author:
JOAN BERNARD ARMSTRONG, Chief Judge.
      BELSOME, J.,

text:
    Katherine A. MEYER, Wife of/and Keith Meyer v. Paul TUFARO, the Italian Pie Franchise, L.L.C., Italian Pie, L.L.C., Pizza, L.L.C., Musa Ulusan, Serdar Tilioglu, Tom Cangemi, Progressive Insurance Company, State Farm Insurance Company and XYZ Insurance Company.
    No. 2005-CA-1110.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 2006.

      Andrew D. Weinstock, Joseph G. Glass, Duplass, Zwain, Bourgeois & Morton, Me-tairie, LA, for Plaintiff/Appellant, Katherine A. Meyer.
    Raymond P. Ladouceur, Ladouceur and Ladouceur, L.L.C., New Orleans, LA, for Defendants/Appellees, Mustafa Misirci, Serdar Tilioglu and Thomas Cangemi.
    John E. Faherty, Jr., Morse, McGinty, Bordelon & Casler, Lynnette Hall-Lewis, Wallace, Casler & McGinty, Metairie, LA, for Appellants, Paul Tufaro and Progressive Security Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR. and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff/appellant, Katherine A. Meyer, and her husband, Keith Meyer, filed suit on August 13, 2001 for damages allegedly sustained when the car in which Mrs. Meyer was traveling was struck from behind while stopped at an intersection by a vehicle driven by Paul Tufaro. Named original defendants were the driver and his insurer, Progressive Insurance Company, The Italian Pie Franchise, L.L.C., Italian Pie, L.L.C., Pizza, L.L.C., Musa Ulusan, Serdar Tilioglu, Tom Cangemi, and the then unidentified insurer of “The Italian Pie, individual and/or entity defendants.” The plaintiffs also sued their own insurer, State Farm Insurance Company, alleging unfair and/or deceptive trade practices causing the plaintiffs to have elected lower limits of uninsured and underinsured motorist bodily injury coverage than the limits for which they were insured for bodily injury liability coverage. The plaintiffs also claimed their State Farm policy’s limits for uninsured and underinsured coverage.

I ¡>The plaintiffs alleged that at the time of the accident, Mr. Tufaro was acting in the course and scope of his employment for “The Italian Pie Franchise, L.L.C. and/or Italian Pie, L.L.C. and/or Pizza, L.L.C. and/or Musa Ulusan and/or Serdar Tilioglu and/or Tom Cangemi”, or, alternatively as an agent for those entities. The petition states a claim for vicarious liability against the various corporate defendants and Messrs. Ulusan, Tilioglu and Cange-mi. Mrs. Meyer claimed substantial personal injuries, damage to her car, economic and non-economic damages and medical expenses. Mr. Meyer claimed loss of consortium, service and society.

On August 31, 2001, the plaintiffs filed an amended petition adding The Perfect Crust, Inc. as a defendant. The record shows service on all named defendants.

The Italian Pie Franchise, L.L.C., Italian Pie, L.L.C., Pizza, L.L.C. and Messrs Ulusan, Tilioglu and Cangemi answered, claiming that Mr. Tufaro was employed by The Perfect Crust, Inc. at the time of the accident, and that The Perfect Crust is a franchisee of Italian Pie, L.L.C. and a separate legal entity.

Mr. Tufaro and Progressive Security Insurance Company filed a general denial and defense of failure to state a cause of action and submitting that any policy of insurance that may have been issued by Progressive to Mr. Tufaro is the best evidence of its terms and conditions. The answer also set forth alternative claims of comparative negligence, failure to mitigate damages and of unavoidable accident caused by the fault of a third party for whom the defendants are not liable.

|3State Farm Mutual Automobile Insurance Company answered with a general denial, calling for strict proof and pleading the terms and conditions of their policy. State. Farm also pled in the alternative the plaintiffs contributory and comparative negligence, victim fault, assumption of the risk, and third party fault and sought a credit for payments made by State Farm or by any other entity or carrier. State Farm also claimed it had acted reasonably and in good faith with the handling of the plaintiffs’ claim and specifically averred that the plaintiffs failed to provide satisfactory proof of loss. State Farm requested a jury trial of all issues.

The Perfect Crust, Inc. filed a general denial as to both the original and amended petitions.

On April 25, 2003, the trial court granted partial summary judgment finding that Mr. Tufaro was solely responsible for the accident. The trial court designated the judgment final and appealable pursuant to La.C.Civ.Pro. art. 1915 and certified that there was no just reason to delay its appeal. There is no indication in the record that this judgment was appealed, nor was there an application to this Court for supervisory review in connection therewith.

On August 13, 2003, the plaintiffs filed a second supplemental and amending petition, naming as individual defendants Messrs Cangemi and Tiliogu and adding Mustafa Misirci. Mr. Ulusan is not named as a defendant and there is no reference to the unidentified insurer named in the original petition. Mrs. Meyer is named as a plaintiff in her additional capacity as Executrix of the Estate of her late husband. The amending petition states a new claim that the plaintiff is the third party beneficiary of an undertaking by Messrs. Cange-mi, Tilioglu and Misirci |4to be liable for the obligations of Perfect Crust, Inc. The amending petition removes all references to Italian Pie Franchise, L.L.C., Pizza, L.L.C. and Mr. Ulusan, and alleges all references to “Italian Pie, individual and/or entity defendants” in the earlier petitions against Mr. Misirci. The plaintiff requested trial by jury. Mr. Misirci filed a general denial, adopting all affirmative defenses raised by the other defendants. Italian Pie, L.L.C., and Messrs. Tilioglu and Cangemi filed a general denial to the second amending petition. Mr. Tufaro and Progressive filed a general denial revering their previous affirmative defenses and answers. The Perfect Crust, Inc. filed a general denial, reaffirming all previous affirmative defenses and answers.

On August 13, 2003, the trial court granted the plaintiffs motion voluntarily dismissing all claims against Italian Pie Franchise, L.L.C., Pizza, L.L.C. and Mosa Ulusan, without prejudice, reserving the plaintiffs rights against all other parties.

On September 12, 2003, the plaintiff filed a third supplemental and amending petition alleging that in light of the relationships between the Italian Pie, L.L.C. and Perfect Crust, Inc., the entities constituted a single business enterprise because their directors and officers did not act independently in the best interest of the companies. Furthermore, the corporations had common officers or directors and suffered from inadequate capitalization, thereby creating a “thin corporation.” The plaintiffs also allege excessive fragmentation of a single enterprise into separate corporations, thereby allowing the plaintiffs to pursue Italian Pie, L.L.C. and Perfect Crust, Inc. under the “single business enterprise” theory. Perfect Crust, IsL.L.C., Italian Pie, L.L.C. and Messrs. Cangemi, Tilioglu and Misirci filed general denials.

By judgment dated October 24, 2003, the trial court granted the plaintiffs motion for partial summary judgment that The Perfect Crust, Inc. is vicariously liable for the negligence of Mr. Tufaro, its employee. That judgment was not appealed, nor is there an indication in the record that any party sought supervisory review in this Court.

On February 18, 2004, Italian Pie, L.L.C. moved for summary judgment dismissing with prejudice the claims against this defendant. On the same day, Messrs. Cangemi, Tilioglu and Misirci filed a motion for summary judgment dismissing with prejudice the claims against them. The plaintiff filed a cross-motion for summary judgment as to the personal liability of the individual defendants.

On April 20, 2004, the trial court rendered judgment granting Italian Pie, L.L.C.’s motion for summary judgment dismissing that defendant with prejudice. The judgment denied the cross-motions for summary judgment relating to the personal liability of the individual defendants. This Court granted thb plaintiffs application for supervisory writ as to the dismissal of Italian Pie, L.L.C., finding genuine issues of material fact as to whether Italian Pie, L.L.C. and Perfect Crust, Inc. operated as a single business enterprise. Meyer v. Tufaro, 2004-C-0800 (La.App. 4 Cir. 11/8/04), unpub. By order dated January 13, 2005, the trial court granted the plaintiffs motion to dismiss without prejudice her claims against Italian Pie, L.L.C., reserving the plaintiffs rights against the remaining defendants.

LThe individual defendants moved in li-mine to prohibit the plaintiff from introducing evidence relating to a claim as a third party beneficiary of a January 19, 2001 Agreement to Purchase and Sell and a February 1, 2001 Sale and Transfer of the common capital stock of The Perfect Crust, Inc. After jury selection and adjournment, the trial court heard argument and denied the motion. Counsel for the individual defendants moved to continue the trial, contending that the plaintiffs argument for personal liability of the individual defendants based on a characterization of the contract as a stipulation pour autrui constituted an enlargement of the pleadings, as to which he had a right to take' discovery. The trial court denied that motion as well.

A twelve person jury tried the case over three days, and awarded damages to the plaintiff individually for physical pain and suffering in the amount of $200,000; for loss of enjoyment of life in the amount of $50,000; for past medical expenses in the amount of $111,756.87 and for future medical expenses in the amount of $37,500. The jury made no award for mental anguish or for the late Mr. Meyer’s claim for loss of consortium. Based on these findings, the trial court rendered judgment on January 26, 2005 in favor of Mrs. Meyer and against Mr. Tufaro, Progressive, The Italian Pie Franchise, L.L.C., Italian Pie, L.L.C., Pizza, L.L.C. and Perfect Crust, Inc. in the amount of $399,256.87 with costs and interest from the date of judicial demand. The trial court rendered judgment in favor of the individual defendants as to all claims, and in favor of all defendants as to the claims of Mr. Meyer’s estate. The judgment was signed on March 28, 2005.

|7The plaintiff filed a petition for devolu-tive appeal on May 3, 2005. According to the appellant’s brief, a Motion for New Trial was filed on April 4, 2005 to correct the judgment to reflect accurately the jury verdict. The trial court granted the Motion for New Trial and issued an amended judgment on April 19, 2005, casting in judgment' only Mr. Tufaro, Progressive and Perfect Crust, Inc.

