author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Mark JARAMILLO.
    No. 2006-1377.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      G. Paul Marx, Louisiana Appellate Project, Lafayette, Louisiana, for Defendant/Appellant, Mark Jaramillo.
    James C. Downs, District Attorney— Ninth Judicial District, ADA Sheryl L. Laing, Alexandria, Louisiana, for Appellee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

LThe Defendant, Mark Jaramillo, was originally indicted on August 15, 2002, and charged with one count of aggravated rape, in violation of La.R.S. 14:42. On January 26, 2006, pursuant to trial by jury, the Defendant was found guilty of the responsive verdict, sexual battery, in violation of La.R.S. 14:43.1. On August 7, 2006, the Defendant was sentenced to ten years at hard labor, to run consecutively to any other sentences he might be subject to, with credit for time served.

On August 7, 2006, the Defendant, through counsel, orally moved to appeal his conviction. In his appeal, the Defendant alleges the following assignments of error:

1) that the trial court erred by allowing the victim’s drawings as testimonial evidence without any foundation of interpretation of the drawings and by providing the drawings to the jury during deliberations;
2) that the evidence presented at trial was insufficient to find him guilty of the crimes of which he was convicted because the state did not prove that the claims of abuse were not the result of the hallucinations or the psychosis of the victim because of his mild retardation and that his testimony was incoherent, bizarre and illusory; and
3) that the trial court failed to advise the Defendant of the time limits set forth in La.Code Crim.P. art. 930.8 in which to file an application for post conviction relief.

FACTS

According to the bill of indictment, between November 21, 1997 and September 19, 1998, the Defendant engaged in conduct with the victim, constituting the elements of the crime of which he was convicted. The following facts were adduced at trial, and the alleged criminal conduct occurred during the aforementioned time frame. On at least one occasion, it is alleged that the Defendant forced the | ¿victim, S.N., to engage in oral intercourse and touched the victim’s buttocks with his penis. At the time the Defendant was alleged to have engaged in this conduct, S.N. was 10 years old.

Errors Patent & Assignment of Error No. 3

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Hence, we will first address the issue of errors patent. After reviewing the record, there is one error patent.

As raised in Defendant’s Assignment of Error No. 3, there is no indication in the record that the trial court advised the Defendant of the prescriptive period for filing post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8 requires the trial court to advise a defendant of the prescriptive period at sentencing. Accordingly, this case is remanded, and the trial court is instructed, to inform the Defendant of the 930.8 prescriptive period by sending appropriate written notice to the Defendant within thirty days of the rendition of this opinion and to file written proof of same in the record.

Assignment of Error No. 2

When multiple issues are raised on appeal, and sufficiency of the evidence is one of the alleged errors, the reviewing court should first determine the sufficiency of the evidence error. State v. Hearold, 603 So.2d 731 (La.1992). Consequently, we will first discuss the Defendant’s sufficiency claim. In his second assignment of error, the Defendant alleges that the evidence presented at trial was insufficient to find him guilty of sexual battery because the State did not prove that the claims of abuse were not the result of the hallucinations or the psychosis of the victim because | she is mildly retarded and that his testimony was incoherent, bizarre and illusory. In support of this allegation, the Defendant cites State v. Bruce, 577 So.2d 209 (La.App. 1 Cir.), writ denied, 580 So.2d 667 (La.1991), where the appellate court reversed a molestation of a juvenile conviction due to insufficiency of the evidence where in response to questions at trial, the four-year-old victim was only able to respond with yes or no answers, and he was not able to testify that the defendant had any inappropriate contact with him.

The instant case is clearly distinguishable. S.N. was seventeen at the time he testified, he was able to completely answer the questions posed by the prosecutor and the Defendant’s attorney, and he was able to testify about the Defendant’s conduct sufficiently enough to establish the elements of the offense of which the Defendant was convicted. The Defendant also alleges in his brief that the State failed to prove that S.N.’s testimony was not the result of hallucinations or psychosis of the victim. While S.N.’s mild retardation might impact his credibility as a witness, it does not impact his capacity to testify. In State v. Wilkerson, 448 So.2d 1355, 1361— 62 (La.App. 2 Cir.), unit denied, 450 So.2d 361 (La.1984), the appellate court stated:

[c]ertainly, this witness’ defects of capacity sensory or mental, which would have lessened her ability to perceive the facts which she purports to have observed were provable to attack the credibility of the witness, either upon cross-examination or producing other witnesses to prove the defect. However, such matters go to her credibility, not her competency, which is properly determined by the trial court.

Consequently, the issue of the mental capacity of a witness goes to his credibility which the trier of fact has the responsibility to assess. In the instant case, the record indicates that the jury did not find the victim completely credible, as it convicted the Defendant of sexual battery, a lesser offense than aggravated rape.

| ¿Also, in support of his insufficiency argument, the Defendant cites Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In State v. Touchet, 04-1027, pp. 1-2 (La.App. 3 Cir. 3/9/05), 897 So.2d 900, 902, this court stated:

With regard to sufficiency of the evidence, this court set forth as follows in State v. Lambert, 97-64, pp. 4-5 (La. App. 3 Cir. 9/30/98), 720 So.2d 724, 726-27:
When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State ex reí Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La. 1981). It is the role of the fact finder to weigh the respective credibility of the witnesses. Therefore, the appellate court should not second-guess the credibility determination of the trier of fact beyond the sufficiency evaluations under the Jackson standard of review. See King, 436 So.2d 559, citing State v. Richardson, 425 So.2d 1228 (La.1983).
In order for the State to obtain a conviction, it must prove the elements of the crime beyond a reasonable doubt. In order for this court to affirm a conviction, the record must reflect that the State has satisfied this burden of proving the elements of the crime beyond a reasonable doubt. State v. Kennerson, 96-1518 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367.

The Defendant in this case was convicted of one count of sexual battery, in violation of La.R.S. 14:43.1, which states, in pertinent part:

Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:
(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or
|b(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim....

