text:
    Liticia L. EVANS, Plaintiff-Appellant v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Josephine Griffin, Defendant-Appellee.
    No. 42,615-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.
    W. Brett Cain, Shreveport, for Appellant.
    Thomas A. Bordelon, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   WILLIAMS, J.

11 This appeal centers around an accident in which defendant, Josephine Griffin, backed her vehicle into plaintiff, Liticia Evans. The trial court determined that plaintiff’s injuries were “minor” and awarded $750 in general damages, plus special damages in the amount of $538.45, the cost of plaintiffs visit to the emergency room. For the following reasons, we affirm the trial court’s judgment.

FACTS

On November 18, 2004, defendant was backing her vehicle into a parking space at a washateria in Shreveport, Louisiana. Defendant did not see plaintiff, who was using a public telephone located behind the parking space. Defendant backed up too far, causing the bumper of her vehicle to strike plaintiff. According to plaintiff, she began to yell when she felt herself being pushed into the telephone booth, and defendant stopped and pulled her vehicle forward. Plaintiffs daughter, who witnessed the incident, testified that her mother was pinned by defendant’s vehicle, and when her mother yelled, defendant pulled forward.

Defendant testified that she backed into the parking place slowly and did not hear plaintiff yell. Instead, defendant indicated that after backing into the parking space, she pulled forward because she did not think she had left enough room at the rear of her vehicle to open the hatch to remove her items. She testified that she did not see plaintiff until she exited her vehicle. When plaintiff accused her of backing into her, she apologized for “scaring” plaintiff but denied striking her. According to defendant, plaintiff did not appear to be injured. When defendant was asked why she thought her ^vehicle did not strike plaintiff, she responded, “I’m sure I would have felt the bump.”

Based on the testimony of plaintiff and her daughter, the trial court found that contact between defendant’s vehicle and plaintiff was established by a preponderance of the evidence. Thus, this appeal focuses on the trial court’s determination with regard to the extent of plaintiffs injuries.

On direct examination at trial, plaintiff stated that defendant’s vehicle struck her in “the lower part of my back and down my legs and my butt.” She further stated that immediately after the accident she went to the emergency room at LSU Medical Center (“LSU”). Subsequently, she was examined and treated by a chiropractor and several physicians. Plaintiffs medical records were introduced into evidence without objection with regard to authenticity.

Plaintiff testified that on November 24, 2004, she first visited Dr. Crews, a chiropractor, and was “kind of like hurting all over” at that time. She indicated that after seeing Dr. Crews for a while, her neck and shoulder problems resolved, but her back pain continued; she was treated by Dr. Crews until near the end of March 2005. Dr. Crews did not testify at trial. A July 2005 letter from Dr. Crews to plaintiffs attorney indicated that plaintiff had received “conservative chiropractic treatment” for approximately four months, but due to “the persistence of neurological signs and symptoms,” he referred plaintiff to Dr. Marco Ramos, a neurosurgeon. A final evaluation report of the same date as the letter included a diagnosis with multiple elements including thoracic and lumbar disc degeneration, ^rupture or herniation of a thoracic and lumbar disc, cervical and lumbar strain/sprain, low back pain, thoracic pain and osteoarthritis, thoracic and lumbar subluxation, lumbar radiculitis, muscle spasm, and sciatica. With regard to causation, the report stated:

Ms. Evans’ symptoms appear to have come on as a result of an injury consistent with the one described in this report. Her history, subjective and objective findings show evidence, from a chiropractic viewpoint, that her condition is due to the current injury. No contributing factors are present from pre-existing conditions.

Plaintiff testified at trial that while she still was under treatment with Dr. Crews, she went to Dr. Richard Kamm, who ordered a magnetic resonance imaging (“MRI”) examination and recommended that she continue to see Dr. Crews. When asked if Dr. Kamm referred her to any other doctors, she responded, “They said I needed surgery,” but she wanted a second opinion. When asked who told her she needed surgery, she responded, “Dr. Marco Ramos.” Plaintiff also indicated that Dr. Anil Nanda, a neurosurgeon at LSU, had given a second opinion that she undergo more tests and therapy. She then went to see physical therapist Doug Tietje?n for approximately one month, but her lower back pain did not improve.

Drs. Kamm, Ramos, and Nanda did not testify at trial. However, a July 2005 letter from Dr. Kamm to plaintiffs attorney confirmed that plaintiffs MRI report indicated a “small central disc extrusion at T4-5” and a “moderate central and bilateral paracentral disc extrusion at L5-S1.” The letter also confirmed that plaintiff was evaluated by Dr. Ramos, who recommended a “L5 laminectomy and L5-S1 microdiskectomy.” The letter 14ended with the following sentence:

It is my professional medical opinion that the injuries noted above and the recommendation for surgery are, more probably [sic] than not, the direct result of the automobile accident that occurred November 18, 2004.

A March 2005 letter from Dr. Ramos to plaintiffs attorney confirmed his recommendation for a total lumbar laminectomy at L5-S1 and microdiskectomy. A March 2005 report by Dr. Ramos to Dr. Kamm stated that an MRI revealed “significant extradural defect at L5-S1,” and indicated Dr. Ramos’ impression that plaintiff had manifestations of “left SI radiculopathy.”

A July 2005 letter from Dr. Nanda confirmed that he had explained to plaintiff that he did not believe she required surgery for her lumbar disc at that time; the letter indicated that her MRI revealed “a small disc” at L5-S1. Dr. Nanda’s letter stated that plaintiff had low back pain following the accident, that the pain radiated down both legs- with the left leg being worse, that she had some numbness and tingling in her legs, and that conservative therapy had given minimal relief.

In concluding her testimony on direct examination, plaintiff testified that she had injured her upper back in an automobile accident in 2003. She denied any prior injury to her lower back. Plaintiff also indicated that just before the current accident, she had sought treatment at LSU for “really bad muscle spasms” in her legs. However, she denied eyer having chronic back pain that lasted more than a year.

On cross examination, plaintiff was confronted with a copy of the emergency room report from LSU dated November 18, 2004, the day of the |Bcurrent accident. When asked if she recalled telling the doctor that she had a “history of lower back pain for past year and sciatica,” she denied doing so. When asked if she recalled saying that she was not pinned against the phone booth, she denied that as well. Finally, when asked if the report was wrong in saying “No new back pain,” plaintiff testified that the lower back pain began after the current accident and that her lower back had not previously been bothering her. The defense then offered the report into evidence. The “history” portion of the report stated, in pertinent part:

Date of occurrence was today. Ms. Evans is a 44yo BF with h/o lower back pain for the past year and sciatica. Pt states she was talking on the public telephone when “a chevy trailblazer bumped into me” @ 1800. Pt states bumper it hit her buttock mostly. She was not pinned. No fall. No new back pain.

The portion of the report styled, “review of the musculoskeletal system” states, “Positive for leg pain. Left leg pain no different from usual sciatica.” The section of the report dealing with physical examination of the musculoskeletal system stated that plaintiff was positive for tenderness in her buttocks, “greatest on the right side.” The report also indicated that plaintiff did not have any bruises or abrasions, and she had no tenderness in her neck and upper and lower back. Plaintiff was ultimately given a differential diagnosis of “CONTUSION-BUTTOCK, SCIATICA.” The report noted that plaintiff was ambulatory, and she was given a prescription for Flexeril and discharged from the emergency room.

Plaintiff testified that the emergency room physician told her that she had started bruising. She also stated that immediately after the accident “everything from my legs up into my neck was basically hurting.” | (¡However, when asked if she remembered giving deposition testimony that her immediate pain was only on her left side from her buttocks to her foot, she responded affirmatively, adding:

I mean, I was hurting all over. You know, I don’t remember that. I mean, I’m on medication. I’m doing the best I can. I’m telling the truth.

After affirming that she was sure that she never had any pain in her lower back and buttocks before the accident at issue, plaintiff was asked if she remembered going to LSU in 1988 after a school bus accident. She answered affirmatively, but indicated she could not remember hurting her lower back. She then was asked if she would disagree if the doctor had diagnosed lumbar sprain, and she stated, “I would, because I can’t remember that.” The LSU record then was introduced, showing that plaintiff had complained of neck and lower back pain and that the diagnosis was cervical and lumbar sprain.

Plaintiff also testified that she did not remember going to LSU in 1996 complaining of back and leg pain, and she indicated that if a record dated September 3, 1996, referred to back and leg pain it would be incorrect; she also indicated that if it referred to chronic back pain it would be incorrect. The LSU report then was introduced into evidence, showing a chief complaint of back and leg pain and a diagnosis of chronic back pain.

Yet another point of disagreement between plaintiff and her LSU medical records arose when she was questioned with regard to a visit to LSU on October 28, 2004, less than one month prior to the accident at issue. When she was read a portion of the report from that visit concerning her |7compIaints and was asked if she had told the medical professionals the information attributed to her in the report, plaintiff replied, “No, I did not tell them that.” However, the report that was then introduced indicated plaintiff had complaints of bilateral leg pain, cramping, numbness and tingling, and that she reported the pain began in her right buttock and had spread to her right calf and left buttock.

On redirect examination, plaintiff admitted that she- had experienced back pain before the accident. However, when asked if she had ever had pain “in the very lower part” of her back, she responded in the negative.

