author: AMY, Judge.

text:
    Henry Lorell GRAHAM v. AMBERG TRUCKING, INC.
    No. 07-573.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Rehearing Denied Dec. 26, 2007.

      Ronald J. Fiorenza, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellant, Amberg Trucking, Inc.
    James L. Carroll, Mixon & Carroll, PLC, Columbia, LA, for Plaintiff/Appellee, Henry Lorell Graham.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

^ The plaintiff filed for workers’ compensation benefits after sustaining injury while in the course and scope of his employment. Following treatment, the plaintiffs doctor released him to return to work. However, the plaintiffs employment was terminated on the day he returned to work. Believing that his discharge was due to his having filed a workers’ compensation claim, the plaintiff filed suit against his employer for retaliatory discharge under La.R.S. 23:1361. Following a trial, the trial court found in the plaintiffs favor and awarded damages and attorney fees. The defendant appeals. For the following reasons, we reverse and render.

Factual and Procedural Background

The record indicates that the plaintiff, Henry Lorell Graham (Graham), began working for the defendant company, Am-berg Trucking, Inc. (Amberg Trucking), on July 7, 2003, as a gravel truck driver. Graham testified that on July 28, 2004, he was hauling material from one job location to another. He explained that when he started accelerating, the truck began to shake, and when he approached the “Vixon curve[,]” the truck was shaking. Graham slowed, regained control of the truck, and resumed driving. Graham stated that as he was trying to avoid hitting a pothole in the road, the truck shook and veered off the road. He testified that the truck “had turned over on its side” and that his shoulder was injured as a result. Graham further testified that a truck subsequently arrived on the scene and that the driver helped pull him from the vehicle. Once free, Graham called James “Jay” Amberg, Il(Jay), manager of Amberg Trucking, and informed him of the accident and his injury.

According to Graham, Jay “asked was I going to be all right. I said, yeah, I need to go to the doctor. And ... he asked about the truck and I said, well, it wasn’t ... he just didn’t want it in the way. I said, it’s in the ditch on its side and he said he |j>would call Bobby.” Graham testified that Bobby drove him to Winnfield Medical Center and that x-rays showed a broken collarbone. He was put in a brace and a sling. Graham stated that the next day, he called Jay after his doctor’s appointment to tell him what the doctor had said. According to Graham’s testimony, Jay asked that he request that his medical records be released to him; Graham complied.

Graham testified that after every doctor’s appointment, he called Jay to keep him abreast of his medical condition “[because he was mad at me, wanting to fire me and I ... needed my job.” According to Graham, in November 2004, he contacted Jay to address rumors that he was participating in certain physical activities. He testified that Jay insisted that, “you’ve got a job, a truck waiting on you, just get well.” Furthermore, he testified that in February 2005, he called Jay and told him that he had a doctor’s appointment in two weeks and that in all likelihood, his doctor would release him to return to work. Graham maintained that Jay said, “okay, come on.”

Graham stated that his doctor released him on Friday and that he returned to work on Monday morning. He went inside the shop and sat at a table. Jay subsequently arrived, got a cup of coffee, and sat on a bench. Graham stated that he approached Jay and gave him his doctor’s release. According to Graham, Jay did not say anything to him; therefore, he returned to his seat. Jay handed out work assignments, and the men, including Graham, ventured outside. He explained that Jay followed them outside and “hollered for me to come back, hollered, Lorell, come here. I turned and I went back and he said, I’m sorry, I ain’t got nothing for you.” Bewildered, Graham responded, “you just told me on the phone I had a truck and a fjob waiting on me.” Graham testified that Jay stated, “well, four months ago I did.” He stated that their conversation was interrupted when another employee began speaking with Jay. Graham returned home.

According to Graham, he filed for unemployment benefits but did not receive them because he was able to find employment rather quickly. However, his wages were not comparable to what he was earning at Amberg Trucking. He filed suit against Amberg Trucking, alleging that his employment was terminated because he filed a workers’ compensation claim.

Following a trial, the trial court found that Amberg Trucking illegally terminated Graham in violation of La.R.S. 23:1361. It, therefore, ordered Amberg Trucking to pay Graham the amount he “would have earned except for the retaliatory discharge but no more than one year’s earnings from February 22, 2005 to February 21, 2006, i.e., THIRTY THREE THOUSAND, EIGHT HUNDRED AND NO/100 ($33,-800.00) DOLLARS.” Amberg Trucking was also ordered to pay $4,000.00 in attorney fees, court costs, and legal interest.

Amberg Trucking appeals, asserting the following assignments of error:

I. In contravention of the facts presented at trial, the trial court erroneously held Amberg Trucking, Inc. discharged Mr. Graham because of his application for workers’ compensation benefits.
II. The trial court improperly permitted rebuttal testimony of witnesses who were neither identified on the plaintiffs pretrial memorandum nor sequestered during the trial.

Discussion

Retaliatory Discharge

Amberg Trucking argues that Graham has not proven by a preponderance of the evidence that he was discharged for filing a workers’ compensation claim. It |4alleges that the “evidence submitted by Mr. Graham [ ] does not preclude other, more reasonable hypotheses regarding the basis for his termination. Rather, Mr. Graham balances his claim upon several unsupportable allegations.” Amberg Trucking asserts that Graham was terminated due to its dire financial situation at the time Graham returned to work.

Louisiana Revised Statutes 23:1361 provides in pertinent part:

B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings.of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with reasonable attorney’s fees and court costs.

“The purpose of La.R.S. 23:1361 is to allow employees to exercise their right to workers’ compensation benefits without fear of retaliatory action by their employers and to prevent unjust dismissals.” Penn v. Louisiana-1 Gaming, Ob-928, p. 4 (La.App. 5 Cir. 4/11/07), 954 So.2d 925, 928. Because La.R.S. 23:1361 is penal, it must be strictly construed. Id.

To maintain an action for retaliatory discharge under La.R.S. 23:1361, the employee must prove, by a preponderance of the evidence, that he was terminated because he asserted a claim for workers’ compensation benefits. Id. To satisfy his burden of proof, the employee can present direct evidence that he was discharged because of the assertion of the claim, or he can present circumstantial evidence which ^sufficiently establishes more probably than not that he was discharged because of the assertion of the claim. Id.

The employee will not recover if the employer provides a non-diseriminato-ry reason for the discharge and presents evidence sufficient to prove more probably than not that the discharge was related to something other than the assertion of a claim for workers’ compensation benefits. Id. “If, the employer offers another reason for firing the workers’ compensation claimant, the trial court must ascertain the employer’s true reason or motive based on the facts presented.” Id. at 928. If the employer’s reason is found to be more probably than not merely a guise for retaliatory discharge, the employee is entitled to recover. Id. “The trial court’s ruling that plaintiff was fired for filing a compensation claim is a question of fact, which may not be disturbed by this court in the absence of manifest error.” Bailey v. Martin Brower Co., 94-1179, p. 8 (La.App. 1 Cir. 4/7/95), 658 So.2d 1299,1308.

In finding that Graham was wrongfully discharged, the trial court stated, in its reasons for judgment, that:

The evidence is that while the defendant expresses concern that the plaintiff frequently “drove too fast” and that the defendant was very upset when the plaintiffs wreck of July 28, 2004 totaled the eighteen wheel dump truck, nevertheless, the defendant did not document dissatisfaction with the plaintiffs work in plaintiffs employment records and took no punitive actions or corrective counseling to try to alleviate these problems. The Court further notes that while the defendant justifies the firing of plaintiff because of lack of work, the defendant did in fact replace the plaintiff with another driver. Finally, the defendant’s manager/co-owner testified that three other employees were discharged from employment of defendant' at about the same time of the plaintiffs discharge but, the defendant presented no testimony from these other three co-workers and presented no documents relating to these allegations regarding these three workers.
While the financial records of Amberg Trucking do somewhat demonstrate the seasonal nature of the business[,] the Court holds that | nthe plaintiff has proved [by] a preponderance of evidence that his termination, was a retaliatory action by Amberg Trucking, Inc.

After reviewing the record, we find that it does not support the trial court’s determination that Graham proved by a preponderance of the evidence that he was discharged because he filed a workers’ compensation claim. Jay testified that within twenty-four hours of learning of Graham’s injury, he filled out a report for the workers’ compensation company. He corroborated , Graham’s testimony that when he spoke to him in October, he told Graham that he had a job and that he could come back to work. Jay revealed that in January 2005, Amberg Trucking owed an outstanding debt in the amount of $90,000.00. Although he told Graham “to come on” when they spoke in February 2005, Jay testified that at that time the company was experiencing severe financial difficulties in that, “[w]e were losing money, it was raining every day, business conditions were bad.”