In order to prove that a defendant is guilty of sexual battery, the state must prove beyond a reasonable doubt: (1) that the defendant touched the anus or genitals of the victim, or the victim touched the anus or genitals of the defendant; and (2) that the touching was without consent of the victim. A review of the record indicates there was sufficient evidence presented at trial to find the Defendant guilty of one count of sexual battery.

At trial, S.N. testified that the Defendant “... would put his d — k in my mouth and on my butt.” S.N. also testified at trial that at the time the Defendant engaged in this conduct he was ten years old. Based on S.N.’s testimony, the State presented sufficient evidence to prove the elements of the crime of sexual battery. Also, in his brief, the Defendant points out that there was no physical evidence of any sexual abuse or activity discovered during a physical examination that was conducted subsequent to S.N.’s initial claim of sexual molestation when he was ten years old. The appellate court in State v. Turner; 05-75 (La.App. 5 Cir. 5/31/05), 904 So.2d 816, writ denied, 05-2591 (La.5/26/06), 930 So.2d 20, affirmed an aggravated rape conviction, holding that the testimony of the victim alone was sufficient to prove the elements of the offense even in the absence of physical evidence. In Turner, the victim had been raped by the defendant, but there was no physical evidence; however, the victim had consistently given the same account of the defendant’s conduct which constituted the offense. Consequently, the fact that there was no physical evidence of sexual abuse in the present case, did not preclude the trier of fact from finding the Defendant guilty of sexual battery based on the testimony of S.N.

| (Additionally in his brief, the Defendant alleges S.N.’s testimony was bizarre, irrational, and incoherent based on the following facts and statements: (1) while he was allegedly raped at the age of ten, he did not report being raped until he was 17; (2) S.N. testified that he did not shave his eyebrows off, but that he “blew them off’; (3) when asked about his mental status, he testified, “I don’t get very much attention because I’m slow, and no-one [sic] minds me anymore, any attention because I’m slow, no-one [sic], I’m ADHD, I’m ADD, I’m the ABC’s”; and (4) while testifying, S.N. stated, “I don’t want to use a lame term, but his penis.” Even if the statements were bizarre, irrational, or incoherent as the Defendant alleges, that goes to S.N.’s mental state and ultimately his credibility. As previously discussed, the trier of fact may take that into consideration as it sees fit. Wilkerson, 448 So.2d 1355. Thus, the Defendant’s allegation that the State did not prove the victim’s testimony was not the result of hallucinations or psychosis is without merit.

The Defendant also alleges in his reply brief that the record does not contain facts that support the assumption that the victim accurately testified because he is psychotic and mentally impaired. The Louisiana Code of Evidence article 602 states in pertinent part, “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge for the matter. Evidence to prove personal knowledge may, but need not, consist of testimony of the witness himself....” In this case, there is nothing in the record that suggested that the Defendant challenged the competency of S.N. to testify. Furthermore, S.N. was the victim of the alleged crime which would ideally give him the required basis of personal knowledge of the conduct the Defendant engaged in, and thus was competent to testify in compliance with La. Code Evid. art. 602. Because S.N. was 17qualified to testify, it was up to the trier of fact to determine how “accurately” he testified. Based on the foregoing analysis, the Defendant’s second assignment of error is without merit.

Assignment of Error No. 1

In his first assignment of error, the Defendant alleges that the trial court erred by allowing the victim’s drawings to be admitted as testimonial evidence without any foundation of interpretation of the drawings and by providing the drawings to the jury during deliberations. While the Defendant objected to the drawings being admitted into evidence at trial, he does not argue the issue on appeal. In this case, the trial court admitted into evidence eight drawings made by the victim when he was ten years old. The record indicates that the drawings were admitted into evidence for the limited purpose of showing the victim’s state of mind to be determined by the trier of fact.

The only drawing that was subject to any interpretation was State exhibit S-l, which was interpreted by Vicky McBrayer, S.N.’s foster mother, who stated the picture meant that S.N. felt safe in the home of her and her husband. The remaining seven drawings were initially introduced during the direct examination of Mrs. McBrayer, and she was only allowed to describe what was contained in the drawings. Mrs. McBrayer’s subsequent testimony was consistent with the trial court’s direction with the exception of her description of State exhibit S-8. With respect to State exhibit S-8, Mrs. McBrayer simply repeated statements made by S.N. while she was describing the drawing. In overruling the Defendant’s objection to the hearsay testimony by Mrs. McBrayer, the court said such testimony was permissible on the | «basis that Mrs. McBrayer was considered a first reporter. On appeal, the Defendant does not argue that Mrs. McBrayer was not the first reporter or that the trial court erred in allowing her to testify as a first reporter. Furthermore, in his brief, the Defendant offers no jurisprudence that suggests the trial court erred in the manner in which it allowed the drawings to be introduced at trial or admitted into evidence. Consequently, the allegation that the trial court erred in allowing the drawings to be interpreted and admitted into evidence without the proper foundation is without merit.

In the Defendant’s reply brief, he alleges that the State failed to offer any law in support of presenting hearsay and speculative evidence in the form of drawings by the alleged victim. However, a review of the transcripts reveals that the Defendant never objected to the admissibility of the drawings on the basis of hearsay.

The Defendant also alleges that the trial court violated La.Code Crim.P. art. 798 when it allowed the drawings to be submitted to the jury after they had retired to deliberate. As set forth below, the Defendant is precluded from asserting this argument. After the jury retired to deliberate, they sent a request to the court to review the drawings that had been admitted into evidence. Subsequently, the court and the attorneys for both sides engaged in a discussion regarding the implications of La.Code Crim.P. art. 793 in allowing the jury to view the drawings. The trial court, with assent from the Defendant, permitted the drawings to be reviewed by the jury during deliberations. Louisiana Code of Criminal Procedure article 841(A) states, in pertinent part: “An irregularity or error cannot be availed of after verdict un-less it was objected to at the time of occurrence.” See State v. Collor, 99-175 |9(La.App. 4 Cir. 4/26/00), 762 So.2d 96, writ denied, 00-1487 (La.3/9/01), 786 So.2d 116, where the appellate court held that the defendant waived his right to challenge the fact that the jury was allowed to take a transcript of his confession into deliberations because he failed to contemporaneously object. Because the Defendant failed to contemporaneously object to the jury being allowed to view the drawings during deliberations, he is precluded from arguing on appeal that said viewing of the drawings was error.

