author: PETTIGREW, J.

text:
    Scott SCHILLING and Marla Schilling on Behalf of the Minor Children, Felicia Marie Anthony and Fallon Schilling v. Wallace W. COOPER, Earl J. Jenevien, Aron A. Jenevien, ABC Insurance Company and Allstate Insurance Company.
    No. 2004 CA 2460.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      J. Peyton Parker, Jr., Baton Rouge, for Plaintiffs-Appellees Scott Schilling, et al.
    James S. Rees, III, Covington, for Defendants-Appellants Aron A. Jenevien, Wayne Minor, and Allstate Insurance Company.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|aIn this case, defendants appeal the trial court’s judgment in favor of plaintiffs in a personal injury case. Defendants assert that plaintiffs’ claim for damages has prescribed, that the trial court’s judgment should be reversed, and that plaintiffs’ suit should be dismissed.

FACTS AND PROCEDURAL HISTORY

On April 20, 1999, plaintiffs’ minor children, Felicia Marie Anthony (“Felicia”) and Fallon Schilling (“Fallon”), were passengers on a school bus traveling on Highway 90 in Tangipahoa Parish and were injured when the school bus was rear ended by a pickup truck being operated by Aron A. Jenevein and insured by Allstate Insurance Company (“Allstate”). According to the record, plaintiffs’ attorney settled Fallon’s claim with Allstate for $1,300.00 prior to suit being filed. However, with regard to Felicia’s claim, Allstate’s proposed settlement of $6,600.00 was unacceptable to plaintiffs, prompting plaintiffs to file the instant suit for damages on April 24, 2000. Defendants, Aron A. Jene-vein, Allstate Insurance Company, and Wayne Minor, Senior Staff Claims Representative for Allstate, subsequently filed an exception raising the objection of prescription, along with other exceptions.

On August 27, 2001, the trial court heard testimony and argument on the prescription issue and took the matter under advisement. In reasons for judgment issued on October 19, 2001, the trial court found that the instant suit had been filed one year and four days after the accident in question and that there was no evidence to support a finding that the parties had entered into any binding compromise or settlement agreement. The court concluded that “the Exception of Prescription [was] well founded and should be granted.” The court subsequently rendered judgment on November 7, la2001, maintaining defendants’ exception raising the objection of prescription and dismissing, with prejudice, plaintiffs’ claim.

Plaintiffs filed a motion for new trial, which was ultimately set for hearing on April 1, 2002. After considering the argument of counsel and taking the matter under advisement, the trial court issued reasons for judgment on April 10, 2002, and a judgment on May 7, 2003, overruling defendants’ exception raising the objection of prescription. The court explained that although there had been no compromise between the parties as to the amount of damages that should be attributed to Felicia, there was an offer and acceptance on behalf of Fallon that constituted an acknowledgment of defendants’ liability for the accident. Thus, the court concluded, plaintiffs’ motion for new trial should be granted and the exception raising the objection of prescription overruled.

Thereafter, the matter proceeded to a bench trial on June 15, 2004, at which time defendants’ counsel again urged the court to consider the exception raising the objection of prescription. The court overruled the exception, finding that plaintiffs’ petition was timely. After hearing evidence on the merits of plaintiffs’ claim, the court found in favor of plaintiffs, awarding $2,800.00 in medical expenses and $10,000.00 in general damages for the injuries suffered by Felicia. The court issued a judgment on July 6, 2004, in accordance with its findings.

It is from this judgment that defendants have appealed. The sole issue for our review is whether the settlement of Fal-lon’s claim by defendants constituted an acknowledgment of defendants’ liability for the accident so as to interrupt prescription of plaintiffs’ claim regarding the damages suffered by Felicia.

DISCUSSION

Generally, the party pleading prescription bears the burden of proving the claim has prescribed. However, if on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. Pierce v. Foster Wheeler Constructors, Inc., 2004-0333, p. 3 (La.App. 1 Cir. 2/16/05), 906 So.2d 605, 607-608, writ denied, 2005-0567 (La.4/29/05), 901 So.2d 1071.

| Jn the instant case, the accident occurred on April 20, 1999. However, plaintiffs did not file suit until April 24, 2000, four days after the expiration of the one year prescriptive period. Thus, on its face, plaintiffs’ petition was prescribed and the burden shifted to plaintiffs to prove an interruption or suspension of prescription. Following the original hearing on the prescription issue, the trial court found that plaintiffs had failed to satisfy this burden of proof. The court noted as follows:

Plaintiffs defense to this exception is that the parties [affected] a compromise and settlement of the issue prior to the accrual of prescription. The Court finds a number of settlement communications took place between plaintiffs counsel and the adjuster for the defendant insurer, however the evidence simply does not support a finding that the parties entered into any binding compromise or settlement agreement.

Based on our review of the record herein, we agree with the trial court’s finding that the parties had not entered into a valid settlement agreement prior to the tolling of prescription. Even plaintiffs, on appeal, do not dispute the court’s finding that there was no compromise or agreement between the parties with regard to the damages suffered by Felicia. Thus, we turn our focus to whether there was an acknowledgment, tacit or otherwise, of defendants’ liability thereby interrupting prescription.

After hearing arguments from the parties on the motion for new trial, the court concluded that the defendants’ settlement of Fallon’s claim constituted an acknowl-edgement of defendants’ liability with regard to Felicia’s claim. In overruling the defendants’ exception raising the objection of prescription, the court offered the following reasons for judgment:

Sometimes prior to March 1, 2000, the defendant made an offer to settle all claims made on behalf of both minor children. By letter dated March 1, 2000, Lance L. Engolia accepted the settlement offer on behalf of the minor, Fallon Schilling. Clearly, this offer and acceptance constituted an acknowledgment of the liability of the defendant for the accident. It is immaterial that the parties were not in agreement as to the amount of damages that should be attributed to Felicia Marie Anthony. The acknowledgment' served as an interruption of the tolling of prescription. Once the interruption occurred the one year period for prescription began anew. Consequently, if the subsequent suit was filed prior to March 1, 2001, it would be timely. The original petition was filed on April 24, 2000, and would have therefore been timely.

Having thoroughly reviewed the record before us and the applicable law, we find error in the trial court’s ruling on this issue and conclude that plaintiffs’ claim is prescribed.

15As set forth in La. Civ.Code art. 3464 (former La. Civ.Code art. 3520), “[pjrescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” An acknowledgment is-“the recognition of the creditor’s right or obligation that halts the progress of prescription before it has run its course.” Lima v. Schmidt, 595 So.2d 624, 631 (La.1992). It involves an admission of liability, either through actions of the debtor that constitute a tacit acknowledgement, or through explicit recognition of a debt owed. An acknowledgment may be oral, in writing, formal, informal, • express or tacit. Gary v. Camden Fire Ins. Co., 96-0055, pp. 4-5 (La.7/2/96), 676 So.2d 553, 556. A tacit acknowledgment occurs when a debtor performs acts of reparation or indemnity, makes .an unconditional offer or payment, or lulls the creditor into believing he will not contest liability. Conversely, mere settlement offers or conditional payments, humanitarian or charitable gestures, and recognition of disputed claims will not constitute acknowledgments. Lima, 595 So.2d at 634.

Defendants cite Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378 (La.1980), as authority for the contention that defendants’ settlement of Fallon’s claim did not constitute an acknowledgment of Felicia’s claim. In Flowers, the wife was injured in an automobile accident in 1976. The defendant-insurer tacitly acknowledged the obligation to pay the wife’s medical expenses by partial payment to the husband, then head and master of the community. Discussing the provisions of Article 3520, the court concluded that although the- partial payment to the husband for medical expenses borne by the community served .to interrupt prescription running against his claims, such payment did not interrupt prescription running against the wife’s action to recover for her personal injuries. The court noted as follows:

The interruption of prescription has no effect beyond the specific right of the person of which the debtor makes acknowledgment. Hence, the insurer’s acknowledgment of Mr. Flowers’ right, as head of the community, to recover for medical expenses, did not acknowledge or interrupt prescription of Mrs. Flowers’ separate right to damages for her personal injuries.
ItiAs applied to liberative prescription, Article 3520, in effect, provides that prescription is legally interrupted when the debtor makes acknowledgment of the right of the person against whose claim he prescribed. Legal interruption does not regularly transfer from one obligation or action to another. Moreover, legal prescription is personal, and generally benefits only the person with whom it originates or whose right has been acknowledged.
Mrs. Flowers’ right to damages for her personal injuries was distinct from her husband’s right to recover medical expenses for the community. A wife’s action for damages resulting from offenses and quasi-offenses are her separate property and are recoverable by her alone. On the other hand, claims for medical expenses for either spouse belong to the community and are recoverable by the husband as its head. Accordingly, the claims adjuster’s acknowledgment of Mr. Flowers’ right to reimbursement for medical expenses did not interrupt prescription of his wife’s separate right to damages for her personal injuries.

Flowers, 381 So.2d at 382-383 (citations and footnote omitted).

The analogy between Flowers and the instant case is clear. According to the record, defendants settled Fallon’s claim for $1,300.00. However, in a letter dated March 1, 2000, to Wayne Minor, plaintiffs’ attorney specifically rejected the settlement offer for Felicia, indicating as follows: “[Unfortunately], as ... regards to Felicia Anthony, again I will re-submit a settlement of 8,500.00. If you can not reevaluate your proposed settlement of $6,600.00, it will be in the best interest of my client to file suit.” After the March 1, 2000 letter, there was apparently no other communication between the parties concerning Felicia’s claim or the proposed settlement. Plaintiffs subsequently filed suit on April 24, 2000, one year and four days after the accident in question.