Mrs. Meyer, individually and on behalf of her late husband’s estate , filed a petition for appeal on May 3, 2005. Mr. Tufa-ro and Progressive filed a Motion for Sus-pensive Appeal on May 25, 2005.

Mr. Tufaro and Progressive claim that the trial court erred by not limiting the judgment against Progressive to its policy limits. The parties stipulated at oral argument that the judgment against Progressive should be so limited.

Mr. Tufaro and Progressive also claim that the trial court erred in having failed to reduce the jury’s allegedly excessive award.

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La. 1/16/96), p. 4, 666 So.2d 612, 614. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We are instructed that before a fact-finder’s' verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311, 314. Although we accord deference to the fact finder, lswe are cognizant of our constitutional duty to review facts, not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, 98-3099 (La.7/5/94), 639 So.2d 216, 221; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745.

Our initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co. Inc., 294 So.2d 803 (La.1974); Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993) cert. den. 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from the jurisprudence is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. It is only when the award is, in either direction beyond that Jjjwhich a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., supra. The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5th Cir.1991).

The jury’s awards to Mrs. Meyer are not obviously the result of passion or prejudice, and they bear a reasonable relationship to the elements of the proved damages. Perhaps a rational trier of fact could have decided that a lower award is more appropriate, but we cannot conclude from the entirety of the evidence, viewed in the light most favorable to the prevailing party in the trial court, that a rational trier of fact could not have fixed the awards of general damages at the level set by the trial judge or that this is one of those “exceptional cases where such awards are so gross as to be contrary to right reason.” See, Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir.1987); Youn, supra.

Our review of the record in its entirety convinces us that the jury’s findings as to Mrs. Meyer’s damages are reasonable in light of that record. We are mindful of the standard of review of the verdict of a properly instructed jury.

“Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong... .[AJppellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.... When findings are based on determinations re- . garding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s, findings; for only the fact finder 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.... [Where] a fact finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can |invirtually never be manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

Dr. John Finney, M.D. was accepted by the trial court without objection as an expert in family practice. Dr. Finney was Mrs. Meyer’s family physician, and first saw her in June of 1989. He testified that prior to the accident he had treated Mrs. Meyer with anti-inflammatory agents, muscle relaxers and, when necessary, pain medication for her neck and back complaints. The doctor testified to having treated Mrs. Meyer for neck pain in June, 1995 resulting from an automobile accident. He treated her with an anti-inflammatory and a muscle relaxer. The doctor had not recorded any further neck complaints until the accident in question in the instant litigation. Two days after the accident, she saw the doctor, complaining of neck pain, whereupon his physical examination showed a decreased range of motion in the neck, tightness, tenderness and spasm in her neck muscles. He diagnosed her with neck muscle strain and gave her an anti-inflammatory and a muscle relaxer. He continued to treat her. Ultimately, Mrs. Meyer had an MRI scan of her neck and back showing three bulging discs and some bone spurs in her neck. The bone spurring, according to the doctor, happens over a long period of time and is caused by bones rubbing together. The bone spurs indicated long-term changes in Mrs. Meyers’ neck. These degenerating areas are evidence of a weakened condition causing her to be more prone to injury, even from minor impact. Dr. Finney testified that even a sneeze or cough could herniate or rupture a disc, and the more degenerative changes a person has, the more susceptible she would be to this type of injury.

InDr, Finney saw Mrs. Meyer for her back problems in 1995 in connection with the previously discussed automobile accident. The doctor treated her with an anti-inflammatory and muscle relaxer. At that time, she did not need back surgery. He treated her in August of 1998 for back pain associated with Mrs. Meyers’ having picked up a box at work. She complained of low back pain that worsened when she sat down. He diagnosed her with a lumbar strain and muscle spasm, and prescribed anti-inflammatories, muscle relaxers and pain pills. He did not consider surgery at that time. Dr. Finney saw Mrs. Meyer for unrelated issues in 1995, 1996, 1997 and 1998. He prescribed Vico-din and Vieodin Extra Strength for Mrs. Meyer five times in 1998 Dr. Wiedemann of a local orthopedic clinic prescribed Per-cocet during the same period. Dr. Finney prescribed narcotic painkillers for Mrs. Meyer five times in 2000 prior to the accident in question.

Two days’ before the accident he saw Mrs. Meyer, who was then complaining of some back pain, fatigue and sinus allergy symptoms. She also complained of right lower back pain for which she had seen Dr. Bernard Manale, M. D., an orthopedist, in the past. Dr. Manale had taken negative X-rays the previous year and the doctors felt the lower back pain had been caused by a muscle strain.

According to Dr. Finney, Mrs. Meyer’s neck and back pain did not go away after the accident in question. When specifically questioned as to whether a minor rear-end collision such as that in which Mrs. Meyer and Mr. Tufaro were involved could cause herniation of Mrs. Meyers’ discs and the neck and back pain of which she complains, the doctor testified:

JLjgfAjny kind of rear-end impact can cause a major problem. If you have a spine that’s in a weakened condition to begin with, it doesn’t take much to rupture a disc or herniate a disc. And if you’re rear-ended in the car or hit broadside in.a car, if there’s any kind of jolting injury to the neck or the spine, it can herniate a disc, so, no, I don’t think that the motor vehicle accident could be considered minor.

Dr. Finney testified that at no time prior to the accident in question did he consider Mrs. Meyer a candidate for spinal surgery. After the accident, she went through a course of conservative treatment including epidural steroid injections that did not resolve her complaints. On June 14, 2001, she underwent spinal fusion surgery. Because she continued to suffer pain after the surgery, additional epidural steroid injections were administered, and a bone scan determined that, as a complication of the surgery, she suffered from an infection of the disc area for which a second hospitalization of nearly a month and a second surgery were required.

Dr. Finney testified that the back and neck injuries sustained by Mrs. Meyer were related causally to the accident in question. He testified that the herniated discs in Mrs. Meyer’s cervical spine would cause her continuing chronic, daily pain, particularly during changes in the weather.

Dr. Manale was recognized as an expert orthopedic surgeon. His practice first saw Mrs. Meyer in March of 1999, when she complained of left knee and back pain. Dr. Manale’s associate diagnosed bursitis of the hip, flat feet and a lumbar syndrome, and prescribed an inflammatory and special shoe inserts. He did not recommend an MRI or back surgery. Mrs. Meyer was not seen again in Dr. Manale’s office until a few weeks after the accident in question, when she complained of neck and back pain and gave a history of a motor vehicle accident. 11RMrs. Meyer also had a previous history of back and neck pain, and had been treated by Dr. Finney. He found a worsening of Mrs. Meyer’s pre-existing symptoms. He testified that Mrs. Meyer had been completely truthful about her medical history. He' treated Mrs. Meyer conservatively and when it became apparent that she was not improving, he ordered an MRI in October of 2000. The MRI showed that Mrs. Meyer had disc narrowing and desiccation, and a rupture. In Dr. Manale’s opinion, the disc was already degenerated, and then the accident caused it to rupture, worsening her symptoms. While the MRI of Mrs. Meyer’s neck showed evidence of degeneration and bone spurs, there were no ruptures, nor was there evidence of pressure on the nerves.

Dr. Manale continued to treat Mrs. Meyer conservatively, including administration of epidural steroid injections, through the spring of 2001. When her pain continued, and after having obtained a second opinion, he obtained Mrs. Meyer’s consent to surgery. On June 14, 2001 performed a discectomy and fusion. He described the surgery to the jury. He also confirmed Dr. Finney’s testimony that Mrs. Meyer suffered discitis, a known complication of the fusion surgery, requiring additional surgical intervention. This resulted' in Mrs. Meyer’s having two wounds, the original incision from the rear and a second incision from the front. According to Dr. Manale, Mrs. Meyer still suffers back and neck pain. When he last saw Mrs. Meyer, she was completely disabled as a result of her back problems. Dr. Manale testified that it is more likely than not that Mrs. Meyer’s disc ruptured as a result of the rear-end collision that is the subject of this litigation.

114Based on the medical testimony and supporting documentary evidence, and applying the previously outlined standard of review, we conclude that the jury’s award is not excessive.

Mr. Tufaro and Progressive also claim that the trial court erred in having granted the Motion for Directed Verdict filed on behalf of the individual defendants. The plaintiff claims that the trial court erred in having concluded that the individual defendants were not liable for the obligations of Perfect Crust, Inc. relying on the provisions of the February -1, 2001 Sale and Transfer.

Thomas Cangemi testified that he is employed by Italian Pie Franchise, L.L.C., a company that franchises approximately twenty-five Italian Pie restaurants. In May of 1999, he, along with others, were shareholders in Perfect Crust, Inc., a sub-chapter S corporation. Perfect Crust was created to own and operate an Italian Pie franchise restaurant on Magazine Street in New Orleans.

Mr. Cangemi identified the Articles of Incorporation filed with the office of the Louisiana Secretary of State on May 13, 1999. The Articles identified Mr. Cangemi as the incorporator and noted that all of the capital stock of the corporation would be issued in accordance with the provisions of Section 1244 of the Internal Revenue Code. The Initial Corporation Report identified the corporation’s location, registered agent and ■ directors, Messrs. Cangemi and Misirci. Mr. Cangemi testified that the corporation was formed and the articles recorded so that Perfect Crust would be a separate, legal entity. He identified the minutes of the May 11, 1999 Shareholders’ First Meeting electing Messrs. Cangemi and Misirci to the Board, a Waiver of Notice of Shareholders Meeting, a |1BWaiver of Notice of Board Meeting and minutes of the board meeting at which he was elected president and Mr. Misirci was elected secretary-treasurer of the corporation. He identified the corporation’s bylaws and copies of the corporation’s stock certificates showing that Messrs. Misirci, Tiglioglu and Cangemi each owned 300 shares of the corporation’s stock. Mr. Cangemi testified that he had originally owned 600 shares, and had sold 300 of his shares to Mr. Tiglioglu for $64,000 by an Act of Sale dated January 1, 2000.

