. v. Travelers Cas. and Sur. Co. of America, 05-782 (La. App. 5 Cir. 3/28/06), 927 So.2d 553, 555. LSA-C.C.P. art. 42 provides the general guidelines of venue, but they are subject to the exceptions contained in LSA-C.C.P. arts. 71 through 85, and otherwise provided by law. LSA-C.C.P. art. 43; Belwise Aquaculture Systems, Inc. v. Lemke, 05-69 (La. App. 3 Cir. 6/1/05), 904 So.2d 940, 941, 'writ denied, 05-1735 (La.1/27/06), 922 So.2d 547.

In the present case, Beevers initially filed a Petition on Open Account. Thereafter, Beevers amended its petition to assert claims for breach of contract or, in the alternative, open account. In her memorandum in support of her exception of improper venue, Ms. Sirgo relies on the Chehardy case for her position that plaintiffs action is one on open account, not a contract action. In Chehardy, this Court cited Olinde v. Couvillion, 94-1275 (La. App. 4 Cir. 2/23/95), 650 So.2d 1241, which stated, “Although a claim on open account necessarily involves some type of contractual relationship between the parties, the law has recognized it in a different way than a normal breach of contract claim.” However, in Chehardy and Olinde, the issue was whether suits on open account follow the general rules of venue in LSA-C.C.P. art. 42, rather than the venue rules for breach of contract cases in LSA-C.C.P. art. 76.1. Unlike Chehardy and Olinde, the present case involves a written contract that contains a forum selection clause. The forum selection clause in the contract provides as follows:

Should any dispute arise concerning the services provided by Beevers & Beevers, L.L.P., the interpretation or enforcement of any provision |Rof this agreement, I agree that the proper venue is the Parish of Jefferson, State of Louisiana.

The parties entered into a contract in which they both clearly agreed that Jefferson Parish would be the proper venue if any dispute arose concerning the services provided by Beevers. Contracts have the effect of law for the parties. LSA-C.C. art.1971; Derbes v. GBS Properties, L.L.C., 04-1460 (La-App. 5 Cir. 4/26/05), 902 So.2d 1109, 1111. Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045; Gottsegen v. Diagnostic Imaging Services, 95-977 (La-App. 5 Cir. 3/13/96), 672 So.2d 940, 943, writ denied, 96-707 (La.4/26/96), 672 So.2d 909.

Generally, forum selection clauses are legal and binding in Louisiana, except as specifically prohibited by law. ACG Mediaworks, L.L.C. v. Ford, 03-978 (La.App. 5 Cir. 3/30/04), 870 So.2d 1097, 1101. Forum selection clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that enforcement would contravene a strong public policy for the forum where the suit is brought. Pique’-Weinstein-Pique’ Architects, Inc. v. New Orleans Aviation Board, 99-1231 (LaApp. 5 Cir. 4/25/00), 762 So.2d 76, 78, writ denied, 00-1483 (La.6/30/00), 767 So.2d 41. A party seeking to set aside a forum selection clause has a heavy burden. Digital Enterprises, Inc. v. Arch Telecom, Inc., 95-30 (La-App. 5 Cir. 6/28/95), 658 So.2d 20.

Although the jurisprudence clarifies that the general rules of venue apply to suits on open account, there is nothing in the Louisiana Code of Civil Procedure that specifically prohibits the parties from agreeing to a different venue. In the instant case, the parties specifically agreed that Jefferson Parish would be the proper venue for any dispute arising from Beevers’ representation of Ms. Sirgo.

1 (¡Considering the record before us and the applicable law and jurisprudence, we find that the forum selection clause agreed to by the parties is legal and binding in this litigation. We further find that enforcement of the forum selection clause is reasonable and just under the facts before us. Accordingly, the trial court erred in granting defendant’s exceptions of improper venue and transferring the case to St. Tammany Parish, and we reverse the trial court’s ruling.

DECREE

For the reasons set forth above, the trial court judgment granting defendant’s exceptions of improper venue and transferring this matter to St. Tammany Parish is reversed. We remand this case to the Twenty-Fourth Judicial District Court for the Parish of Jefferson for further proceedings.