CONCLUSION

This case is remanded to the trial court, and the trial court is instructed to inform the Defendant of the time limits set forth in La.Code Crim.P. art. 930.8 in which to file an application for post conviction relief by sending appropriate written notice to the Defendant within thirty days of the rendition of this opinion and to file written proof of same in the record. In all other respects, the Defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

      . The Defendant did not file a written appeal; however, La.Code Crim.P. art. 914(A) permits an oral motion for appeal.

      . In accordance with La.R.S. 46:1844(W)(l)(a), initials of the victim are used to protect the identity of the victim.

      . "First reporter” is a termed used with respect to the La.Code Evid. art. 804(B)(5) exception which states, in pertinent part: "[a] statement made by a person under the age of twelve years and the statement is one of initial or otherwise trustworthy complaint of sexual assaultive behavior.”


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Rachel ALEXANDER v. TERRA NOVA INSURANCE COMPANY, LTD., et al.
    No. 2006-1348.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Kyle L. Gideon, Christopher J. Piasecki, Kevin M. Dills, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Plaintiff/Appellee, Rachel Alexander.
    Jan P. Christiansen, Hudson, Potts & Berstein, L.L.P., Monroe, LA, for Defendants/Appellants, Terra Nova Insurance Company, Ltd., et al.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PETERS, J.

h Terr a Nova Insurance Company, Ltd. (Terra Nova), and Winchester General Agency, Inc. (Winchester), two of the defendants in this litigation, appeal the trial court grant of a partial summary judgment in favor of the plaintiff, Rachel Alexander, holding that Terra Nova provided Ms. Alexander a policy of homeowner’s insurance, issued through Winchester, which was in full force and effect on October 3, 2002. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

The facts giving rise to this litigation are not in dispute. In March of 2000, Ms. Alexander purchased a home in Lafayette, Louisiana, and financed the purchase price through Cendant Mortgage Corporation (Cendant Mortgage). The financing arrangement with Cendant Mortgage included an escrow account for her insurance premiums. Ms. Alexander contacted Metro Insurance Agency, Inc. and its agent, Clayton Williams (hereinafter collectively referred to as “Metro/Williams”), to obtain a policy of homeowner’s insurance to cover her new home. Metro/Williams applied for and obtained coverage for Ms. Alexander from Terra Nova through Winchester, Terra Nova’s authorized agent.

Thereafter, the collection of insurance premiums due by Ms. Alexander to Terra Nova followed the usual custom for mortgaged property with an escrow account for such premiums: Metro/Williams invoiced Cendant Mortgage when a premium was due; Cendant Mortgage then took funds from the escrow account and paid the premium to Terra Nova.

| ¿This routine continued without incident until the premium for the policy year ending on March 26, 2003 became due. On January 25, 2002, Winchester reminded Metro/Williams that the policy was up for renewal. Metro/Williams then contacted Ms. Alexander for her approval of the renewal. On March 11, 2002, Ms. Alexander responded in writing that she wished to renew the policy at the stated annual premium of $505.05. On that same day, having received Ms. Alexander’s approval, Metro/Williams faxed Winchester requesting that a binder, or temporary policy, for the renewal of the policy be issued. Immediately on receipt of the request, Winchester faxed the requested binder to Metro/Williams. Winchester then forwarded Metro/Williams the policy, which provided insurance through March 26, 2003.

This litigation arises because payment of the premium from the escrow account did not immediately follow. Winchester forwarded Metro/Williams a notice or reminder that the premium was due and, when it received no response, forwarded a second notice to the effect that the premium was past due. When this second notice received no response, on April 17, 2002, Terra Nova sent a notice of cancellation of the policy effective May 18, 2002. The specific reason for cancellation was non-payment of the premium.

On April 19, 2002, Metro/Williams responded to the cancellation notice by notifying Cendant Mortgage of Terra Nova’s action. Five days later, on April 24, 2002, Cendant Mortgage issued a $505.05 check to Metro/Williams from Ms. Alexander’s escrow account. Metro/Williams deposited the check in one of its accounts, but never forwarded the premium to Terra Nova or Winchester.

1 p,0n October 3, 2002, Ms. Alexander’s home sustained damage when a storm struck the Lafayette, Louisiana area. When Terra Nova denied her claim for property damage under the policy, Ms. Alexander filed the instant suit against several defendants, including Terra Nova, Winchester, Metro/Williams, and Cendant Mortgage. Terra Nova and Winchester responded to the suit by filing, among other pleadings, motions for summary judgment asserting that, because there were no genuine issues of material fact in the litigation, they were entitled, as a matter of law, to a judgment finding the policy cancellation effective and dismissing the suit as to them. These motions were supported by the affidavit of John Smith, president of Winchester. This affidavit narrated the early 2002 chronology of events, declared that Winchester was an authorized agent of Terra Nova, and asserted that Metro/Williams was acting as Ms. Alexander’s agent in the procurement of the homeowner’s policy at issue.

In opposition to these motions, Ms. Alexander offered her affidavit, stating in essence that she had always timely paid her insurance premium, which was included in her house note paid to Cendant Mortgage; that she depended on Mr. Williams and Cendant Mortgage to timely forward the payments to Terra Nova; and that she thought she was insured when her house was damaged in the October 2002 storm. Ms. Alexander also introduced the deposition of Mr. Williams wherein he stated that Metro/Williams was not an authorized agent for Terra Nova and that he had received the premium check from Cendant Mortgage and deposited it in a Metro/Williams account. Ms. Alexander then filed a cross-motion for partial summary judgment seeking a declaration that the Terra Nova policy afforded coverage for her damages.