On February 2, 2000, the shareholders entered into an agreement regulating their rights and responsibilities concerning transfer of their shares, acquisition of life insurance on the shareholders, actions upon the death of any shareholder or shareholders, issuance of additional stock, dissolution and miscellaneous matters. Mr. Cangemi identified the Franchise Agreement dated June 4, 1999 between Perfect Crust as franchisee and Italian Pie, LLC as franchisor. Mr. Cangemi also identified minutes of Perfect Crust board meetings. He testified that as a director and officer of Perfect Crust he followed all of the formalities as to respecting the corporation’s existence while he was a shareholder. According to Mr. Cangemi, the shareholders never borrowed cash from Perfect Crust.

Mr. Cangemi testified that the shareholders’ investment in the corporation was between $240,000 and $250,000. In January of 2001, Mr. Chang, who operated the Rampart Street Italian Pie franchise, was eagerly pursuing the shareholders for a new location. The Magazine Street franchise was up and running, and the shareholders felt that they had over-invested in the location. They |ir,believed that Mr. Chang could operate the restaurant while they could then develop other franchises outside Louisiana.

On January 19, 2001, the shareholders and Mr. Chang entered into an Agreement to Purchase and Sell, identified at trial by Mr. Cangemi. James Derbes represented Mr. Chang in the transaction and drafted the document, although the shareholders assumed that Mr. Derbes would look out for both their interests and Mr. Chang’s interest. Mr. Cangemi understood that he was selling his stock in the corporation, and understood that he, as a shareholder, would not be liable personally for any of the corporation’s debts. In fact, the corporation had been formed in order to avoid personal liability. The transaction was structured as a stock sale rather than a sale of assets. When the instant lawsuit was filed, the former shareholders went to Mr. Chang and offered to pay him an additional $63,000 to amend the purchase and sale to eliminate any question that the shareholders were to be held individually liable for damages arising out of the Tufa-ro accident.

Mr. Cangemi testified that at the time he entered into the January 19, 2001 Agreement to Purchase and Sell and the February 1, 2001 Sale and Transfer of stock, it absolutely was not his intention to confer a benefit upon Mrs. Meyer. He testified further that prior to the original confection of the Agreement to Purchase and Sell, there were no detailed, formal negotiations between the shareholders and Mr. Chang, but that the parties just agreed on the price.

On February 1, 2001, Mr. Cangemi and the other Perfect Crust shareholders sold Perfect Crust to James Chang for $140,000, taking a loss on their investment |17of at least $100,000. In connection with Mr. Cangemi’s testimony, the plaintiff introduced the Act of Sale and Transfer, that provided in pertinent part:

4. SELLER is and shall remain responsible for any and all litigation that has arisen or may arise in connection with Seller’s operation of the Restaurant through this closing and SELLER hereby agrees to pay all costs, fees and expenses incurred in connection with the said defense and/or prosecution of such litigation, including, without limitation, all damages, judgments and legal fees.
10. SELLER agrees to hold PURCHASER harmless and to indemnify PURCHASER from any and all consequences of the failure of SELLER to abide by any of the obligations undertaken by it herein.

This contract bears the signatures of Thomas W. Cangemi, his wife, Dianne Heins Cangemi, Serdar Tiglioglu, Mustafa Misirei and his wife, Yordana Chirinos Mi-sirci. At the time this contract was signed, the accident in question had taken place, but suit had not been filed on behalf of the plaintiff and her husband.

Mr. Cangemi testified that when he signed the contract he understood that he would be responsible for acts that he caused, such as non-payment of taxes or if he had sexually harassed someone. When he signed the contract, he knew only of a fender-bender accident reported eight months previously. In August of 2001 he received a lawsuit alleging serious injuries, more significant than a “fender-bender.” His attorney advised him to enter into an Amendment to the Agreement to Purchase and Sell that would amend the contract specifically to have Perfect Crust remain solely responsible for the accident in question. That amendment was entered into on March 19, 2002.

11sMr. Cangemi testified that around November of 2001 Mr. Chang sold the assets of Perfect Crust. According to Mr. Can-gemi, he and the other shareholders had sold Mr. Chang the restaurant at a very reasonable price, and forgave him approximately $60,000 in debt. Mr. Chang was one of the company’s franchisees, had also operated another restaurant and was having financial problems.

Mr. Tiglioglu testified that he acquired 300 shares of Perfect Crust common stock on January 1, 2000 for $64,000. The shareholders invested an additional $250,000 to $260,000 to complete the restaurant’s construction and open it for operation. He handled the corporation’s finances. Perfect Crust had its own bank account and its own federal tax identification number. It had its own liquor license for the Magazine Street location and held an occupational license for the Magazine Street restaurant. The licenses are posted for public view and updated annually. Perfect Crust files its own sales tax, income tax and payroll tax returns. Prior to the sale of stock to Mr. Chang, the shareholders had no personal liability for Perfect Crust’s debts. Because of his investment in the business, his sale of his 300 shares of stock to Mr. Change resulted in a personal loss of approximately $30,000. At no time did he understand that he would be responsible for Perfect Crust’s debts. Furthermore, at the time of signing the Agreement to Purchase and Sell or the Sale he had no intention of conferring a benefit on a third party such as Mrs. Meyer.

Mr. Tiglioglu testified that the shareholders did not manage the restaurant, and that Mr. Tufaro was the employee of Perfect Crust and was paid by Perfect 11flCrust. The shareholders did not own the restaurant’s assets; the assets were owned by Perfect Crust.

After he learned about the reimbursement clause contained in the Agreement to Purchase and Sell, he went back to Mr. Chang to amend the document, eliminating the reimbursement and agreeing with Mr. Chang that he would not owe any additional money on the purchase price. This forgiveness of debt was done also to accommodate Mr. Chang because the restaurant was then losing money.

Mr. Tiglioglu identified the petition and amending petition, and testified that the first allegation that he owed Mrs. Meyer any money because of his sale of the business was contained in the amended petition filed on August 13, 2003.

Mrs. Meyers testified concerning the various petitions filed on her behalf in these proceedings, and her counsel stipulated that he and Mrs. Meyer first obtained a copy of the Sale documents in March of 2003. Mrs. Meyer testified that she did not believe that she acquired copies of the documents from any other source other than through her counsel. Mrs. Meyer also admitted that she, herself had formed a corporation, Advanced Timekeeping and Payroll, Inc., and chose the corporate form in order to avoid personal responsibility for the corporations debts. She understood that if she followed the corporate formalities and respected the existence of the corporation, she would not be responsible personally for its debts.

Mrs. Meyer contends that the former shareholders are individually liable to her pursuant to the provisions of the Agreement to Purchase and Sell, particularly paragraph 4.1. In that document, the then shareholders agreed to remain responsible for litigation and claims made against the “Seller”, as that term is | ^defined in the agreement. In the introductory paragraph to the Agreement to Purchase and Sell, “Seller” is defined as Messrs. Cangemi, Tiglioglu and Misirci. Perfect Crust is NOT named as the Seller. Therefore, the provision in paragraph 4.1 does not apply to the debts of Perfect Crust, but to any liabilities that the individuals (known as “Seller” in the document) might have incurred through and including the effective date, defined in the agreement as the time of closing. In this ease, the closing took place on February 1, 2001, so that date is the effective date for purposes of the agreement. This reading is perfectly consistent both with the language of the document and with the testimonial understanding expressed at trial by both Mr. Cangemi and Mr. Tiglioglu. Both gentlemen understood that they would reimburse the purchaser for any damages or litigation expenses resulting from their own personal acts, such as failure to pay corporate taxes or individual wrongdoing. Since none of the individual shareholders were involved in the management of the restaurant or employment of Mr. Tufaro, their undertaking is irrelevant to the accident that is the subject of this litigation.

Apparently in response to concerns brought about by the filing of the original lawsuit, the parties amended the Agreement to Purchase and Sell on March 19, 2002, to make clear that the former shareholders were not to be held personally liable for the acts of Perfect Crust’s employee, Mr. Tufaro. However, in light of the foregoing clear reading of the original agreement, the amendment merely recognizes the fact that the original agreement did not contain such an undertaking.

As further confirmation of the parties’ intention, the Act of Sale and Transfer of the shareholders’ shares to Mr. Chang recites that the shareholders [^remain responsible for litigation arising in connection with the shareholders’ (not Perfect Crust’s) operation of the Restaurant. Thus, once again, if the individual shareholders were negligent or otherwise deficient with respect to payment of Perfect Crust’s taxes and license fees, those shareholders would be responsible to Mr. Chang for those payments.

The plaintiff also claims that the trial court erred in having concluded, that the plaintiff was not a third party beneficiary to the February 1, 2001 Sale and Transfer, precluding the individual defendants from amending the contract to eliminate their liability without the plaintiffs consent.