At the conclusion of the trial, the court made several remarks with regard to plaintiffs testimony. Noting the disparity between plaintiffs testimony and her medical records, the court stated that it was “inclined to' go with what the records show.” After hearing arguments from the attorneys, the trial court stated:

All right. The Court has listened carefully to the testimony, been able to make credibility determinations based on the Court’s personal observation of the witnesses as they testified. The Court has further reviewed the various item — exhibits that have been introduced into evidence. Based on the testimony, the Court’s credibility determinations, and the exhibits, the Court finds the following: First, on the issue of credibility, the Court is not impressed favorably with the credibility of the plaintiff in describing her injuries. The Court notes she has conflicts with a number of her medical records. The Court believes that she is exaggerating and can’t place a great deal of reliance in her description of her injuries.

The court found, by a preponderance of the evidence, that contact occurred between plaintiff and defendant’s vehicle. The court stated:

It just simply doesn’t sound to me like anything more | sthan a nudge. And I’ve looked in vain to try to find something that indicates that there was some aggravation of pre-existing injuries and I can’t find it. And I can’t rely on the plaintiffs own testimony, because I don’t think she’s being credible. I don’t think she’s testifying credibility [sic] about her injuries. I think she’s exaggerating and she just has too much conflict with her medical records. I believe she was nudged. It doesn’t appear to me to be anything more than a temporary situation at best.

Although finding plaintiffs injuries to be minor, the court concluded she had a right to seek medical treatment and to be “checked out.” Thus, the court awarded special damages in the amount of $538.45, the cost of plaintiffs visit to the emergency room. The court reiterated that it did not believe plaintiff was seriously injured, and noted there was a “differential diagnosis” of contusion or sciatica in the LSU report from the day of the accident, an indication that there was no physical evidence of bruising. Finally, the court awarded $750 in general damages to “tie some generals” to the special damages award. The court stated that it considered the award to be “on the liberal side” because it did not believe the incident was “of any great moment.”

DISCUSSION

On appeal, plaintiff focuses on the trial court’s statement that plaintiff had “a differential diagnosis of contusion or sciatica.” According to plaintiff, the diagnosis did not mean either/or; she argues that it would be nonsensical to assume that a physician would list contusion as a guess. Plaintiff also argues the statement in her medical records that she had suffered from sciatica and back pain for a year prior to the current accident was contradicted by the medical evidence and her testimony. She points out |gthat her treating physicians related her condition to the accident, and she asserts that she presented a pri-ma facie case that the accident caused her lower back pain.

An appellate court will not set aside the trial court’s factual findings in the absence of manifest error. Lewis v. State, Through Dept. Of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311; Algabal, Inc. v. Central Oil and Supply Corp., 41,656 (La.App.2d Cir.12/13/06), 945 So.2d 905. The great discretion accorded to the trial court’s factual findings is grounded in that court’s superior capacity to assess the credibility of the witnesses because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989); Gremillion v. Gremillion, 39,588 (La.App.2d Cir.4/6/05), 900 So.2d 262.

Under the manifest error standard, the criterion is whether 'the trial court’s findings are reasonable; even if the appellate court feels its own evaluation of the evidence is more reasonable, the trial court’s findings cannot be reversed if they are, in fact, reasonable. Lewis, supra; Algabal, Inc., supra. In other words, the appellate court may not reverse simply because it is convinced that had it been sitting as a trier of fact it would have ruled differently. Algabal, Inc., supra; Orea v. Scallan, 32,622 (La.App.2d Cir.1/26/00), 750 So.2d 483.

With regard to the connection between a plaintiffs credibility and the diagnosis of plaintiffs injury, this court has stated:

|inThe weight afforded a treating physician’s testimony is largely dependent upon the facts upon which his opinion is based.... A claimant’s lack of credibility oh factual issues can serve to diminish the veracity of her complaints to a physician.

Bass v. Allstate Ins. Co., 32,652 (La.App.2d Cir.1/26/00), 750 So.2d 460, 467, quoting Perow v. Lenzly, 30,833 (La.App.2d Cir.8/19/98), 716 So.2d 519, 523.

In the instant case, the trial court specifically-noted that it had made credibility determinations based on its personal observation of the witnesses as they testified, and the court repeatedly stated that it found plaintiff lacked credibility. Given the trial court’s firsthand observation of plaintiffs testimony and the numerous conflicts between plaintiffs testimony and her medical records, we find no manifest error in the court’s decision to credit the statement from the medical report dated November 18, 2004 with regard to plaintiffs history of suffering from back pain and sciatica for a year prior to the accident. Likewise, giving proper deference to the trial court’s credibility determination, we note that plaintiffs treating physicians’ relating of her condition to the accident was undoubtedly based in significant part on plaintiffs report of subjective symptoms of pain. Further, we note that while the degree of that relation could have been revealed through the medical professionals’ testimony, none of the doctors testified at trial.

Lastly, we attach little significance to the trial court’s statements with regard to a “differential diagnosis.” The record from November 18, 2004 is less than clear on whether the doctor found both a contusion and sciatica, or |ufound either a contusion or sciatica. Again, the doctor’s testimony could have provided clarity with regard to this issue. However, the same record indicated that the musculoskeletal portion of the physical exam revealed “no ecchymosis or abrasion,” and we know that an ecchymosis typically refers to a purple or “black-and-blue” spot caused by bleeding into the skin, as occurs with a bruise. See, Taber’s Cyclopedic Medical DictionaRY, 511 (15th ed.1995). In any event, we find no abuse of discretion in the trial court’s factual finding that the contact between defendant’s vehicle and plaintiff was more in the nature of a “nudge.” This finding, along with the trial court’s award of general damages, plainly shows that rather than finding plaintiff suffered no injury, the trial court found plaintiff suffered no significant injury; her sciatica problems pre-existed the accident.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is hereby affirmed at plaintiffs costs.

AFFIRMED.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Paul Francis FISHER, II & Toby Segal Fisher, Plaintiff-Appellant v. Caryn BATISTA, Winner Circle Homes, Todd Bice d/b/a Housemaster Home Inspections & Neil Yarborough, Defendant-Appellee.
    No. 42,642-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      David L. White, Bossier City, for Plaintiff-Appellant, Paul Francis Fisher, II.
    R. Lane Pittard, Benton, for Defendant Appellee, Neill Yarborough.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   GASKINS, J.

pThe remaining plaintiff in this redhibi-tionJquanti minoris suit appeals from a trial court judgment which awarded what he believes are inadequate damages of only $2,000 and which failed to award mental anguish damages or attorney fees. We affirm. •

FACTS

In February 2003, the plaintiffs, Paul Francis Fisher II and Toby Segal Fisher, purchased a house on Conrad Street in Bossier City from Neill Yarborough for $109,300. A systems inspection of the home conducted prior to the sale found the plumbing to be satisfactory. Shortly thereafter, the plaintiffs encountered problems with various aspects of the house, including the plumbing. Sinks backed up a few times, and sewage backed up into the master bathroom on one occasion.

In February 2004, the Fishers sued Yar-borough. Yarborough filed a general denial in which he alleged that the plaintiffs failed to adequately inspect the property prior to the sale, to provide him with written objections in a timely manner under the contract, or to make a claim under a home warranty policy paid for by him.

By the time the case was tried before a judge in September 2006, the Fisher couple had divorced with the husband receiving the wife’s interest in the suit in their community 'property settlement. Thus, Fisher and [^Yarborough were the only remaining parties in the suit. The only issue tried before the court was the plumbing problem.

In addition to his own testimony, Fisher presented that of Mrs. Fisher, his former wife; Vincent Parker, a drain technician for Cornell Plumbing Super Rooter, Inc., who unstopped the kitchen sink twice in March 2003; and Kenny Sewell, the vice president of Cochran Construction Company. Sewell estimated that in 2003 it would have cost $24,917 to repair portions of the house that would have to be damaged in the course of making plumbing repairs; however, he testified at trial that the price would now have increased by 50 percent. By deposition at a later date, Samuel Byrd, the plumbing service manager for Payne Mechanical Services, gave an estimate of $29,718 to repair the plumbing. Yarborough testified on his own behalf and presented the deposition testimony of Todd Bice, who inspected the house prior to sale.

In December 2006, the trial court issued written reasons in which it rendered judgment in favor of Fisher in the amount of $2,000. The court found that the price reduction and damages sought by Fisher were “greatly exaggerated.” While acknowledging that the house — which it characterized as “old” — had a plumbing problem which would require a plumber once or twice a year, the trial court rejected testimony that repairs would cost in excess of $20,000. The court found that allowing the recovery sought would essentially be placing the plaintiff “in a new house with new house plumbing.” Additionally, the court found no evidence of bad faith on the part of Yarborough. Costs were assessed to the defendant. Judgment in | ¡¡conformity with the judge’s written reasons was signed on January 9, 2007. Each litigant was directed to pay his own attorney fees.

Fisher appealed.

LAW

A seller warrants the buyer against red-hibitory defects or vices in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives the buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of the buyer to a reduction of the price. La. C.C. art. 2520.

The implied warranty against redhibi-tory defects covers only hidden defects, not defects that were known to the buyer at the time of the sale, or that should have been discovered by a reasonably prudent buyer. La. C.C. art. 2521.

A buyer may choose to seek only reduction of the price even when the redhibitory defect is such as to give him the right to obtain rescission of the sale. In an action for rescission because of a redhibitory defect the court may limit the remedy of the buyer to a reduction of the price. La. C.C. art. 2541. One of the principal elements in formulating a reduction of the ^purchase price is the cost of repairs. La. C.C. art. 2541, Official Revision Comment (c).