After a hearing, the trial court denied the defendants’ motions for summary | ¿judgment and granted Ms. Alexander’s cross-motion for summary judgment. Specifically, the trial court found, as a matter of law, that Metro/Williams was Terra Nova’s agent, and that Terra Nova did not have the right to cancel the policy at issue. After the trial court rejected their motion to reconsider the ruling, Terra Nova and Winchester perfected this appeal.

OPINION

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, that is, whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-66 (La.7/6/04), 880 So.2d 1. In the present case, because there are no disputed factual issues, our review is simply whether, as a matter of law, the cancellation was effective. Louisiana Code of Civil Procedure Article 966(C)(2) states:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The burden of proving that an insurance policy has been cancelled for nonpayment of premium prior to the date of a loss giving rise to the denied claim is on the insurer. Chapman v. Leger, 405 So.2d 604 (La.App. 3 Cir.1981).

|fiIn rendering its decision, the trial court concluded that the issues were controlled by the provisions of La.R.S. 22:1150, which reads in pertinent part as follows:

A. (1) Any insurer which issues or delivers a policy or contract of insurance pursuant to the application or request of a producer who is not authorized to represent said insurer as a producer shall be deemed to have authorized such producer as producer of record to act on the insurer’s behalf. The payment to such a producer shall be payment to the insurer with all resultant obligations and duties.
(2) This Subsection establishes an agency relationship only for the matter of collection of premiums specifically referred to herein.

The trial court concluded that payment to Metro/Williams constituted payment to Terra Nova and, therefore, the policy was not cancelled.

Terra Nova concedes that La.R.S. 22:1150 is pertinent to the issue of coverage and tacitly concedes that it was error for Mr. Smith to assert in his affidavit that neither Metro Insurance Agency, Inc. nor Mr. Williams was an agent of Terra Nova, at least insofar as collection of premiums is concerned. Nevertheless, it asserts that cancellation was effective through its April 17, 2002 notice of cancellation because the premium had not yet been paid when the cancellation notice was sent.

We agree that the applicable substantive law is found in La.R.S. 22:1150. Our application of that statute to the facts of this case causes us to reach the same result as the trial court, but for different reasons. We first note that there is no dispute that Terra Nova issued a renewal binder pursuant to the application or request of Metro/Williams and followed that act by issuing the renewal policy a few days later. By taking these steps, Terra Nova clearly authorized Metro/Williams to act on its behalf and caused an agency relationship to come into existence for the collection of \ ¿premiums as contemplated by La.R.S. 22:1150. Thus, Metro/Williams became an agent authorized to act on Terra Nova’s behalf and became empowered to collect premiums. An agent is vested with the implied authority to do all of those things necessary or incidental to the agency assignment. Broadway v. All-Star Ins. Corp., 285 So.2d 536 (La.1973).

At all times pertinent to this litigation, Cendant Mortgage maintained an escrow account containing funds specifically earmarked for release or delivery to Terra Nova or its agent upon the condition of the latter’s notification to Cendant Mortgage of the amount due for the 2002-2003 premium period. Metro/Williams, as Terra Nova’s agent, had the power and authority to trigger this escrow condition by notifying Cendant Mortgage of the due date and the amount due for the premium. Absent this notification, this premium remained in escrow. Within five days of notification by Metro/Williams, Cendant Mortgage released the premium to it as Terra Nova’s agent. In this case the only notice that Cendant Mortgage might have received prior to the cancellation was the notice that a binder and policy were being issued. The binder and policy reflected the amount of the premium but were not a demand for payment. The only demands for payment were the reminders sent to Metro/Williams. As Mr. Smith stated in his affidavit, by regarding Metro/Williams as Ms. Alexander’s agent and not its own, Terra Nova believed these notices were sufficient to inform Ms. Alexander of the premium and that it was due. However, as recognized above, Metro/Williams was statutorily the agent of Terra Nova. Demands |7for payments sent to an insurer’s own agent constitute nothing more than reminders to the insurer itself.

The overriding problem in this matter is the delay by Metro/Williams in notifying Cendant Mortgage that the premium was due. That inaction caused the delay in payment to Winchester and Terra Nova. Thus, the failure of Terra Nova to timely receive payment was caused solely by its own neglect or fault.

Terra Nova’s argument nevertheless has a certain merit. Specifically, it asserts that, while it issued a policy through the application of its statutory agent and became bound to the obligations and duties imposed by La.R.S. 22:1150(A), it also exercised its right to cancel for nonpayment of premium in accordance with the procedure outlined by La.R.S. 22:636. Terra Nova argues that by canceling the binder and policy before the premium was actually paid, it simultaneously cancelled the legal relationship between itself and Metro/Williams statutorily imposed by La.R.S. 22:1150(A).

We recognize the facial cogency of this argument, especially if Ms. Alexander were relying on the actual late payment of the premium as the factor undoing the cancellation. But our analysis differs from the trial court’s in that we do not place primary significance on the late payment as affecting the status of the policy. Our analysis is that the cancellation was ineffective because it was based on Terra Nova’s neglect, or failure to do what it should have done and what was expected of it under the particular circumstances of this ease. Non-receipt of the premium was caused not by the failure of Ms. Alexander to pay the premium, but by the failure of Terra Nova and its statutory agent, Metro/Williams, to perform the standard, mechanical and simple procedure of notifying the escrow holder, Cen-dant Mortgage, of the amount |sdue for that policy year. Terra Nova has only itself to blame and cannot use its own mistake as a ground for cancellation of the policy. Thus, the trial court did not err in concluding that the cancellation was ineffective.