Jay testified that he did not tell anyone, including Graham, that he was going to terminate his employment. Rather, he testified that that decision was not made until the day that Graham returned to work. According to Jay, Graham was discharged because the company was having financial problems. He testified that he told Graham “that we didn’t have any work and that I was laying him off. And that’s all I said.” According to Jay, Graham stated, “I did not wreck your truck on purpose or I did not mean to wreck your truck.” Jay did not respond but re-entered the shop. He asserted that there was no further contact between him and Graham until the instant litigation.

When plaintiffs counsel called O.A. Bor-delon, an employee of Amberg Trucking, to the stand, Bordelon testified that while he may have spoken to Jay about |7Graham’s accident, he did not recall conversing with Jay about Graham’s future employment with the company. Further, when asked whether Jay revealed that he wanted to fire Graham, Bordelon responded, “I can’t remember if he did. I don’t think he did.”

In an effort to impeach Bordelon’s testimony, plaintiffs counsel called Graham’s sister, Brenda Graham, and his brother, Todd Graham, as witnesses. According to Brenda Graham, Bordelon’s ex-wife, she had a conversation with Bordelon two days after Graham’s accident wherein Bordelon disclosed to her that Jay stated that “he wished he could fire [Graham] for having the wreck.” Likewise, Todd Graham testified that “a week or so after [the accident] happened [Bordelon and I] were talking and he made the remark ... that Jay said if it was up to him he’d fired him, but it wasn’t because it was up to his daddy.” According to Todd Graham, Bordelon reiterated this statement “a month or two later[.]”

Graham testified that on the day after his accident, he spoke with Bordelon and that following that conversation, he maintained contact with Jay “[b]ecause he was mad at me, wanting to fire me and I was ... I needed my job.” According to Graham, he called Jay in November 2004 to “let him know there’s lies being told about me.” ■ He stated that Jay remarked, • “I ain’t got time for this .... you’ve got a job, a truck waiting on you, just get well.” Graham testified that when he informed Jay in February 2005 that his doctor would probably soon release him to return to work, Jay stated, “okay, come on.”

Graham testified that when he returned to work with his doctor’s release, Jay stated, “I’m sorry, I ain’t, got nothing for you[,]” to which he replied, “you just told [¡¡me on the phone I had a truck and a job waiting on me.” According to Graham, Jay answered, “well, four months ago I did.” When their conversation was interrupted, Graham left the premises.

Graham opined that his employment was terminated because he filed a workers’ compensation claim. He; explained that Jay “led me on and told me that I had a job. Then when I went back I, I was off workers’ comp, he let me go, told me I ... he wasn’t even planning on me coming back. You know, so he didn’t, lay me off, he pretty well fired me the way I look at it.”

The timing of Graham’s discharge alone does not establish that he was discharged because he filed a workers’ compensation claim. King v. Career Training Specialists, Inc., 35,050 (La.App. 2 Cir. 9/26/01), 795 So.2d 1223. Graham, therefore, references the testimonies of Brenda and Todd Graham to further support his position. We note that Brenda Graham testified that when speaking with Bordelon two days after Graham’s accident, Borde-lon told her that Jay stated that he wished he could- fire Graham “for having the wreck.” Similarly, Todd Graham testified that he spoke with Bordelon a week after Graham’s accident and that Bordelon asserted that Jay stated that if it was up to him, he would fire Graham. There is no indication that Jay stated that he wanted to fire Graham for filing a workers’ compensation claim.

The evidence is insufficient to prove that Graham was terminated because he filed a workers’ compensation claim. Insofar as Graham’s claim relies on mere allegations, we find that the trial court was manifestly erroneous in determining that he proved by a preponderance of the evidence that he was discharged because he filed a workers’ compensation claim.

| ^Accordingly, this assignment is without merit.

Witnesses

Amberg Trucking argues that the “trial court erred in allowing the plaintiff to call Ms. Brenda Graham and Mr. Todd Graham as rebuttal witnesses.” It contends that their testimonies were prejudicial insofar as they were not listed as witnesses in the pretrial order, and they were not sequestered. As we have concluded that Graham failed to carry his burden of proof, even with this witness testimony, this assignment is rendered moot.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Judgment is rendered in favor of Amberg Trucking, Inc. All costs of this appeal are assessed against the plaintiff, Henry Lorell Graham.

REVERSED AND RENDERED.

      . The record does not reveal Bobby's last name.

      . According to Graham's testimony, this con-versalion-occurred in November.

      . Graham stated that “I’d been hearing some stuff that I was doing ... going and doing everything, you know, fishing, hunting, doing everything and I wasn’t.”


source: Caselaw Access Project

author: AMY, Judge. THIBODEAUX, Chief Judge,

license: Public Domain

text:
    Leslie R. ROACH, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 07-352.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Rehearing Denied Dec. 26, 2007.

      Frank M. Walker, Jr., Plauche’, Smith, & Nieset Post, Lake Charles, LA, for Defendant/Appellee, State Farm Mutual Automobile Insurance Company.
    Norman J. Thigpen, Barry A. Roach, Larry A. Roach, Inc., Michael K. Cox, Cox, Cox, Filo, Camel and Wilson, Lake Charles, LA, for Plaintiffs/Appellants, Leslie R. Roach, Larry A. Roach, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

_JjA passenger in a vehicle claimed that she suffered injury to her neck when the driver attempted to avoid a collision with another vehicle. Suit was filed against the plaintiffs’ automobile liability insurer. Following a trial, the jury found that although the driver was negligent, the passenger’s injury was not caused by the accident. The plaintiffs appeal this finding as well as the trial court’s denial of their directed verdict on liability and causation. For the following reasons, we affirm.

Factual and Procedural Background

This dispute involves an accident that allegedly occurred on October 21, 2000. According to Larry Roach, Jr., he, his wife, Leslie Roach, and their two children, Linsey and Larry A. Roach, III, were traveling to a football game in Natchitoch-es, Louisiana. Mr. Roach, the driver of the vehicle, testified that as he was approaching an intersection, he turned around to the rear of the vehicle, where Mrs. Roach was seated, and asked her to get him a drink from the back of the vehicle. He stated that when he returned his attention to the roadway, he did not notice that the traffic signal had turned red. Consequently, he began proceeding through the intersection before noticing that an eighteen-wheeler was entering the intersection as well. Mr. Roach testified that because he did not have ample time to apply his brakes, he “swerved very hard to the left, basically through the corridor into a skid. And [he] was able to avoid the front of the 18-wheeler.”

As a result of this evasive maneuver, Mr. Roach stated that his vehicle was in danger of colliding with another vehicle on the other side of the road. He explained what transpired next:

I had to throw the car to the right. When I did, the car went into a skid and starting rotating turning in a rotation sideways. And then I, you know, I hit the brakes. And we ended up sliding through the intersection and up against, what I would say is about a six-inch straight | ?curb and then a concrete embankment that went up like this (indicating). So the car slid side — skidded sideways, tires hit against that curb, jerked very violently, and then kind of bounced up on the curb and stopped up against the embankment.

Mr. Roach testified that “everybody was kind of shaken up. My wife told me that her neck popped and was burning.” He explained that because they thought that the injury to Mrs. Roach’s neck was just “a strain or sprain type thing[,]” the family decided to continue their trip. Mr. Roach testified that they left the scene before anyone could stop and offer assistance and that he did not feel the need to report the accident.

Mrs. Roach maintained that not only was she in pain for the rest of the day but that she “had neck pain and a headache for about one or two weeks.” She testified that because of her nursing background, she became alarmed when:

all of a sudden, the pain from the neck started progressing down to my shoulder and then down into my elbow, right elbow. And it was not getting better with, you know, just trying to take some Advil, taking a warm shower, those things, and it wasn’t getting any better.

According to Mrs. Roach’s testimony, she contacted her family doctor, Dr. Arthur Primeaux, two to three weeks after the accident occurred. Mrs. Roach testified that she engaged in a telephone conversation with Dr. Primeaux in which she “told him that we had been involved in a little accident, but I was having neck pain radiating down my shoulder into my arm.” She explained that Dr. Primeaux ordered a stress test “to rule out a cardiac problem. And then we also discussed doing cervical x-rays to check my neck.” Mrs. Roach subsequently met with Dr. Primeaux to discuss the test results and the best course of treatment. According to her testimony, the x-rays and the stress test came back normal, and Dr. Primeaux gave her an order |sfor physical therapy. The record indicates that Mrs. Roach attended physical therapy for approximately three weeks.