The purchaser has the burden of proving the amount of reduction in the purchase price with reasonable certainty. The trial judge is afforded much discretion in determining the amount of the reduction. The general rule for the measurement of damages in quanti minoris actions is the determination of the difference between the value of the defective thing at the time of the sale and the value as warranted by the seller. When real estate is involved, the allowable diminution should be the amount necessary to convert the unsound structure into a sound one. Dodd v. Tucker, 528 So.2d 644 (La.App. 2d Cir.1988).

In general, a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The existence of a redhibitory defect is a question of fact which cannot be disturbed unless the record establishes that the finding is manifestly erroneous. Dage v. Obed, 40,414 (La.App.2d Cir.12/14/05), 917 So.2d 713.

Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. Marsh v. USA-gencies Casualty Insurance Company, 42,176 (La.App.2d Cir.5/16/07), 957 So.2d 901. The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as |5a whole. Green v. K-Marb Corporation, 2003-2495 (La.5/25/04), 874 So.2d 838.

DISCUSSION

On appeal, Fisher seeks damages of $67,093.50, i.e., $29,718 (Payne estimate), and $24,917 (initial Cochran estimate), plus $12,458.50 (50% increase on Cochran estimate). He also requests attorney fees of $15,000 and mental anguish damages of $10,000.

The evidence presented at trial demonstrated that Fisher experienced problems with the plumbing in three different areas: (1) the kitchen sink; (2) under the house; and (3) the clay pipe running from the house to the street.

Kitchen sink

In March 2003, Mrs. Fisher experienced black sludge backing up in the kitchen sink. She called Cornell Plumbing which sent a drain technician to unstop the kitchen sink and the washing machine line which apparently shared a common vent. According to the drain technician, the sink was stopped up as a result of sludge that had built up in the line over time. He testified that when dealing with such a situation, there is only a problem if “I pull back mud,” which would be indicative of a hole in the pipe, and that he did not pull back mud when snaking out the drain. Later that same month, a similar incident occurred, and the same drain technician was dispatched to the house on a free warranty call.

In January 2004, Payne Mechanical Services unstopped the washing machine drain. In May 2004, Payne unstopped the kitchen sink and | ^reworked the sink drain. There were no subsequent service calls pertaining to the kitchen.

Byrd was unable to explain why the kitchen sink stopped up. As a result, he was unable to attribute it to a defect in existence at the time of the sale. The trial court did not find that this handful of minor, incidents demonstrated a problem with the kitchen sink which required correction, particularly the costly rerouting proposed by Byrd. We agree.

Under the house

In August 2003, Payne was called to unstop the sewer line after sewage backed up in the master bathroom. A camera was run into the line; however, due to rust build-up in the four-inch line, the two-and-a-half inch camera was not able to successfully traverse the line. According to Byrd, the camera hung up 31 feet into the line. In his opinion, there is no actual blockage; rather something in the bottom of the line is obstructing the flow of water. He admitted that he had no way of knowing what the obstruction is, exactly where it is, or when it got there. He could not say if the alleged defects in the plumbing were present in December 2002, when Yarbor-ough signed a seller’s property condition statement in which he attested that, to his knowledge, there was no defect or problem with the plumbing. He also admitted that he could not say if the blockage was there when Bice conducted his inspection in January 2003. Nor could he say that it was in existence on the date of sale in February 2003. However, he did not believe that it would have developed in a period of “just several months.”

17Payne’s records show that it returned to the house in January 2004 to perform several tasks; the ticket notes “stoppage found beneath house.” In September 2004, Payne unstopped the sewer line; however, Byrd could not say if this was related to the alleged obstruction under the house or the tree roots getting into the clay pipes in front of the house.

The testimony pertaining to the alleged obstruction under the house is, at best, speculative and uncertain. Byrd is unable to say what it is or where it is. Nor can he say how long it had been there. The records from Payne reveal only two service calls that can be attributed to it with any certainly. Furthermore, like the trial court, we find the proposed repairs and their costs to be “greatly exaggerated.” Because Byrd could not say what problem existed or where it was, the repair estimates included many items which he admitted might be unnecessary. Some of the proposed “repairs” included in Cochran’s and Payne’s estimates — new cabinets, countertops, toilets, sink, lavatories and vanities — would actually constitute remodeling of this house which was built in about 1969.

Based upon the evidence in this record, we find no manifest error in the trial court’s rejection of this portion of the plaintiffs demands.

Clay pipe

At the time the house was constructed, use of clay pipes from the house to the street was common; now PVC pipes are used. While the clay pipe at the instant house appeared to be in fair shape, Byrd testified that roots were growing into it around the joints. As a result, in fall and spring, when the tree roots grow, the clay pipe is susceptible to becoming stopped lsup. Yarborough testified that over the years he had had to periodically call a plumber to clean out the roots. After Fisher acquired the house, he likewise had to have the line cleaned out on occasion. Payne performed this service for him in January 2004 and October 2005. (While there is an invoice for unstopping a sewer line in September 2004, Byrd was unable to clarify whether this was connected to the clay pipe or not.) There was also evidence that the clay pipe had separated slightly from the cast iron pipe leading into the house.

The trial court properly found that there was a plumbing defect. However, the evidence presented at trial does not demonstrate that the plumbing problems with this house, which was far from new, were anywhere as extreme as Fisher suggested. To the contrary, we agree with the trial court that a fair evaluation of the evidence — and the application of common sense — show a more minor situation which could be attributed at least partially to the age of the house and its systems.

Award amount

Fisher contends that the trial court made a mathematical error in its calculation of the $2,000 award and, under the formula set forth in its written reasons, the amount awarded should actually be $4,000.

In its written reasons for judgment, the trial court stated the following:

“The Court believes that a plumbing defect did exist in the house when it was sold. However, the court does not believe that a plumbing problem, which requires a plumber [once] or twice a year, at the price of perhaps $150.00 for twice a year, would require a quanti minoris claim in the amount of $21,915.00.
| sThis Court believes that, from time to time, the plaintiff will, of necessity, have to call the plumbers out to repair plumbing problems in the house. After all, this is an old house. If the plumber were called out four times a year at $200.00 per visit the price for 5 year plumbing maintenance would equal $2,000.00. The Court is called upon to do justice in this case not impose an outrageous remedy. The Court believes that an award of $2,000.00 would be sufficient to place the plaintiff whole in this matter.”

The judgment signed by the trial court awarded damages in the amount of $2,000.

Obviously, four plumbing calls per year at a cost of $200 per visit for five years would total $4,000. However, we note that the trial court also stated that plumbing calls would be necessary perhaps once or twice per year at $150 per visit. The evidence in the record does not support four plumbing calls per year; rather it indicates, at most, twice per year when the tree roots grow and possible invade the joints of the clay pipe.

We find that the award of $2,000 is supported by the record. Accordingly, we affirm the trial court judgment as written.

Good faith

Fisher argues that since Yarbor-ough testified that he called out a plumber eight to 10 times during the 31-year period he owned the house, the trial court erred in not finding that Yarborough was in bad faith.

In contrast to a good faith seller, a seller who knew of a defect and failed to disclose it is liable to the buyer for the return of the purchase price with interest from the date of the payment, reimbursement of reasonable expenses occasioned by the sale and expenses incurred in preserving the thing, as well as damages and reasonable attorney fees. The seller is entitled to credit for use the buyer makes of the thing. La. C.C. art. 2545.

ImThe trial court has great discretion in finding facts and assessing the witnesses’ credibility. Those findings should not be disturbed absent a showing of manifest error; a reasonable trial court finding cannot be reversed merely because the appellate court could draw an equally reasonable yet different finding. Sanders v. Earnest, 34,656 (La.App.2d Cir.7/24/01), 793 So.2d 393.

The trial court found no evidence of bad faith on the part of Yarborough. We agree. The fact that he called a plumber to unclog a drain or clean out tree roots 10 or fewer times in a period of more than three decades is not indicative of knowledge of a systemic defect with the house’s plumbing. To the contrary, it is more akin to regular maintenance of the house’s plumbing system over an extended period of time. We further note that in his testimony, Fisher himself stated that he was not saying Yarborough “concealed anything.”

CONCLUSION

We affirm the trial court judgment. Costs of this appeal are assessed to the appellant, Paul Francis Fisher II.

AFFIRMED.

      . The Fishers also hied suit against several others, including a real estate agent and a home inspector. However, these additional parties were dismissed prior to trial and are irrelevant to the issues presented in this appeal.

      . Yarborough filed a third-party claim against the company that issued the home warranty policy covering the house. This claim was resolved prior to trial.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Delton FREEMAN, Appellant.
    No. 42,644-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Louisiana Appellate Project by Mary Constance Hanes, for Appellant.
    Paul J. Carmouche, District Attorney, for Appellee.
    Lea R. Hall, Jr., Brady O’Callaghan, Tommy J. Johnson, Assistant District Attorneys.
    Before STEWART, DREW and MOORE, JJ.
   MOORE, J.

hDelton Freeman appeals as excessive his sentence of 15 years at hard labor following his conviction of molestation of a juvenile with incidents recurring during a period of more than one year, La. R.S. 14:81.2 A, D. For the reasons expressed, we affirm.

Factual Background

In 1991, when he was about 24 years old, Freeman began a live-in relationship with the victim’s mother, Angie. The victim, KT (born in 1985), and her brother, DT (born in 1990), were children of Angie’s prior relationship. Freeman and Angie got married in 1997.