Louisiana’s Civil Code provides that a contracting party may stipulate a benefit for a third person not a party to the contract. La.C.C. art. 1978. Under Louisiana law, such a contract for the benefit of a third-party is referred to as a stipulation pour autrui and gives the third party beneficiary the right to demand performance- from the promisor. Whitney Natl. Bank v. Howard Weil Financial Corp., 93-1568 (La.App. 4 cir. 1/27/94), 631 So.2d 1308. A stipulation pour autrui is never presumed. Rather, the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear. Smith v. State Farm Ins. Companies, 2003-1580, pp. 4-5 (La.App. 4 Cir. 3/3/04), 869 So.2d 909, 912-13. To establish a stipulation pour autrui, the third party relationship must form the consideration for a condition of the contract, and the benefit may not be merely incidental to the contract. Concept Design, Inc. v. J.J. Krebs & Sons, Inc., 96-1295, p. 5 (La.App. 4 Cir. 3/19/97), 692 So.2d 1203, 1205-06. The party demanding performance of an obligation pursuant to a stipulation pour autrui | shears the burden of proving the existence of this obligation. See, La.C.C. art. 1831.

Both Mr. Cangemi and Mr. Ti-glioglu testified emphatically that they had no intention of conferring any benefit upon Mrs. Meyer when they signed the various documents pertaining to the purchase and sale of their stock. Furthermore, in light of the foregoing analysis of the specific undertaking included in the Agreement to Purchase and Sell shares and the Sale and Transfer of the shares, it is clear that the individual shareholders did not create either a primary obligation with respect to this accident in favor of Mr. Chang or a third party beneficiary contract or stipulation pour autrui in favor of Mrs. Meyer. The Tufaro accident was not a claim or litigation arising from those portions of the corporation’s operations conducted by the “Seller”, i.e., the individual shareholders. The accident was related to Perfect Crust’s operations through its manager, who hired and supervised Mr. Tufaro, and Mr. Tufaro. himself as the corporation’s employee. Therefore, the accident is outside the ambit of the undertaking contained in the Agreement to Purchase and Sell shares and in the Sale and Transfer of shares.

For the foregoing reasons, we amend the judgment of the trial court insofar as it awards damages against Progressive Security Insurance Company in excess of its policy limits. We affirm the jury’s finding of total damages in the amount of $399,256.87 and the jury’s assessment of damages against Mr. Tufaro and Perfect Crust, Inc.

AMENDED IN PART AND, AS AMENDED, AFFIRMED.

BELSOME, J., dissents in part.

BELSOME, J.,

dissents in part.

hi agree with the majority that the corporate form insulates officers and stockholders from personal liability. However, when those same officers agree in a contract to remain personally liable for the corporation’s debts after the corporation is sold, then those officers have abandoned that insulation.

The language of the Agreement to Purchase and Sell is clear. “SELLER is and shall remain responsible for any and all litigation that has arisen or may arise in connection with Seller’s operation of the Restaurant ...” Seller is then defined as “Thomas W. Congemi (sic) ... Mustafa Misirci ... and Serdar Tilioglu ...” A restaurant employee rear-ended Mrs. Meyer during the course and scope of his employment with the Individual Defendants’ restaurant. The damage caused to Mrs. Meyer arose in connection with their operation of the Restaurant. The Act of Sale and Transfer, which adopted the language of the Agreement to Purchase and Sell, was never amended, thus the Individual Defendants maintained liability under the February 1, 2001 Sale and Transfer contract.

There was a valid stipulation pour autrui that could not be amended. A contracting party may stipulate a benefit for a third person called a third party beneficiary. Once the third party has manifested his intention to avail himself of 1 ¡.the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement. LSA-C.C. art. 1978. Mrs. Meyer evidenced her intention to avail herself of the benefit when she filed suit.

We find this case analogous to Dartez v. Dixon, 502 So.2d 1063 (La.1987):

Plaintiff, Sylvester Dartez, was a passenger in a car that was struck from behind by an 18-wheel truck on September 15, 1975. On September 15, 1976, plaintiff filed suit against the driver of the truck, Sammie Sossaman, and the owner of the truck, Adam Dixon. On October 1, 1980, Dartez filed a supplemental and amending petition to add two more defendants, Big Chief Truck Lines, Inc. (Big Chief-Louisiana) and Early American Insurance Company. At the time of the accident, Big Chief-Louisiana was leasing the truck from Dixon and was the employer of Sossa-man; Early American was the insurer of Big Chief-Louisiana.
At the time of the accident, all the stock of Big Chief-Louisiana was owned by Big Chief Truck Lines of Texas, Inc. (Big Chief-Texas) whose sole shareholder was Dr. Stewart Bushong. However, after the collision but before Big Chief-Texas was made a party in this suit, Big Chief-Texas entered into a stock sales agreement to transfer all the stock of Big Chief-Louisiana to Joseph LeJeune, Jr. and Andrew Vidrine. Section 111(b) of the agreement stated:
“(b) Shareholder [Big Chief-Texas] hereby agrees that as of the closing date it will be responsible for the payment of all liabilities incurred by the Company [Big Chief-Louisiana] on or prior to the date hereof occasioned by any act whatsoever of Shareholder, or by the Company, its officers, agents, employees and representatives, occurring on or prior to the date hereof.

Dartez v. Dixon, 502 So.2d 1063, 1064 (La.1987). The Supreme Court held that the liability and indemnity clause in the stock sales agreement was a calculated and essential part of the negotiations leading to the sale of the stock, and it had created a stipulation pour autrui in favor of the plaintiff.

The situation in Dartez is analogous to the case at hand. The Individual Defendants were aware of the accident at the time of the sale, agreed to remain personally liable for any events that occurred in connection with their management, and the plaintiff sued the Individual Defendants. Mrs. Meyer, like the plaintiff in Dartez, was a beneficiary of the contract.

The Individual Defendants argue that they were unaware that Mrs. Meyer was intending to sue when they signed the agreement to remain personally liable, | ¡jtherefore there was no intended beneficiary of the contract, which negates the stipulation pour autrui claim. I agree with the Third Circuit, which held that a stipulation pour autrui may be made in favor of undetermined persons. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 2001-0345 (La.App. 3rd Cir.6/20/01); 790 So.2d 93.

For the reasons listed above, the Individual Defendants are bound by the language in both contracts whereby they agreed to remain personally liable for any company debts that might arise in connection with their management of the restaurant, and there was a also valid stipulation pour autrui in favor of Mrs. Meyer which invalidates the amendment tó the Agreement to Purchase and Sell. I iespectfully dissent.

      . On December 12, 2002, the plaintiffs dismissed with prejudice their claims against State Farm, reserving their rights against the remaining defendants.

      . This amending petition reasserts the allegations against State Farm. By order dated September 23, 2003, the trial court granted the plaintiff’s motion to dismiss State Farm with prejudice.

      . The parties stipulated to the amount of recoverable medical expenses, but did not stipulate that these expenses were necessitated by the accident in question.

      . The appellate brief assigns no error with respect to the jury's failure to award damages to the estate for loss of consortium.

      . See, LSA-Const. Art. 5, section 10(B).


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Kim C. JOSEPH v. CROSSING II, L.L.C. d/b/a Severn Point Apartments and Favrot & Shane Properties, L.L.C.
    No. 06-CA-10.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.

      Charles M. Stevenson, Covington, Louisiana, for Plaintiff/Appellant, Kim Joseph.
    Thomas P. Anzelmo, Andre J. Lagarde, Metairie, Louisiana, for Defendant/Appel-lees, Crossing II, L.L.C. d/b/a Severn Point Apartments and Favrot and Shane Properties, L.L.C.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge.

|2Plaintiff, Kim Joseph, appeals a judgment of the trial court that granted a defense motion for summary judgment in her suit for injuries sustained when a row of mailboxes fell on her. For reasons that follow, we affirm.

Plaintiff is a mail carrier for the United States Postal Service. Her route includes defendant’s multi-building apartment complex located at 2301 Severn Avenue in Metairie. According to the petition, Ms. Joseph was delivering mail to the complex on June 28, 2003 when “multiple mailboxes fell on her,” causing her to sustain “severe personal injuries.” Ms. Joseph filed this action against the owner of the apartment complex, alleging that the accident was due solely to the negligence of defendants.

In due course, defendants answered the petition and filed a motion for summary judgment. Plaintiff filed an opposition to the defendant’s motion for | asummary judgment and a supplemental, and an amending petition invoking the doctrine of res ipsa loquitur.

In support of the motion for summary judgment, defendant attached portions of Ms. Joseph’s deposition in which she explains she has been delivering mail to the complex for two years and has never noticed any problem with the mailboxes. Further, during that time she did not hear any complaints about how the mailboxes were set up. She also stated that the complex was maintained well and she saw maintenance crews there “all the time.” Ms. Joseph delivered mail to the complex six days out of the week. The accident happened on a Saturday and it was a “surprise.”

Defendants also provided the court with affidavits of two managers of the complex. Laura Franklin was employed as manager for approximately three years until she left in June of 2003. Vickie Landry was manager from January of 2003 through May of 2004. Both women state that they toured the premises and performed visual inspections on a daily basis. Neither found any defects in the mailboxes.

Plaintiffs opposition did not provide the trial court with any evidence of material facts undecided.

After a hearing on the matter the trial court granted defendant’s motion and entered a judgment against plaintiff. It is that judgment that is. before us on appeal.

In brief to this court, plaintiff argues the trial court erred in granting summary judgment. Plaintiff does not raise any facts that are still at issue. Rather, she maintains that when “a building collapses owned by the defendant onto a passerby,” the doctrine of res ipsa loquitur is applicable.

|4Pefendant argues that under the facts of this case, the doctrine of res ipsa loqui-tur is not applicable, and that summary judgment was correctly granted.

Pursuant to La. C.C.P. art. 966(B), a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. While the initial burden of proof remains with the mover to show that no genuine issue of material fact exists, if the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 966(C)(2); Bonner v. Martino, 05-701 (La.App. 5 Cir. 3/28/06), 927 So.2d 564.