REVERSED AND REMANDED.


author: LOLLEY, J.

text:
    Colby D’Andre MAYS, A Minor Appearing through his Mother and Natural Tutrix, Sandra Mays Dowles, and James Milton Penton, Plaintiffs-Ap-pellees v. SAFEWAY INSURANCE COMPANY, KLLM, Inc. and Vernon Sawyer, A Division of KLLM, Inc., Defendants-Appellants.
    No. 49,911-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    Jones & Jones by Johnnie A. Jones, Baton Rouge, for Plaintiffs-Appellees Mays, Dowles and Penton.
    Tracy L. Oakley, for Defendant-Appellant Safeway Ins. Co.
    Nelson, Zentner, Sartor & Snellings, L.L.C. by David H. Nelson, Monroe, for Defendants-Appellees KLLM, Inc. and Vernon Sawyer, Inc., a Division of KLLM, Inc.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   LOLLEY, J.

| ■, Safeway Insurance Company of Louisiana (“Safeway”) appeals a judgment of the Fourth Judicial District Court, Parish of Morehouse, Louisiana, in favor of Colby D’Andre Mays, a minor appearing through his mother and natural tutrix, Sandra Mays Dowles, and James Milton Penton.

For the following reasons, we reverse and render.

Facts

On May 30, 2003, in Bastrop, Louisiana, Sandra Dowles was operating her vehicle, a Mitsubishi Eclipse, with her minor son, Colby, and James Penton as guest passengers. Dowles was driving in the right, outside lane of West Madison Street. Robert Shaver was operating a Vernon Sawyer freight liner truck owned by KLLM, Inc. He was driving in the left, inside lane of West Madison. While both the vehicles were in motion and when Dowles was in position next to the center of Shaver’s trailer, Shaver changed lanes and forced Dowles off the road. She hit a large limb of a tree, and Colby and Penton were injured.

Penton and Colby, appearing through his mother and natural tutrix, Dowles, filed a timely suit against KLLM, Inc., Vernon Sawyer, a subdivision of KLLM, Inc., and Safeway, Dowles’ insurer. The plaintiffs settled with KLLM, Inc. and Vernon Sawyer prior to trial. After a trial of the matter, the trial court assessed all fault for the accident against Dowles and cast Safeway, as Dowles’ insurer, in judgment. General damages were awarded to Colby and Penton in the amounts of $800 and $1,200, respectively. Each party also was awarded special damages in an unspecified amount. Safeway appeals the judgment.

| 2Discussion

From the outset, we state firmly that the trial court committed manifest error in this matter. Safeway raises two assignments of error, the first being that the trial court erred in assessing all fault to Dowles for the accident. We agree. In fact, our review of the record leads to no other reasonable conclusion than Dowles was not negligent and bears no fault whatsoever for the injuries to her passengers.

Under the provisions of La. R.S. 32:79:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to others consistent herewith, shall apply.
(1) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety....

The law places a greater burden of care on a motorist changing lanes than on a motorist proceeding at a lawful rate of speed in a marked lane. When there is a lane change immediately preceding an accident, the burden is on the motorist changing lanes to show that he first ascertained that the movement was being made safely. Charrier v. Primm, 40,038 (La.App. 2d Cir.08/19/05), 909 So.2d 1033; Graham v. Edwards, 614 So.2d 811 (LaApp. 2d Cir. 1993), writ denied, 619 So.2d 547 (La. 1993).

Here, the evidence at trial was clear that Shaver illegally changed lanes and ran Dowles off the road, making his actions (and not Dowles’) the proximate and only cause for this accident. At the trial of the matter, Dowles testified that she was driving in the right lane of West Madison and was next to Shaver’s truck. She was positioned about midway of the trailer | awhen she observed Shaver’s signal light. She stated that after signaling, he proceeded into her lane of traffic. Dowles explained that she blew her horn at Shaver, but he continued to proceed into her lane of traffic. She testified that in driving off the road, she was attempting to maintain control of her vehicle as well as avoiding a collision with Shaver’s truck. Dowles stated that had she not driven off the road, she would have collided with the truck.