The purpose of La.R.S. 22:1150(A) is to protect the insured. See DeSoto Parish Sch. Bd. v. Ins. Co. of N. Am., 572 So.2d 310 (La.App. 2 Cir.1990), writ denied 575 So.2d 368 (La.1991). Considering the facts of the present case it would be inconsistent with the purpose of the statute to allow the insurer to cancel the policy to the detriment of the insured.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s grant of the partial summary judgment in favor of Rachel Alexander finding that the homeowner’s insurance policy issued to her by Terra Nova Insurance Company, Ltd. provides coverage for the damages sustained to her home on October 3, 2002. We assess all costs of this appeal to Terra Nova Insurance Company, Ltd. and Winchester General Agency, Inc.

AFFIRMED.

      . Mr. Williams and Metro Realty Company, Inc., another “Metro” business with which he was associated, had helped Ms. Alexander obtain her loan.

      . Neither Metro Insurance Agency, Inc. nor Mr. Williams was authorized to represent Terra Nova as an insurance producer.

      . Winchester forwarded these notices only to Metro/Williams.

      . The procedure for cancellation of a binder based on a policy is the same as that for cancellation of the policy itself. La.R.S. 22:636(A).

      . There was no indication in the evidence that a copy of the binder or policy was sent to Cendant Mortgage. Even if copies were sent they constituted only evidence of coverage; they were not in the form of a notice of premiums due.


author: PAINTER, Judge.

text:
    Gilbert DOUGLASS v. Dr. James H. EASTON & The Lafayette Parish School Board.
    No. 06-1404.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Anthony J. Fontana, St. Abbeville, LA, for Plaintiff-Appellant, Gilbert Douglass.
    L. Lane Roy, Dawn L. Morris, Tori E. Sherer, Lafayette, LA, for Defendant-Ap-pellee, Lafayette Parish School Board.
    Court composed of JOHN D. SAUNDERS, GLENN B.
    GREMILLION, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hThe Plaintiff, Gilbert Douglass, appeals the trial court’s judgment dismissing his breach of contract suit pursuant to a motion for summary judgment filed by the Defendant, Lafayette Parish School Board (School Board). Finding that the School Board has not carried its burden under La.Code Civ. P. arts. 966 and 967, we reverse the judgment and remand to the trial court.

FACTS AND PROCEDURAL HISTORY

In May 1999, after serving as assistant principal at Carenero Middle School for several years, Douglass was appointed principal at that school, and he and the School Board entered an employment contract for a period of two years, beginning August 5, 1999 and ending August 4, 2001. The contract was renewed under the same terms for a period beginning August 4, 2001 and ending August 3, 2005. Effective July 21, 2003, Douglass was transferred to the position of assistant principal at Co-meaux High School at the same compensation he had received as Principal. On July 23, 2004, he filed this suit for breach of the contract executed in connection with his retention as principal of Carenero Middle School. On September 21, 2005, he signed a two year contract for the position of assistant principal of Comeaux High School.

The School Board filed a motion for summary judgment asserting that no material issue of fact remained because Douglass was not terminated or demoted, that because a new contract was negotiated, Douglass was not entitled to written charges, notice, or a hearing, that Douglass acquiesced to his new assignment by signing a new contract and cannot now complain of his decision, and that, by law, Douglass is not entitled to non-pecuniary damages. The School Board supported its motion with copies of the employment contracts and an affidavit of Ramona Bernard, Director of pHuman Resources for the School Board, certifying the correctness of the copies of the contracts. Douglass filed a memorandum in opposition to the motion for summary judgment asserting that by its terms the contract required that he be removed only for incompetence, inefficiency, or failure to fulfill the terms and performance objectives of the contract and mandated that he be transferred only to “another position of equal pay, rand and responsibility.” He argued that his transfer to an assistant principal position was, in fact, a termination and, as such, required written notice and a hearing pursuant to La.R.S. 17:444. Douglass asserted in the memorandum that he did not sign the contract for the assistant principal position voluntarily, and, as a result, did not thereby acquiesce in his transfer. Douglass did not, however, submit affidavits, deposition testimony, or other documentation in support of his opposition memorandum.

After a hearing, the trial court granted the motion for summary judgment and rendered judgment dismissing Douglass’ claims against the School Board. Douglass appeals.

DISCUSSION

Summary Judgment

The summary judgment procedure is designed to secure the just, speedy, and

inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La.

C.C.P. art. 966(A)(2); Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App.2d Cir.03/31/99), 731 So.2d 482.

The motion 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 of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Leckie v. Auger Timber Co., 30,103 (La.App.2d Cir.01/21/98), 707 . So.2d 459. The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential | ¡¡elements of the adverse party’s claim, action, or defense but may simply point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense; thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. See, La. C.C.P. art. 966(C)(2). When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967.

Appellate courts review summary judgments de novo under the same cri-tena that govern a district court’s consideration of whether summary judgment is appropriate. Kennedy v. Holder, 33,346 (La.App.2d Cir.05/10/00), 760 So.2d 587.

Sidwell v. Horseshoe Entm’t Ltd. P’ship, 35,718, pp. 2-4 (La.App. 2 Cir. 2/27/02), 811 So.2d 229, 230-31, quoted in Semien v. EADS Aeroframe Services, LLC, 04-760, pp. 2-3 (La.App. 3 Cir. 2/2/05), 893 So.2d 215, 216-17.

Douglass did not support his opposition to the motion for summary judgment with depositions or affidavits.

An adverse party to a supported summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ.P. art. 967.

Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

In this case, Douglass asserted at the hearing that no affidavits were necessary because the School Board was not entitled to judgment as a matter of law under the terms of the contract. Because this case turns on the employment contract and actions not in dispute, i.e., the signing of a contract for the position of Vice-Principal at Comeaux High School, we will examine de novo the contentions of the School |4Board to determine whether issues of fact remain and whether the School Board is entitled to summary judgment as a matter of law.