Summary judgments are now favored and are designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804.

Our review of the grant of a summary judgment is de novo, using the same criteria applied by the district court in order to determine whether the grant of summary judgment was appropriate. Fremin v. Cabral, 05-932 (La.App. 5 Cir. 3/28/06), 926 So.2d 80.

The doctrine of res ipsa loquitur is a rule of circumstantial evidence which permits the fact finder to infer negligence where; 1) the circumstances surrounding the event are such they would not normally occur in the absence of negligence on someone’s part, 2) the instrumentality was in the exclusive control of the |fidefendant, and 3) the negligence falls within the duty of care owed the plaintiff. Poplar v. Dillard’s Dept. Stores, Inc., 03-1023 (La.App. 5 Cir. 12/30/03), 864 So.2d 789, writ not considered, 04-0287 (La.3/26/04), 871 So.2d 335.

As explained by the Louisiana Supreme Court;

.Although the fact that an accident has occurred does not alone raise a presumption of,the defendant’s negligence, the doctrine of res ipsa loquitur (the thing speaks for itself) permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury. The doctrine of res ipsa loquitur involves the simple matter of a plaintiffs using circumstantial evidence to meet the burden of proof by a preponderance of the evidence. The doctrine merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. The doctrine permits, but does not require, the trier of fact to infer negligence from the circumstances of the event.
(citations and footnotes omitted)
Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.1989)

We are not persuaded by plaintiffs argument that the presumption of the doctrine of res ipsa loquitur should be applied in this matter. There has been no showing that the mailboxes were in the exclusive control of the defendant, an essential element of the doctrine. Therefore, we find that our review of the grant of the summary judgment must be done using the applicable law set forth in La. C.C. art. 2322 as follows.

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

As part of the 1996 Tort revision, the law of strict liability was amended to add the requirement of knowledge on the part of the owner or custodian of a thing. That | ¿requirement has effectively eliminated strict liability in most circumstances. Carr v. Wal-Mart Stores, Inc., 00-896 (La.App. 5 Cir. 10/31/00), 772 So.2d 865.

In the matter before us, defendant has presented un-refuted evidence that plaintiff cannot show the essential element of knowledge at a trial on the merits. By plaintiffs own testimony it is clear that this was a well-maintained area and there was no indication that anything was wrong with the mailboxes. Even plaintiff, who delivered mail to the boxes six days a week for two years, had no prior knowledge that the mailboxes were defective in any way. She stated that when they fell it was a “surprise.”

Therefore, we find the trial court correctly granted the motion for summary judgment, and we affirm that ruling.

AFFIRMED.

      . Although the memo in opposition refers to photographs of the mailboxes and states that they are attached as "Exhibit A,” is appears the photographs were not actually attached to the memo, and not introduced into evidence in the trial court.


author: THOMAS F. DALEY, Judge.

text:
    June DUGAS v. Hamid MASSIHA, M.D. and ABC Insurance Company.
    Nos. 05-CA-737, 05-CA-969.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.

      Jacob J. Amato, Jr., Cheryl L. Wild, Gretna, Louisiana, for Plaintiff/Appellee, June Dugas.
    Richard G. Duplantier, Jr., J. Michael Daly, Jr., Peter A. Bourgeois, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, Louisiana, for Defendants/Appellants, Kathleen Wild and American Casualty Company of Reading, PA.
    J. Marc Vezina, Andrea C. Caplan, Molly M. Gattuso, Vezina and Gattuso, L.L.C., Gretna, Louisiana, for Defendant/Appellant/Amicus, Hamid Massiha, M.D.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

| sThese consolidated appeals stem from a medical malpractice lawsuit in which the trial court rendered judgment in favor of plaintiff. For the reasons that follow, we dismiss the appeal filed by Hamid Mass-iha, M.D. and affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY:

In March of 1997, Hamid Massiha, M.D. performed a procedure known as a ble-pharoplasty on plaintiff, June Dugas. This procedure was performed to remove “bags” from her lower eyelids. On March 27, 1997, Ms. Dugas returned to Dr. Mass-iha’s office for a post-operative examination and to have the sutures removed. Dr. Massiha’s nurse, defendant herein Kathleen Wild, removed the sutures from Ms. Dugas’ right eye. Ms. Dugas filed suit against Dr. Massiha and Wild claiming that during the removal of the sutures Wild dripped a disinfecting agent, Cidex, into her right eye causing a chemical burn to that eye. The parties stipulated that |4Ms. Dugas’ damages did not exceed $50,000.00 and proceeded to a judge trial. The trial judge took the matter under advisement at the conclusion of the trial. On February 22, 2005 judgment was rendered in favor of Ms. Dugas and against Dr. Massiha and Wild. On March 4, 2005, the judgment was amended to include Wild’s insurer. On April 14, 2005, Wild and her insurer filed a Suspensive Appeal from the March 4, 2005 judgment.

Ms. Dugas filed a Rule to Show Cause why Dr. Massiha should not be required to pay the judgment against him. On August 2, 2005, the trial court granted plaintiffs rule and ordered that the March 4, 2005 judgment may be executed by plaintiff as to Dr. Massiha. Dr. Massiha filed a De-volutive Appeal from the August 2, 2005 judgment on August 24, 2005.

Ms. Dugas filed a Motion to Dismiss Dr. Massiha’s appeal arguing the August 2, 2005 judgment was not a final judgment. We agree. A final judgment is one which determines the merits of an action, whether in whole or in part. C.C.P. art. 1841. A'judgment must be final to be appealable. C.C.P. art.2083. The merits of this matter were decided by the February 22nd and March 4th judgments; the August 2, 2005 judgment merely made the March 4th judgment executable against Dr. Massiha. Hence, the August 2, 2005 judgment is not appealable and appeal No. 05-CA-969 filed by Dr. Massiha is hereby dismissed.

APPEAL NO. 05-CA-737:

| RThe March 4, 2005 judgment found that Wild “failed to properly rinse or wipe of [sic] a pair of tweezers dropping a caustic chemical onto the plaintiffs [sic] eye and face.” The trial court found that this act of medical negligence was obvious and did not require the plaintiff to prove the applicable standard of care or breach thereof. On appeal, Wild contends this was error because expert testimony was required.

LSA-R.S. 9:2794 provides in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
(1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices, in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Plaintiff bears the same burden of proof in a suit against a nurse. Cook v. Jefferson Parish Hosp. Service Dist. No. 2, 04-17 (La.App. 5 Cir. 5/26/04), 876 So.2d 173. However, expert testimony is not always necessary for the plaintiff to meet the burden of proof if the medical and factual issues are such that a lay person IfiCould perceive negligence based on the conduct that occurred. Pfiffner v. Correa, 94-0992 (La.10/17/94), 643 So.2d 1228. In such circumstance, the plaintiff must, still prove a casual connection between the defendant’s fault and the injury suffered by plaintiff. Id.

At the trial in this matter, Ms. Dugas testified that as Wild was removing the sutures from her eyelid, Wild had difficulty removing one stitch and obtained a different set of tweezers. Ms. Dugas explained that when Wild came over to her with the new tweezers “chemical from the container poured into my eye” and it felt like “liquid fire dropped in my eye.” Ms. Dugas testified that she asked to see the doctor, but Wild stated the doctor was with another patient.

Wild testified that she used different instruments to remove the sutures from Ms. Dugas’ right eye. She explained that the new instruments were soaking in a disinfectant solution called Cidex. Wild testified that her usual procedure is to take the instrument out of the box, rinse it with saline, and wipe it with gauze. She testified that she followed this procedure in this instance. Wild acknowledged that while removing the sutures from the right eye, Ms. Dugas stated that her eye was irritated and Wild flushed Ms. Dugas’ right eye. Wild testified that after she flushed the right eye, Ms Dugas had no further complaints.

Based on the facts and circumstances in this case, we hold the trial court did not err in finding expert medical testimony was not required to prove negligence in this case. In fact, dripping acid on a patient is one of the enumerated acts listed in Pfiffher, supra in which expert medical testimony is not required. While we acknowledge that Cidex is not an acid, it is a substance that is harmful to the eye.

l7The trial judge was presented with two scenarios from opposing testimony: Ms. Dugas testified that Cidex dripped into her right eye while Wild was removing the sutures and Wild testified that she rinsed Cidex from the tweezers and wiped them. The trial judge chose to believe the scenario set forth by Ms. Du-gas. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Karagiannopoulos v. State Farm Fire & Cas. Co., 94-1048 (La.App. 5 Cir. 11/10/99), 752 So.2d 202. In applying the manifestly erroneous — clearly wrong standard to the findings made by the trial court, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. Id. Thus, we find no error in the trial court’s determination that Wild failed to properly rinse the tweezers and dropped Cidex into plaintiffs eye. We now turn to the issue of causation.

In her second Assignment of Error, Wild contends the trial court erred in finding plaintiffs alleged injuries were caused by exposure to Cidex.

Numerous medical records were admitted into evidence. The medical records indicate that Ms. Dugas returned to Dr. Massiha’s office on March 28, 1997. She was examined by Dr. Khoobehi, who was a resident physician temporarily working in Dr. Massiha’s office. The office note written by Dr. Khoobehi on that date was read into the record by Dr. Massiha. This note states that Ms. Dugas had a “chemical irritation of the right eye”. Dr. Khoobehi referred Ms. Dugas to an ophthalmologist.