Mrs. Roach testified that in December 2000, Dr. Primeaux ordered an MRI on her cervical spine which showed that there were some abnormalities. He, therefore, referred her to Dr. Alan Sconzert, a neurologist, whom she first visited on May 24, 2001. According to a report for that visit, Dr. Sconzert examined the December 2000 MRI and opined that she had herniated discs at the C4-C5, C5-C6, and C6-C7 levels. Nerve conduction studies and an EMG were performed on May 29, 2001. According to the record, Dr. Sconzert found that there was “evidence of a moderate left carpal tunnel syndrome and mild chronic right C5-C6 radiculopathy.” He recommended that Mrs. Roach meet with a neurosurgeon in regard to the cervical radiculopathy.

The record shows that Mrs. Roach first met with Dr. John Raggio, a neurosurgeon, on August 10, 2001. Dr. Raggio testified that during that initial visit, Mrs. Roach complained of “intermittent pain in her neck radiating to the right shoulder and elbow with weakness of the grip in that right hand, after her neck was popped while she was riding in a passenger car.” He further testified that he “reviewed an MRI scan that showed a disc abnormality at C5-6 on the right side with x-ray abnormalities on the regular x-ray showing narrowing and deterioration of the disc at C4-5.” According to Dr. Raggio, he informed Mrs. Roach that she was a candidate for surgery, but she stated that her symptoms were not severe enough to warrant that option.

According to her medical records, Mrs. Roach did not seek any medical treatment specifically for her neck for the next four years. When asked why she did not visit any doctors in that time period, Mrs. Roach explained:

14Well, because, again, through physical therapy they showed me different exercises I could do, home treatments I could do, again, like a warm shower, soaking in the warm tub, applying a warm heating pad, sometimes an ice pack. Also, Dr. Raggio had showed me about the traction. Taking over-the-counter medications like Advil, Tylenol _I had also been ... prescribed Bextra and Celebrex, of which I work for Drs. Brown, Chua, and Prestía at that time. And with their permission, I got my samples for free which didn’t cost me any medicine [sic], so I was able to access that.

Mrs. Roach stated that during this period, she was never completely pain free in that she had what she called-“flare ups,” where she would experience a lot of pain in her neck that would eventually subside. However, she remarked that around June 2005, she had a flare up that “just wasn’t easing up. Everything that I had been trying in the past was not giving me any relief, or not substantial relief. It just increased with time.”

Upon seeing Dr. Primeaux in September 2005, Mrs. Roach was once again referred to Dr. Raggio, whom she saw in November 2005. Dr. Raggio reaffirmed his position that surgery was the most viable solution to Mrs. Roach’s problems. Mrs. Roach testified that in February 2006, she underwent surgery and that since then, she is “[a] hundred percent better” in that she no longer has pain in her neck, shoulder, or arm.

Mrs. Roach filed suit against State Farm Mutual Automobile Insurance Company, her automobile liability insurer, for the injury she sustained in the October 21, 2000 accident, as well as for her children’s loss of consortium claims. A jury trial was held in October 2006. At the close of the evidence, the plaintiffs moved for a directed verdict on liability and causation. The trial court denied the motion. Following deliberation, the jury found that Mr. Roach’s actions on October 21, 2000 fell below the applicable standard of care. However, it did not find that Mrs. Roach ^sustained injury as a result of the accident. The plaintiffs now appeal, designating the following as error:

1. The Trial Court erred in failing to grant the plaintiffs a Directed Verdict on liability and causation.
2. The Jury erred in failing to find Leslie suffered injury in the October 21, 2000 accident.
3.The Jury erred in failing to award damages to the plaintiffs.

Discussion

Causation

The plaintiffs contend that the jury erred in failing to find that the October 21, 2000 accident caused Mrs. Roach’s neck injury. They reference Mrs. Roach’s medical records and testimony, as well as the testimony of Mr. Roach and her treating physicians.

In Williams v. State Farm Mutual Automobile Insurance Co., 36,439, p. 4 (La. App. 2 Cir. 10/23/02), 830 So.2d 379, 382, the court stated that “[wjhether the accident caused the plaintiffs injuries is a factual question which should not be reversed on appeal absent manifest error.” “Credibility determinations, including the evaluation and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error.” Id.

At trial, Mr. Roach testified that before the accident on October 21, 2000, Mrs. Roach never complained of any injury to her neck, nor did she receive any medical treatment for her neck. On the day of the accident, she relayed to him that her neck popped and was burning. Mr. Roach testified that his wife told him that the pain radiated into her shoulder, elbow, and arm. He further testified that she wanted to try | ^conservative treatment because she was concerned of the risks and complications that may arise from having neck surgery. Mr. Roach explained that every couple of months, Mrs. Roach would have a flare up.

Mr. Roach acknowledged that Mrs. Roach was involved in a car accident in July 2001. He stated that she complained that the accident aggravated her neck in that she had “a little stiffness and soreness.” Mrs. Roach did not seek any medical treatment or file any claim or lawsuit for her injuries. According to Mr. Roach, in February 2002, his wife was involved in another car accident. “[S]he complained that it made her neck bother her a little bit.” Mr. Roach testified that in September 2005, his wife saw Dr. Primeaux because she was experiencing new symptoms that were not going away, and she was becoming concerned. After seeing Dr. Raggio in November 2005, she decided to undergo surgery, which was ultimately performed in February 2006.

At trial, Mrs. Roach testified similarly to her husband insofar as she maintained that she did not have any neck injuries prior to the October 21, 2000 accident that required medical treatment. She insisted that on the day of the accident, she “felt an immediate pop and burning in [her] neck. Very painful.” Mrs. Roach explained that despite her pain, the family continued on their trip because she did not want to deprive her children of certain experiences related to the football outing.

According to Mrs. Roach, she had pain in her neck for approximately one or two weeks that “started progressing down to my shoulder and then down into my elbow, my right elbow.” She estimated that two to three weeks after the accident, she called and visited Dr. Primeaux and explained the problems she had been having as a result of the accident.

17Pr. Primeaux testified that when he spoke on the telephone with Mrs. Roach in November 2000, she informed him that she had been in an accident. He explained that he ordered a stress test based on “the pain she described” and that because she was a diabetic, he “wanted to be sure that there was not any involvement with the heart.” The stress test came back normal. Dr. Primeaux testified that when he subsequently saw Mrs. Roach, she complained of neck pain radiating down into her arms and numbness in her hands. He testified that he did not write down in his records that she had been involved in an accident. Rather the record for that visit contained the notation “Has been under stress.” Dr. Primeaux explained the omission of the accident from the records stating, “I know that we had talked about the McNeese game at that time, too. I’m unsure why I didn’t write it, but I know what we had discussed and I know there was an accident at that time.” On cross-examination, Dr. Primeaux testified that if the patient tells him his or her injuries and/or the source of those injuries, he normally writes it down if the chart is there; otherwise he tries to remember.

Dr. Primeaux testified that he gave Mrs. Roach some anti-inflammatory medication, but that it was not effective in alleviating her symptoms. Therefore, he ordered cervical x-rays which were normal, except for mild arthritis and degenerative changes at the C6-7 level. An MRI of Mrs. Roach’s cervical spine showed some abnormalities. Therefore, Dr. Primeaux referred her to Dr. Sconzert, who opined that | sMrs. Roach had three herniated discs and recommended that she follow-up with Dr. Raggio.

According to Dr. Raggio’s testimony, after reviewing an MRI performed in December 2000, he opined that “there was primarily a disc abnormality at C5-6.” When Dr. Raggio was asked if some of the findings on the MRI were degenerative, he responded affirmatively, explaining that “when you see disc space narrowing, bone spur formation, and loss of water content within the disc, that’s signs of deterioration of the disc material, which is a normal process of aging.” He further explained that these things can make a person more susceptible to a traumatic injury in that area. Dr. Raggio revealed that because Mrs. Roach was not reporting any pain at the time, he recommended surgery if her symptoms returned or persisted.

Mrs. Roach testified that since the October 21, 2000 accident, she had flare ups “off and on” and “then [she] would get okay.” She stated that she utilized physical therapy exercises, home treatments, traction, and medication to alleviate her pain. When asked if any physician had prescribed medication to her during that period, she answered, “I was prescribed it, but I did not need to call for refills or for a prescription because I was able to obtain the samples through my employer.” Upon further questioning, she admitted that she was not given a written prescription from any physician; rather, she informed her physicians that she would be able to procure the medicine through her employer.