In November 2004, KT notified police that Freeman had sexually molested and raped her from the time she was 10 years old until she was 15, including time when he was her stepfather. KT testified that Freeman entered her bedroom one evening, pulled down her pants and performed oral sex on her. This continued a couple of times a week for a while, and soon Freeman was forcing her to have vaginal intercourse with him. This continued several times a week for five years until June 2000, when KT discovered she was pregnant. Freeman admitted to KT and Angie that the baby was his; he took her to Hope Medical Group for an abortion.

As noted, Freeman was arrested and charged with molestation of a juvenile when the incidents of molestation recur during a period of more than one year, La. R.S. 14:81.2 A, D. After trial in September 2006, a six-member jury found him guilty as charged. The district court denied his motion for post verdict judgment of acquittal and sentenced him to the statutory maximum, 15 years in prison at hard labor without benefit of |2parole, probation or suspension of sentence. The court also denied his motion for reconsideration, and this appeal followed.

Discussion

By one assignment of error, Freeman urges the sentence is excessive under the circumstances. He contends the district court did not adequately consider that he had never previously been arrested, let alone convicted, for any offense, and that he has pursued rehabilitation while in jail, including anger management, relationships, power group, AA, NA, and prison-based drug and religious programs. Also, he admitted his mistakes to his family and tried to make amends to KT. Finally, he submits that despite his serious problems with alcohol and drugs, he was gainfully employed in a valuable trade, carpentry, and a 15-year sentence would do nothing to benefit society.

The state responds that the court fully considered the sentencing guidelines, including Freeman’s clean prior record, but found that the gravity of this offense, which resulted in pregnancy and abortion, outweighed any mitigating factors. Further, his claims of daily violations of the controlled dangerous substances law do not really mitigate the repeated acts of molestation. Finally, the state argues the 15-year sentence is not shocking, in light of the fact that Freeman’s criminal acts were numerous and could have been charged as aggravated rape, resulting in a life sentence.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing court complied with |3La. C. Cr. P. art. 894.1. The court need not list every aggravating or mitigating factor so long as the record reflects that it adequately considered the guidelines. State v. Smith, 433 So.2d 688 (La.1983); State v. Woods, 41,420 (La.App. 2 Cir. 11/1/06), 942 So.2d 658, writs denied, 2006-2768, 2781 (La.6/22/07), 959 So.2d 494. When the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even in the absence of full compliance with the article. State v. Landos, 419 So.2d 475 (La.1982). The court is not required to assign any particular weight to any specific matters at sentencing. State v. Quiambao, 36,587 (La.App. 2 Cir. 12/11/02), 833 So.2d 1103, writ denied, 2003-0477 (La.5/16/03), 843 So.2d 1130.

Here, the court provided extensive reasons for sentence, specifically noting Freeman’s clean criminal record and his participation in various rehabilitation programs in jail; however, these were negated by the gravity of the offense, including the pregnancy, abortion and the ultimate breakup of the family. Also weighing heavily in favor of a long sentence were Freeman’s continued efforts to evade his responsibility by claiming that he was habitually under the influence of alcohol and drugs, to the extent that he could not have committed the acts described by KT, and by incredibly claiming that the teenage KT “came on to him.” In short, the court fully complied with the guidelines and provided a factual basis for the sentence.

The second prong is constitutional excessiveness. A sentence violates La. Const. Art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless 1 imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, 99-1528 (La.5/16/00), 769 So.2d 1158. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the .worst type of offender, such as an offender who sexually abuses his minor child or stepchild. Id.; State v. Mahoney, 40,771 (La.App. 2 Cir. 3/8/06), 923 So.2d 984.

The record easily shows that Freeman abused his position of trust and responsibility toward KT, engaging in a course of conduct that far exceeded the one-year period of recurrence delineated as warranting the enhanced sentence of R.S. 14:81.2 D. Freeman committed numerous incidents of abuse, including some acts of intercourse while KT was under the age of 13 and could have been prosecuted as aggravated rape. Viewed in this perspective, the 15-year sentence is not grossly disproportionate to the offense or shocking to our sense of justice. The argument lacks merit.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, Freeman’s conviction and sentence are affirmed.

AFFIRMED.

      . Shortly before the trial of this matter, the statute was amended to provide a maximum sentence of 40 years at hard labor for this offense. 2006 La. Acts No. 36, § 1, effective August 15, 2006.


text:
    Deserae WILLIS, Individually and on Behalf of Her Minor Children, Aaron Willis, Jr., Ke'Era Willis, and Markaila Willis, and Ricky Monroe, Individually, Plaintiffs-Appellees v. SAFEWAY INSURANCE COMPANY OF LOUISIANA and Marcus Davis, Defendant-Appellant.
    No. 42,665-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      Tracy L. Oakley, for Appellant Safeway Insurance Company of Louisiana.
    W. Brett Cain, Shreveport, for Appel-lees.
    Before STEWART, GASKINS and CARAWAY, JJ.
   GASKINS, J.

pin this personal injury case arising from an automobile accident, the trial court found that the defendant insurer, Safeway Insurance Company of Louisiana, provided liability insurance covering the defendant driver, Marcus Davis; the court rejected Safeway’s material misrepresentations defense and rendered a money judgment against Safeway. On appeal, we reverse and render judgment in favor of Safeway.

FACTS ■

In May 2003, Deserae Willis was driving her 1996 Dodge on Jewella Avenue in Shreveport, Louisiana. Her husband, Rickey Monroe, and three minor children were in the car with her. As she approached an intersection, a 1991 Chevrolet operated 'by Marcus Davis made a left-hand turn in front of Willis, causing a collision. The Chevrolet operated by Davis was owned by Chanesca Love.

.Love was the named insured in an automobile liability insurance policy that was issued by Safeway and that listed the 1991 Chevrolet. When Willis, individually and on behalf of her minor children, and Monroe filed suit against Davis in Shreveport City Court, Safeway also was made a defendant. The petition alleged that Davis was either an insured or an omnibus insured under the Safeway policy.

Safeway answered the plaintiffs’ petition, generally denying the allegations and raising the affirmative defense of material misrepresentations. Safeway alleged that Love submitted an application for insurance that failed to disclose Davis either as an operator of the vehicle, or as a member of her household. Safeway further alleged that if Love had ^disclosed Davis, then Safeway either would not have insured Love,. or would have required a named driver exclusion for Davis.- Safeway later amended its answer to add the affirmative defense of non-permissive use by Davis of Love’s vehicle.

Safeway filed a motion for summary judgment in January 2007 addressing the defense of material misrepresentations. The motion came up for hearing just before the time scheduled for trial on the merits. After hearing arguments, the trial court rejected summary judgment, and the case proceeded immediately to trial. ■

The first two witnesses were Willis and Monroe, who testified concerning the accident, injuries, and medical treatment. Davis testified next, indicating on direct examination that his “permanent address” at the time of the accident was 1329 Ber-chet, the address listed on the accident report. He indicated that he lived there with his grandmother and received his mail there. He also indicated that he had Love’s permission to drive her vehicle on the day of the accident, and he admitted that the accident occurred when he made an unprotected left turn in front of Willis.

On cross-examination, Davis admitted that Love was his girlfriend and that, beginning in 2000, he would stay two to three weeks with Love,. then go to his grandmother’s house for two to three days, and then go back to stay with Love. This was the pattern at the time of the accident. Davis admitted that he kept most of his clothes at Love’s house. He responded affirmatively when asked if his intent was to stay with Love and if he just went back to his grandmother’s house to check on her and his child. With |srespect to driving Love’s Chevrolet, he admitted that before the accident he drove the vehicle two or three times a week. He also conceded that while he and Love had talked about trying to get insurance to cover him, he couldn’t get insurance because he didn’t have a driver’s license. According to Davis, he had never had a driver’s license and while he planned to eventually get one, he just “never got a chance” to do so.

In response to questions by the trial judge, Davis indicated that he wasn’t “officially” saying that he was staying at Love’s residence because “that’s her' [mother’s] house. You know what I’m saying. And I just come spend weekends or a week with her.” He stated that he did not pay rent on Love’s residence, and that he considered his grandmother’s house to be his home.

Love testified that she and Davis had lived together since 1999, and she affirmed Davis’ testimony that the routine since they had lived together was for him to stay with her for two to three weeks, then “go home” for two to three days, and then return. She indicated that she had given Davis permission to drive her car on the day of the accident, and she agreed with his testimony that before the accident he had driven the vehicle two to three times a week. She denied ever trying to get insurance for him.

Love was confronted with her application for insurance with Safeway. She acknowledged her signature and recalled being asked to list all the drivers of the vehicle and all the members of her household. However, even though she was living with her mother and Davis, she listed neither on the application, and when asked if she knew she was supposed to |4list her mother and Davis, she responded, “Yes sir.” She indicated she did not list them because they were “barely driving” her car. She admitted that she knew that neither her mother nor Davis had a driver’s license but she allowed them to drive her car anyway.

On cross-examination, she admitted that in her deposition she said that she and Davis first started living together around the time of the accident and that she didn’t list Davis or her mother because it wasn’t her intent for them to drive the car. She also admitted saying in her deposition that Davis had only driven the car two or three times, one of them being when the accident occurred. In response to a question by the trial judge, Love indicated that her failure to list Davis and her mother was not an attempt to deceive the insurance company. Instead the only person she listed was her sister because “that’s all I had to be driving my car was me and my sister.”