The deposition of Dr. Richard Bessent, an ophthalmologist, was admitted into evidence. Dr. Bessent testified that he first examined Ms. Dugas on March 31, 1997. Dr. Bessent testified that Ms. Dugas stated that she had gotten Cidex in her eye the previous week. She complained of blurred vision in the right eye with excessive tearing. Dr. Bessent noted swelling of the conjunctiva of the right eye. |sHe explained that this condition would not be expected following the type of surgery Ms. Dugas had undergone. His impression was chemical conjunctivitis of the right eye. When Dr. Bessent examined Ms. Dugas on June 24, 1997, she continued to complain of feeling as if a foreign body was in her right eye. Dr. Bessent explained that her examination showed subepithelia infiltrates in the right eye, which represents an irritation of the cornea. On July 9, 1997, Ms. Dugas continued to complain of a foreign body sensation in the right eye. When she returned to Dr. Bessent on August 20, 1997, she complained of foreign body sensation along with tearing and burning of the right eye. On the December 23, 1997 visit, Ms. Dugas complained of flashes and floaters, which Dr. Bessent attributed to a posterior vitreous detachment. Dr. Bessent explained this was totally different from her prior complaints. Dr. Bessent testified that he last examined Ms. Dugas on January 6, 1998, at which time her symptoms had improved. Dr. Bessent further testified that Ms. Du-gas initial presentation was consistent with an acute chemical injury, but that she did not suffer any long term effects from that injury.

Dr. Peter Kastl, who was accepted by the court as an expert in ophthalmology and biochemistry, testified on behalf of the defendants. Dr. Kastl testified that there is nothing in the medical literature regarding Cidex causing damage to the eyes. . On cross-examination, Dr. Kastl admitted that if Cidex got into someone’s eyes there would be an eye irritation and some of the epithelium of the eye would “flake off”. He explained that this would cause the eye to be more susceptible to infection.

The product information sheet for Cidex was admitted into evidence. This sheet clearly states “contact with eyes causes damage”. The sheet further cautions to avoid contact with skin.

| flOur review of the trial court’s factual findings is limited to a determination of whether the record contains a reasonable factual basis for these findings. Rosell v. ESCO, 549 So.2d 840, (La.1989). The office note of March 28, 1997, by Dr. Khoobehi, stating that Ms. - Dugas had a “chemical irritation of the right eye,” along with Dr. Bessent’s testimony that Ms. Du-gas’ examination of March 31, 1997 was consistent with chemical conjunctivitis provides a sufficient factual basis for the trial court’s finding that plaintiff suffered an injury to her eye as a result of Wild’s negligence. We now turn to the issue of damages.

The trial court awarded Ms. Dugas $1,213.81 in past medical expenses and $45,000.00 in general damages. On appeal, Wild contends this is excessive.

Ms. Dugas testified that when the chemical from the container holding the tweezers “poured” into her eye, it felt like “liquid fire dropped in my eye”. She testified that she was driven home, took pain medication, and went to bed. Ms. Dugas testified she had a blister on her right eye the next morning. She described this blister as extending from the right corner of her right eye to the iris. Her eye was completely closed due to swelling. Ms. Dugas testified that she experienced severe pain in her eye for a long time — “at least a year or longer”.' The pain and excessive tearing in her eye interfered with her driving to such a degree that she would have to pull off of the road and wait for the pain and tearing to subside. Ms. Dugas further testified that due to the injury in her right eye, she no longer does art work or sews. Ms. Dugas explained that following the chemical burn to her right eye, she had numerous infections in that eye. She also expressed concern about losing her eye. Ms. Dugas described a scar on her face where the Cidex dripped. She testified that she puts makeup oyer the scar, but is still questioned about the scar by other people.

| inAside from Dr. Bessent, Ms. Dugas also sought treatment from Dr. Earl Nelson, another ophthalmologist. Dr. Nelson testified that he first examined Ms. Dugas in September 1999, at which time she gave a history of a chemical burn in he right eye. Dr. Nelson testified that Ms. Dugas stated her right eye was still bothering her as a result of this burn. Dr. Nelson explained that it would not be unreasonable for a chemical burn of the eye to take two to three years to resolve. Dr. Nelson records reflect that Ms. Dugas often complained of irritation and infection in her right eye.

In reviewing an award of general damages, the initial inquiry for the appellate court is whether the jury abused its discretion in assessing the amount of damages. Cone v. National Emergency Services, Inc., 99-0934 (La.10/29/99), 747 So.2d 1085. When it comes to awarding general damages, the discretion vested in the trier of fact has been described as vast, such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). A comparison of prior awards is only appropriate after the reviewing court has concluded that an abuse of discretion has occurred. Cone, supra.

Ms. Dugas testified as to the intense and severe pain she suffered after the Cidex entered her eye. She described fear over losing her eye and explained how the pain and excessive tearing in her eye interfered with her driving and hobbies. The medical records indicated that she suffered several infections in her right eye during the several years following this incident. Dr. Nelson testified that it would not be unreasonable for a chemical burn to the eye to take two to three years to resolve. Additionally, Ms. Dugas testified that she has a scar on her face from the Cidex and this scar was mentioned in the trial court’s judgment. Based on the above testimony, we find no abuse in the trial court’s award of general damages.

^CONCLUSION:

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

AFFIRMED.

      . Generally, in this Court, when a judgment is found not to be appealable and an appeal is dismissed, the appellant is given thirty days from the judgment to file a Supervisory Writ. This option was not given in this matter because the parties entered into a stipulation that plaintiff would not execute or take any action to enforce the March 4, 2005 judgment against Dr. Massiha until this Court has ruled on this appeal. Because we are affirming the March 4, 2005 judgment, any writ filed by Dr. Massiha regarding the August 2, 2005 judgment would be moot.

      . The product information sheet for Cidex, which was admitted into evidence, states "contact with eyes causes damage.”


text:
    STATE of Louisiana v. Kevin J. JUPITER.
    No. 06-KA-93.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.

      Harry J. Morel, Jr., District Attorney, Juan A. Byrd, Assistant District Attorney, Hahnville, Louisiana, for Plaintiff/Appel-lee.
    Margaret S. Sollars, Appellate Counsel, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   THOMAS F. DALEY, Judge.

| ..Defendant, Kevin J. Jupiter, appeals his convictions and sentences for one count of unauthorized entry of an inhabited dwelling, a violation of LSA-R.S. 14:62.3, and one count of simple criminal damage to property over $500.00, a violation of LSA-R.S. 14:56. Upon review, we conditionally affirm the convictions and sentence, but remand for an evidentiary hearing on Assignment of Error Number 2.

On December 21, 2004, the St. Charles Parish District Attorney charged Jupiter with the above counts in a Bill of Information. Defendant was arraigned on January 18, 2005 and pled not guilty. On April 5, 2005, a jury found defendant guilty as charged. Defendant filed a Motion for Post-Verdict Judgment of Acquittal, which was denied on April 15, 2005.

|sOn May 12, 2005, defendant’s Motion for New Trial was denied. On that same date, defendant waived sentencing delays, and the trial court sentenced defendant on Count 1 to imprisonment at hard labor for six years. Additionally, the trial court imposed a fine of $1,000.00, which the court suspended. On Count 2, the trial court sentenced defendant to imprisonment at hard labor for two years to run concurrently with the sentence on Count 1. It also imposed a fine of $1,000.00, which was also suspended. Defendant filed a Motion to Reconsider Sentence, which was denied.

Defendant filed a Motion for Appeal on June 28, 2005, which was granted. On February 3, 2006, this Court dismissed the appeal as untimely and remanded to the district court to allow defendant the opportunity to seek reinstatement of his appeal rights by Application for Post-Conviction Relief. Defendant filed a Motion for Out-of-Time Appeal, which was granted.

FACTS

Annie Gross testified at trial that on December 12, 2004, at approximately 4:30 a.m., her daughter, Kendra Kennedy, came to her apartment, crying and upset, and told her that she and defendant had gotten into an argument. (Jupiter and Kennedy lived together with their three children.) Gross further testified that Jupiter subsequently knocked on the door of her apartment, but she refused to let him enter. She stated that defendant stayed on the porch and kept screaming for Kennedy to come outside. At that time, Gross’ husband woke up and came into the living room. Gross testified that defendant then kicked the door in and entered her apartment without her permission, struck Kennedy, and then fled.

Gross testified that Kennedy called 911 and two officers responded. Gross testified that Kennedy received a telephone call from Jupiter while the officers |4were there, as evidenced by the caller ID box. Gross told the officers about the call, and the officers left. Gross later went to the district attorney’s office to have the charges against defendant dismissed; however, she was informed that it was the State’s decision as to whether the case would proceed.

Deputy Jeremy Pitchford of the St. Charles Parish Sheriffs Office testified that he responded to a battery call and was informed that the perpetrator (later identified as Jupiter) had fled in a blue Oldsmobile. Deputy Pitchford subsequently saw the vehicle on Paul Frederick Street, but by the time he ran the license plate and learned that it was registered to defendant, the vehicle was gone. Later on, he was advised that Deputy Morehouse had spotted Jupiter running from the Paul Maillard area back towards Paul Frederick Street, so Deputies Pitchford and Hirsh went to Paul Frederick Street to defendant’s mother’s house to search her residence for him. When they did so, Deputy Pitchford observed defendant run across the street. After a foot chase and a struggle, the officers apprehended defendant.

Deputy George Morehouse of the St. Charles Parish Sheriffs Office testified that he responded to a disturbance at 827 Milling Avenue and learned that defendant had kicked in the front door and had struck his girlfriend. He further testified that after Jupiter was apprehended, he placed defendant into the back of his police unit so he could bring defendant to the hospital and then to lockup. As Deputy Morehouse started to drive, he looked in his rearview mirror and saw defendant lay back with his feet up. Based on his experience, Deputy Morehouse knew defendant was going to try to break the window, so he slammed on his brakes and exited the vehicle in an attempt to prevent defendant from doing so. Deputy Morehouse testified that defendant then kicked the driver’s side passenger window and broke it, and that the glass struck him (Deputy Morehouse) in the face.

| sRonald Guillory testified that he owned a body shop, and that he repaired the window on the police vehicle. He identified an invoice showing that the repairs cost $925.03.