Mrs. Roach confirmed that she was involved in an accident in July 2001, which aggravated her neck “[v]ery little.” Another accident occurred in February 2002, in which her neck was “getting a little aggravated, a little stiff[.]” She testified that in June 2005, she experienced a flare up that “just wasn’t easing up.” She revisited Dr. IpPrimeaux in September 2005, complaining of “strange tightness in [her] right neck, shoulder and forearm for the last two weeks.” He referred her back to Dr. Raggio.

Dr. Raggio stated that when he saw Mrs. Roach in November 2005, she complained of “right sided neck pain radiating to the right shoulder, outside of the arm, tingling of the hand.” She informed him that “she’s had problems in the past similar to this, but this is worsened since June of '05.” Dr. Raggio reviewed a new MRI, which showed that “it looked like it was a little bit worse at C6-7 than what [he] had seen previously.” In a report written to Dr. Primeaux dated November 7, 2005, Dr. Raggio opined that Mrs. Roach had “cervical spondylosis with radiculitis.” At trial, Dr. Raggio explained that spondylosis is the “degeneration of the spinal discs.” According to Dr. Raggio, Mrs. Roach agreed to his recommendation of surgery; surgery was performed on February 23, 2006.

With regard to the source of Mrs. Roach’s neck injury, Dr. Raggio testified that he did not know whether she received any injury from this accident. However, he explained that based on the history given to him by Mrs. Roach, it was his opinion that the car accident on October 21, 2000 caused her injury and subsequent symptoms. Nevertheless, after examining the December 2000 MRI, he was certain that the bone spurs and the loss of water in her discs were incapable of being caused by an accident that happened six weeks earlier.

Dr. Raggio indicated that he did not know that Mrs. Roach was involved in two subsequent car accidents in which she claimed that she aggravated her neck injury. In fact, he deemed it quite odd that she did not disclose her July 2001 accident because it occurred only a few weeks before her first appointment with him. He Imstated that she would have been more susceptible to re-injury as a result of this accident and that all of the accidents, combined, could cause wear and tear.

Based on the foregoing evidence, we find that there is a reasonable basis for the jury to have found that the plaintiffs failed to prove that the October 2000 accident caused Mrs. Roach’s injury. Although Mrs. Roach claimed that she immediately was in pain following the accident, she and her family continued on their trip, and Mrs. Roach waited approximately two weeks before she sought treatment with Dr. Primeaux. Although both Dr. Pri-meaux and Mrs. Roach maintained that she told him of the accident, there is no such notation in his records. To the contrary, there is a notation that states that she “has been under stress.” Dr. Pri-meaux asserted that he ordered a stress test because Mrs. Roach had chest complaints and because of her diabetic condition. However, neither the record nor Mrs. Roach’s testimony indicated such complaints. Dr. Sconzert opined that Mrs. Roach had three herniated discs whereas Dr. Raggio opined that there was a disc abnormality at the C5-6 level. Of importance is the fact that Dr. Raggio discovered problems with her discs that he concluded were degenerative in nature and could not possibly be caused by a recent car accident.

The jury heard testimony that although Mrs. Roach periodically saw Dr. Primeaux for various ailments in the years following her accident, she did not specifically seek medical treatment for her neck for four years. Mrs. Roach’s explanation was that she was utilizing conservative treatment and that, although she was prescribed medication, she was able to obtain free samples of medication from her employer. Mrs. Roach admitted that no physician had prescribed her medication for her neck injury. There was also testimony that Mrs. Roach had two subsequent | ^car accidents, which she claimed mildly aggravated her neck; yet, she failed to share this information with Dr. Raggio, even though the first subsequent accident occurred only weeks before her first appointment with him.

Given the circumstances, we find that the jury’s determination regarding causation was not manifestly erroneous. Our resolution of this assignment of error pre-termits discussion on the awarding of damages.

This assignment is without merit.

Directed Verdict

The plaintiffs argue that the trial court erred in denying their motion for directed verdict on liability and causation. Specifically, they assert in brief that Mr. Roach “admitted in his testimony that the accident was completely his fault and no one else contributed to it (judicially confessing his negligence and liability). He further admitted that his fault and negligence was the cause of [Mrs. Roach’s] injuries (judicially confessing his fault and negligence was the cause of [Mrs. Roach’s] injuries).” According to the plaintiffs, they “presented witness testimony, expert testimony and exhibits, which presented facts so overwhelmingly in favor of the plaintiffs that reasonable men could not arrive at a contrary verdict.”

Louisiana Code of Civil Procedure Article 1810 provides:

A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

Lain determining whether to grant a directed verdict, this court stated in Melancon v. Lafayette Insurance Co., 05-762, p. 12 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, 704, writs denied, 06-974, 06-1006 (La.6/16/06), 929 So.2d 1291, 1293:

Article 1810 does not establish a standard for the grant of a directed verdict, but these standards have been jurispru-dentially established. In Carter v. Western Kraft Paper Mill, 94-524, pp. 4-5 (La.App. 3 Cir. 11/2/94), 649 So.2d 541, 544 (citations omitted), this court outlined the applicable rules:
[A] directed verdict should only be granted when the facts and inferences point so strongly in favor of one party that the court believes reasonable people could not reach a contrary verdict. It is appropriate, not when there is a preponderance of evidence, but only when the evidence overwhelmingly points to one conclusion. The propriety of granting a directed verdict must be evaluated in light of the substantive law underpinning the plaintiffs claims.
Under the foregoing legal principles the question is not whether in our view the plaintiff has proven his case against defendants by a preponderance of the evidence, but rather, whether, upon viewing the evidence submitted, we conclude that reasonable people could not have reached a verdict in favor of the plaintiff against the defendants....
Questions of credibility should not be resolved by a directed verdict. Making credibility evaluations is one of the primary duties of a jury and the trial court may not take this duty from the jury unless the party opposing the directed verdict has failed to produce sufficient evidence upon which reasonable and fair-minded persons could disagree. Evaluations of credibility play no part in reaching a decision on a motion for directed verdict.

In denying the plaintiffs’ motion for directed verdict, the trial court explained:

[W]hen a motion is filed, the trial court may not take the duty of making credibility evaluations from the Jury unless a party opposing a directed verdict has failed to produce sufficient evidence under which reasonable and fair minded persons could agree.
And that’s the situation I feel like I’m in here. There are some credibility issues and I don’t feel comfortable taking that away from the Jury’s deliberations. So your Motion for Directed Verdict is denied on both issues.

| ,sAt the outset, we note that “a judicial confession is a party’s explicit admission of an adverse factual element and that it has the effect of waiving evidence as to the subject of the admission, of withdrawing the subject matter of the confession from issue.” Abshire v. Belmont Homes, Inc., 04-1200, p. 3 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, 280, unit denied, 05-862 (La.6/3/05), 903 So.2d 458 (quoting Cheatham v. City of New Orleans, 378 So.2d 369, 375 (La.1979)) (emphasis added). Here, Mr. Roach is neither a named plaintiff or defendant in this matter. Furthermore, any admission on his part is not adverse to his interests insofar as the plaintiffs (his family) would receive damages if the jury rendered a verdict in their favor.

We find that at the close of the plaintiffs’ case, there were credibility determinations to be made regarding causation. Therefore, we conclude that the trial court did not err in denying the directed verdict insofar as reasonable minds could disagree on this issue. With regard to liability, we note that no witness, besides Mr. Roach, testified as to how the accident happened. However, the question of whether Mr. Roach was entirely responsible for the accident was a credibility determination which was within the province of the jury to decide. Mr. Roach testified that the accident was not reported and that the family left the scene before anyone could offer assistance. After reviewing the record, we conclude that the trial court’s denial of the motion for directed verdict on liability was not in error.

Accordingly, this assignment has no merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against the plaintiffs, Leslie R. Roach, et al.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

hAn appellate court must give proper deference to the factual findings and credibility determinations of a trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989). That principle is so well-entrenched that a citation is hardly required. That principle, however, need not be adhered to if documents or objective evidence so greatly preponderate that manifest error may exists. Butler v. Zapata Haynie, 92-71 (La.App. 3 Cir. 2/23/94), 633 So.2d 1274. A reading of the record in its entirety convinces me that the jury was manifestly erroneous in failing to find the existence of an injury.