As previously indicated, the only action taken by Allstate with regard to Felicia’s claim was a settlement offer, which was rejected by Felicia’s attorney. While it is clear that there were ongoing negotiations between the parties, this mere offer of settlement does not constitute an acknowledgment of defendants* liability for the damages suffered by Felicia. Lima, 595 So.2d at 634. “Moreover, legal prescription is personal, and generally benefits only the person with whom it originates or whose right has been acknowledged.” Flowers, 381 So.2d at 383. Defendants’ acknowledgment of Fallon’s claim did not operate to interrupt prescription as to Felicia’s claim, and, thus, said claim was untimely. Accordingly, the trial court erred in overruling defendants’ exception 17raising the objection of prescription and in allowing the matter to proceed to trial on the merits.

CONCLUSION

For the above and foregoing reasons, we reverse the May 7, 2003 judgment that overruled the exception raising the objection of prescription; we vacate the July 6, 2004 judgment on the merits; and we dismiss, with prejudice, plaintiffs’ claim as it relates to Felicia Marie Anthony. We assess all costs associated with this appeal against plaintiffs.

MAY 7, 2003 JUDGMENT REVERSED; JULY 6, 2004 JUDGMENT VACATED; PLAINTIFFS’ SUIT DISMISSED WITH PREJUDICE.

      . Defendants also filed an exception of vagueness, an exception of no right of action, an exception of no cause of action, and a motion to dismiss for failure to request service within 90 days. Following a hearing on June 11, 2001, the objections of vagueness, no right of action, and no cause of action were maintained, and Allstate was dismissed as a party defendant in its alleged capacity as an uninsured motorist insurer. The exception raising the objection of prescription and the motion to dismiss for failure to request service were set for hearing on August 27, 2001.

      . Official comment (a) to Article 3464 indicates that this article reproduces the substance of former Article 3520 and does not change the law.


source: Caselaw Access Project

author: GAIDRY, J. CARTER, C.J.,

license: Public Domain

text:
    Albert James MANUEL v. Richard L. STALDER, Murphy J. “Mike” Foster, and Henry L. Goins.
    No. 2004 CA 1920.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Albert James Manuel, Kinder, Plaintiff/Appellant In Proper Person.
    William L. Kline, Baton Rouge, Counsel for Defendant/Appellee Richard Stalder.
    Before: CARTER, C.J., WHIPPLE, GUIDRY, DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

12This is an appeal from a trial court judgment dismissing a prisoner’s suit for judicial review, assigning a strike, and assessing costs against him. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Albert J. Manuel, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (“Department”), filed a petition for judicial review of the administrative decision rendered on his Administrative Remedy Procedure Number ALC-01-0708. Manuel’s complaint involves the Department’s calculation of his sentence. The circumstances surrounding his complaint are as follows: Manuel was convicted and sentenced in 1986 to a total of fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. At the time he was sentenced, La. R.S. 15:571.14 was in effect. This statute gave eligible inmates the option of receiving “increased diminution of sentence for good behavior ... in lieu of incentive wages.” Also in effect at that time was La. R.S. 15:571.5, which required, among other things, that any “person released because of diminution of sentence ... shall be supervised in the same manner and to the same extent as if he were released on parole.” Manuel opted to receive double good time under La. R.S. 15:571.14, and was released in February 1994. By law, he was required to be under supervision until the full term date of his original sentence, May 13, 2001.

After his release, Manuel was arrested in November 2000 on a new felony he committed in 1999, and his parole was revoked in 2001 after he waived his revocation hearing. As a result of the revocation, he was required to serve the remainder of his original sentence due at the time of his release; i.e., approximately seven and a half years in addition to the new | ^five-year sentence for the 1999 felony. Manuel disagreed with this computation and, after exhausting his administrative remedies, filed a petition for judicial review in the Nineteenth Judicial District Court.

In screening the petition in accordance with La. R.S. 15:1178, and 15:1184-88, the Commissioner recommended that the court maintain the Department’s decision to deny relief, dismiss the suit at Manuel’s cost, and assess a strike against Manuel pursuant to the Prison Litigation Reform Act (“PLRA”), La. R.S. 15:1181-91.

Manuel filed a traversal to the Commissioner’s report, after which the ■ district court dismissed Manuel’s suit for judicial review without prejudice at Manuel’s cost and assigned a strike against him. Manuel subsequently filed this appeal, arguing that the trial court erred in not restoring his earned good-time credits; in retroactively applying newer, more onerous and burdensome versions of La. R.S. 15:571.14 and 15:571.4; in not restoring his original full-term sentence date; in not declaring La. R.S. 15:571.5 unconstitutional; and in assessing costs to him and assigning a strike against him.

DISCUSSION

In his first assignment of error, Manuel claims that he contracted with the State to forego incentive wages in favor of receiving double good-time credit, and that once he had earned these good-time credits, he could not lose them for any reason. As explained by the Commissioner, it is well-settled that a person released under parole supervision due to diminution of sentence and subsequently reincarcerated is not entitled to restoration of good time earned or accumulated prior to his release. See Howard v. Louisiana Board of Probation and Parole, 589 So.2d 534, 536 (La. App. 1 Cir.), writ denied, 590 So.2d 87 (La.1991).

Regarding Manuel’s argument that the Department should have restored his original full-term sentence date upon his reincarceration, La. R.S. 15:571.5 provides that when an inmate released on parole due to diminution of sentence is reincar-cerated for violating the terms of parole, the person “shall be recommitted to the [Department for the remainder of the original full term.” To use the original full-term sentence date, as Manuel has suggested, would require that Manuel receive credit against his sentence for the time spent free under parole supervision. This court has held that an inmate whose conditional release was revoked upon his conviction for another felony was not entitled to credit against his sentence for time spent free under parole conditions. Bancroft v. Louisiana Dept. of Corrections, 93-1135 (La.App. 1 Cir. 4/8/94), 635 So.2d 738, 740.

Manuel’s claim that La. R.S. 15:571.5 is unconstitutional as applied to him is based upon his belief that his release should not have been subject to parole supervision because his sentence provided that he was not eligible for parole, as well as his belief that he could not lose good-time credits once he earned them. Louisiana Revised Statutes 15:571.5, requiring Manuel’s release to be subject to parole supervision, was in effect at the time of Manuel’s conviction in 1986, release in 1994, and reincarceration in 2001. His early release under parole conditions was less onerous punishment than the alternative of serving out his full sentence, and therefore his argument that his rights were violated when he was subjected to parole supervision is meritless. Id. Furthermore, regarding his argument that he was deprived of his property without due process when his good-time credits were revoked, this court has held that the minimum requirements of due process are 1 ¡^satisfied by the process required to revoke an inmate’s release on parole supervision. Howard, 589 So.2d at 535-36.

Manuel also claims that newer, more onerous and burdensome versions of La. R.S. 15:571.4 and 571.14 were applied to him in violation of the ex post facto clauses of the Louisiana and United States Constitutions. Manuel claims that the version of La. R.S. 15:571.4 in effect at the time of the commission of his crime did not provide for forfeiture of all previously-earned good time upon revocation of parole; rather, it authorized a maximum loss of 180 days for any violation other than simple or aggravated escape. However, La. R.S. 15:571.4 is inapplicable to Manuel’s situation. Louisiana Revised Statutes 15:571.4 is applicable to situations where a revocation of parole has occurred. In contrast, La. R.S. 15:571.5 applies to situations where a prisoner’s early release because of diminution of sentence has been revoked. See Howard, 589 So.2d at 536 n. 2. Manuel’s argument with regard to La. R.S. 15:571.14 is that the version of that statute in effect at the time of his sentencing should govern his good-time release, and he claims that version did not provide for parole supervision. However, La. R.S. 15:571.5 provided, at least since July 1, 1982, that any prisoner released due to diminution of sentence shall be released as if on parole. His argument that his “as if on parole” status is dependent upon the version of section 571.14 applied is merit-less.

Manuel’s final argument concerns the assignment of a strike and assessment of costs to him. Louisiana Revised Statutes 15:1187 provides for the assigning of strikes against a prisoner if he has brought a civil action or appeal in a state court that was dismissed on the grounds that it was frivolous, was malicious, failed to state a cause of action, or failed to state a claim upon which relief may be granted, unless the prisoner is under | ¿imminent danger of serious physical injury. However, the PLRA, when read in its entirety, is clear that it is intended to apply only to suits with respect to the conditions of confinement or the effects of actions by government officials on the lives of prisoners, but not to post-conviction relief or habeas corpus proceedings challenging the fact or duration of confinement in prison. La. R.S. 15:1181(2). Therefore, the PLRA’s strike provisions do not apply in this case because Manuel is challenging “the duration of his custody and not a condition of his confinement.” Frederick v. Ieyoub, 99-0616, p. 8 (La.App. 1 Cir. 5/12/00), 762 So.2d 144, 149-50, writ denied, 00-1811 (La.4/12/01), 789 So.2d 581. As such, the district court erred in assigning a strike against Manuel under the PLRA.

Manuel’s argument concerning the assessment of costs is as follows:

the District Court imposed additional fees over and above those agreed upon in the Court’s granting of Forma Pau-peris status to petitioner. This clearly was erroneous for the District Court, through the Clerk of Court’s office, to do this. As such, it must be reversed.