Defendant did not call any witnesses.

After hearing the testimony and considering the evidence, the jury found defendant guilty as charged.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the evidence was insufficient to prove that he was guilty of simple criminal damage to property because the State failed to present any evidence showing that the damage was done without the consent of the owner.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, or a mixture of both, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt.

The rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” LSA-R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful methodology for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt.

Defendant was convicted of simple criminal damage to property in violation of LSA-R.S. 14:56, which reads, in pertinent part:

|fiA. Simple criminal damage to property is the intentional damaging of any property of another, without the consent of the owner, and except as provided in R.S. 14:55, by any means other than fire or explosion.

Lack of consent of an owner to malicious vandalism of an owner’s property can often be inferred circumstantially from the evidence presented.

Ronald Guillory’s testimony established that the owner of the vehicle he fixed was the St. Charles Parish Sheriffs Office. Deputy Morehouse, who drove that police unit, testified that he exited the vehicle in an attempt to prevent defendant from breaking the window. Nevertheless, defendant was able to kick and break the window before the deputy could stop him.

Based on the trial evidence, the jury could have reasonably inferred that Deputy Morehouse, who drove that unit for the St. Charles Parish Sheriffs Office, did not consent to defendant breaking the window. After hearing the testimony and evaluating the credibility of the witnesses, the jury apparently believed that defendant committed simple criminal damage to property without the consent of the owner, the St. Charles Parish Sheriffs Office. Credibility determinations are for the jury, and it is not the function of the appellate court to assess the credibility of witnesses. This Assignment of Error has no merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that the trial court erred by denying his Motion for a New Trial that was based upon the failure of a juror to disclose during voir dire that she had been a victim of a crime, despite being asked. He notes that he had one peremptory challenge left at that time and would have used it had he known that information. He asserts that the juror’s deception during voir dire deprived him of |7his constitutional and statutory right to an impartial jury verdict. He also asserts that the juror’s use of the term “colored man” to describe the perpetrator of the crime against her implied that she was prejudiced toward defendant, since defendant is African American. He contends that he should receive a new trial and, at the very least, an evidentiary hearing to determine whether the prejudice affected the verdict.

The record reflects that prospective juror No. 196, Shannon Wilson, stated that she lived in Norco and was unemployed, single, and had no children. After obtaining background information on the prospective jurors and asking a few questions, the trial judge asked the prospective jurors several times if they or their close friends or family members had ever been the victims of a crime. The record indicates that Wilson remained silent.

In response to subsequent questioning by the State, Wilson indicated that she did not need the State to introduce scientific evidence such as fingerprints to prove defendant’s guilt that she would not hold it against defendant if he did not testify, and that she would not allow sympathy to enter into her decision. Wilson further indicated that she would not hold the State to a higher standard than “beyond a reasonable doubt,” and that, if the State proved its case beyond a reasonable doubt, she would “definitely” return a guilty verdict. In response to questioning by the defense, Wilson indicated that she did not need to hear defendant’s side before she could render a verdict. Afterwards, the State and the defense accepted Wilson as a juror.

Defendant filed a Motion for New Trial based on LSA-C.Cr.P. art. 851(4), arguing that he had discovered, since the guilty verdict, a prejudicial error in the proceedings that, notwithstanding the exercise of reasonable diligence by defendant, was not discovered before the verdict. In that Motion, defendant alleged that Wilson had approached defense counsel after trial and informed her | sthat she had been the victim of a crime perpetrated against her by a “colored man” and wished to know how to proceed to prosecute him. Defendant asserted that Wilson did not inform counsel of this during voir dire, even though the prospective jurors were asked whether any of them had ever been a victim of a crime. He contended that this fact was considered when choosing her as a juror.

At the hearing on the Motion for New Trial, the matter was submitted without testimony or argument. The trial judge subsequently denied the motion, stating that nothing was alleged in the motion that would warrant the granting of a new trial. Defense counsel said that she would like for Wilson to be sworn in and corroborate the statements alleged in defendant’s Motion for New Trial. Wilson was sworn in, but the trial judge stopped the testimony, stating that defense counsel could not call a juror to impeach a verdict because the law did not allow that.

Defense counsel said that she was not trying to impeach the verdict, but was trying to show that defendant was entitled to a new trial because of disclosures that were not made during voir dire that she relied upon. The trial judge stated that he would continue the motion hearing for a week in order to research the issue. At the continuation of the hearing, the trial judge denied the motion, stating in pertinent part:

... [H]ad the essence of what Ms. Williams [defense counsel] put in her motion been to the four or five criteria that people have to meet in order to serve as a juror and had it been one of those that was called into question, I would allow the juror to come in and testify to her not having the criteria or qualifications to serve as a juror. However, I’m going to accept as true what Ms. Williams has stated in her motion and I wrote the juror a letter saying that she didn’t have to come to court today and sent a copy to both counsel because I am accepting what she said in her motion as true, that she had approached Ms. Williams after the trial and made that statement; that in and of itself would not cause the court to say that it was an unfair verdict and she would have been stricken as a juror based on the fact that she was the victim in an unsolved crime, unrelated to the instant charge. That being the ease, I am going to deny the Motion for a New Trial that was sort (sic) on that basis.

19LSA-C.Cr.P. art. 855 sets forth the necessary allegations when a Motion for New Trial is based on prejudicial error or defect in the proceedings:

A motion for a new trial based on ground (4) of Article 851 shall contain allegations of fáet sworn to by the defendant or his counsel, showing:
(1) The specific nature of the error or defect complained of; and
(2) That, notwithstanding the exercise of reasonable diligence by the defense, the error or defect was not discovered before or during the trial.

Under LSA-C.Cr.P. art. 851(4), the error or defect must be prejudicial to the defendant before a new trial can be granted. The ruling on a Motion for New Trial is committed to the sound discretion of the trial judge and will be disturbed on appeal only where there is a clear showing of abuse of that discretion.

Louisiana courts have addressed the issue of juror deception in various cases. In State v. Gerard, 96-366 (La.App. 5 Cir. 11/14/96), 685 So.2d 253, defendant moved for a new trial based on information obtained after the verdict that one of the jurors was the godfather of his co-defendant Bourgeois. The trial court held an evidentiary hearing at which the juror testified, saying that he could not recall the last time he saw Bourgeois prior to trial. Moreover, the juror testified that he voted “not guilty.” As such, the trial court found that Gerard failed to show that he was prejudiced by the result of the juror’s failure to disclose his relationship to the co-defendant.

In State v. Delore, 381 So.2d 455, 460 (La.1980), defendant contended that the trial court should have granted his Motion for a New Trial because of a personal friendship between a juror and a State witness. It was alleged that the juror misled the defense by failing to reveal her friendship with the witness. At the hearing on the motion, the juror testified that if she had known him “real | ^personally” she would have said so on voir dire. Id. at 460. The testimony revealed that the two had only met a few times at the home of a mutual friend. As such, the Louisiana Supreme Court concluded that the acquaintance between the two was not a valid ground for a mistrial.

Likewise, in State v. Johnson, 32,910 (La.App. 2 Cir. 1/26/00), 750 So.2d 398, 403-04, writ denied, 2000-0911 (La.11/3/00), 773 So.2d 140, defendant claimed that the trial court erred by failing to grant his Motion for New Trial, which alleged that two jurors were dishonest in their responses regarding relatives who had drug addictions, and that one of the jurors knew defendant had served time for a drug offense and informed the other jurors of that fact. At the hearing, the two jurors denied the allegations. The appellate court concluded that defendant could not show prejudice, in part because defendant failed to present any evidence to contradict the testimony of the two jurors. Thus, it found no error in the trial court’s denial of the Motion for New Trial.

Similarly, in State v. Bailey, 261 La. 831, 261 So.2d 583, 585-586 (1972), defendant filed a Motion for New Trial contending that a juror gave a false answer during voir dire when he said that he had never been a member of a law enforcement agency. At the hearing on the motion, the juror admitted he had once served as a radio operator for the State police and that he presently held a commission as a deputy sheriff. He thought the question was whether he was a policeman and, therefore, he believed he answered truthfully. The Supreme Court found that defendant would not have been successful in a challenge for cause under LSA-C.Cr.P. art. 797(2) because the voir dire examination showed the juror to beJjjimpartial. The Supreme Court noted that the juror testified at the hearing that he was not partial to the State. It further found that defendant was not entitled to a new trial based on the speculation that if he had obtained certain information, he might have exercised one of his peremptory challenges.

The foregoing jurisprudence illustrates two main points. First of all, those cases show that allegations of juror deception in a Motion for New Trial are not limited to the general qualifications necessary to serve as a juror under LSA-C.Cr.P. art. 401. Secondly, in each of the cases discussed above, an evidentiary hearing was held in connection with the Motion for New Trial where the jurors in question were allowed to testify regarding their alleged misrepresentations.

In the instant case, the trial judge erred when he limited defendant’s right to a hearing to the five general qualifications a person must possess under the law in order to qualify as a juror. The trial judge also erred when he accepted the juror’s allegations that she had been the victim of a crime by a “colored man” as true, yet failed to provide defendant with the opportunity to show prejudice.

Based on the foregoing, we remand for an evidentiary hearing on this issue.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant argues that his two maximum concurrent sentences were excessive. He contends that he is not the most egregious of offenders, and that this incident involved a family argument that escalated. He points out that Ms. Gross wanted the charges dropped, and that Ms. Gross’ daughter refused to testify against him. He asserts that although the trial court based its reason for the maximum | ^.sentences on his “history of lawlessness,” the record is devoid of any evidence of prior convictions or arrests. Defendant also notes that excessive force may have been used on him since he had to be taken to the hospital following the incidents.