Mrs. Roach was examined by Dr. Rag-gio in August 2001 with complaints of neck pain and numbness and tingling in the hand. Dr. Raggio reviewed a December 2000 MRI performed by Dr. Sconzert, a neurologist. The MRI showed a disc abnormality at the C5-6 level on the right side and the narrowing and deterioration of the disc at C4-5. This MRI was administered before the July 2001 accident. According to Dr. Raggio, the MRI findings of December 2000 were consistent with what he visually observed during surgery, i.e., a disc abnormality at C5-6. Dr. Raggio’s Medical Provider Lien noted that the injuries for which Mrs. Roach was being treated were injuries that occurred in October 2000. Granted, Dr. LRaggio’s testimony was somewhat equivocal. For instance, he testified that, other than the history given by Mrs. Roach, he could not formulate an opinion on an injury occurring in October 2000. Further, during cross-examination, he could not say whether the MRI findings were caused by the October 21, 2000 accident. However, on re-direct examination, the following was elicited:

Q. The October 2000 accident, if the patient in this case reports a continuous unbroken chain of problems from the October 2000 accident all the way through to the 2006 surgery and you accept that as true, then you would maintain your opinion that the accident caused these problems and the need for surgery, correct?
A. I think it is part of the causation, yes. I mean, I think if there are other things that occurred of a traumatic nature, they were probably contributory.

State Farm chose not to call any witnesses. Thus, Mrs. Roach’s testimony went unchallenged. Dr. Raggio, in part, relied on her history and the objective evidence to formulate an opinion on causation. Where there is no sound reason for the rejection of testimony, an appellate court is not required to affirm “the trier of fact’s refusal to accept as credible uncon-tradicted testimony or greatly preponderant objectively-corroborated testimony....” Mart v. Hill, 505 So.2d 1120, 1127.

For the foregoing reasons, I respectfully dissent. I would find the existence of an injury and award appropriate damages consistent with the medical evidence.

      . Defense counsel noted that when Mrs. Roach saw Dr. Primeaux after being involved in a car accident in February 2002, his records reflected such accident and resulting injuries. It was also noted that Dr. Primeaux did not send her for a stress test. In response, Dr. Primeaux stated that following the February 2002 accident, she “was not complaining of chest pain or any type thing like that.” Defense counsel countered by asking if Mrs. Roach was complaining of chest pain in November of 2000. Dr. Primeaux answered that she had complained of neck, chest, and shoulder discomfort.

      . We note that the defendant did not call any witnesses. It did, however, introduce some of Mrs. Roach's medical records into evidence.


author: WILLIAMS, J.

text:
    Ruth Covington JOHNSON, Plaintiff-Appellant v. The UNOPENED SUCCESSION OF ALFRED COVINGTON, JR., et al., Defendants-Appellees. Columbus Covington, et al, Plaintiffs-Appellants v. The Unopened Succession of Alfred Covington, Jr., et al., Defendants-Appellees.
    Nos. 42,488-CA, 42,489-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 2007.

      Charles E. Herring, Jr., for Appellant.
    Daniel J. Ellender, Monroe, for Appel-lee.
    Before WILLIAMS, STEWART and CARAWAY, JJ.
   WILLIAMS, J.

| plaintiffs, Ruth Covington Johnson, Columbus Covington, Melvyn Covington and Roosevelt Covington, seek reversal of the district court’s ruling granting exceptions of prescription in favor of defendants, The Unopened Succession of Afred Cov-ington, Jr., The Unopened Succession of Rose Edwards Covington and the Afred Covington, Jr. Revocable Trust. For the reasons that follow, we affirm the district court’s ruling.

FACTS

Alfred Covington, Sr. (“Afred, Sr.”) died testate in Morehouse Parish on December 4, 1984. During his life, he married twice: first to Apolian Dorsey Cov-ington (“Apolian”), then to Josephine Covington (“Josephine”). Eleven children were born during Afred, Sr.’s marriage to Apolian. During their marriage, Afred, Sr. and Apolian acquired a substantial amount of land in and around Oak Ridge, Louisiana. They were divorced in 1947. When the community property was partitioned, they each received approximately 120 acres of land and Apolian received the family home. Afred, Sr. later married Josephine, and five children were born during the marriage.

In Afred, Sr.’s last will and testament, dated January 23, 1983, he bequeathed all of his property to his “legitimate children, natural children and grandchildren” in equal shares. The will appointed Travis Holley as executor of the estate and as the attorney to probate the will. Holley petitioned the court to sell the 120 acres for $40,000. The descriptive list estimated the value of the property to be $120,000.

Ater complying with the advertising requirements and receiving no ^opposition, the court entered a judgment of homolo-gation on June 26, 1986 authorizing the sale of the land for $40,000. On July 3, 1986, Holley conveyed the property by cash deed to Afred Covington, Jr. (“Alfred, Jr.”) for $40,000. On August 10, 1987, Holley filed a final accounting, reflecting that $12,618.84 in cash was available for distribution after the payment of all succession debts. The 20 legatees received approximately $600 each. Afred, Jr., a resident of California, maintained ownership of the property until May 8, 2003, when he conveyed the property by cash deed to the Afred Covington, Jr. Revocable Trust (“the Trust”).

Apolian died testate on March-9, 1986, owning approximately 40 acres of-land and a home in rural Morehouse Parish. In her last 'will and testament, Arpolian bequeathed her property to her eight living children at the time and her grandchildren from a predeceased child, subject to the usufruct of her daughter, Ruth Covington Johnson (“Ruth”). Two of Arpolian’s sons, Alfred, Jr. and Roosevelt Covington (“Roosevelt”) were named co-executors of the estate, and Jack Files was named the attorney for the estate.

On September 5, 1987, Files petitioned the court to sell the property (the home and the land) to Alfred, Jr. for $25,000. After the advertising requirements had been met and no opposition was filed, the court entered an order authorizing the sale on November 5, 1987. On September 16, 1988, the property was conveyed to Alfred, Jr. by cash deed. On November 2, |¾1988, Files filed a tableau of distribution reflecting that all proceeds from the sale would be applied to the debts, that any outstanding debts would be waived and there would be no cash remaining for distribution. In 2003, Alfred, Jr. conveyed the property to the Trust.

On September 9, 1988, approximately one week before the sale of the property to Alfred, Jr., Alfred, Jr. and Ruth signed a document styled “Declaration by Parties to Option to Purchase,” indicating a desire to grant Ruth an option to purchase the property from Alfred, Jr. for $25,000. The document also stated that the option would be executed immediately following Alfred, Jr.’s purchase of the property from the estate. The option was never executed and Ruth never attempted to exercise the option.

Alfred, Jr. died in California on April 5, 2005. His son, Donald Covington (“Donald”), was the succession representative for both his father’s estate and that of his mother, Rose Edwards Covington (“Rose”), who predeceased Alfred, Jr. Donald was also the trustee of the Trust. After Alfred, Jr.’s death, Donald, on behalf of the Trust, continued to pay taxes, collect rental proceeds and maintain insurance on the properties.

On September 13, 2005, Ruth filed a petition against the unopened successions of Alfred, Jr. and Rose and the Trust, requesting rescission of the sale of the property from Arpolian’s estate to Alfred Jr. Ruth also joined with her brothers, Columbus, Melvyn and Roosevelt Coving-ton in a suit to rescind the sale of the 120 acre tract sold to Alfred, Jr. from Alfred, Sr.’s estate.

In response, defendants filed peremptory exceptions of prescription |4and alternative exceptions of nonjoinder of indispensable parties in both suits, as well as answers and reconventional demands in the event the exceptions were not granted. The cases were consolidated by joint motion.

At the hearing on the exceptions of prescription, the district court heard arguments of counsel but refused to receive testimony. After reviewing the pleadings and exhibits and hearing arguments, the court granted the exception of prescription and declined to rule on the exception of failure to join an indispensable party.

DISCUSSION

A party urging an exception of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Cichirillo v. Avondale Indus., Inc., 2004-2894 (La.11/29/05), 917 So.2d 424; Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560. Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription must be decided upon facts alleged in the petition with all allegations accepted as true. LSA-C.C.P. art. 931; Cichirillo, supra.