The following colloquy with counsel for the plaintiffs occurred near the conclusion of Love’s testimony:

Q. When you listed when you filled out this insurance application did you was it your belief at that time that the people that they wanted you to list were the people that were going to be driving your car?
A. Yes (inaudible)
Q. It wasn’t your understanding that it was just anybody in the household.
A. No.
Q. And you didn’t actually read all this you just had the agent explain it to you. Correct.
A. Yes (inaudible).
IsQ. And the way he explained it to you was it was somebody driving the car. Right. And you didn’t have any intention of them driving the car when you filled out the application so you didn’t list them. Correct.
A. Yes sir.

After both sides had rested and Safeway’s counsel had introduced the entire record without objection, the court stated that “this is a tough one on the issue of credibility.” With respect to whether Davis lived with Love, the court concluded that Davis always considered his grandmother’s house to be his home. With respect to whether Love had actual intent to misrepresent or deceive, the court found that Love lacked such intent, noting, “Her statement was they didn’t drive. Your application says regularly operate. She didn’t feel that it was [regular] operation.” The trial court rendered a money judgment in favor of the plaintiffs and against Safeway.

Safeway appealed.

LAW

Manifest error

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong; where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. State Department of Public Safety & Corrections, 2001-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State through Department of Transportation and Development, 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences Rof fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

To reverse a fact finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra.

Material misrepresentations

La. R.S. 22:619 provides:

A. Except as provided in Subsection B of this Section and R.S. 22:692, and R.S. 22:692.1, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

We previously have held that in interpreting this statute, an insurer must prove that: (1) the insured made a false statement; (2) the false statement was material; and (3) it was made with intent to deceive. West v. Safeway Insurance Company of Louisiana, 42,028 (La.App.2d Cir.3/21/07), 954 So.2d 286; Dye v. Walker, 36,482 (La.App.2d Cir.10/23/02), 830 So.2d 429, writ denied, 2002-2868 (La.1/31/03), 836 So.2d 72. Because of the inherent difficulties of proving intent, strict proof of fraud is not required to show intent to deceive. The intent to deceive must 17be determined from the attending circumstances which indicate the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that the insured recognized the materiality of the misrepresentations. Johnson v. Occidental Life Insurance Company of California, 368 So.2d 1032 (La.1979); Watson v. Life Insurance Company of Louisiana, 335 So.2d 518 (La.App. 1st Cir.1976). A statement is material if it is of such a nature that, had it been true, the insurer either would not have contracted, or would have contracted only at a higher premium rate. West, supra; Martin v. Security Industrial Insurance Co., 367 So.2d 420 (La.App. 2d Cir.1979), writ denied, 369 So.2d 1364 (La.1979).

INSURANCE APPLICATION

In section five of the one-page insurance application, it states that the applicant warrants there are no other persons of legal driving age in the household other than those listed below; the applicant and her sister Shemekia Love are the only persons listed. The application specifies that any driver whose driver’s license is under suspension or has no license must be excluded by endorsement. Also in section five, another question asks if there are any other members of the household; the “no” box is marked.

Section 10 of the application states as follows:

APPLICANT’S STATEMENT: The applicant hereto, states that he/she read this application and attests that all answers given by him/her to the questions asked herein are truthful to the best of his/her knowledge and belief and that said answers were made as inducement |ato the insurance company to issue a policy. Applicant further states that there are no individuals actually living in the same household as applicant, whether or not a licensed driver, other than those listed in section 5. Applicant further warrants that no individuals, other than those listed in Section 5, regularly operate the vehiele(s) described in this application or any other vehicles which may be later added to any policy issued as a result of this application. It is a special condition of this policy that the policy shall be NULL and VOID and of no benefit or effect whatsoever as to any claim arising thereunder in the event there are any material misrepresentations made with an intent to deceive in this application. It is understood that a copy of this application was provided to the applicant and shall be attached to and form a part of the policy of insurance when issued and that it is intended that the company shall rely on the contents of this application in issuing any policy of insurance or renewal thereof.

At trial, Love acknowledged her signature at the end of this section.

DISCUSSION

Despite the great deference we have afforded to the trial court’s factual, findings, we conclude that the trial court was clearly wrong in rejecting. Safeway’s material misrepresentations defense.

As noted above, section five of the application asked if there were any other persons of legal driving age in the household. Love listed only herself and her sister in this section, even though she admitted at trial that she knew she should list her mother and Davis. Her excuses that her mother and Davis were “barely driving” the vehicle and that she did not intend for them to drive the vehicle are unpersuasive. Both Love and Davis admitted that he had been driving the vehicle two or three times a week prior to the accident. They both admitted that Davis stayed at Love’s residence all but two or three days out of every two to three week period before the accident. Additionally, the same section contained this statement: “Any driver whose driver’s .license is under suspension or has no license, must be excluded by | ¡¡Endorsement.” Plainly, Davis had no license, and his testimony indicated Love was aware of this fact.

Under these circumstances, there can be no question that Love made false statements in the application. Furthermore, there can be no doubt that these statements were material because, had Safeway known that Davis regularly lived the great majority of his days in. Love’s residence and drove her car two or three times a week with her permission, but without a driver’s license, Safeway would not have insured Love. Thus, the only remaining question concerns Love’s intent to deceive, and the attendant circumstances here create a reasonable assumption that Love recognized the materiality of the misrepresentations. Despite her excuses, Love must be held to recognize that allowing the unlicensed Davis, who lived on a regular basis at her residence, to drive her car two or three times a week was exactly the kind of information sought by the insurer in section five of the application. This would have been true even without that section’s explicit requirement of exclusion by endorsement of an unlicensed driver.

Section 10 of the application warned that the policy would be null and void if material misrepresentations were made with intent to deceive in the application. This statement clarifies the importance of providing correct information, not only about other individuals living in the household, but also about individuals regularly operating the vehicle; Davis was both.

The trial court found no intent to deceive on Love’s part, stating, “Her statement was they didn’t drive. Your application says regularly operate. She didn’t feel that it was [regular] operation.” This rationale was incorreet. [inFirst, Love’s statement was not that Davis didn’t drive the vehicle, but that he did drive the vehicle two or three times a week. Second, the only reasonable conclusion is that this was regular operation of the vehicle, despite what Love may have said she “felt” in this regard. Additionally, we note that while the court concluded that Davis always considered his grandmother’s house to be his home, Davis did not apply for the insurance, and the objective evidence left no doubt that he resided the great majority of his time under Love’s roof, not his grandmother’s.

The evidence presented at trial established the reasonable assumption that Love recognized the materiality of her misrepresentations. Therefore, we hold that the trial court was clearly wrong in rejecting Safeway’s affirmative defense.

CONCLUSION

The trial court judgment against Safeway is reversed, and we render judgment in favor of Safeway. Costs are assessed to the plaintiffs.

REVERSED AND RENDERED.


author: LOLLEY, J.

text:
    Jumar JOHNSON, Plaintiff-Appellant v. Cassondra C. CASTLEBERRY, et al., Defendants-Appellees.
    No. 42,648-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 24, 2007.

      L. Douglas Lawrence, Bastrop, for Plaintiff-Appellant, Jumar Johnson.
    Davenport, Files & Kelly, by M. Shane Craighead, Monroe, for Defendants-Appellants, State Farm Mutual Automobile Ins. Co., Lindsey Murray, and Heath Murray.
    Hubley, Marcotte, Rhodes & Hussey, by C. Owen Marcotte Ins., Shreveport, for Defendants-Appellees, Louisiana Farm Bureau Casualty Co., Cassondra Castle-berry, and John Naff.
    Hudson, Potts & Bernstein, by Jay P. Adams, Monroe, for Defendants-Appel-lees, Mark Peoples and Direct General Ins. Co.
    Before BROWN, MOORE and LOLLEY, JJ.
   LOLLEY, J.

11 This appeal arises from the Fourth Judicial District, Parish of Morehouse, State of Louisiana. Plaintiff, Jumar Johnson, and defendants, Lindsey and Heath Murray, and State Farm Insurance Company (“State Farm”), appeal the decision by the trial court that held Lindsey Murray solely responsible for the damages sustained by Johnson in a multiple vehicle automobile accident. For the following reasons, we affirm.

FACTS

This case arises from a three-vehicle automobile accident which occurred in Bastrop, Louisiana, on February 6, 2004. The accident occurred on East Madison Avenue, a one-way, two-lane road. Plaintiff, Jumar Johnson, was riding as a passenger in Mark Peoples’ vehicle. They were stopped, waiting for a train to pass. Directly behind Peoples’ vehicle was a vehicle driven by Cassondra Castleberry, owned by her husband, John Naff. Behind Castleberry, was a vehicle driven by Lindsey Murray, owned by her husband, Heath Murray. At some point during the wait, Peoples’ vehicle was struck from behind twice. Johnson allegedly sustained bodily injury as a result of the collision.

The instant case proceeded to trial on September 25, 2006. The trial court concluded that the losses and injuries sustained by Johnson were solely attributable to the action of Lindsay Murray who admitted she collided into Castleberry’s vehicle causing one of the impacts felt by Johnson while in Peoples’ vehicle. The trial court also concluded that Mark Peoples and his insurer, Direct General Insurance Company, along with Castleberry and her insurer, Louisiana Farm Bureau Casualty Insurance Company, were not at |2fault. As a result, a judgment was rendered against the Murrays and State Farm in favor of Johnson for general damages in the amount of $7,500.00 and for special damages in the amount of $18,158.00. The Murrays, State Farm, and Johnson now appeal.