Defendant filed a Motion to Reconsider the Sentence, arguing only that his six-year sentence wás excessive. This Court has recognized that the failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. Accordingly, defendant’s sentence is reviewed only for constitutional exces-siveness.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. In reviewing a sentence for excessiveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining and imposing the sentence.

In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed, even when the trial judge does not | ^provide reasons for the sentence. Maximum sentences are appropriately imposed only for the most serious violation of the described offense and for the worst kind of offender.

Defendant was convicted of unauthorized entry of an inhabited dwelling in violation of LSA-R.S. 14:62.3. Whoever commits that crime shall be fined not more than $1,000.00 or imprisoned with or without hard labor for not more than six years, or both. LSA-R.S. 14:62.8 B. Defendant was also convicted of simple criminal damage to property over $500.00 (but less than $50,000.00) in violation of LSA-R.S. 14:56. Whoever commits that crime where the damage amounts to $500.00, but less than $50,000.00, shall be fined not more than $1,000.00, or imprisoned, with or without hard labor, for not more than two years, or both. LSA-R.S. 14:56 B.

The record indicates that defendant was sentenced to the maximum sentence on each count, to run concurrently, and that the $1,000.00 fines imposed on each count were suspended. Prior to sentencing, the trial judge stated:

Mr. Jupiter, you have a history of getting in trouble with the law. You have a history of, in this court’s opinion, of lawlessness. I didn’t order a pre-sen-tence investigation because the sentencing range was not so onerous that it would shock the conscious to order a pre-sentence investigation. Let me start that one over. It would shock the conscious for me to give you the maximum. It’s not like you were facing armed robbery of 5 to 99 years ...

Defense counsel did not orally object to the sentences.

In the instant case, the crimes with which defendant was charged involved violence against persons. The record shows that defendant kicked down the door of his girlfriend’s parents’ apartment at 4:30 a.m., struck his girlfriend, and then fled. The record further reflects that defendant subsequently refused to obey police commands to stop, that he resisted arrest, and that he kicked out the window of the | upolice unit after being handcuffed and placed in the rear of that unit. As a result of his actions, defendant was charged with numerous crimes, including simple battery, three felony counts of battery on a police officer, attempted simple escape, two counts of resisting an officer, and another count of simple criminal damage to property. Had the State not reduced the felony counts of battery on a police officer to misdemeanors and dismissed the remaining charges, defendant could have received longer sentences than the ones that were imposed had he been convicted of those charges.

Defendant argues that the sentences were excessive, in part, because the incidents involved a family dispute that escalated. “Merely because the defendant’s behavior was rooted in a domestic dispute does not mean that a term of imprisonment was inappropriate.” State v. Shannon, 04-1361 (La.App. 5 Cir. 4/26/05), 902 So.2d 519, 524.

Defendant also argues that the trial court erred in basing the sentences on his “history of lawlessness” since the record is devoid of any evidence of prior convictions or arrests. As was stated previously, the record indicates that defendant was charged with numerous other crimes in connection with this case. This Court has held that a sentencing judge may consider not only convictions, but past criminal behavior that did not result in a conviction.

In State v. Williams, 32,993 (La.App. 2 Cir. 3/1/00), 754 So.2d 418, 423-424, defendant went to his girlfriend’s apartment, kicked the door in, and entered. She attempted to leave the apartment, but defendant physically restrained her. Eventually, she managed to escape. The appellate court found that sentencing defendant to five years at hard labor for unauthorized entry of an inhabited dwelling was not constitutionally excessive, noting that the trial court concluded 11Kthat defendant was in need of correctional treatment and a lesser sentence would deprecate the seriousness of the offense.

In State v. Goodman, 96-376 (La.App. 3 Cir. 11/6/96), 684 So.2d 58, 59-63, defendant entered the home of an elderly couple and encountered the female victim who screamed, which alerted the woman’s husband. As the husband attempted to reach his wife, he saw defendant. During a brief struggle, defendant struck the husband over the head and fled. The appellate court stated that a sentence of five-and-a-half. years at hard labor for unauthorized entry into an inhabited dwelling was not unconstitutionally excessive, where the maximum sentence allowed by law was six years, defendant was originally charged with aggravated burglary and benefited from an agreement to plead to a lesser charge, defendant committed assault and battery upon the victims but was not charged with those crimes, and defendant had an extensive criminal history.

In State v. Gibson, 591 So.2d 416, 417-420 (La.App. 4 Cir.1991), defendant entered his aunt’s house without .her permission and allegedly took a microwave and two wall clocks. He was subsequently convicted of unauthorized entry of an inhabited dwelling and received a six-year sentence. The appellate court found that the six-year sentence was not excessive, noting that, even though it was the maximum sentence and no violence was involved, defendant had an extensive criminal record including numerous convictions, some of which involved violence against persons. The appellate court also noted that defendant was probably involved in a more serious offense than the charge for which he was convicted.

Regarding the sentence for simple criminal damage to property, in State v. Trahan, 608 So.2d 679, 680-684 (La.App. 3 Cir.1992), defendant stole a car and wrecked it. The appellate court concluded that sentences of four years at hard labor for the simple burglary conviction and two years at hard labor for the simple l1ficriminal damage to property conviction, to be served concurrently with each other, but consecutive to any other sentence, were not excessive. Even though each sentence exceeded the maximum sentence in the appropriate grid cell and the criminal damage sentence greatly exceeded the sentencing range, the trial judge stated that he considered the presentence report and criminal history of defendant and took into consideration loss to the victim, as well as benefits defendant received from the plea bargain.

It is apparent from the trial court’s remarks that he considered that defendant was charged with other offenses stemming from the same incident, and moreover was familiar with the defendant’s history. We conclude that the sentences in this case are not so disproportionate as to shock its sense of justice and find that the trial court did not abuse its discretion in sentencing defendant to two concurrent maximum sentences.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, which revealed that the trial court failed to advise defendant of the prescriptive period for post-conviction relief as provided in LSA-C.Cr.P. art. 930.8. Therefore, we remand this matter to the trial court to properly inform defendant of the prescriptive period by sending defendant written notice within ten days of the rendition of the opinion and to file written proof in the record that defendant received such notice.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED FOR EVIDENTIARY HEARING.

      . Defendant was also charged with simple battexy, three felony counts of battery on a police officer, attempted simple escape, two counts of resisting an officer, "simple battery — DVA,” and another count of simple criminal damage to property. The State later reduced the three counts of battery on a police officer to misdemeanors to which defendant pled guilty. The trial court sentenced defendant on those three counts to six months in parish prison on each count to run concurrently with the time he was serving on the felony convictions. The State nolle prossed the remaining charges.

      . State v. Jupiter, 05-KA-869 (La.App. 5 Cir. 2/3/06), 922 So.2d 1245.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Juluke, 98-0341 (La. 1/8/99), 725 So.2d 1291, 1293.

      . State v. Jones, 98-842 (La.App. 5 Cir. 2/10/99), 729 So.2d 57, 63.

        . State v. Lastrapes, 443 So.2d 652, 656 (La.App. 3 Cir.1983) quoting State v. Perry, 408 So.2d 1358 (La.1982).

      . State v. Ditcharo, 98-1374 (La.App. 5 Cir. 7/27/99), 739 So.2d 957, 966, writ denied, 1999-2551 (La.2/18/00), 754 So.2d 964.

      . State v. Tracy, 02-0227 (La.App. 5 Cir. 10/29/02), 831 So.2d 503, 515, writ denied, 2002-2900 (La.4/4/03), 840 So.2d 1213.

      . Tracy, 831 So.2d at 512.

      . Art. 797. Challenge for cause
      The state or the defendant may challenge a juror for cause on the ground that:
      (2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;

      . In brief, defendant cites U.S. v. Scott, 854 F.2d 697 (5th Cir.1988), a decision by the U.S. Fifth Circuit Court of Appeal to set aside a district court’s denial of a Motion for New Trial based on juror deception. In that case, as in the Louisiana cases discussed above, an evidentiary hearing was held on the Motion for New Trial before a ruling on the motion was made.

      . The fact that a juror personally has been the victim of a crime will not necessarily preclude that juror from serving on a jury so long as the juror’s partiality has been unaffected. State v. Walker, 577 So.2d 770 (La.App. 2 Cir.1991), writ denied, 581 So.2d 704 (La.1991); see also State v. Eskano, 00-101 (La.App. 5 Cir. 1/30/01), 779 So.2d 148.

      . State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La. 1/25/02), 807 So.2d 243.

      . State v. Lobato, 603 So.2d 739, 751 (La.1992).

      . State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 879.

      . State v. Allen, supra.

      . State v. Uloho, 04-55 (La.App. 5 Cir. 5/26/04), 875 So.2d 918, 933, writ denied, 04-1640 (La. 11/19/04), 888 So.2d 192.

      . State v. Perrilloux, 03-917 (La.App. 5 Cir. 12/30/03), 864 So.2d 843, 854, writ denied, 2004-0418 (La.6/25/04), 876 So.2d 830.

      . State v. Anderson, 02-273 (La.App. 5 Cir. 7/30/02), 824 So.2d 517, 522, writ denied, 2002-2519 (La.6/27/03), 847 So.2d 1254; State v. Gilbert, 00-1822 (La.App. 5 Cir. 1/16/01), 788 So.2d 574, 577.

      . LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

      . State v. Knight, 01-881 (La.App. 5 Cir. 2/13/02), 811 So.2d 947, 951.