The district court judgment states that the suit is dismissed “at Plaintiffs cost.” It is unclear what “additional fees” Manuel refers to, but we find no error in the trial court’s assessment of costs to Manuel in this case.

DECREE

The judgment of the trial court dismissing Manuel’s petition for judicial review without prejudice and assessing costs is affirmed. The portion of the judgment assigning a strike against Manuel is vacated. Costs of this appeal are assessed to plaintiff, Albert J. Manuel.

AFFIRMED IN PART; VACATED IN PART.

CARTER, J., concurs in part and dissents in part for reasons.

WHIPPLE, J., concurs in part and dissents in part for reasons assigned by C.J. CARTER.

CARTER, C.J.,

concurring in part and dissenting in part.

hi respectfully concur in part and dissent in part. I submit that this court should convene en banc to overrule the portion of Frederick v. Ieyoub, 99-0616 (La.App. 1 Cir. 5/12/00), 762 So.2d 144, writ denied, 00-1811 (La.4/12/01), 789 So.2d 581, wherein a pro tempore panel of this court held that the sanction provision of the PLRA applies only to suits with respect to prison conditions or officials’ actions affecting the lives of those confined in prison. Id., 762 So.2d at 150. I am of the opinion that the holding in Frederick is far too restrictive. The language of LSA-R.S. 15:1187, which provides for sanctions in the PLRA, is very broad. The statute applies to any “civil action or appeal of a judgment in a civil action or proceeding in forma pauperis if the prisoner has, on three or more prior occasions ... brought an action or appeal in a state court that was dismissed on the grounds that it was frivolous, .... ” (Emphasis added.) LSA-R.S. 15:1187. The only limitation in the provision deals with whether the prisoner is proceeding in forma pauperis.

[ 2ManueI’s suit was initiated in forma pauperis as a civil action seeking redress from a governmental entity, after exhausting the administrative remedy procedure. I believe that the sanction provision of the PLRA applies to all types of civil actions that a prisoner proceeding in forma pau-peris could possibly bring, including time computation challenges and challenges to the constitutionality of time computation statutes. The purpose of the PLRA is to curtail baseless or nuisance suits by prisoners. Cheron v. LCS Corrections Ser vices, Inc., 04-0703 (La.1/19/05), 891 So.2d 1250, 1257. In my opinion, a prisoner who brings a frivolous lawsuit challenging well-settled time computations, as well as the constitutionality of a statute that has been repeatedly upheld, should be assessed a strike. Therefore, I would affirm the trial court’s dismissal of Manuel’s petition and the assessment of the strike and costs to Manuel.

Por these reasons, I respectfully concur in part and dissent in part.

      . The office of the Commissioner of the Nineteenth Judicial District Court was created by LSA-R.S. 13:711 to hear and recommend disposition of criminal and civil proceedings arising out of the incarceration of state prisoners. The Commissioner’s written findings and recommendations are submitted to a district judge, who may accept, reject, or modify them. La. R.S. 13:713(C)(5).

      . See Bernard v. Louisiana Dept. of Public Safety and Corrections, 00-1912 (La.App. 1 Cir. 9/20/02), 843 So.2d 413, 414 n. 1 (on rehearing), writ denied, 02-2613 (La.1/9/04), 862 So.2d 975, for a similar analysis regarding another section of the PLRA. See also LSA-R.S. 15:1188 A and Ferrington v. Louisiana Bd. of Parole, 03-2093 (La.App. 1 Cir. 6/25/04), 886 So.2d 455, 457-59, writ denied, 04-2555 (La.6/24/05), 904 So.2d 741.


author: DOWNING, J.

text:
    Cynthia Wegmann TRAMONTIN v. Gregory William TRAMONTIN.
    No. 2004 CA 2286.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Jeffrey S. Wittenbrink, Dannie P. Garrett, III, Baton Rouge, Counsel for Plaintiff/Appellee Cynthia Wegmann Tramon-tin.
    Olivia Smith, Thomas E. Gibbs, Baton Rouge, Harry S. Hardin, Corinne Gia-cobbe Hufft, New Orleans, Counsel for Defendant/Appellant Gregory William Tra-montin.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

| ?The pivotal issue of this review is whether plaintiffs 1994 petition alleging lesion beyond moiety was timely when filed over five years after the community property in dispute was partitioned. The second issue we will consider is whether the amending petitions, filed in 1999 and 2003, alleging fraud were timely filed. For the following reasons, we reverse the trial court’s judgment rendered May 5, 1997, and sustain the exception of prescription. Concluding that all of plaintiffs claims have prescribed, we accordingly reverse those portions of the March 30, 2004 judgment.

Cynthia and Gregory Tramontin married in 1981 and separated October 22, 1985. The community property regime was terminated at that time. During the marriage, the couple started USAgencies, an insurance company. At the time of separation, the community’s primary asset was stock in USAgencies. The community was partitioned on February 2, 1988. In the partition agreement, Cynthia received $25,000.00 for giving Gregory all rights, title, and interests in USAgencies.

On July 6, 1988, Gregory sold his USA-gencies stock and in return received twenty-five shares of stock in a newly formed company, Liberty Underwriters. The contract also guaranteed his employment at $80,000.00 per year. About a year later, Liberty Underwriters terminated Gregory, and suits in tort and contract ensued. The lawsuits were settled in September 1989 with Liberty Underwriters paying Gregory $2,200,000.00 in damages and also buying back Gregory’s shares of stock for $200,000.00.

On January 19, 1994, Cynthia filed suit against Gregory pertinently to rescind the partition and settlement of community property. In her petition, she alleged that she “desires a rescission of the Partition and Settlement of |sCommunity Property effected between the parties on or about the 2nd day of February, 1988, based on lesion beyond moiety.” She also asserted that she had transferred all her rights, title, and interest in two corporations to defendant “based on erroneous information that said corporations had little or no value.” She claims to have learned of the improper valuation in July 1990. No relief was sought on the basis of error or fraud.

On February 18, 1997, Gregory filed an exception of prescription alleging that a suit based on lesion must be filed within a five-year prescriptive period pursuant to LSA-C.C. arts. 3497 and 1413, and therefore the current lawsuit was not timely filed. The trial court denied Gregory’s exception and signed a judgment to that effect. On January 7, 1999, Cynthia filed an amended petition alleging that the property settlement should be set aside because “she signed the Settlement document based upon error” and also “upon the fraud on the part of the Defendant.” Cynthia filed another amending petition on May 23, 2003, again alleging fraud; on June 2, 2003, Gregory filed another exception of prescription.

The suit came on for trial on June 3-5, 2003, and the matter was taken under advisement. On March 30, 2004, the trial court rendered judgment in favor of Cynthia, ordering Gregory to pay Cynthia $1,758,571.65, together with all court costs, including expert witness fees of $4,500.00 and attorney fees of $50,000.00, plus judicial interest. From that judgment, Gregory has appealed. While the appeal was pending, Gregory filed another exception of prescription in this court alleging that the amending petition filed on January 7,1999, had prescribed.

We summarize Gregory’s allegations of error as follows:

|41. In not sustaining his original exception of prescription;
2. In finding that the 1999 and 2003 petitions alleging fraud were not prescribed;
3. In finding that the 1999 and 2003 petitions relate back to the original petition;
4. In evaluating the value of USAgen-cies;
5. In dismissing the reconventional demand with prejudice.

EXCEPTIONS OF PRESCRIPTION

Before we determine whether the trial court erred in finding that Cynthia’s petitions based on fraud and error were timely filed, we first decide whether the trial court erred in finding that the original petition was filed timely.

The initial petition filed in 1994 is a claim for rescission of the partition based on lesion beyond moiety. The claim to rescind the community property partition must be brought within five years of the partition. LSA-C.C. art. 1413; also see Glascock v. Glascock, 98-1031 (La.App. 1 Cir. 11/5/99), 746 So.2d 288. Further, in order for the amending petitions alleging fraud to be viable, they must either relate back to a timely filed petition or have been timely filed in their own right. Raymond v. Orleans Parish School Board, 03-0560, pp. 5-6 (La.App. 4 Cir. 9/3/03), 856 So.2d 27, 31, citing Ford v. Murphy Oil, U.S.A., Inc., 96-2913, p. 1 (La.10/10/97), 710 So.2d 235; see also Albert Tate, Amendment of Pleadings in Louisiana, 43 Tul.L.Rev. 211, 233 (1969).

The burden of proof is generally on the party pleading prescription. Hudson v. East Baton Rouge Parish School Board, 02-0987, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 282, 286. However, when the petition is prescribed on its face, the plaintiff has the burden of showing that prescription has been interrupted in some manner. Id. Evidence may be I,.¡introduced to support or controvert the peremptory exception raising the objection of prescription pursuant to LSA-C.C.P. art. 931 when the grounds for the exception do not appear on the face of the petition. In the absence of evidence the exception of prescription must be decided upon the facts alleged in the petition, and all allegations therein are accepted as true. Id.

Here no evidence was introduced, so the trial court apparently denied the exception based upon the face of the petition. Accordingly, we review the exception of prescription from the face of the exception.

The original petition was not filed within five years of the partition, but in fact was filed nearly six years after. Arguing against prescription, however, Cynthia asserts that her original petition was not prescribed on its face when filed because prescription did not begin to run because she did not learn of the stock value until July 1991. This allegation apparently attempts to assert contra non valentem.