LAW AND DISCUSSION

Fault

On appeal, Jumar Johnson first asserts that the trial court erred when it did not apply the presumption of legal fault in the rear-end collision that caused the first impact allegedly caused by Castleberry as set forth in La. R.S. 32:81. In the alternative, he argues that the trial court was manifestly erroneous in finding Castleber-ry free from fault in light of the testimony at trial that the first impact was just between Castleberry’s vehicle and Peoples’ vehicle. The Murrays and State Farm Insurance Company (“State Farm”) join Johnson in this argument.

Our review of the factual findings in this case are governed by the manifest error/clearly wrong standard of review. It is a well-settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985); Arceneaux, supra. Where the factfinder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra.

The reviewing court must always keep in mind that, if a trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that, if it had been sitting as trier of fact, it would have weighed the evidence differently. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). For the reviewing court, the issue to be resolved is not whether the trier of fact was wrong, but whether the factfinder’s conclusions were reasonable. Theriot v. Lasseigne, 1993-2661 (La.07/05/94), 640 So.2d 1305.

In the instant case, the trial court did not specifically state that an impact occurred between Peoples and Castleber-ry; however, it did find that if any contact initially did occur between Castleberry and Peoples it “was so incidental as to not have contributed to the injuries suffered by Mr. Johnson or anyone else who was injured in the accident.” In effect, this finding renders the argument for the presumption of fault in a rear-end collision moot since the trial court did not find damages resulted from the first impact.

Further, while we may not agree with this determination, we cannot say that this factual finding was clearly wrong. Murray admittedly was driving between 30 and 35 mph, and never applied her brakes before driving into the |4rear of Castleberry’s vehicle, which in turn drove into Peoples’ vehicle. In addition, there was differing testimony as to which impact felt greater and which caused Johnson’s injuries. As such, the trial court was in the best position to make its determination based on credibility of the witnesses and the evidence provided. After a review of the record, the trial court’s finding that Murray was 100% responsible is reasonable.

Damages

Johnson also argues that the trial court erred in awarding only $7,500.00 for general damages; however, he does not appeal the amount awarded for special damages. On the other hand, the Murrays and State Farm argue that the award for special and general damages were excessive in light of the record and, accordingly, seek a reduction in the total amount awarded.

At issue in the assessment of the' award is the break in Johnson’s treatment. For his injuries resulting from the accident at issue, Johnson attended physical therapy beginning April 19, 2004. State Farm and the Murrays argue that as of May 13, 2004, Johnson, according to the medical records, had largely reached resolution of his complaints and thereafter failed to return for follow-up sessions on his own accord before knowing about his other medical issues, namely a brain tumor. Therefore, they argue, that symptoms, complaints, and medical treatment which occurred after May 13, 2004, were not causally connected to the accident at issue. Johnson asserts that his brain tumor treatments precluded him from undergoing further treatments at that time. Johnson resumed treatment after his other medical issues were resolved in May 2005 until September 2005.

|sBefore an appellate court may disturb an award for general damages, the record must clearly reveal that the trial court abused its broad discretion in making the award, based on the facts and circumstances peculiar to the case and the individual under consideration. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Here, the trial court looked at the damage to the vehicles; made note of Johnson’s medical records, including the ongoing referrals for physical therapy from his doctors post recovery of the brain tumor; and, gave ample consideration to the gap in Johnson’s treatment. We also note that at trial, Johnson stated he continued to have pain resulting from the automobile accident. The trial court has vast discretion in awarding damages, and after a thorough review of the record we do not find that the trial court was clearly wrong in its award for damages.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are to be split among Jumar Johnson, Lindsey and Heath Murray, and State Farm Mutual Automobile Insurance Company.

AFFIRMED.


author: WALLER, Presiding Justice, DIAZ, Presiding Justice,

text:
    NATCHEZ ELECTRIC AND SUPPLY CO., INC. v. Wayne JOHNSON d/b/a Johnson Electric.
    No. 2004-CT-00155-SCT.
    Supreme Court of Mississippi.
    Sept. 6, 2007.
    Rehearing Denied Nov. 15, 2007.

      Clifford C. Whitney, III, Vicksburg, attorney for appellant.
    Scott J. Schwartz, Hattiesburg, attorney for appellee.
   ON MOTION FOR REHEARING ON WRIT OF CERTIORARI

WALLER, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing is granted. Prior opinions are. withdrawn and these opinions are substituted therefor.

¶ 2. In this ópen-account case where the jury returned a verdict for the defendant, we are asked whether the trial court erred in denying the plaintiffs motions for judgment notwithstanding the verdict (JNOV) and for new trial. Because the jury’s verdict in favor of Wayne Johnson was without evidentiary basis, we' affirm the Court of Appeals’ decision reversing the judgment entered by the Circuit Court of Forrest County. However, rather than affirming the damages rendered by the Court of Appeals, we reverse and remand the case to the circuit court for a new trial on damages only.

FACTS

¶ 3. Wayne Johnson operated an electrical contracting business in Hattiesburg as Johnson Electric. Natchez Electric sold electrical materials to Johnson under an open-account agreement. According to Stacy Taggert, manager of the Hatties-burg branch of Natchez Electric, Johnson “was probably ... the largest commercial contractor [Natchez Electric] was dealing with” out of its Hattiesburg branch, and over the years he purchased “[h]undreds of thousands” of items from the company. Johnson and Taggert were “good business associates, [and] good friends.” Taggert estimated that Johnson had purchased “a little over $200,000” in materials from Natchez Electric.

¶ 4. The relationship soured when Johnson got behind on his payments to Natchez Electric, which ultimately sued him for more than $40,000 in debt. The suit was instituted under the open account statute, Mississippi Code Annotated section 11 — 53— 81 (Rev.2002). At trial, the jury found in favor of Johnson, but the Court of Appeals reversed and rendered, ordering that a judgment in the amount of $39,098.83 be entered in favor of Natchez Electric.

DISCUSSION

¶ 5. Under Mississippi law, a plaintiff suing on an open account must attach to the complaint a copy of the account. See M.R.C.P. 10(d). Natchez Electric complied with this rule. Johnson raised several affirmative defenses: mistakes in Natchez Electric’s accounting system, nondelivery of the goods, lack of signatures on delivery tickets, and theft. Since a portion of statutory law governing the burden of proof on actions on open accounts has been repealed, the first issue before the court is what proof establishes a prima facie case for an action on an open account. The second issue is whether Natchez Electric made its prima facie case and met its burden of going forward.

I. PRIMA FACIE PROOF FOR OPEN-ACCOUNT CASES

¶ 6. The United States Court of Appeals for the Fifth Circuit has defined “prima facie” as: “[evidence] such as will suffice until contradicted and overcome by other evidence ... [a] case which has proceeded upon sufficient proof to that stage where it will support [a] finding if evidence to the contrary is disregarded.” In re Int’l Sys. & Controls Corp. Sec. Litig., 693 F.2d 1235, 1242 (5th Cir.1982) (quoting Black’s Law Dictionary 1353 (4th ed.1968)) (cited with approval in Hewes v. Langston, 853 So.2d 1237, 1270 (Miss.2003)). A pri-ma facie case is made by the proponent solely on his proof. When this burden of proof has been met, the burden of going forward shifts to the contestants to overcome the prima facie case. Smith v. Averill, 722 So.2d 606, 611 (Miss.1998). More specifically, once a prima facie case is made on an open account, the burden of proof shifts to the account debtor to prove that the amount claimed is incorrect. B.E.I., Inc. v. Newcomer Lumber & Supply Co., 745 N.E.2d 233, 237 (Ind.Ct.App.2001) (citing Auffenberg v. Board of Trustees of Columbus Regional Hosp., 646 N.E.2d 328, 331 (Ind.Ct.App.1995)).

¶ 7. The Iowa Supreme Court has explained what is required to make a prima facie case in an open-account case:

It is our conclusion that plaintiffs actual ledger cards showing each entry of debit and credit, the testimony of plaintiffs manager showing the simultaneous business machine posting and invoice billing of the customer, his testimony concerning the correctness of the entries, and his testimony that all materials represented by the entries had been delivered to defendant constitute sufficient evidence to make a prima facie case.

Prestype, Inc. v. Carr, 248 N.W.2d 111, 119 (Iowa 1976) (quoting Gardner and Beedon Co. of Springfield v. Cooke, 267 Or. 7, 513 P.2d 758 (1973)).

¶ 8. Stacy Taggert, branch manager for Natchez Electric, testified as to how Natchez Electric operated its daily business. He provided specific detail concerning the three methods of delivery and billing to the Johnson Electric account that occurred over the period from April 1994 to May 1996, when Natchez Electric did business with Johnson. The most common method involved employees from Johnson Electric entering the Natchez Electric store with either a written or verbal list of supplies for purchase. Natchez Electric employees would pull the material, take the name of the job from Johnson Electric, print a delivery ticket, and forward an invoice to Johnson Electric at regular intervals for payment. The Johnson Electric employees would either sign the delivery ticket upon receipt of the goods or leave the store once the materials were loaded without signing the delivery ticket. In case of the latter, Natchez Electric might hand-write on the delivery ticket the name of the Johnson Electric employee who picked up the goods. Taggert testified Natchez Electric was instructed not to detain Johnson Electric employees waiting on the delivery ticket to print.