Acquiescence

The School Board asserts that no question of fact remains but that Douglass acquiesced in his transfer by signing a new contract for the position of assistant principal of Comeaux High School in September 2005. The School Board argues that by so doing Douglass lost his claim for breach of contract including failure to comply with the notice and hearing requirements of the contract. It is apparently the position of the School Board that the contract for employment as assistant principal of Co-meaux High School, which contains neither reservation of rights nor indication that it was signed under protest and to which Douglass’ signature is affixed, is prima facie evidence of Douglass’ acquiescence in the transfer. The School Board asserts that acquiescence in the action of the School Board would ordinarily conclude Douglass’ right to proceed for breach of contract. Normally, by signing the contract of employment, Douglass accepted the school board’s terms and the position of assistant-principal. See Smith v. Evangeline Parish School Bd., 95—284 (La. App. 3 Cir. 10/4/95, 663 So.2d 281). Douglass asserted in his opposition to the motion for summary judgment that he was coerced into signing the contract because he could not continue to work and collect his salary if he did not sign. However, if School Board had carried its burden of showing an acquiescence, the burden would have shifted to Douglass to come forth with evidence in the form of affidavits or discovery responses raise an issue of fact with regard to whether he was coerced into signing the contract, that he reserved his right to pursue his breach of contract claim, or that he signed under protest. He could not rest on the allegations made in his pleadings or 15memoranda. See La.Code Civ.P. arts. 966 & 967. However, it is clear on the face of the contracts that Douglass only signed a new contract for the position of vice-principal after the term of his contract for the position of principal had expired. The School Board does not cite, and we cannot find, any jurisprudence which would suggest that a party who sues for breach of an employment contract cannot, without waiving his rights, sign a new contract with his employer after the expiration of the term of the contract sued upon. Therefore, we conclude that the School Board is not entitled to summary judgment as a matter of law based on acquiescence.

Non-pecuniary Damages

Citing jurisprudence to the effect that damages for non-pecuniary losses are not available for breach of an employment contract, the School Board asserts that it is entitled to summary judgment because no question of fact remains but that Douglass asked only for damages arising from non-pecuniary losses.

The School Board is correct in its assertion that non-pecuniary losses cannot be recovered for breach of a contract not intended to gratify a non-pecuniary interest unless “ ‘the obligor knew, or should have known, that his failure to perform would cause that kind of loss.’ La.Civ. Code art.1998.” Richard v. Gary Matte Builders, Inc., 06-0808, p.-(La.App. 3 Cir. 11/8/06), 944 So.2d 725, 731.

Douglass, in his petition for damages, alleges the following damages:

a. Mental anguish, humiliation and embarrassment;
b. Damages to his professional reputation and loss of esteem among the public;
c. Damage to future promotions and ability to obtain similar or better employment in the Parish or else where (sic);
d. Change of job requiring a change of duties, loss of prestige, loss of opportunity to direct educational direction of school;
|(ie. Loss of years of experience as a principal which also affect promotional opportunities.

Reviewing these allegations, we cannot say that they represent only non-pecuniary interests, in that a question remains as to whether with loss of promotion Douglass also suffered loss of concomitant salary increases. Nothing in the supporting documents filed by the School Board deals with this question. The School Board merely attached a copy of Douglass’s petition for damages to its memorandum in support of its motion for summary judgment. Accordingly, we cannot say that the School Board has shown that no question of fact remains in this regard. Therefore, we find that the School Board is not entitled to summary judgment on this basis.

CONCLUSION

Finding that the School Board has not shown that it is entitled to summary judgment as provided by La.Code Civ. P. arts. 966 and 967, we reverse the trial court’s grant of the School Board’s motion for summary judgment. This matter is remanded to the trial court for further proceedings. Costs of this appeal are to be paid by the Lafayette Parish School Board.

REVERSED AND RENDERED.


author: PICKETT, Judge.

text:
    Dr. Rick LACOMBE v. BANK ONE CORP. d/b/a Bank One, et al.
    No. 2006-1374.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Wayne A. Shullaw, Lafayette, LA, for Defendant/Appellant, JP Morgan Chase Bank, N.A. (Successor in Interest to Bank One, N.A.).
    Lisa C. McCowen, Jeansonne & Remon-det, Lafayette, LA, for Plaintiff/Appellee, Dr. Rick LaCombe.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

hThe defendant, JP Morgan Chase Bank, N.A. (successor in interest to Bank One and hereinafter referred to simply as “the Bank”), appeals a judgment of the trial court in favor of the plaintiff, Dr. Rick LaCombe, in the amount of $63,855.79 plus interest from the date of judicial demand, plus costs and experts fees. The judgment was rendered subject to a proportional credit of $8,870.84 already paid by third-party defendant, Lana Slyfield. Dr. LaCombe answered the appeal seeking an additional $5,911.62 in damages and expenses and attorney’s fees denied by the trial court in connection with the Bank’s denial of Requests for Admissions. We amend and affirm as amended the judgment of the trial court.

FACTS

At the time of the incident at issue Dr. Rick LaCombe, an optometrist, was practicing optometry as a sole proprietorship and doing business as LaCombe Eye Center. His business took in checks for services and products made out in various ways: Dr. Rick LaCombe, Rick LaCombe, O.D., Rick LaCombe, M.D., Rick La-Combe, and LaCombe Eye Center (referred to collectively as Dr. LaCombe).