This Court has recognized four factual situations in which the doctrine of contra non valentem applies so as to prevent the running of prescription. Renfroe v. State, Dept. of Transportation and Development, 01-1646, p. 9 .(La.2/26/02), 809 So.2d 947, 953. Here, the only factual situation that could be applicable is the fourth, where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant. However, the doctrine of contra non valentem only applies in exceptional circumstances. Id. And in order to apply this | ¿fourth type of situation, a plaintiff is deemed to know what he could have learned by reasonable diligence. Id. 01-1646 at pp. 9-10, 809 So.2d at 953. From the face of her original petition, Cynthia fails to show that information regarding valuation of the company was not reasonably knowable through the exercise of reasonable diligence. Cynthia has therefore failed to establish that her implicit claim of contra non valentem applies in this case to interrupt prescription on her action for lesion.

Further, citing LSA-C.C. art. 1949, Cynthia also argues that her allegation of error in her 1994 petition regarding the community property settlement agreement vitiates her consent and timely raises a cause of action based on the vice of consent of error. Her petition, however, simply alleges that she transferred her interest in the corporation based on erroneous information that the companies had no value. This original petition does not in anyway implicate Gregory as the source of the erroneous information that she alleges her decision was based upon. The 1994 petition mentions only that she transferred her ownership in the community because of an erroneous belief that it was worthless.

Additionally, a petition must set forth the material facts of the transaction or occurrence that is the subject of the litigation. LSA-C.C.P. art. 891. Any circumstances constituting fraud or mistake must be alleged with particularity. LSA-C.C.P. art. 856. Our jurisprudence has consistently held that a petition seeking to annul an agreement on the grounds of fraud must clearly allege facts from which such elements may be unmistakably concluded in order to state a cause of action. Kirby v. Field, 04-1898, p. 3 n. 6 (La.App. 1 Cir. 9/23/05), 923 So.2d 131, 136 n. 6. This rule is based upon the presumption of the validity of a final judgment. And our jurisprudence holds that fraud is never presumed. Id.

|7Further, the pertinent relief sought in the original petition is rescission of the community property partition based solely on lesion beyond moiety. The 1994 petition does not state a cause of action for rescission based on error or based on any other vice of consent.

We therefore conclude that the 1994 petition was prescribed on its face and that the trial court erred in denying Gregory’s exception of prescription. Accordingly, we reverse the ruling of the trial court in this regard and dismiss the 1994 petition with prejudice.

Since we have concluded that the original petition has prescribed, the amended petitions cannot relate back to the filing date of the original petition. Raymond, 03-0560 at p. 6, 856 So.2d at 31. Accordingly, we next decide whether Cynthia’s amended petitions were timely filed on their own.

In cases of error and fraud, the five-year prescriptive period begins to run from the day the error and fraud are discovered. LSA-C.C. art. 1413. In Cynthia’s amended petitions, she claims that she first became aware of the alleged fraud in 1991 at the latest or 1990 at the earliest. Therefore, the second and third amended petitions filed in 1999 and 2003 cannot interrupt the five-year prescriptive period under LSA-C.C. art. 1413. These claims, therefore, are also prescribed.

Accordingly, we find merit in Gregory’s first, second, and third assignments of error. Those portions of the judgment rendered March 30, 2004, finding that Gregory committed fraud and finding him liable to Cynthia are reversed, and the two amending petitions are dismissed with prejudice. We pretermit discussion of Gregory’s fourth assignment of error.

RECONVENTIONAL DEMAND

Gregory filed a reconventional demand along with his supplemental answer in 1997, shortly after the denial of his exception of prescription. He |sprayed to recover the balance Cynthia allegedly owed him on a promissory note securing the family home. The March 30, 2004 judgment dismissed Gregory’s reconven-tional demand claim with prejudice. Gregory’s appeal alleges that the trial court erred in dismissing with prejudice. We agree.

Although not precisely stated, the written reasons proclaim that the reconven-tional demand was premature and that proper notices had not been given to Cynthia. The judgment, however, dismissed the reconventional demand with prejudice. The jurisprudence has recognized that a trial court cannot dismiss a suit with prejudice if substantive rights acquired by the other party would thereby be lost. Cf. Oliver v. Davis, 95-1841, p. 4 (La.App. 1 Cir. 8/12/96), 679 So.2d 462, 464. This reconventional demand is for a suit on a note that was not yet due.

Upon reviewing the record, we find merit in Gregory’s fifth assignment of error. We conclude that while the trial court judgment correctly dismissed the recon-ventional demand, the matter should have been dismissed without prejudice. That portion of the judgment is hereby reversed.

DECREE

For the reasons assigned, the judgment of the trial court rendered May 13, 1997, denying the exception of prescription on the original petition is reversed in part only to render judgment without prejudice, and the original petition is dismissed with prejudice.

Having concluded that the two amending petitions are also prescribed, we dismiss them. We, therefore, reverse and vacate the judgment of the trial court rendered on March 30, 2004, except where the judgment dismissed the reconventional demand with prejudice. For the reasons assigned, we affirm the judgment of the trial court dismissing the reconventional demand, but we ^reverse insofar as it dismisses his claim with prejudice. We amend the judgment and order, adjudge, and decree that Gregory Tramontin’s re-conventional demand be dismissed without prejudice.

The exception of prescription filed for the first time at the First Circuit Court of Appeal is pretermitted as moot. In the interest of justice, the costs of this appeal are assessed against Gregory William Tra-montin.

REVERSED IN PART, AMENDED IN PART, AFFIRMED AS AMENDED.

GAIDRY, J., concurs.

      . The petition also prays for injunctive relief to prohibit "alienating, encumbering, or disposing of any and all assets of the community..."

      . Where a trial court's ruling is silent as to any demand at issue under the pleadings, such silence constitutes an absolute rejection of such demand. VaSalle v. Wal-Mart Stores, Inc., 01-0462, p. 8 (La. 11/28/01), 801 So.2d 331, 337. The record reflects that the trial court never ruled on this exception, but our review of the written reasons indicates that prescription was considered by the court and denied.

      . The four factual situations are as follows:
      (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action;
      (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from acting;
      (3) where- the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
      (4)where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.
      The first two are clearly inapplicable, and there are no facts in the petition that would support the third. Renfroe, 01-1646 at p. 9, 809 So.2d at 953.


author: KUHN, J.

text:
    Louis E. NELSON v. MOTIVA.
    No. 2004 CA 2436.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Lester J. Waldmann, Brian C. Beckwith, Gretna, Counsel for Appellee Louis E. Nelson.
    Albert C. Miranda, Gina Puleio Campo, Metairie, Counsel for Appellant Motiva Enterprises.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

| gEmployer-appellant, Motiva Enterprises (Motiva), appeals a judgment of the Office of Workers’ Compensation (OWC), which concludes that employee-appellee, Louis Nelson, sustained an accident on March 1, 2001, entitling him to indemnity benefits. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nelson, who for approximately 30 years worked for Motiva as an operator, monitoring pumps, motors, turbines, compressors, and fans within his unit, filed a claim on August 15, 2001. He averred that he had not been paid any wage benefits from Motiva as a result of an accident that had occurred in February 1996. After answering Nelson’s claim, on January 30, 2002, Motiva filed a peremptory exception raising the objection of prescription. On June 27, 2002, Nelson amended his claim and alleged that his entitlement to indemnity benefits was a result of an accident that occurred on March 1, 2001, in which he injured his knee while riding a bicycle from one part of his unit to another.

Subsequent to a hearing, OWC denied Motiva’s exception. A trial on the merits of Nelson’s claim for indemnity benefits followed and, after the presentment of evidence, OWC concluded that Nelson had sustained an accident on March 1, 2001, and ordered Motiva to pay weekly indemnity benefits.

| ¡(This appeal by Motiva followed.

DISCUSSION

The Workers’ Compensation Act is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Winford v. Conerly Corp., 2004-1278, p. 5 (La.3/11/05), 897 So.2d 560, 564. An employee seeking workers’ compensation benefits must establish by a preponderance of the evidence that he has suffered an injury as a result of an accident arising out of and in the course of his employment. See La. R.S. 23:1031. Louisiana Revised Statutes 23:1021 defines an accident for purposes of workers’ compensation:

(1) “Accident” means an unexpected or unforseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

A worker’s testimony alone may establish a work-related accident if: (1) no other evidence casts serious doubt on his version of the incident; and (2) his testimony is corroborated by the circumstances following the alleged incident. Corroboration may be provided by co-workers, spouses, friends, or medical evidence. Hardy v. State, 2003-1771, p. 2 (La.App. 1st Cir.6/25/04), 885 So.2d 1183, 1184. In determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus on the issue of credibility because, absent contradictory circumstances and evidence, a worker’s testimony is accorded great weight. Id.

The OWC’s factual determinations regarding the worker’s credibility and whether the worker' has discharged his burden of proof should not be disturbed on Rreview unless manifestly erroneous. Id. In applying the manifest error standard of review, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993). Thus, if the factfin-der’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556.

Where the employee is able to identify • an event marking the- time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within, the meaning of La.R.S. 23:1021(1). Begue v. Crossover, Inc., 2003-0267, p. 8 (La.App. 1st Cir.11/21/03), 868 So.2d 100, 105.

On appeal, Motiva urges that the evidence presented was insufficient to sustain Nelson’s burden of proving by a preponderance that an accident- occurred on March 1, 2001. Thus, Motiva urges the manifest error rule does not apply and that this court should undertake a de novo review of the evidence to ascertain whether Nelson sustained his burden of proving an accident occurred on March 1, 2001.