Additionally, Penton’s description of the accident matched Dowles’. He indicated that Dowles did not act negligently in his opinion, and his description of the accident shows that Shaver’s actions were the sole cause. Penton testified that Dowles’ vehicle was positioned about midway to the truck’s trailer when Shaver put on his signal light and started coming over. According to Penton, Shaver began his lane change immediately. He did not give Dowles time to slow down. Penton recalled that Dowles sounded her horn, but Shaver kept coming over into her lane of travel. Penton did not feel like Dowles was exceeding the speed limit at the time of the accident. He stated that Dowles was forced to jump the curb, and she went 25-30 feet off the road into a grassy area until her vehicle was stopped by a tree limb. As described by Penton, Dowles was able to restart her vehicle and find Shaver and his truck. Penton opined that he did not believe Dowles did anything wrong to cause the accident — it was unavoidable. He stated that Shaver “just took over the road.”

Considering the evidence that was before the trial court as well as explicit statutory authority and jurisprudence, we cannot see how any | ¿percentage of fault could be attributed to Dowles. Despite her own characterization that she “overreacted,” it is obvious that her actions were reasonable in order to avoid a collision with the tractor-trailer driven by Shaver. We determine that she was absolutely free of fault, and that the accident was due solely to Shaver’s negligence in failing to ascertain that it was safe for him to change lanes before attempting to do so. See Bailey v. Moore, 276 So.2d 708 (La. App. 1st Cir.1973). We recognize that ordinarily the allocation of fault is a factual finding which an appellate court does not disturb unless, upon articulated and detailed analysis and reasons, that finding is demonstrated to be clearly wrong. Here, we conclude that the trial court’s factual finding that Dowles was 100% at fault was clearly wrong. The evidence is uncontra-dicted that Shaver’s sole negligence was the proximate cause of the accident, and he was entirely at fault. The trial court’s contrary conclusion was manifestly erroneous; thus, since Dowles bears no fault for the injuries to Penton or Colby, Safeway is not liable for any damages.

Further, Safeway argues that the trial court erred in awarding special damages to Colby and Penton absent any proof of such. We agree that the record is entirely void of any evidence to support an award of special damages to the plaintiffs; however, our determination regarding fault makes moot any discussion of the award of special damages.

Conclusion

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is entered in favor of the appellant, Safeway Insurance Company of Louisiana, dismissing the claims of appellees, Colby D’Andre Mays, a |sminor appearing through his mother and natural tutrix, Sandra Mays Dowles, and James Milton Penton. All costs of this appeal are assessed to the appellees.

REVERSED AND RENDERED.

      . By agreement of the parties, the trial court considered Penton’s deposition transcript at trial, because Penton was incarcerated at the time of the trial.


author: SEXTON, J.

text:
    Janette L. BROOKS and Weldon Ward Brooks, Sr., Plaintiffs-Appellants v. Patricia D. BELOTE and Louisiana Farm Bureau Insurance Companies, Defendants-Appellees.
    No. 41,900-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 28, 2007.
    William Rick Warren, APLC, for Appellants.

      Hubley, Marcotte, Rhodes & Joffrion, by Craig 0. Marcotte, Shreveport, for Appel-lees, Patricia D. Belote and Southern Farm Bureau Casualty Insurance Co.
    Rice & Kendig, by William F. Kendig, Shreveport, for Appellee, Patricia D. Be-lote.
    Kitchens, Benton, Kitchens & Black, by Graydon K. Kitchens, III, Minden, for Janette L. Brooks and State Farm Mutual Ins. Co.
    Tutt, Stroud & Bordelon, L.L.C., by Charles G. Tutt, Shreveport, for State Farm Mutual Automobile Insurance Co.
    Before GASKINS, CARAWAY & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

_J_jThis appeal arises from a car accident between Defendant, Patricia D. Belote, and Plaintiff, Janette L. Brooks. Mrs. Brooks, along with her husband, Weldon Ward Brooks, Sr., filed suit against Ms. Belote and her insurer, Farm Bureau Insurance Companies, and against State Farm Insurance as provider of Mrs. Brooks’ uninsured motorist insurance. In turn, Ms. Belote filed suit against Mrs. Brooks and State Farm. The trial court found Mrs. Brooks 100 percent at fault and dismissed Plaintiffs’ claims. Plaintiffs appeal. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS

The accident occurred on April 27, 2003, on Louisiana Highway 3, also known as Benton Road, near a Brookshire’s grocery store. The highway is a four-lane divided highway running north-south. Mrs. Brooks submits that she turned right out of the Brookshire’s parking lot into the right lane of the northbound side of the highway. She maintains that she safely moved into the left lane with the intent of making a U-turn at a break in the grassy median. She was stopped in the break in the median to check southbound traffic when Ms. Belote struck her car. She agrees that the rear of her car was still in the left northbound lane at the time of the accident. The damage to Mrs. Brooks’ car was to the left rear corner, while the damage to Ms. Belote’s car was across the front right of her car.