Evidentiary Ruling

First, plaintiffs contend the district court committed reversible error in refusing to allow them to introduce testimony to controvert the exceptions of prescription. According to plaintiffs, the testimony was relevant to prove when they obtained knowledge of Alfred, Jr.’s alleged Rfraud and ill practices. During the hearing, the following exchange took place:

PLAINTIFF COUNSEL: [W]e do intend to put on some testimony. I can put that testimony on now or I can put it on after I’ve made my argument if the Court prefers.
THE COURT: These are Motions. I don’t know that we need to extend it because if you start putting on witnesses, you may as well bring all the heirs in, you know. So, let’s stay with the legal arguments.
PLAINTIFF COUNSEL: Well, I still think we have a right because we, at least, can put them up there to say: when did you have knowledge that this occurred....
THE COURT: Make your argument, then we’ll decide.
PLAINTIFF COUNSEL: Have I put on the brief for testimony?
THE COURT: No, sir.
PLAINTIFF COUNSEL: Okay. Can I say what I was going to put on?
THE COURT: I’ve heard the legal arguments.
PLAINTIFF COUNSEL: But I was going to put on testimony from the parties saying when they obtained knowledge.
THE COURT: Well, that’s understandable based on the allegations in the petition, but this Court’s concern is that they waited twenty years....

In Nolan v. Roofing Supply, Inc., 36,403 (La.App.2d Cir.11/26/02), 833 So.2d 1026, the district court declined to take testimony at the hearing on an exception of prescription and sustained the exception. This court found that the district court had committed a legal error on another issue, Rand because of the legal error, a de novo review was necessary. This court reversed the court’s ruling and remanded the matter for an evidentiary hearing, stating:

The trial court’s refusal to take evidence on whether [the plaintiffs] claim against [the defendant] was prescribed makes a de novo review by this court impossible. While the parties proffered some depositions, the information therein is inadequate for this court to make a de novo review.

Id. at 1034.

In the instant case, we recognize that plaintiffs were entitled to introduce testimony in opposition to the exception. However, we find that the district court did not abuse its discretion in not allowing the testimony. Such testimony was unnee-essary, and the record is adequate for this court to review the district court’s ruling. Regardless of when plaintiffs obtained knowledge of Alfred, Jr.’s alleged fraud and ill practices, approximately twenty years elapsed between the dates of the judicial sales of the property and the date the instant suits were filed. Under the facts of this case, we find that the pleadings and documentary evidence contained within the records, along with counsel’s arguments at the hearing, were adequate for the district court to make a ruling on the exception of prescription and for this court to review the ruling. Therefore, the trial court did not commit reversible error, and it is unnecessary to remand this matter for an evidentiary hearing.

Annulment of Judgments Authorizing Sales

Plaintiffs contend the judgments authorizing the sales of the estate property were obtained by fraud or ill practices and should be annulled. The |7district court rejected that argument, finding that the matter has long prescribed and plaintiffs’ only hope of reviving the issue was to allege fraud. The court stated, “I’m just not buying it. This Court is not buying fraud....”

LSA-C.C.P. art.2004 provides in pertinent part:

A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
* * *

The trial court is permitted discretion in deciding when a judgment will be annulled because of fraud or ill practice. Kem Search Inc. v. Sheffield, 434 So.2d 1067 (La.1983); Succession of Leuns, 440 So.2d 899 (La.App. 2d Cir.1983), writ denied, 443 So.2d 1119 (La.1984).

In the instant case, the judgment authorizing the sale of the property in Alfred, Sr.’s estate was entered on June 26, 1986, and the property was sold to Alfred, Jr. on July 3, 1986. In their petition, plaintiffs alleged that a “scheme” was concocted by Alfred, Jr., Ruth and Holley, the attorney for the estate. Columbus, Melvyn and Roosevelt contend they were not aware of the scheme at the time, but they knew that Alfred, Jr. had agreed to convey the property back to the heirs once he was reimbursed the expenses he paid to obtain the property.

By her own admission, Ruth, as a party to the alleged “scheme,” had knowledge of the alleged fraud and ill practices prior to the judgment authorizing the sale of the property. Therefore, Ruth’s claim prescribed | ¡June 1987, one year from the date the judgment was entered.

Columbus, Melvyn and Roosevelt were also aware of the primary purpose of the alleged scheme: the estate would sell the property to Alfred, Jr.; Alfred, Jr. would pay the succession debts; Alfred, Jr. would be reimbursed for his expenses through property rentals; Alfred, Jr. would transfer the property back to the heirs once the debt to him was paid in full. Although these plaintiffs alleged that they were not aware of the alleged fictitious debt and had no knowledge of the fact that the children of the second marriage would be excluded, they were admittedly aware of the primary objective of the alleged scheme. If the allegations of the petition are true, Columbus, Melvyn and Roosevelt were on notice that once Alfred, Jr. was reimbursed for the successions’ debts, he would transfer the property back to the heirs. They were also aware that Alfred, Jr. did not do so. During the hearing, plaintiffs’ counsel stated on the record that the debts of the succession were paid in 1987. Therefore, plaintiffs should have known in 1987 that Alfred, Jr. had no intention of transferring the property back to them. The suit was not filed until September 13, 2005, approximately 18 years after plaintiffs should have obtained knowledge of the alleged fraud and ill practices.

Moreover, notwithstanding the judicial confession, plaintiffs alleged | nin their petition that Alfred, Jr. received, at a minimum, $3,000 a year in rental proceeds from the property of Alfred, Sr.’s estate. Therefore, if a $40,000 debt was owed to Alfred, Jr., the debt should have been paid in full in less than 14 years (by the late 1990s). If plaintiffs’ allegations that Alfred, Jr. only actually paid $19,000 for the property are accepted as true, the debt should have been paid in less than seven years after the transaction (by 1993). Therefore, once the debt was paid in full, plaintiffs should have known, at the very latest, by the late 1990s, that they had been “defrauded,” and Alfred, Jr. did not intend to return the property to them. Thus, assuming, without deciding, that the judgments were obtained through fraud or ill practices, the actions have prescribed, as they were not filed within one year of the judgment or within one year from the time that the plaintiffs discovered the alleged fraud or ill practices.

With regard to Arpolian’s succession, Ruth alleged in her petition that at the time of Arpolian’s death, the other heirs were unable or unwilling to contribute to the payment of the debts of the estate. Alfred Jr. paid the debts, totaling $25,000. Ruth alleged that she and Alfred, Jr. agreed that he would purchase the property of the estate and would hold title as security until he was reimbursed for the debts of the estate. Once Alfred, Jr. acquired the property, Ruth would make an initial payment to him of $10,000, and Alfred, Jr. would transfer title of the property to her. Ruth agreed to continue to pay Alfred, Jr. $2,000 per year from the crop rent she received until the remaining $15,000 was paid. Ruth would then redistribute the property to her co-heirs, once each heir reimbursed his or | inher share of the funds Ruth had paid. Alfred, Jr. also agreed to grant a 15-year option to purchase the property in favor of Ruth for $25,000. According to Ruth, Alfred, Jr. then took the documents with him to California to be executed by him and his wife, Rose. Rose never signed the documents, and the option to purchase was never executed by any of the parties.

The judgment authorizing the sale of the property was signed on November 5, 1987, and the property was sold by cash deed on September 16, 1988. The document entitled “Declaration by Parties to Option to Purchase” was signed by Ruth and Alfred, Jr. on September 9, 1988. In her petition, Ruth alleged that she became aware of Rose’s refusal to sign the declaration “soon after the Cash Sale Deed was complete.” Ruth further averred that she received $2,000 in rental proceeds the first two years after the sale, and each year thereafter, Alfred, Jr. received $2,000 in rental proceeds.

Accepting Ruth’s allegations as true, she retained the rental proceeds from September 1988 through September 1990, and Alfred, Jr. received them thereafter. If a $25,000 debt was owed to Alfred, Jr., the debt should have been paid in full in approximately 12 ⅛ years (by April 2003). Therefore, Ruth should have known in early 2003 that Alfred, Jr. did not intend to return the property to her (or the other heirs). This action was not filed until September 13, 2005. Therefore, Ruth’s claim that the judgment with regard to Arpoli-an’s estate was obtained through fraud and ill practices has prescribed.

[ n Absolute Nullity of Contracts of Sale

Plaintiffs also contend the sale of the properties to Alfred, Jr. were absolute nul-lities, urging a myriad of reasons, including the sales were simulations; consent to the sales was vitiated by fraud; and failure of consideration. An action for annulment of an absolutely null contract does not prescribe. LSA-C.C. art.2032.