At the trial on the merits, Nelson testified that on March 1, 2001, at around 5:15 p.m., there was an outage of one of the compressors he was in charge of 1 smonitoring. He quickly rushed from the control room to the compressor, riding a bicycle approximately half the length of a football field to that area of the unit where the HTU compressor was located. He was trying to go fast, when his leg started hurting. Nelson felt a snap and a lot of pain in his left kriee. He described how he slowed the bike down and, sitting straddled on the seat, pedaled with his other leg until he arrived at the compressor location. Upon arrival, the workers he supervised were trying to get the compressor running, and he directed them until the compressor was back on line. Although Nelson’s shift was scheduled to end at 6 p.m., he stated that his replacement often arrived earlier. Because it was toward the end of his shift, he simply returned to the control room, wrote up his log, and went home, despite the pain he felt in his left leg. Nelson described how he returned back to the control room in a fashion similar to his arrival, i.e., he pedaled the bike with one leg until he reached the control room on the other side of the unit.

Nelson stated that he was already scheduled to be off work the following day for a doctor’s appointment with Dr. Hector Mena to address pain in his left knee and a swollen right leg. Nelson explained that he had begun seeing Dr. Mena, whom he described as an arthritis doctor, in January 2001, for pain in his elbows and in his left leg. He admitted that he did not tell Dr. Mena he had “an accident” the previous day, stating instead, “I just told [Dr. Mena] ... it started hurting me a whole lot more the day before .... I told him like that.” After advising Nelson that he could not continue performing his job duties at Motiva because of the pain in his left knee, Dr. Mena referred Nelson to his primary care physician, who sent him to see Dr. Scott Petrie.

IfiNelson again conceded that he did not tell Dr. Petrie that he had “an accident” on March 1, 2001. He said that he advised the doctor that he had left leg pain in January 2001 and that the pain increased on March 1, 2001. According to Nelson, Dr. Petrie advised him that he had torn cartilage in his left knee. Nelson denied that he had been advised in 1996 that he had a torn medial menicus. He stated that he thought he had a “sprained knee” after the 1996 accident. Nelson said he learned of the tear in his knee in April 2001, when Dr. Petrie read a letter from Motiva indicating that Nelson had sustained a torn medial menicus as a result of the 1996 accident.

Nelson acknowledged that an injury report was not written up for the March 1, 2001 incident. He testified that on March 2, 2001, he spoke with a supervisor and advised him that Dr. Mena had told Nelson not to return to work until the knee was better. The supervisor did not ask Nelson to fill out any accident forms. Nelson stated that he did not tell the supervisor that he had an accident the previous day but, “I told him my leg was hurting more, that’s why the doctor took me off [work].”

In concluding that Nelson had proven by a preponderance of the evidence that an accident occurred on March 1, 2001, the OWC judge stated:

I do only have ... Nelson’s testimony as to how this occurred. ... I found him a very credible person, a very credible witness. It is very easily understandable and it happens ... a lot with your typical man or woman on the street doing what they do at work every day, sustaining an injury or an aggravation from an injury and first and foremost not realizing the magnitude of it; and secondarily, when somebody says, have you been in an accident, not understanding that that equates to an accident as defined by the jurisprudence....
The meds ... support that ... Nelson began to seek very continually steady treatment from March 2, 2001 forward. Prior to that he would go to the doctor every other month and more often than 17not, it would be about some knee pain intermittently.... [B]ut it’s not until the day after his last day at work when he exerted himself that day on the bike that he starts having steady treatment for that left knee on a very regular and demanding basis. Yes, he already had the appointment set up, he was already having some leg pain, but not seeking [the] acute type of relief for problems like he began to do that very next day.

Motiva presented no evidence that east serious doubt on Nelson’s version of the event. And his testimony is corroborated by the circumstances following the alleged incident, particularly the regular course of treatment he sought from health care providers subsequent to March 1, 2001, when he felt a snap and pain in his knee as he hurriedly rode the bicycle from the control room to the compressor. Nelson identified riding his bike quickly to the compressor as the event marking the time he felt a snap and began suffering a lot of pain in his knee, a continuous symptom that occurred suddenly and markedly increased in severity. Thus, even though the disabling injury to Nelson’s knee occurred during the performance of customary or routine work activity, mindful that the OWC judge found Nelson to be a very credible witness and that we are required to accord a great weight to a worker’s testimony, Nelson proved an accident occurred on March 1, 2001. This factual conclusion by OWC is not manifestly erroneous.

DECREE

For these reasons, the OWC judgment concluding that Nelson had proven a work-related accident on March 1, 2001, and was, therefore, entitled to indemnity benefits is affirmed. Appeal costs are assessed to Motiva Enterprises.

AFFIRMED.

      . The judgment specifically determined that claimant was entitled to temporary total disability payments of $388 per week from March 1, 2001 through January 25, 2002, the date that Nelson's doctor released him to light duty work, and supplemental benefit payments of $388 per week thereafter. The judgment additionally recognized Motiva’s entitlement to credits for unearned wages and all benefits paid to Nelson and ordered interest on those payments the employer made, which failed to meet or exceed $388 per week. The only portion of the judgment the parties have appealed is OWC's conclusion that Nelson sustained an accident on March 1, 2001. Thus, we do not scrutinize the propriety of OWC’s determinations of the type, amount, or duration of the payments to which Nelson is entitled, Motiva's entitlement to credits, or Nelson's right to interest.


author: PARRO, J.

text:
    Lois Gisclair, Wife of/and Dan GISCLAIR v. Monte M. BONNEVAL, M.D.
    No. 2004 CA 2474.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Lawrence D. Wiedemann, Wiedemann & Wiedemann, New Orleans, for Plaintiffs-Appellants Lois and Dan Gisclair.
    Carl T. Conrad, Joseph A. Reilly, Jr., Henderson, Reilly & Boudreaux, Houma, for Defendant-Appellee Monte M. Bonne-val, M.D.
    Before: PARRO, McDONALD, and HUGHES, JJ.
   PARRO, J.

12In this medical malpractice case, Dan and Lois Gisclair appeal a judgment granting a motion for summary judgment in favor of Dr. Monte M. Bonneval and dismissing their claims against him. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 1998, Dr. Bonneval performed a laparoscopic cholecystectomy on Dan Gisclair to remove gallstones. About eleven days later, due to injury to his common bile duct that occurred during the procedure, Gisclair suffered leakage of bile into his abdominal cavity. Gisclair claims Dr. Bonneval negligently severed the common bile duct during the laparo-scopic surgery. Gisclair claims he continues to suffer from the effects of the bile duct leakage and the later repair procedures.

A medical review panel unanimously found there was no breach of the standard of care, and the Gisclairs filed suit against Dr. Bonneval. During discovery, Dr. Bon-neval’s attorney learned that the Gisclairs planned to use a statement allegedly made by Dr. Bonneval in another legal proceeding that injury to the common bile duct during gallbladder surgery is always malpractice. The Gisclairs did not timely respond to a request for production, so Dr. Bonneval moved to compel discovery of this evidence. Before the hearing on the motion, the Gisclairs and Dr. Bonneval entered into a consent judgment barring introduction of or any reference to

all depositions, trial testimony, reports, statements or other written evidence by Dr. Monte Bonneval wherein he addresses the standard of care involving injury or trauma to the common bile duct during surgery

if the Gisclairs did not produce such statements by a certain date. That date passed without such production.

Dr. Bonneval then filed a motion for summary judgment, alleging the Gisclairs would not be able to sustain their burden of proof at trial due to the “total absence of any expert medical testimony” supporting their claims. Dr. Bonneval’s motion was supported by his own affidavit, two depositions of Dr. John S. Bolton, certified true copies of the medical review panel opinion, the consent forms Gisclair had signed for the laparoscopic procedure, and the Gisclairs’ discovery responses stating they had made “no determination” with regard to expert testimony to support their claims.

| sThe hearing on the motion was continued once at the Gisclairs’ request and was reset for July 7, 2004. On July 6, 2004, the Gisclairs faxed to opposing counsel a memorandum opposing the motion, with attachments consisting of a copy of a judgment in an unrelated district court case, an affidavit from the plaintiff in that case, and a letter from a physician involved in the plaintiffs treatment in that case. Also attached was a motion to continue the hearing or, in the alternative, to submit the matter on briefs. The motion to continue was denied, and the hearing was held as scheduled. Because the Gisclairs’ opposition evidence was untimely, it was not considered. The court rendered judgment in favor of Dr. Bonneval, granting the motion for summary judgment and dismissing the Gisclairs’ claims. The court referred to the opinion of the medical review panel, which stated Dr. Bonneval had not deviated from the" standard of care, and concluded:

The motion for summary judgment has the attachments required, and the burden of proof in the motion for summary judgment is on the moving party. However, once the moving party has made a prima facie showing that the motion should be granted, the burden shifts in this case to the plaintiff. The failure of the plaintiff to produce evidence of the material factual dispute requires a granting of the motion for summary judgment. There has been no showing by the plaintiff which is considered by the Court. There is no genuine issue of material fact. There is no medical expert evidence in support of plaintiffs claims.

On appeal of this judgment, the Gisclairs assert the court erred in failing to consider the doctrine of res ipsa loquitur in opposition to the motion.