¶ 9. The other two methods of delivery occurred when Natchez Electric delivered electrical goods to a Johnson Electric job site, or a manufacturer, at the request of Natchez Electric, delivered goods directly to a job site. In both cases, the delivery ticket would be unsigned. A freight charge would appear on Natchez Electric invoices for material forwarded from a manufacturer to a Johnson Electric job site. The trial testimony and exhibits contain evidence of all three types of delivery. Taggert testified that the outstanding balance on the invoices entered as an exhibit, less the $19,000 adjustment for overbilling and returned merchandise found on those invoices, is an accurate calculation of the amount Johnson Electric owed to Natchez Electric: $41,794.45.

¶ 10. We find that Taggert’s testimony constituted a prima facie case for the open-account debt. The testimony described Natchez Electric’s standard practice of conducting business with Johnson and supported the accuracy of the invoices.

¶ 11. The burden of proof then shifted to Johnson, who asserted that the invoices were inaccurate, that he did not receive some of the merchandise listed on the invoices, and that a Natchez Electric employee was stealing merchandise and charging it to his account. The burden of proving an affirmative defense lies upon the party who relies upon that defense. Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 927 (Miss.2006) (citing Graham v. Pugh, 417 So.2d 536, 541 (Miss.1982)). We now turn to address the issue of whether Natchez Electric is entitled to a JNOV or a new trial.

II. WHETHER NATCHEZ ELECTRIC IS ENTITLED TO A JUDGMENT NOTWITHSTANDING THE VERDICT OR A NEW TRIAL

¶ 12. When reviewing the denial of a motion for JNOV, we consider the evidence in the light most favorable to the non-moving party, and give that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Steele v. Inn of Vicksburg, 697 So.2d 373, 376 (Miss.1997). See also Blake v. Clein, 903 So.2d 710, 731 (Miss.2005). If the facts, considered in that light, point so overwhelmingly in favor of the party requesting the JNOV that reasonable persons could not have arrived at a contrary verdict, we will reverse and render. Steele, 697 So.2d at 376. If there is substantial evidence in support of the verdict we will affirm the denial of the JNOV. Id. “Substantial evidence” is information of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions. Blake, 903 So.2d at 731. See also White v. Yellow Freight System, Inc., 905 So.2d 506, 510 (Miss.2004) (comparing standards of review applied to motions for JNOV against motions for a new trial).

¶ 13. Johnson’s defense at trial only vaguely challenged the fact that Johnson Electric owed Natchez Electric money. He argued that he did not know whether he received goods where the accompanying delivery ticket was not signed by himself or his employees. He could only state, “I feel like I didn’t get the material.” However, within the record we find Johnson admitting to the legitimacy of more than $1,600 in charges against Johnson Electric, based on signed delivery tickets. He admitted that a signed ticket would not exist for parts he ordered through Natchez Electric but were received directly from the manufacturer. In one such instance, he received a “gear” directly from the manufacturer and paid for it. He also admitted he wrote by hand a document noting discrepancies in Natchez Electric invoices during a meeting with Taggart. This meeting resulted in a $19,000 refund which was applied to Johnson’s account. While he denied on the stand that he accepted parts from Natchez Electric himself without signing a ticket, this testimony was inconsistent with his deposition testimony wherein he admitted that he took parts from Natchez Electric without signing the delivery ticket. Finally, after reviewing the record, we find specific testimony about only two Natchez Electric invoices that were proven to contain errors; both of which were rectified by the discrepancy refund. This testimony stands in opposition to the testimony that all the invoices admitted into evidence were accurate, representing an amount owed by Johnson to Natchez Electric, subsequently adjusted by the discrepancy refund.

¶ 14. Parties can establish a contract for the sale of goods by conduct. Miss. Code Ann. § 75-2-204(1) (Rev.2002). See also Alabama Great Southern R.R. Co. v. MeVay, 381 So.2d 607 (Miss.1980). “Where the contract for sale involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection shall be relevant to determine the meaning of the agreement.” Miss. Code Ann. § 75-2-208(1) (Rev.2002) (emphasis added). Acceptance occurs when the buyer, after reasonable opportunity to inspect the goods, signifies to the seller that the goods are conforming. Miss.Code Ann. § 75-2-606 (Rev.2002).

¶ 15. Here, this court is presented with conduct by Natchez Electric and Johnson where each manifested an intent to be bound to the sale and purchase of electrical goods. On the record before the court, acceptance of the terms of this contract was manifested by Johnson’s and his employees’ receipt of the electrical parts upon delivery at the Natchez Electric store, or delivery to Johnson Electric directly from a manufacturer or from Natchez Electric. Once the electrical goods were taken by Johnson and his employees, Johnson Electric became bound to the contract. When Johnson began paying on the account for items purchased on delivery tickets that were not signed by himself or his employees, he ratified this course of conduct in the performance of the contract. Cf. Gooch v. Farmers Marketing Ass’n., 519 So.2d 1214, 1216-17 (Miss.1988) (where this court found course of dealing by telephone sufficient to bind soybean grower to unwritten contract).

¶ 16. We can find nothing in the record to indicate that Johnson objected to this course of performance until trial. The record contains evidence that this course of performance was, in fact, acceptable to Johnson. His own testimony included inconsistent statements that he accepted goods without signing a delivery ticket from Natchez Electric. He also accepted the $19,000 refund from Natchez Electric without objecting to those purchases made on unsigned delivery tickets. He paid Natchez Electric several times on the account without objecting to the lack of a signature on the delivery tickets. He also paid for the gear delivered directly from the manufacturer. Natchez Electric employee Taggert testified that Johnson instructed them not to slow down his men waiting on the delivery tickets, indicating that simple delivery of the goods to his employees was sufficient to bind Johnson Electric to the contract for the purchase of the electrical goods.

¶ 17. At trial and on appeal, Johnson argues that he should not have to pay unless the delivery ticket contained the signature of one of his employees. We find this defense without merit under the Mississippi Uniform Commercial Code and the course of the performance of the contract between Natchez Electric and Johnson Electric. Miss.Code Ann. § 75-2-204(1) (Rev.2002). We also find Johnson’s own testimony sufficient to render judgment in favor of Natchez Electric. After Johnson admitted he owed Natchez Electric at least $1,600 on legitimate, signed, delivery tickets, no reasonable and fair-minded juror in the exercise of fair and impartial judgment could have found that Johnson did not owe Natchez Electric any money on the open account. Therefore, this argument is insufficient to withstand the motion for JNOV.

¶ 18. By so holding, we do not comment upon the accuracy of the quantity or price contained within the Natchez Electric delivery tickets or invoices. We only note the record contains overwhelming evidence of the existence of an obligation for Johnson Electric to pay Natchez Electric for goods delivered on signed and unsigned delivery tickets. These facts warrant reversal of the trial court’s judgment, and entry of judgment as a matter of law in favor of Natchez Electric. The amount of damages we leave for the jury.

¶ 19. Since the jury returned a verdict in favor of Johnson on Natchez Electric’s liability claims, it did not have an opportunity to determine the damages for Natchez Electric. In the record, we find sufficient evidence that reasonable jurors could disagree as to the amount owed. The jury’s verdict in favor of Johnson on his counterclaims for breach of contract demonstrates this. The evidence of the $19,000 revision and credit also indicate it is possible such mistakes persisted and exist in this record. This matter is therefore remanded to the circuit court for a new trial on the amount of damages alone. See, e.g., McKinzie v. Coon, 656 So.2d 134 (Miss.1995).

CONCLUSION

¶ 20. The defense verdict in favor of Wayne Johnson on Natchez Electric’s suit on his open account is not supported by substantial evidence. The trial court erred when it did not enter judgment as a matter of law in favor of Natchez Electric, which has proven by substantial evidence it is owed money by Johnson for goods delivered to him or his employees.

¶ 21. We therefore affirm the judgment of the Court of Appeals in part and reverse it in part. We affirm its holding that the circuit court’s . judgment denying Natchez Electric’s motion for judgment notwithstanding the verdict should be reversed and judgment as a matter of law rendered in favor of Natchez Electric. We reverse the judgment of the Court of Appeals which awards damages to Natchez Electric, reverse the trial court’s judgment, and remand this matter for a new trial on damages. In all other' respects, the judgment of the Court of Appeals is affirmed.

¶ 22. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT IS REVERSED AND THIS CASE IS REMANDED TO THE FORREST COUNTY CIRCUIT COURT FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH THIS OPINION.

SMITH, C.J., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES AND RANDOLPH, JJ. LAMAR, J., NOT PARTICIPATING.

DIAZ, Presiding Justice,

dissenting:

¶23. Because the majority disregards our standard of review and casually dismisses a verdict rendered by a jury, I must respectfully dissent.

¶ 24. The majority distorts the ample evidentiary record by stating that “Johnson’s defense at trial only vaguely challenged the fact that Johnson Electric owed Natchez Electric money.” In fact, that was the brunt of the defense, which focused heavily on the inaccuracy of Natchez Electric’s billing system and allegations of impropriety on behalf of the company’s employees. While the majority scrutinizes the efforts made by Natchez Electric to mount its ease, it disregards the efforts of Johnson to defend his case-efforts which a jury found persuasive. By ignoring evidence supporting a defense and focusing exclusively on the evidence supporting a claim, the majority creates a burden which no defendant in an open-accounts suit can hurdle.