Simulation

A contract is a simulation when, by mutual agreement, it does not express the true intent of the parties. LSA-C.C. art.2025. There are two types of simulations: absolute and relative. In an absolute simulation, which is sometimes called a pure simulation or non-transfer, the parties do not intend that their contract have an effect between them. LSA-C.C. art.2026. In an absolute simulation, the parties pretend to transfer property from one to the other, but they intend that the transferor retain ownership. Owen v. Owen, 336 So.2d 782 (La.1976); Trident Oil & Gas Corp. v. John O. Clay Exploration, Inc., 622 So.2d 1191 (La.App. 2d Cir. 1993),; Bonnett v. Mize, 556 So.2d 228 (La.App. 2d Cir.1990). “A simulated sale does not transfer property, and it occurs where the parties have no good faith intent to transfer ownership. It is a sham, and as a result, an absolute nullity.” Wilson v. Progressive State Bank & Trust Co., 446 So.2d 867, 869 (La.App. 2d Cir.1984).

In the instant case, the parties’ allegations in their petitions belie their contention that the sales of the succession property to Alfred, Jr. were simulations. It is undisputed that the parties intended the contracts to have l1?an effect between them. In both petitions, plaintiffs alleged that they petitioned the court to sell the property to ensure that the debts of the estates were paid, and Alfred, Jr. purchased the property. There were no allegations that the transferors, i.e., the decedents’ estates, intended to maintain ownership of the property.

Moreover, the law is clear: a transaction will not be set aside as a simulation if any consideration supports the transaction because the reality of the transference is thus established. Russell v. Culpepper, 344 So.2d 1372 (La.1977); Trident Oil & Gas, supra. In this case, plaintiffs alleged that Alfred, Jr. purchased the property in Alfred, Sr.’s estate for $40,000, and he purchased the property in Arpolian’s estate for $25,000. Moreover, the cash sale deeds in the record reveal that Alfred, Jr. paid the stated consideration in order to obtain the property. Thus, we find that plaintiffs’ argument that the sales were simulations and, therefore, absolutely null, is without merit.

Fraud

Plaintiffs also contend that the sales of the properties to Alfred, Jr. were absolutely null because consent to the sales was vitiated by fraud. According to plaintiffs, they would not have agreed to allow Alfred, Jr. to purchase the properties had they known he would not return the land to the heirs once the debts were paid.

A contract is formed by the consent of the parties established through offer and acceptance. LSA-C.C. art.1927. Consent may be vitiated by error, fraud, or duress. LSA-C.C. art.1948. Fraud is a misrepresentation or 11sa suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. LSA-C.C. art.1953. A contract is null when the requirements for its formation have not been met. LSA-C.C. art. 2029. As stated above, an action for annulment of an absolutely null contract does not prescribe. LSA-C.C. art.2032.

Fraud cannot be predicated on unfulfilled promises or statements as to future events. Sun Drilling Products Corp. v. Rayborn, 2000-1884 (La.App. 4th Cir.10/3/01), 798 So.2d 1141, writ denied, 2001-2939 (La.1/25/02), 807 So.2d 840; Badalamenti v. Jefferson Guar. Bank, 99-1371 (La.App. 5th Cir.4/25/00), 759 So.2d 274; Bass v. Coupel, 93-1270 (La.App. 1 Cir. 6/23/95), 671 So.2d 344, writ denied, 95-3094 (La.3/15/96), 669 So.2d 426; Dutton & Vaughan, Inc. v. Spumey, 600 So.2d 693 (La.App. 4th Cir.1992), writ denied, 601 So.2d 663 (La.1992); Watermeier v. Mansueto, 562 So.2d 920 (La.App. 5th Cir. 1990). The mere failure to do what one promises in order to induce another to sign a contract is not fraud but a mere breach of promise. Dutton & Vaughan, supra; Green v. Louisiana Highway Commission, 3 So.2d 236 (La.App. 1st Cir.1941). Statements promissory in their nature and relating to future actions do not constitute actionable fraud. To constitute actionable fraud, the false statements, if such are made, must relate to facts then existing or which have previously existed. Bass, supra; Swann v. Magouirk, 157 So.2d 749 (La.App. 2d Cir.1963); Franzella Realty, Inc. v. Kolb, 152 So.2d 837 (La.App. 4th Cir.1963).

| uIn the instant case, plaintiffs’ allegations essentially center around Alfred, Jr.’s failure to fulfill his promise of redistributing the property to his siblings once the debt to him was paid in full. However, rather than returning the property to the heirs, Alfred, Jr. transferred the property to the Trust. While Alfred, Jr.’s alleged failure to fulfill his promise may constitute a breach of promise, such act is not legal fraud. Therefore, we find that plaintiffs’ argument that consent was vitiated by fraud, and therefore, the sales were absolutely null is without merit.

Failure of Consideration

Plaintiffs also contend the contract to sell the property in Alfred, Sr.’s estate to Alfred, Jr. was null because the consideration for the purchase was inadequate.

If property has been sold for a woefully inadequate consideration, then the sale would be absolutely null. Actual value is the value at which the property could reasonably be expected to sell at the time. Middle Tennessee Council, Inc. v. Ford, 274 So.2d 173 (La.1973); Succession of Lewis, 440 So.2d 899 (La.App. 2d Cir. 1983), unit denied, 443 So.2d 1119 (La. 1984). Value is a question of fact and is best left to the discretion of the trial court. Id.

A sale will not be set aside for inadequacy of price unless the inadequacy be so great as to shock the conscience, or unless there be additional circumstances against its fairness. If the inadequacy of price is so gross as to shock the conscience, or if, in addition to gross inadequacy, the purchaser has been guilty of any unfairness, or has taken any undue liBadvantage, or if the owner of the property, or party interested in it, has been, for any other reason, misled or surprised, then the execution sale will be regarded as fraudulent and void, or the party injured will be permitted to redeem the property sold. Graffam v. Burgess, 117 U.S. 180, 6 S.Ct. 686, 29 L.Ed. 839 (1886).

In the instant case, as stated above, the sworn descriptive list in Alfred, Sr.’s estate valued the property at $120,000, but the property was sold to Alfred, Jr. for $40,000. Furthermore, plaintiffs alleged that Ruth returned $20,538.83 to Alfred, Jr., and therefore, Alfred, Jr. only paid approximately $19,000 for the property.

In Middle Tennessee Council, supra, the property at issue was appraised at approximately $35,000 and was conveyed by a court approved sale for that amount. The plaintiff filed suit to rescind the sale, arguing that the sale was an absolute nullity based on lesion. Plaintiffs appraisers opined that the property was valued at approximately $500,000 to $600,000. The Supreme Court found that the expert testimony was sufficient to establish that $35,000 was a fair price and represented the actual value of the interest conveyed. Therefore, the court concluded there was no basis for nullity.

In this case, the sworn descriptive list contained in Alfred Sr.’s probate proceedings valued the property at $120,000. However, plaintiffs have presented no other evidence to show the actual market value of the property at the time of the sale. There is no evidence or allegation that the property was appraised before the estimated value of the property was | ^entered in the descriptive list. Moreover, at the time of the sale, plaintiffs had knowledge of the sale price, as well as the estimated value of the property. Plaintiffs were also aware that each legatee received only $600 from the cash available after the payment of the debts. Plaintiffs admittedly agreed to allow Alfred, Jr. to purchase the property for $40,000 and did not object at the time of the sale or in the twenty years since the sale. For this reason, we reject plaintiffs’ claim that the consideration paid for the property was inadequate.

With regard to Arpolian’s estate, Ruth alleged that the sale of the property should be “rescinded for failure of consideration because the Option to Purchase was given in consideration of [her] consent to allow the property to be sold” to Alfred, Jr. and Rose. According to Ruth, the option to purchase was a suspensive condition and the sale was contingent upon the parties executing the option.

As noted above, the record contains a document styled “Declaration by Parties to Option to Purchase,” signed by Ruth and Alfred, Jr. on September 9, 1988. In the document, the parties “declared and acknowledged that they anticipate executing an option to purchase in which [Alfred, Jr. and Rose] will grant unto [Ruth] the option, for fifteen years from September 1, 1988, to purchase, for $25,000 cash the [the property at issue].” The document also stated that Ruth and Alfred, Jr. “hereby obligate themselves to execute the option, a copy of which is attached hereto.” The declaration further provided that Alfred, Jr. and Rose were “obligated to execute the Option to Purchase ... immediately upon the completion of the 117purchase ... of the property” from Arpolian’s estate, “with [Ruth] being hereby granted a continuing right of specific performance, to have the said option to purchase executed by [Alfred, Jr. and Rose] at that time.” As noted above, the declaration was signed by Alfred, Jr. and Ruth but was never signed by Rose.