APPLICABLE LAW

Summary Judgment

An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. West v. Clarendon Nat’l Ins. Co., 99-1687 (La.App. 1st Cir.7/31/00), 767 So.2d 877, 879. The motion should be granted if the pleadings, 14depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B); Johnson v. Evan Hall Sugar Co-op., Inc., 01-2956 (La.App. 1st Cir.12/30/02), 836 So.2d 484, 486.

On a motion for summary judgment, if the moving party will not bear the burden of proof at trial on the matter before the court on the motion, the moving party must point out to the court that there is an absence of factual' support for one or more elements essential to the adverse party’s claim, action, or defense. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment must be granted. LSA-C.C.P. art. 966(C)(2); McGee v. State ex rel. DOTD, 00-2706 (La.App. 1st Cir.3/28/02), 813 So.2d 625, 628. If qualifying evidence is submitted in opposition to a motion for summary judgment that creates a dispute as to a genuine issue of material fact, a motion for summary judgment should be denied. Simmons v. Berry, 98-0660 (La.App. 1st Cir.12/22/00), 779 So.2d 910, 917.

When a motion for summary judgment has been properly made and supported, the adverse party may serve opposing affidavits with a memorandum supporting the opposition. Those documents shall be served at least eight days prior to the date of the hearing unless the rules for Louisiana district courts provide to the contrary. See LSA-C.C.P. art. 966(B). Rule 9.9(b) of the Louisiana Rules for District Courts states that a party who opposes an exception or motion must concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing; the opposition memorandum must be received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time. This rule is applicable to motions for summary judgment. See LSA-Dist. Ct. R. 9.10(1). The time limitation established by Article 966 is mandatory, so affidavits not timely filed are inadmissible and properly excluded. American Bank & Trust Co. v. International Dev. Corp., 506 So.2d 1234, 1235-36 (La.App. 1st Cir.1987).

| fMedical Malpractice Burden of Proof I Res Ipsa Loquitur

To prevail in a medical malpractice case, the plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries. LSA-R.S. 9:2794(A). Generally, a plaintiff must introduce an expert witness to testify with regard to a violation of the standard of care, unless the defendant physician or a defense expert testifies regarding the standard of care and the objective evidence at trial is such that a lay jury can infer negligence from the facts. Pfiffner v. Correa, 94-0924, 94-0963, and 94-0992 (La.10/17/94), 643 So.2d 1228, 1230; Simmons v. Berry, 779 So.2d at 915.

Res ipsa loquitur is not a substantive legal tenet, but rather an eviden-tiary doctrine under which a tort claim may be proved by circumstantial evidence. Morgan v. Willis-Knighton Med. Ctr., 456 So.2d 650, 655 (La.App. 2nd Cir.1984). It applies when the accident would not normally occur in the absence of negligence, there is an absence of direct evidence to explain the activities leading to the injury, and the accident or injury was caused by an agency or instrumentality within the actual or constructive control of the defendant. Walston v. Lakeview Reg’l Med. Ctr., 99-1920 (La.App. 1st Cir.9/22/00), 768 So.2d 238, 242, writ denied, 00-2936 (La.12/15/00), 777 So.2d 1229. In order to use the doctrine of res ipsa loquitur, the plaintiff must establish a foundation of facts on which the doctrine may be applied. Bradbury v. Thomas, 98-1678 (La.App. 1st Cir.9/24/99), 757 So.2d 666, 671. The doctrine of res ipsa loquitur is applied after all of the evidence has been presented. Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654, 666 (La. 1989).

In Pfiffner v. Correa, 643 So.2d at 1233, the Louisiana Supreme Court recognized that expert testimony is not always necessary to meet the plaintiffs burden of proving a breach of the applicable standard of care in a medical malpractice case, stating:

[T]here are situations in which expert testimony is not necessary. Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.

|fiHowever, the court, reversed the jury award, concluding there was no evidence to support the jury’s finding that the purported breach of the standard of care was the cause of the patient’s death or his loss of a chance of survival. Pfiffner v. Correa, 643 So.2d at 1236.

Despite the reference in Pfiffner to “leaving a sponge in a patient’s body, from which a lay person can infer negligence,” this court encountered that exact situation and an argument urging the doctrine of res ipsa loquitur in connection with a motion for summary judgment in the Walston case. In that case, a heart catheterization of Ms. Walston revealed that immediate surgery was necessary to repair an aortic aneurysm. After a second emergency surgical procedures, a subsequent x-ray revealed that a sponge had been left in her chest cavity, requiring a third surgery to remove it. Supporting evidence for the motion for summary judgment included the medical review panel opinion, which found a breach of the standard of care, but did not find that the breach contributed to the patient’s morbidity or mortality. Walston, 768 So.2d at 240. This court concluded that because the plaintiffs did not submit expert testimony concerning causation, they failed to establish the existence of a genuine issue of material fact on this essential element of their claim, and summary judgment was appropriate.

The Louisiana Supreme Court reviewed a case involving injury to unrelated organs during a laparoscopic cholocystectomy, and held that the jury was manifestly erroneous in concluding that the doctor, who had punctured three organs — including the patient’s aorta — in an attempt to perform the procedure and then punctured two more in an attempt to correct his error, was not negligent. Fusilier v. Dauterive, 00-0151 (La.7/14/00), 764 So.2d 74, 81. Although the doctrine of res ipsa loquitur was mentioned, there was also expert opinion evidence at trial that the surgeon had breached the standard of care, and the court did not specifically apply the doctrine in reaching its conclusion.

|7In Simmons v. Berry, 779 So.2d 910, a portion of the patient’s ureter was removed during surgery to remove her left fallopian tube and uterus and excise a cyst from the right fallopian tube. This court reviewed evidence submitted in opposition to the physician’s motion for summary judgment, including statements from several experts who stated that the applicable standard of care required the physician to visualize the ureter before, during, and at the completion of the procedure. The physician’s operative report was attached to the deposition of one of the experts; it stated Dr. Berry had. visualized the ureter at the beginning of the surgery, but left unanswered the factual issue of whether he had visualized the ureter during and at the completion of the surgery.' Therefore, this court concluded the motion for summary judgment should have been denied. The doctrine of res ipsa loquitur was not mentioned.

ANALYSIS

We review the evidence in this case de novo, keeping in mind the tenets established by statutory law and the jurisprudence. At the outset, we note that the trial court did not err in excluding the evidence submitted by the Gisclairs in opposition to the motion for summary judgment. That evidence was faxed to opposing counsel the day before the hearing on the motion, despite the requirement in the Code of Civil Procedure and the Louisiana Rules for District Courts that the opposition memorandum and attachments must be served on opposing parties eight days before the scheduled hearing. It was an untimely submission, and the court was legally correct in refusing to consider this evidence.

The Gisclairs contend that the fact that unexplained injury occurred to an organ of the body that was not involved in the surgical procedure is sufficient to create a genuine issue of material fact, such that summary judgment was inappropriate. They urge the application of the doctrine of res ipsa loquitur, claiming the injury to the common bile duct would not normally occur in the absence of negligence. However, |sDr. Bolton’s depositions establish that injury to the common bile duct is a known risk of laparoscopic cholocysteeto-my and can occur even if there is no breach of the standard of care. Dr. Bolton performed a surgical procedure to repair Gisclair’s common bile duct after another doctor’s efforts to take care of the problem with the insertion of stents did not fully correct the bile leakage. Dr. Bolton emphatically disagreed several times with the statement that cutting of the common bile duct during the surgery was negligence, stating:

Oh, I think you’re making kind of a fallacious argument that because something’s infrequent, then it indicates sort of — the term to use, res ipsa loquitur, that a mistake was made, and that’s not correct.
* * *
I don’t believe that the fact that a bile duct injury occurs necessarily implies that malpractice was performed.
But there should be no mistake made about it: There is an inherent risk, and through the history of surgery, there has never been a period of time where no bile duct injuries occurred, and there will never be, so that the fact that an occasional patient has an injury, by itself, does not imply that malpractice has been performed.

Dr. Bolton said the common bile duct could be injured during gallbladder surgery in three other ways, which he described as a cauterization leak, a traction tear, or a sidewall clipping. The cauterization leak can occur if the cautery tool makes contact with a surgical clip that is properly inserted on the cystic duct, but is also in contact with the common bile duct, thereby transmitting heat to the common bile duct and burning it. The burn injury can necrose over a week or two and perforate, leading to a bile leak. A traction injury could occur if, during the procedure, excessive traction is exerted on the tissue alongside the common bile duct, creating a bruise or small partial-thickness tear that later perforates. A sidewall clipping could occur if the common bile duct “tents” due to traction, such that the surgical clip being applied to the cystic duct catches the sidewall of the common bile duct too. Finally, Dr. Bolton emphasized that he had reviewed the videotape of the laparoscopic procedure performed by Dr. Bonneval on Gisclair, and concluded that he did not see any deviation from the standard of care.

The Gisclairs suggest that Dr. Bolton’s testimony was inconsistent, because in the first deposition, he said that the videotape showed the common bile duct being | asevered. This is correct, in that he did make that observation. But Dr. Bolton had not viewed the entire videotape and had not reviewed Gisclair’s records before giving that deposition. Later in that deposition, after he reviewed the other doctor’s notes from the stent procedures and his own notes from the surgery he had performed, Dr. Bolton corrected his earlier observation, stating that the stent was present in the common bile duct and that it could not have been inserted if the common bile duct had been severed.