¶ 25. Natchez Electric, the plaintiff in this case, put on three witnesses: Natchez Electric manager Stacy Taggert, Natchez Electric controller Rally Dennig, and Jim Rayborn, a former regular customer of Natchez Electric. Johnson’s defense witnesses included Chris Forten-berry, a former employee of Natchez Electric; Johnson himself; and Johnnie Fairchild, a former employee of Natchez Electric who worked at Robinson Electric Supply. ■ The testimony of these witnesses can be loosely grouped into several relevant categories which resulted in the verdict of the jury and which underscore why the majority’s retroactive application of a JNOV is improper.

I. The Billing System.

¶ 26. There was multiple testimony that the billing system Natchez Electric used was sometimes flawed, including testimony from current employees as to this fact. Mr. Taggert noted repeatedly that the system was imperfect: “[w]e were using a new pricing service ... we were working through the debugging period of that. There were problems that we should have caught that we didn’t....” Mr. Taggert further admitted that “[w]e have made mistakes.” The following exchange took place on cross-examination:

Q. Have you ever had any problems with your billings through your computer system?
A. Yes, sir, occasionally we did.
Q. Did you have any problems with your billing through your computer system with Mr. Johnson?
A. Yes, we did.

Examining some of the invoices assessed to Mr. Johnson, Mr. Taggert demonstrated that sometimes the computer billing system could result in error:

Q. Would you ... tell the jury what the right charge should have been [for the product]?
A.... The right charge should have been $25 per hundred, and it states in here per each.
Q. And it also says that Mr. Johnson was charged $250 for ten of those items, correct?
A. Correct.
Q. What should he have been charged?
A. $2.50,1 believe.

There were several other instances in the trial transcript where Mr. Taggert detailed how Mr. Johnson had been erroneously overcharged. On cross-examination, Mr. Taggert admitted multiple times the invoices had errors. When asked “[a]nd there have been incorrect amounts charged to Mr. Johnson on certain things?” he replied “Yes.”

¶27. The problems with overbilling eventually resulted in a credit of $19,025 being issued to Mr. Johnson. Indeed, Natchez Electric conceded the overbilling problem. Ms. Dennig, who handled the bookkeeping duties for the company, was asked: “Obviously, Natchez Electric had some billing problems and some invoicing problems and some computer problems dealing with Mr. Johnson’s account because a $19,025 credit for over-billing was issued?” The bookkeeper answered simply “correct.” At one point, a letter was introduced into evidence that was written by Natchez Electric’s bookkeeper and sent to Mr. Johnson’s bookkeeper; it included the language “Sorry for the problems my mess-up is causing.”

II. Problems with Staff.

¶ 28. In addition to the multiple problems with the computer system and over-billing which Natchez Electric admitted, there was some evidence of a human problem. While it was denied by Natchez Electric, this version of events was based on Natchez Electric accusing Chris For-tenberry, a former employee, of stealing from the company and then overbilling Mr. Johnson to cover the theft. At trial, Mr. Fortenberry testified to the following:

Q. And what did Mr. Taggert tell you?
A. It was on a situation to where Wayne [Johnson] had gone and Mr. Taggert had — I would say accused me of taking material and billing Wayne out for it.
Q. What did Mr. Taggert tell you about that yesterday?
A. He said all they were doing is looking to see about it, but it didn’t really mean anything. I was just one of, like he said, one of three or four people they were looking at in the store at that time.
Q. Were you aware that Mr. Taggert told Wayne that someone was selling stuff out the back door at Natchez [Electric]?
A. Yes, sir.
Q. Are you aware that Mr. Taggert told Wayne [Johnson] that somebody was selling stuff out the back door, charging it to his account, and that was what was causing the problem with his account?
A. Yeah, Wayne [Johnson] told me that.
Q. And did Mr. Taggert acknowledge that to you last night?
A. Yeah, uh-huh.

Mr. Fortenberry denied that he stole from the company. Mr. Taggert explicitly denied this version of events, although he did admit to firing Mr. Fortenberry because of the money owed back to Mr. Johnson:

Q. And wasn’t it about that same time that Mr. Fortenberry was dismissed from service with Natchez Electric?
A. The day this credit [to Mr. Johnson for $19,025] was written, he was.
Q. He was fired; is that correct?
A. Correct, due to the credit.

III. Accuracy of the Invoices.

¶ 29. Natchez Electric admitted at trial that some of the allegedly unpaid invoices for which the company sued Mr. Johnson were inaccurate. After it was determined that Mr. Johnson was owed a $19,000 credit due to overbilling, the credit was applied to his account. However, the credit was not necessarily applied to the faulty invoice itself.

¶ 30. For example, Mr. Taggert testified that Mr. Johnson bought a number of bank plates; he should have been charged 25 cents, but was instead charged $2.50. He was ultimately overcharged $247.50 for the items. When the discrepancy was discovered, and credit issued, it was not applied to that invoice. Instead, it was applied at Mr. Johnson’s request to some of his older debt with Natchez Electric.

¶ 31. Accordingly, the invoices upon which Natchez Electric based its suit were often flawed. Mr. Taggert admitted this on cross-examination:

Q. You give [Mr. Johnson credit] in one hand and take it back in the other.
A. No, sir, he’s already taken the credit.
Q. It’s not reflected on the invoices, is it?
A. Not on these individual invoices, no.
Q. It’s not reflected in the amount that you sued for?
A. No, it’s not reflected in that amount.
Q. You sued on these invoices?
A. Yes, sir.
Q. Not on some from ten years ago. You sued on these invoices. These invoices have errors in them; do they not?
A. Yes, they do.
Q. Well, you keep telling us that you reduced what [Mr. Johnson] owed by $19,000. Show me on these invoices where you reduced the errors that are in these invoices from what you sued him on. That’s what I’m asking.
A. I can’t show you on these invoices.
Q. Because it doesn’t exist, does it?
A. Not on these invoices, no.
Q. Okay.
Q. One other thing. I think you’ll agree with me that there are some invoices that are in there that are in error?
A. Yes.
Q. And those invoices are a part of this lawsuit?
A. Yes.
Q. And there have been incorrect amounts charged to Mr. Johnson on certain things?
A. Yes.

¶ 32. Natchez Electric repeatedly admitted at trial that the invoices which formed the basis of their suit were in error” and that there were numerous problems with the billing system. While it was disputed whether there was a thief at Natchez Electric who stole materials and falsified tickets assessing the debt to Mr. Johnson, it is undisputed that Mr. Forten-berry was fired due to the $19,025 credit issued to Mr. Johnson.

¶ 33. The majority acknowledges that it has long been our law that the burden of proof is initially on the party seeking to establish the debt. Neal v. Hooper, 153 Miss. 884, 885-86, 122 So. 103 (1929). Yet, despite the ample proof contained in the record and recounted supra, it disregards the ability of a defendant to mount a defense. In the eyes of the jury, Natchez Electric failed to establish that Johnson owed a debt. This is a conclusion that reasonable jurors could have reached in light of the evidence presented; the jury’s findings were certainly underscored by the fact that representatives of Natchez Electric repeatedly admitted the inability to establish a debt was owed at trial. Our standard of review forbids us from second-guessing juries in this fashion.

¶ 34. Even if Natchez Electric had established the correctness of the debt, there are multiple defenses one might assert in an open-account suit, primary among them non-delivery and lack of indebtedness. Mr. Johnson did not say that his defense was payment, or satisfaction, which would have shifted the burden to him. See Philley v. Toler, 239 Miss. 347, 362, 123 So.2d 223, 229 (1960) (in an open-account case, party has “the burden of proof to show payment under [a] plea of payment,” because “[t]he burden of proving payment is upon him who asserts it”); compare Graham v. Pugh, 417 So.2d 536, 540-41 (Miss.1982) (“A plea of the statute of limitations is an affirmative defense and carrying the burden of proof lies on the party who relies upon that defense”) (citing Philley).

¶ 35. Instead, Mr. Johnson s defense was that the invoices were inaccurate. That is, the invoices were so flawed, over-billing so commonplace, theft and fraud were present in the company, all of which supported his theory that the debt did not exist. He then put on proof to support his defense of inaccuracy or lack of debt. That Natchez Electric had already credited Mr. Johnson $19,025 due to billing errors certainly carried weight with the jury. The majority wholly ignores that Johnson even mounted a defense; it focuses exclusively on the case asserted by Natchez Electric. The majority’s substitution of its judgment for that of the jury is made complete when it notes that the accuracy of the invoices is of no matter, since “the record contains overwhelming evidence of the existence of an obligation for Johnson Electric to pay Natchez Electric for goods delivered.... ” Whether the evidence was “overwhelming” or not is for a jury to determine; equally within the province of the jury is whether the so-called “overwhelming” evidence was rebutted or surpassed by an adequate defense.

¶ 36. In today’s digital world, a defense of total inaccuracy may not be commonplace, but in light of the ample evidence above, and taking it in the light most favorable to Mr. Johnson, it is impossible to say that no reasonable juror could arrive at the verdict reached in the trial below. I am concerned about the repercussions from the automatic assumption that a debt is valid. Because the majority fails to observe the standard of review, and because reasonable jurors could have decided this case in favor of Mr. Johnson, I must respectfully dissent.

GRAVES AND RANDOLPH, JJ., JOIN THIS OPINION.