In the document entitled “Option to Purchase,” Alfred, Jr. agreed to grant Ruth “the exclusive right, privilege or option to purchase” the property for $25,000 for a period of 15 years, commencing September 1, 1988. The document further provided, “In the event [Ruth] desires to exercise the option herein granted, she shall send a certified letter to [Alfred, Jr. and Rose] addressed to them at their address .... ” The option to purchase was never executed by any of the parties, and there is no allegation that Ruth ever attempted to exercise the option.

It is clear from the language of the documents in the record that Ruth could have demanded specific performance of Alfred, Jr.’s agreement to execute the option to purchase. However, she failed to do so. In fact, she never even executed the option herself. Ruth has known since 1988 that she and Alfred, Jr. never executed the option, and she admitted that she discovered soon after the sale of the property to Alfred, Jr. that Rose had refused to sign the documents. Ruth’s prescriptive period to demand specific performance of the obligation to execute the option began to toll “immediately upon” the purchase of the property by Alfred, Jr.

An action on a contract is governed by the prescriptive period of ten years for personal actions. LSA-C.C. art. 3499; Roger v. Dufrene, 613 |1sSo.2d 947 (La. 1993); Good v. Laird, 41,205 (La.App.2d Cir.6/30/06), 935 So.2d 809; Chandler v. Kenyan, 38,084 (La.App.2d Cir.12/19/03), 862 So.2d 1182. Therefore, the prescriptive period for Ruth to demand specific performance commenced September 16, 1988, the date Alfred Jr. purchased the property. Her right to enforce the agreement expired on September 16,1998.

Additionally, Ruth’s purported option to purchase commenced on September 1, 1988 and expired in 15 years, September 1, 2003. There is no allegation that Ruth ever paid the agreed upon $25,000 to purchase the property from Alfred, Jr. For these reasons, this argument lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment sustaining the peremptory exception of prescription is hereby affirmed. Costs of this appeal are to be borne by plaintiffs/appellants.

AFFIRMED.

      . Arpolian had sold a portion of the land to her son, Woodrow Covington.

      . Ruth resided in the family home with Arpo-lian and cared for her mother until her death.

      . Two weeks prior to the hearing on the exceptions, plaintiffs filed amended petitions in both suits, asserting alternative possessory actions. The district court reserved plaintiffs' rights to assert the possessory actions at a later date. Additionally, the court did not address defendants’ reconventional demands. Therefore, those issues are not before this court at this time.

      . A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. LSA-C.C. art. 1853. A judicial confession is a party’s explicit admission of an adverse factual element and has the effect of waiving evidence as to the subject of the admission — of withdrawing the subject matter of the confession from issue. Cichirillo, supra; Sanders v. Earnest, 34,656 (La. App.2d Cir.7/24/01), 793 So.2d 393; Succession of Poland, 34,291 (La.App.2d Cir. 4/4/01), 784 So.2d 701.


text:
    STATE of Louisiana v. James B. WILLIAMS.
    No. 07-490.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      William E. Tilley, District Attorney, Leesville, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, James B. Williams.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| factual and Procedural Background

The defendant, James B. Williams, was charged with possession with intent to distribute cocaine, in violation of La.R.S. 40:967, and with possession of drug paraphernalia, in violation of La.R.S. 40:1028. He pled guilty to the lesser charge of possession of cocaine and to possession of drug paraphernalia. On the possession of cocaine charge, he was sentenced to five years at hard labor, which is to run consecutive to any other sentence that he may be subject to. He was also ordered to pay a $1,500.00 fine plus court costs. For the possession of drug paraphernalia charge, the defendant was sentenced to six months in the parish jail and was fined $500.00 plus court costs. This sentence was ordered to run concurrently with the defendant’s sentence for possession of cocaine, but consecutively to any other sentence.

Upon the denial of his motion to reconsider sentence, the defendant perfected this appeal, arguing the excessiveness of his sentences. For the following reasons, we affirm.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent.

In the same bill of information, the defendant was charged with possession of cocaine with intent to distribute, a felony, and possession of drug paraphernalia, a misdemeanor. The penalty for possession of drug paraphernalia is imprisonment in the parish jail for not more than six months and/or a fíne of not more than $500.00. RLa.R.S. 40:1025(A). Thus, the defendant was not entitled to a jury trial on that offense. See La.Code Crim.P. art. 779. Because the defendant was entitled to a jury trial for the felony charge of possession of cocaine with intent to distribute and was not entitled to a jury trial on the possession of drug paraphernalia charge, the offenses were not triable by the same mode of trial and should not have been charged in the same bill of information. See La.Code Crim.P. art. 493. However, because the defendant failed to file a motion to quash the bill of information based on the misjoinder, he waived any objection to the error. La.Code Crim.P. art. 495 and State v. Mallett, 357 So.2d 1105 (La.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979). Further, the defendant entered a guilty plea without reserving any objection to the mis-joinder. See State v. Crosby, 338 So.2d 584 (La.1976). Accordingly, we find that the issue of misjoinder noted in our error patent review is waived.

Because the possession of drug paraphernalia charge is a misdemeanor, it was not triable by jury; therefore, the proper mode of appellate review is by writ rather than appeal. See La.Code Crim.P. art. 912.1. However, because the defendant’s sentences were ordered to run concurrently, they are intertwined with each other. Therefore, in the interest of judicial economy, we will not sever the misdemeanor conviction but will address it on appeal. See State v. Fustier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866. Cf. State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d 1084 (wherein this court severed a misdemeanor conviction for possession of marijuana from the defendant’s appeal of two felony convictions because the defendant did not make any specific arguments regarding the misdemeanor conviction).

Excessive Sentences

The defendant argues that his sentences are constitutionally excessive. He contends that he “clearly is in need of treatment for his drug addiction, treatment which would best be served in a noncustodial environment.” Because the defendant did not assert any specific grounds for excessiveness, we will evaluate his claim as a bare claim of excessiveness. State v. Mims, 619 So.2d 1059 (La.1993), appeal after remand, 626 So.2d 856 (La. App. 2 Cir.1993), writ denied, 93-2933 (La.2/11/94), 634 So.2d 373.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court set forth the standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

By pleading guilty to possession of cocaine, the defendant faced imprisonment “with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.” La.R.S. 40:967. For this conviction, the defendant received the maximum sentence and was fined $1,500.00. The penalty for possession of drug paraphernalia is “a fine not in excess |4of five hundred dollars, or imprisonment of not more than six months, or both.” La.R.S. 40:1025(A). For that offense, the defendant was sentenced to the statutory maximum and was ordered to pay the maximum fine.

When imposing sentence, the trial court explained:

In considering the Article 894.1 factors, I found the following to be pertinent. First, this is a drug case and there is significant economic harm or impact on society in general when one deals in the use or distribution of illegal drugs. There are no substantial grounds which would tend to excuse or justify his conduct nor did he act under provocation by anyone. He’s forty-one years old. He’s married and has three children. He is in good health. He has worked primarily as a laborer detailing cars. He was also in the United States Army and was court-martialed and discharged. He has a high school education. He has a history of use of marijuana and cocaine, ec-stacy, hydrocodone, xanax and codeine syrup. He has been treated, in 1996, in the Blue Walters facility and, in 1997, in the Red River facility. He is classified as a third felony offender in that his record reflects that on October 8th, 1991 in the 30th Judicial District Court he was convicted of three counts of distribution of cocaine and given seven years on each count. He was paroled three times and each time his parole was revoked. He’s still doing time on these charges. On January 8th, 2003 in the 30th Judicial District Court he was convicted of possession of Schedule II and Schedule III, given four years on each count. He has benefitted significantly from this plea agreement in that his exposure has been reduced quite a bit by the plea to the lesser charge of the possession.

After reviewing the record, we find that the defendant’s sentences are not excessive. This is the defendant’s third drug conviction. He was originally charged with possession with intent to distribute cocaine, for which the penalty is a sentence of up to thirty years, with the first two years being served without benefit of parole, probation, or suspension of sentence, and a possible fine of up to fifty thousand dollars. La.R.S. 40:967(B)(4)(b). By entering into a plea agreement, the defendant’s potential maximum sentence was reduced significantly, and the State agreed not, to file a habitual offender bill. Given the circumstances, we find that the trial court did not abuse its discretion in imposing its sentence.

| [Therefore, this assignment is without merit.

DECREE

For the above reasons, the defendant’s sentences are affirmed.

AFFIRMED.