Lana Slyfield was hired by the plaintiff on April 15, 1998, as his receptionist. In time, she worked her way up to the position of business director, a position she held at the time she was terminated on March 3, 2003. As “business director” she was the individual in charge at the front desk. LaCombe Eye Center had both an office manager and a bookkeeper. Ms. Slyfield’s duties did not include any accounting or bookkeeping duties. Beginning in 1999, Ms. Slyfield started embezzling from Dr. LaCombe by stealing checks from the mail. She did this by simply placing her account number under forged endorsements on the checks and ^depositing the checks into her account at Bank One. Between 1999 and March 2003, Ms. Slyfield misdirected 532 checks, totaling $69,767.41. We note that Dr. La-Combe did not maintain an account at Bank One. On some checks Ms. Slyfield added Dr. LaCombe’s initials as part of her forged endorsement stating that Dr. LaCombe’s signature “didn’t really look like a signature, so I guess that it would make it look like it more of a signature.” On others, she simply inscribed “For Deposit Only,” followed by her account number. Ms. Slyfield testified that no employee of the Bank ever questioned her regarding her depositing checks made payable to Dr. LaCombe into her personal account.

Ms. Slyfield was terminated on March 3, 2003, for reasons unrelated to her embezzlement. It was when Dr. and Mrs. La-Combe were going over things in Ms. Sly-field’s area of responsibility, in preparation of hiring a new employee, that they found some discrepancies. Further investigation revealed Ms. Slyfield’s embezzlement.

LAW AND DISCUSSION

The Bank raises three issues on appeal: l)the trial court erred in dismissing the Bank’s exception of prescription on a number of checks; 2)the trial court erred in granting recovery to Dr. LaCombe on several checks made out to a third party; and 3) the trial court erred in finding the Bank 100% at fault in accepting the forged checks for deposit and negotiation.

The trial court dismissed the Bank’s exception of prescription, relying on the doctrine of contra non valentem non currit praescnptio. The Bank argues that the trial court erred and that this court should follow its ruling in Metro Electric & Maintenance, Inc. v. Bank One, Corp., 05-1045 (La.App. 3 Cir. 3/1/06), 924 So.2d | a446, and sustain the Bank’s exception. However, the Bank’s argument fails to recognize that the doctrine of contra non valentem is applied on a case-by-case basis based upon circumstances. In Metro Electric we found that the mere inspection of the plaintiffs bank statement would have uncovered the embezzlement. Such is not the case here. The most recent detailed discussion of the doctrine of contra non valentem by the Louisiana Supreme Court can be found in Carter v. Haygood, 04—646 (La.1/19/05), 892 So.2d 1261 wherein the court stated the following:

At the outset, we observe that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Foster v. Breaux, 263 La. 1112, 270 So.2d 526, 529 (1972); Knecht v. Board of Trustees for Colleges and Universities, 525 So.2d 250, 251 (La.App. 1st Cir.), writ denied, 530 So.2d 87 (La. 1988). To soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valen-tem non currit praescriptio, which means that prescription does not run against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992); see also, Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054 (La.1987); Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285, 287 (1970); R.O.M., Note, Cover v. Bridges: Prescription—Applicability of Contra Non Valentem Doctrine to Medical Malpractice Actions, 61 Tul.L.Rev. 1541,1541 n. 1 (1986-1987).
Contra non valentem is a Louisiana jurisprudential doctrine under which prescription may be suspended. See Frank L. Maraist and Thomas C. Galli-gan, Louisiana Tort Law § 10-4(b), 222 (1996); see also, R.O.M., supra. Moreover, it is an equitable doctrine of Roman origin, with roots in both civil and common law, and is notably at odds with the public policy favoring certainty underlying the doctrine of prescription. See Plaquemines Parish Com’n Council, 502 So.2d at 1055; see also, R.O.M., supra.
In Plaquemines Parish Com’n Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054-55 (La.1987), we recognized the four instances where contra non valentem is applied to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the | contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. These categories thus allow “the courts to weigh the ‘equitable nature of the circumstances in each individual case’ to determine whether prescription will be tolled.” R.O.M., supra at 1545.

Id. at 1268. In managing his business, Dr. LaCombe kept graphs of the progress of his practice and held weekly meetings where reports of the past week’s activities were presented. Dr. LaCombe was given no reason to suspect that any wrong-doing was taking place. Neither the charts nor the reports raised any “red flags,” the charts showing continued growth. Ms. Slyfield covered her illegal activity well, choosing checks that would not be easily missed. It was not until after Ms. Slyfield

was fired on March 3, 2003 and Dr. and Mrs. LaCombe started going over things in Ms. Slyfield’s area of responsibility, in preparation of hiring a new employee, that wrong-doing was discovered. Suit was brought within one year of the date Ms. Slyfield was fired.

Considering the facts in this case, we find the third category of contra non va-lentem is applicable and that the trial court was correct in applying the doctrine to the plaintiffs claim.

We next discuss the trial court’s allocation of 100% of the fault in this case to the Bank. Louisiana Revised Statutes 10:3-406 provides as follows:

(a) A person whose failure to exercise ordinary care substantially contributes to an alteration of an instrument or to the making of a forged signature on an instrument is precluded from asserting the alteration or the forgery against a person who, in good faith, pays the instrument or takes it for value or for collection.
(b) Under Subsection (a), if the person asserting the preclusion fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss, the loss is allocated between the |5person precluded and the person asserting the preclusion according to the extent to which the failure of each to exercise ordinary care contributed to the loss.
(c) Under Subsection (a), the burden of proving failure to exercise ordinary care is on the person asserting the preclusion. Under Subsection (b), the burden of proving failure to exercise ordinary care is on the person precluded.

Whether the Bank and/or Dr. La-Combe failed to exercise ordinary care, whether either party was negligent, and whether this negligence substantially contributed to the making of the forged signatures on the checks at issue are findings of fact. Gulf States Section, PGA, Inc. v. Whitney Nat’l Bank of New Orleans, 96-0844 (La.App. 4 Cir. 2/12/97), 689 So.2d 638. As a reviewing court, it is our function to determine whether there is a factual basis of support for the trial court’s factual findings or whether the trial court’s factual findings are clearly wrong. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

We first look at any possible fault on the part of Dr. LaCombe. Each side called an expert witness, a Certified Public AccountanVCertified Valuation Analyst— Robert C. Veasey testified for the plaintiff and Allen Hebert for the defense. Mr. Veasey has been Dr. LaCombe’s accountant since the 1980’s. He set up the accounting system used by Dr. LaCombe. The summary of his testimony is that there is no accounting system that would totally eliminate the possibility of theft, that one sets up an accounting system based upon a cost-benefit analysis, and that Dr. LaCombe’s accounting system was reasonable under the circumstances.