The Gisclairs also suggest that Dr. Bolton agreed that if Dr. Bonneval could not visualize the common bile duct, it was negligence to continue the laparoscopic procedure without first performing a cho-langiogram enterography — the insertion of iodine-containing dye. However, Dr. Bolton said such a test could be used if the surgeon could not see the common bile duct and was unsure of the anatomy. But he also said that in 50% of the laparoscopic procedures, the common bile duct is not visualized; yet, such a test is not performed, because the surgeon is comfortable enough with the anatomy to proceed.

After reviewing all the evidence submitted in connection with the motion, we conclude that the trial court was correct in not applying the doctrine of res ipsa loquitur in this case. The doctrine is not a substitute for factual evidence; it is applied after the factual evidence has been submitted, and then only if there is sufficient circumstantial evidence to suggest that the only reasonable cause of the plaintiffs injury is the defendant’s breach of the standard of care. Dr. Bolton’s depositions, the medical review panel opinion, and Dr. Bonneval’s affidavit established that the standard of care was not breached. The Gisclairs submitted no evidence that Dr. Bonneval breached the standard of care in performing the laparoscopic surgery, and the facts adduced do not permit the conclusion that the injury alone creates a presumption of negligence. Therefore, the court was correct in granting the motion for summary judgment.

CONCLUSION

The judgment is affirmed. All costs of this appeal are assessed against the Gis-clairs.

AFFIRMED.

HUGHES, J., concurs.

      . In addition to objecting to the untimeliness of the Gisclairs’ submission, Dr. Bonneval contended it improperly referred to evidence precluded by the consent judgment on the motion to compel.

      . This is a Latin term meaning "the thing speaks for itself." Black’s Law Dictionary 1311 (7⅛ Ed. 1999).

      . Although the Pfiffner case is often cited as supporting the doctrine of res ipsa loquitur, there is no mention of this doctrine in the opinion.

      . Although the Gisclairs did not assign the exclusion of their evidence as error, their brief on appeal refers to the excluded evidence as if it should be considered by this court in reaching its decision. The evidence was properly excluded by the trial court; therefore, it does not form a part of the record upon which this court's de novo review is based.


author: WELCH, J. McCLENDON, J.,

text:
    Leroy McKNIGHT v. Admone McCASTLE.
    No. 2004 CA 2437.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied April 24, 2006.

      Craig S. Watson, Baton Rouge, for Plaintiff — Appellee Leroy McKnight.
    Mark D. Plaisance, Baker, for Defendant-Appellant Admone McCastle.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   WELCH, J.

| ¿This is an appeal by the defendantdes-sor, Admone McCastle, from a judgment rendered following a trial, finding the defendant 75% at fault and liable to the plaintiffilessee, Leroy McKnight, for damages sustained by Mr. McKnight when he fell through “steps” located outside the front door of the house that he was renting from the defendant. The plaintiff was found to be 25% at fault and has not appealed that finding. Finding no merit to the defendant’s appeal regarding liability or general damages, we affirm that portion of the judgment. However, for reasons that follow herein, the award for lost wages is amended to correct an erroneous calculation.

FACTS

The evidence presented at trial established that the plaintiff and his wife rented the house from the defendant in December of 1998. On July 3, 1999, Mr. McKnight was leaving to go to an aunt’s funeral when the “make-shift” concrete blocks and plywood which constituted the front steps to the house suddenly “caved in” under his foot, causing him to fall and slide down on his back. According to the plaintiff and his wife, Mr. McKnight immediately felt “excruciating pain” going down his back and his left leg and he knew that he had injured his back, but insisted, “I’m still going to my auntie’s funeral though.” According to the medical evidence presented, he sustained injuries including “lumbar radiculopathy secondary to a disc herniation” at the L5-S1 level with nerve root impingement on the left SI nerve root.

Both Mr. and Mrs. McKnight testified that they complained “numerous” times to Mr. McCastle about the deplorable and dangerous condition of the steps leading to the front door and that Mr. McCastle always responded to them that he would take care of it, but he never did. Mr. McCastle testified that he purchased the house in 1996 or 1997 and had rented it out since that time. He admitted to Isbeing the person responsible for the “overall general upkeep” of the house. However, according to Mr. McCastle, the house, including the steps, was in “good condition” other than a “slight leak in the sink that had caused the cabinet to kind of rot out a little bit.” Mr. McCastle denied ever receiving any complaints from the plaintiff or his wife regarding the steps and claimed that he first learned about plaintiffs fall and alleged injuries when this suit was filed. The defendant also presented the testimony of his son, Perón McCastle, who visited the rental house about once a year to pick pecans and testified that there was nothing wrong with the house and although it was an old house, it was in “living condition.”

The most significant evidence contained in the record consists of several photographs of the “steps” on which the plaintiff fell that were taken by the plaintiff after the accident. We place “steps” in quotations because to classify what is shown in the photographs as steps stretches quite far the definition of what is more commonly recognized as steps. Because these photographs are truly worth a thousand words, we can only best summarize what is depicted therein as a hollowed-out hole surrounded by broken-up concrete, which apparently, at some point in time in the past, served as the framework for steps. However, instead of steps, over the gaping hole, is a thin, obviously rotted and broken piece of plywood. Over this piece of plywood is a slightly more substantial looking piece of plywood that the plaintiffs testified they placed over the rotted piece that caved in during the accident. The photographs also reveal cinder blocks that the plaintiffs wife placed underneath the plywood inside of the hole after the accident to provide some support for the new piece of plywood.

Based on the foregoing evidence, the trial court ruled “that defendant owner knew or should have known of the defect and had requisite notice and failed to remedy the defect within a reasonable time.” In written reasons for judgment, the trial court made an express credibility determination finding that the plaintiff |4notified the defendant of the existing defects in the premises and still the defendant failed to remedy the danger. The trial court assigned 75% fault to the defendant and 25% fault to the plaintiff, whom the court found also knew of the substandard nature of the property in question, although unaware that it would cave in. The defendant appeals, raising five assignments of error.

LIABILITY

In his first assignment of error, the defendant claims the trial court erred in finding that a defect existed on the premises based only on “the testimony of the parties — and the introduction of a few photographs.” While defendant acknowledged plaintiffs testimony that the steps “were not much more than crumbled concrete and bricks upon which a quarter inch piece of plywood sat atop,” he argues that this condition did not prevent their daily use by the McKnights, who used the steps without incident preceding the accident; therefore, it was error to conclude they constituted a defect.

In his second assignment of error, the defendant argues the trial court erred in finding a defect existed absent any expert testimony regarding the dangerousness of the steps or any evidence regarding the age of the house and its conformity with building codes or other regulations.

Defendant’s arguments wholly discredit the evidence presented by the plaintiff, consisting of his and Mrs. McKnight’s testimony, which the trial court obviously found credible, and the very telling photographs. Defendant also ignores that, as a matter of law, this evidence is sufficient to establish by a preponderance of the evidence the existence of a defect, notwithstanding the lack of expert testimony. When a defect is open and obvious, such as the dilapidated hole serving as the front entrance to the house leased by the plaintiff, expert testimony is unnecessary, and common sense can, should and did prevail.

| sIn his third assignment of error, the defendant claims that the plaintiff as tenant agreed to assume responsibility for his own liability and to maintain the leased property in a safe and secure manner; therefore, the trial court erred in holding him liable. This assignment has no merit for several reasons. First, defendant admitted at trial that as the lessor, he considered himself as being the person responsible for the “overall general upkeep” of the house. This is correct as a matter of law. Louisiana Civil Code article 2696 provides that the lessor warrants that the property leased is free of vices or defects that prevent its use for that purpose. This legal warranty even extends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee. La. C.C. art. 2696. In this case, there was a sufficient factual basis for the trial court’s credibility determination and conclusion that the deplorable condition of the steps existed from the inception of the rental of the property by the plaintiff and that he complained to the defendant about the dangerous condition and requested that it be it repaired. Therefore, we may not disturb that finding.

Although the above-mentioned statutory warranty against vices and defects may be dispensed with as a condition of a lease and are not against Louisiana public policy, to be effective, such waiver must be written in clear and unambiguous terms, contained in a written contract, and brought to the attention of the lessee or explained to him. Walnut Equipment Leasing Co., Inc. v. Moreno, 26,004 (La.App. 2nd Cir.9/21/94), 643 So.2d 327, 332. The evidence presented by the defendant in support of his claim that the plaintiff assumed responsibility for his own liability falls short on all accounts. The defendant introduced a document entitled “Rental Agreement” which bears only his own signature and does not in any way name or mention the plaintiff. Indeed, the plaintiff testified that he never signed any such agreement with the defendant. Additionally, even if we were to find the agreement binding on the plaintiff, which we do not, we do hot find that | fithe language therein is sufficient to effectuate a legally binding assumption by the plaintiff of the lessor’s duty to maintain the property in a safe and secure manner, free from unreasonable risks of harm. The document merely states that “you are responsible for your liability and personal insurance on your personal belongings” and “we expect you to maintain the property in a safe and secure manner.” Nothing therein can be construed as shifting the lessor’s legal responsibility pursuant to La. C.C. art. 2696. See Nelson v. Parkhurst, 304 So.2d 72, 73 (La.App. 1st Cir.1974), writ denied, 307 So.2d 631 (La.1975) (where this court found language contained in a lease contract that imposed on a lessee the obligation to “keep the premises in a reasonably good condition” was insufficient to constitute a waiver of the lessee’s rights under the civil code to lease property free of vices and defects.)

QUANTUM

Defendant’s last, two assignments of error pertain to the amount of damages awarded.