In contrast, Ms. Belote contends that she was traveling northbound in the left lane on Highway 3 when she saw Mrs. Brooks turn into the right lane. Her passenger, Larry Childs, called her attention to Mrs. Brooks’ car [2as it was about to pull out of the parking lot. Ms. Belote slowed down, but returned to her previous speed when Mrs. Brooks turned into the right lane and appeared to be traveling in that lane. According to Ms. Belote, Mrs. Brooks then suddenly turned in front of her from the right hand lane and stopped. Ms. Belote insists that she was unable to avoid the collision despite applying her brakes.

After a bifurcated trial solely on the issue of fault, the trial court found Mrs. Brooks to be 100 percent at fault. In its oral reasons for judgment, the trial court reasoned that, in the short distance between the exit from the Brookshire’s parking lot and the break in the median where Mrs. Brooks was attempting to make a U-turn, she could not have changed lanes without doing so abruptly. Plaintiffs appeal this judgment.

DISCUSSION

Our review of the factual findings in this case are governed by the manifest error/clearly wrong standard of review. An appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). An allocation of fault is a factual determination subject to the manifest error rule. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305; Cook v. Kendrick, 41,061 (LaApp. 2d Cir.5/19/06), 931 So.2d 420, writ denied, 06-1853 (La.10/27/06), 939 So.2d 1284.

Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations | ..¡and inferences are as reasonable. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly wrong. Rosell, supra; Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

We conclude that the trial court’s allocation of 100 percent fault to Mrs. Brooks was not manifestly erroneous. While the testimony presented conflicted as to whether Mrs. Brooks safely moved into the left lane and then attempted her U-turn or abruptly turned in front of Ms. Belote, it was not an abuse of discretion for the trial court to accept Ms. Belote’s version of the accident over that of Mrs. Brooks. Furthermore, the trial court was uniquely aided by an in-person visit to the accident site during the course of the proceedings. From our review of the record, the trial court was not manifestly erroneous or clearly wrong is its allocation of fault.

Mrs. Brooks further relies on the presumption that, in a rear-end collision, the following driver is presumed to be negligent. Louisiana jurisprudence recognizes a well-established presumption that, in a rear-end collision, the following driver breached the standard of care set out in La. |4R.S. 32:81 and is, thus, presumed negligent. Mart v. Hill, 505 So.2d 1120 (La.1987). La. R.S. 32:81 states, in relevant part, that:

[T]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.

In a rear-end collision, therefore, the following motorist is presumed negligent unless he proves lack of fault. Taylor v. Voigtlander, 36,670 (La.App. 2d Cir.12/11/02), 833 So.2d 1204. When this presumption applies, to escape liability, the following motorist has the burden of proving that he had his vehicle under control, closely observed the lead vehicle and followed at a safe distance or that the lead vehicle negligently created a hazard which the following vehicle could not reasonably avoid. Id.

This presumption does not apply, however, when a driver changes lanes without first determining that the move can be completed safely and then is struck from the rear by a following car. Daigle v. Mumphrey, 96-1891 (La.App. 4th Cir.3/12/97), 691 So.2d 260; Anthony v. State Farm Mutual Ins. Co., 227 So.2d 180 (La.App. 2d Cir.1969). As this court has stated:

A motorist whose vehicle is struck from the rear by reason of his inopportune change of lanes may not thereby convert the occurrence into a rear-end collision so as to impose the burden upon the other motorist to exculpate himself from negligence.

Anthony, supra. The trial court found that Mrs. Brooks must have abruptly moved to the left, failing to first confirm that she could do so safely. This | ¡finding is not manifestly erroneous and, therefore, we conclude that the trial court was correct in not applying this presumption.

CONCLUSION

For the foregoing reasons, the judgment of the trial court finding that Plaintiff, Janette L. Brooks, was 100 percent at fault in the accident is affirmed. Costs are assessed to Plaintiffs.

AFFIRMED.