Mr. Hebert’s testimony appeared to be based on hind-sight. He stated that Dr. LaCombe could have hired more employees and segregated their duties (i.e.-instituted additional internal controls), thereby reducing the opportunity for any one | (¡employee to misdirect funds, or that Dr. LaCombe could have “out-sourced” his billing and collection functions to an independent firm.

Both of these “solutions” would probably have kept Ms. Slyfield from tapping the company coffer. However, considering the size of Dr. LaCombe’s practice and applying a cost-benefit analysis, we find no error in the trial judge rejecting the Bank’s expert’s opinion that the lack of internal controls in the accounting system in Dr. LaCombe’s office contributed to the “non-detection of the embezzlement scheme.” Accordingly, we find Dr. LaCombe exercised “ordinary care” in the conduct of his practice and did not “substantially contribute” to the making of his forged signature on the checks in question.

In assessing the fault of the Bank, we take into account the Bank’s failure to follow its own policies. Ms. Noy Kuy, an Assistant Banking Center Manager for the Bank, testified that the Bank recognized that a sole proprietorship was a form of business. She further stated that it was the Bank’s policy that a check made out to a business, including a check made out to a sole proprietorship, had to be deposited into an account bearing the business’s name. However, she stated that checks made out to Rick LaCombe, O.D., Dr. Rick LaCombe, or even Dr. Rick LaCombe d/b/a LaCombe Eye Center would be considered “personal” rather than “business” checks and handled accordingly. This appears to be in direct contravention of the Bank’s own policies. Accordingly, we find the Bank failed to exercise ordinary care in taking the forged instruments and affirm the trial court’s determination that the Bank was 100% at fault.

The last issue raised by the appellant and the answer to appeal filed by the appellee both question the amount of damages awarded by the trial court. The total | ^amount allowed or disallowed by the trial court was based upon the trial court’s determination of whether a check or group of checks had been proven to belong to that group or class of checks which the Bank accepted in disregard of its own policies, i.e., if, in the opinion of the trial judge, the Bank had failed to exercise ordinary care in the handling of the check. This is a factual determination which must be reviewed under the manifest error standard of review.

In Salvant v. State, 05-2126, p. 5 (La.7/6/06), 935 So.2d 646, 650 (footnote omitted), the supreme court reminded us of the following:

Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept, of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirely and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Rosell, supra at 844-45. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

In deciding for which of the 532 forged checks the Bank would be held responsible, the trial judge relied heavily on Plaintiffs Exhibit # 12. This exhibit was prepared by Mrs. Penny LaCombe, Dr. LaCombe’s wife, who had worked with her husband in the office almost every day since he started his practice. The exhibit [¿¡divided the 532 checks into four basic groups (which we will refer to as Groups A, B, C, & D) and subdivided the first and fourth group into sub-groups (which we will call A-l, A-2, A-3, D-l & D-2).

Group A contains 385 checks totaling $50,888.77. These checks are payable to LaCombe Eye Center (LEC)(A-1); Dr. LaCombe, Rick LaCombe, d/b/a LEC(A-2); Dr. Rick LaCombe, Rick LaCombe, O.D., Rick LaCombe, M.D.(A-3); or some variation there of. Group A cheeks are not at issue. Group C is made up of two checks, totaling $143.77, payable to Marcus Andrepont, O.D. and make up the basis for the Bank’s third issue. We agree with the Bank on this issue. The record fails to establish why Dr. LaCombe should be credited for these two checks. Accordingly, we amend the trial court’s judgment to exclude the $143.77 represented by these checks.

In his answer to the Bank’s appeal Dr. LaCombe seeks an additional $5,911.62 in damages. This amount represents the sum of the value of two groups of checks disallowed by the trial court, Group B and Group D-l. Group B is made up of seven checks, totaling $512.13, which the trial court described as “blank or unreadable.” The trial court disallowed the $512.13 they represent based upon the lack of proof that they were intended for Dr. LaCombe. We find no error in this determination.

The checks in Group D-2 are not at issue. Group D-l is made up of 49 checks, totaling $5,399.49, deposited singly and, although made payable to Rick J. LaCombe, bear no professional designation. The trial court disallowed the value represented by these checks. We find the trial court clearly erred in a portion of this ruling. Forty-one of these checks (representing $4,750.87) were from insurance companies, which should have raised a red flag to the teller accepting these check as to whether these |9were personal or business checks. Of the remaining eight checks in this group, four checks (representing $284.48) were deposited with other insurance checks, which should have, likewise, raised a red flag. Accordingly, we amend the judgment of the trial court to increase the award by $5,035.35.

Finally, we address Dr. LaCombe’s request for expenses and attorney’s fees connected with the Bank’s denial of certain Requests for Admissions. The trial court denied Dr. LaCombe’s requests stating that the bank had admitted certain portions of the requests and that the portions denied formed a portion of the plaintiffs case which had to be argued at trial. We find no clear error in this ruling.

Accordingly, for the reasons stated above, the judgment of the trial court is amended to delete the $143.77 in checks made payable to Dr. Andrepont and amended to increase the award by $5,035.35 from Group D-l checks. In all other respects the judgment of the trial court is affirmed, resulting in judgment in favor of Dr. Rick J. LaCombe in the amount of $68,747.37. Dr. LaCombe’s answer to appeal is denied except as related to the checks in Group D-l which we credited to Dr. LaCombe. Each party is to bear its own costs on appeal.

AFFIRMED AS AMENDED.