General Damages

First, defendant argues that the trial court’s general damage award is excessive because plaintiff did. not seek medical care for his injuries for nearly one week, despite testifying to experiencing immediate excruciating pain, thereby failing to mitigate his damages. The trial court awarded plaintiff $30,000.00 in general damages. The evidence presented of plaintiffs pain and suffering from the injuries sustained in the fall on the steps consisted of the aforementioned testimony of the plaintiff and his wife regarding how Mr. McKnight’s back and foot struck the concrete surrounding the portion of plywood that caved in when he stepped on it. Mr. McKnight testified that he felt immediate excruciating pain and Mrs. McKnight testified that he expressed; such pain to her. Although Mr. McKnight did proceed with his plans to attend his aunt’s funeral, he testified that he did so despite the pain. Although he was supposed to be a pallbearer at the funeral, he 17testified that the pain he was experiencing prevented him from doing anything more than place his hand, without any weight, on the handrail around the coffin, and that he let the other pallbearers know that he had been injured and was unable to help.

The plaintiff and his wife testified that the pain in his back and leg persisted and worsened to the point of him experiencing “leg drop”. Six days after the accident, on July 9, 1999, he sought medical treatment from his regular treating physician at Sta-nacola Medical Center, Dr. Daniel Wray, and subsequently from Drs. Acosta and Mitchell, to whom he was referred. Notwithstanding that he underwent x-rays, an MRI, physical therapy and acupuncture from July through October of 1999, when he was released from medical care, Mr. McKnight testified at the time of trial, in 2004, that the injury he suffered as a result of the fall on the steps in 1999 still causes him “nothing but pain ... constant, year around.” He testified that as of the date of trial, March 1, 2004, the pain from his injury restricted his daily activities, including simply getting out of bed in the mornings, strained his marital relationship, and prevented him from doing any kind of physical work. He testified that he returned to work at Home Depot when his doctor released him at the end of October, but that by December, the constant pain in his back and leg was so persistent that he could no longer work and was forced to quit. He testified at trial, that for a while, he held a sedentary job at Southern University, but that he had been laid off and was currently unemployed.

The record also contains Mr. McKnight’s medical records. These reveal that he saw Dr. Wray as testified on July 9, 1999, complaining of low back pain and numbness and shooting pain down the left leg for approximately one week. Dr. Wray ordered X-rays of the lumbar spine, which revealed “a mild narrowing of the L5-S1 disk space.” Dr. Wray prescribed pain medication and referred Mr. McKnight for a neurosurgical consultation with Dr. Acosta. Dr. Acosta saw Mr. IsMcKnight on July 13, 1999, at which time he diagnosed him with “probable L4-L5 radiculopathy” and ordered an MRI and an EMG/nerve conduction study of the lumbosacral spine. Dr. Acosta also started the plaintiff on physical therapy and pain medications. The plaintiff also introduced the deposition testimony of Dr. Horace Mitchell, another neurosurgeon Mr. McKnight saw at Dr. Acosta’s request at the NeuroMedical Center on August 25, 1999. Dr. Mitchell testified that the plaintiffs history revealed a slip and fall on some steps in July after which he had experienced immediate and persistent back and left leg pain. Dr. Mitchell testified that the MRI showed a “central disc protrusion at L5-S1 that was slightly eccentric to the left side” as well as nerve root impingement at L5-S1 on both sides, findings which would correlate with the problems and complaints the plaintiff was having. Dr. Mitchell also performed a physical examination of the plaintiff, which he testified also correlated with the symptoms of which the plaintiff complained. Dr. Mitchell gave Mr. McKnight a 10% anatomical disability rating, restricted his physical activities to no heavy lifting or repetitive twisting and prescribed lumbar traction. Dr. Mitchell testified that if the plaintiff continued to suffer from back pain after the recommended therapies, he would need future medical care that could range anywhere from more physical therapy to pain management to surgery for discectomy. However, Dr. Mitchell only saw plaintiff that one time; plaintiffs continued treatment through September and October was with Dr. Acosta. The last documented visit with Dr. Acosta was on October 11, 1999, at which time he noted that the plaintiff returned “post physical therapy and traction,” that he was doing much better and his exam was totally normal. At that time, he released the plaintiff to return to work. Notwithstanding the plaintiffs testimony that persistent pain caused him to quit work in December of 1999 and return to doctors for medical treatment, and that he was still in constant pain and unable to engage in any physical activity, the record contains no medical records beyond October 1999.

| sAgainst the backdrop of this evidence, we must evaluate defendant’s claim that $30,000.00 awarded in general damages is excessive. First, there is no merit to the defendant’s assertion that the award is excessive because plaintiff failed to mitigate his damages by enduring his pain and postponing medical treatment for approximately one week. First, this argument is unsupported by law. A plaintiff does not fail to mitigate his or her damages simply by delaying to seek medical help when the delay is not unreasonable and did not aggravate the injury. In Jackson v. Safeway Insurance Company of Louisiana, 2004-211 (La.App. 3rd Cir.6/30/04), 879 So.2d 364, 367-368, the court rejected defendant’s similar argument where the plaintiff in that case waited ten months after an accident to seek medical attention upon finding the delay not unreasonable and the medical evidence failed to establish' that his injuries were in any way worsened by the delay. In Dubroc v. Swain, 2002-0763 (La.App. 3rd Cir.12/11/02), 833 So.2d 538, 539-540, the same argument was rejected where the plaintiff waited three days to seek initial medical treatment and also had a five^ — month gap in treatment which she explained was due to financial concerns. In this case, there is no medical evidence that the plaintiffs injury or condition worsened in any way simply because he waited one week to seek medical treatment. The record, including the medical records and testimony, provides a reasonable factual basis for finding that Mr. McKnight injured his back and leg when he fell on the steps and that he suffered general pain and suffering as a result of that accident. According to the plaintiff, he has suffered constant pain and an inability to engage in physical activity .from the date of the accident in July of 1999 through the date of the trial in March of 2004, approximately five years. While we agree with the defendant that the record fails to contain any evidence of medical treatment sought by the plaintiff beyond his release in October 1999 to corroborate his claim of pain and inability to function beyond this date, there is no evidence that that trial court. hnfailed to take this into consideration or that it otherwise abused its discretion in awarding $30,000.00 in general damage based on the evidence presented. Summarized, this includes at least three months of documented persistent and disabling back and leg pain, with correlated objective medical findings, months of acupuncture, physical therapy and pain medication resulting in an inability to engage in any physical activity, including difficulty in getting out of bed. The plaintiff also underwent an MRI, EMG and nerve conduction studies.

The discretion vested in the trier of fact is “vast” and the deference owed is so great that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.), cert. denied, 508 U.S. 910, 113 S.Ct. 2342, 124 L.Ed.2d 252 (1993). The reason for the vast discretion afforded the trier of fact is that reasonable persons frequently disagree about the measure of damages in a particular case. 7d Thé reason for the great deference is that the trial court, sitting as the trier of fact, is in the best position to observe and evaluate the witnesses’ demeanor, including any outward manifestations of pain and/or restricted movement and is also in a superior position, to assess the credibility of the witnésses than this' court, which reviews the evidence from a “cold” record. Given these guidelines and limitations, we simply do not find that the trial court’s award of $30,000.00 in general damages to this plaintiff amounts to an abuse of discretion.

Lost Wages

The trial court also awarded the plaintiff past lost wages in the amount of $7,014.00. In his last assignment of error, the defendant claims the record supports no award for lost wages, since it contains only the plaintiffs testimony regarding his hourly rate of pay but no evidence of the number of hours worked or the amount of work missed as a result of his injuries.

InOur review of the record however, reveals sufficient evidence to support an award for lost wages, but the amount awarded by the trial court exceeds the amount supported by the evidence and must be amended accordingly. The plaintiff testified that at the time of the accident he was employed as a sales associate for Home Depot, earning $8.35 per hour. He testified he had been employed with Home Depot for two to three years and prior to that, he had been a paramedic with the fire department for one to two years. The plaintiff also testified, and the medical records corroborate, that he missed work due to his injuries from the date of the accident, July 3, 1999, through October 11, 1999, when he was released to return. Thus, the record supports that the plaintiff missed fourteen weeks of work (lost wages) as a result of this accident. We also find no abuse of the trial court’s discretion in deducing from the plaintiffs testimony that his employment with Home Depot was full time. Therefore, the record supports a lost wages award for fourteen weeks of work missed, at forty hours per week, at $8.35 per hour, which amount totals $4,676.00. The trial court’s award of $7,014.00 is supported only by the plaintiffs calculation in a post-trial memorandum, which is neither evidence itself, nor is it supported by the evidence in the record. Therefore, the award for lost wages is amended to $4,676.00.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to reduce the damage award for lost wages from $7,014.00 to $4,676.00. In all other respects, the judgment is affirmed at appellant’s cost.

AMENDED; AFFIRMED AS AMENDED.

MCCLENDON, J., concurs in part and dissents in part and assigns reasons.

McCLENDON, J.,

concurs in part, dissents in part.

hi respectfully concur in the finding of liability and allocation of fault. Although I may have found the plaintiff more than twenty-five percent at fault, this court may not substitute its evaluations or inferences of fact for those of the factfinder, below absent manifest error. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

However, on the issue of the amount of general damages, I respectfully dissent. Under the particular facts of this case, with a plaintiff who received less than four months of active medical treatment and was released to return to work, I find that the award of $30,000.00 was an abuse of the trial court’s discretion. See Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993).