author: ROSEMARY LEDET, Judge.

text:
    Ecetra N. AMES v. John B. OHLE, III, J.P. Morgan Chase & Co. f/k/a Bank One Corporation, Douglas Steger and Kenneth A. Brown.
    No. 2011-CA-1540.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2012.
    Clarifying Opinion on Denial of Rehearing July 11, 2012.
    See also, 2010 WL 5055893.

      Catherine E. Lasky, Harvey S. Bartlett, III, Gladstone N. Jones, III, Lynn E. Swanson, Jones Swanson Huddell & Garrison, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    John W. Hite, III, Salley Hite Mercer & Resor, LLC, New Orleans, LA, Thomas Durkin, Stephen J. Kane, Mayer Brown LLP, Chicago, IL, for Defendant/Appellee.

      (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

hEcetra N. Ames, plaintiff/appellant, appeals from a judgment granting a peremptory exception of prescription in favor of defendant, J.P. Morgan Chase & Co. f/k/a Bank One Corporation (“Bank One”), which dismissed the claims of the plaintiff. After reviewing the record and applicable law, we affirm in part, reverse in part, and remand for further proceedings.

Factual and Procedural Background

In 1998, plaintiff, Ecetra N. Ames, hired defendant, John B. Ohle, III, to provide tax and financial planning services. Ohle was employed by defendant, Bank One, from 1999 through 2002 in the bank’s Innovative Strategies Group. In December 1999, Ames executed an instrument establishing a Charitable Remainder Unitrust (“Trust”), which designated Ohle as trustee. Ames asserts that she initially funded the trust with almost $5 million, followed by contributions in almost $8 million over the next two years. Ames alleges that in 2001, Mr. Ohle approached her about investing in a hedge fund called Carpe Diem Dynamic Fund Linked Warrants (“Carpe Diem Warrants”). Ames agreed to invest $5 million in |2Carpe Diem Warrants. After the $5 million transfer was made, Ames alleges that Ohle instructed the Carpe Diem fund to withhold $250,000 as a fee for the purchase of the warrants. Ames asserts that she was not informed that there would be any fees for the purchase of the Carpe Diem Warrants. Ames asserts that at the same time Ohle purchased $4.75 million worth of Carpe Diem Warrants on Ames’s account, he transferred $2 million of the Trust’s funds to purchase additional Carpe Diem Warrants. This transfer involved a fee of $100,000, which Ames asserts was not disclosed to her.

Ames also asserts that defendant, Douglas Steger, at the direction of Ohle, directed the Carpe Diem fund to send $800,000 of the $850,000 of fees collected by Ohle to the bank account of Invested Interest, a company based in San Francisco, California and wholly owned by Individual “A.” Ames’s petition states that Individual “A” is an unnamed, non-defendant co-conspirator, who is an investment advisor and friend of Ohle. Ames asserts that on November 27, 2001, Ohle directed $347,834 to be transferred from the Trust to Carpe Diem. Subsequently, Ohle directed Carpe Diem to send the $347,834 in funds to Invested Trust. Ames alleges that Individual “A”, at the direction of Ohle, through several transactions sent a total of $375,000 of her money to a bank account owned by Kenneth Brown and his then wife at Gulf Coast Bank. Ames further alleges that another $267,634 of her money was transferred to a bank account owned by Ohle at Hibernia Bank. Ames asserts that she had no knowledge of these transactions.

13Ames alleges that Ohle and Brown used the funds improperly deducted from Ames’s Carpe Diem investment to fund Brown’s position as a third-party investor in the “Hedge Option Monetization of Economic Remainder” (“HOMER”), which is a tax strategy sold by Ohle and Bank One to high net-worth individuals. Ames further alleges that Ohle, Brown, and Bank One received significant income from their roles with regard to the HOMER tax strategy. Specifically, Ames asserts that Bank One received over $5,000,000 in fees for referring its clients to the HOMER strategy.

In March 2003, Ames requested that Ohle provide her with an accounting for the Trust. Ames asserts that Ohle falsely told her that $350,000 in fees was paid entirely to Steger. After learning, in August 2003, of Ohle’s mishandling of the Trust, Ames and Ohle executed a settlement agreement. However, Ames asserts that the accounting did not apprise her of the following: money taken from the Trust that was funneled through Carpe Diem; the withdraws by Ohle from the Trust; or the use of Carpe Diem fees and Trust funds to fund the HOMER tax strategy.

In 2008, Ohle was indicted by a grand jury in the Southern District of New York for various fraud and tax offenses. Ames asserts that it was within the course of Ohle’s criminal trial that she discovered for the first time that Ohle benefited from the $350,000 of fees she and the Trust were charged for the purchases of Carpe Diem Warrants. In addition, Ames also asserts that it was at this time that |4she first learned of Ohle’s $347,834 transfer from the Trust to Carpe Diem to fund the HOMER tax strategy. In June 2010, Ohle was found guilty as charged.

After further details of Ohle’s mishandling of Ames’s Trust were disclosed throughout Ohle’s criminal trial, in October 2009, Ames filed suit against the same defendants in the instant case in federal court alleging claims under RICO as well as several state law claims. Ames v. Ohle, 2010 WL 5055893, p. *2 (E.D.La.2010). The federal court dismissed Ames’s RICO claims as untimely based on the “injury discovery” rule, which determines when a RICO claim accrues. Id. at *2, *4. The federal court held that Ames discovered the misappropriation of the funds in her Trust account in 2003 and that the four-year statute of limitations, which governs RICO claims began to run from that date. Id. at *2-3. Ames argued that the statute of limitations should be tolled due to Ohle’s fraudulent concealment of the full nature of his acts so that she would settle her claims. Id. at *3. However, the federal court determined that Ames could have conducted further discovery and learned about every unauthorized transaction from her trust account and due to her lack of due diligence she was not entitled to equitable tolling under the fraudulent concealment doctrine. Id. at *4. Further, the federal court declined to exercise jurisdiction over Ames’s remaining state law claims since the only federal law claims were dismissed at an early stage of the litigation. Id.

On January 14, 2011, Ames filed her petition in this suit. Bank One filed multiple exceptions, including exceptions of preemption, prescription and no cause of action, which were adopted by the other defendants, Brown and Steger. The | ^district court sustained Bank One’s exception of prescription by oral ruling on May 27, 2011. The court’s ruling was based on Ames’s knowledge of the existence of Bank One through the 2003 settlement agreement with Ohle. The court stated:

The problem I have with all of it is: As relates to the bank, I think the plaintiffs had knowledge of the bank; and it’s difficult to say that contra non valentum prevented them from pursuing action against the bank.

It is from this judgment that Ames has appealed.

Standard of Review

Ordinarily, a party asserting a peremptory exception of prescription bears the burden of proof. Trust for Melba Margaret Schwegmann v. Schwegmann, 09-968, p. 8 (La.App. 5 Cir. 9/14/10), 51 So.3d 737, 742. However, if prescription is evident from the face of the pleadings, the plaintiff will bear the burden of showing an action has not prescribed. Id. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-elearly wrong standard of review. Randa v. Anco Insulations, Inc., 08-1163, p. 20 (La.5/22/09), 16 So.3d 1065,1082. If there is as an absence of evidence, the exception of the prescription must be decided upon the properly pleaded material allegations of fact asserted in the petition, and those alleged facts are accepted as true. Trust for Melba Margaret Schwegmann, 51 So.3d at 742. Further, in reviewing a peremptory exception of prescription, appellate courts strictly construe the statutes against prescription and in favor of the claim. Id. Of the possible constructions of a prescriptive or preemptive statute, |fithe one that maintains enforcement of the claim or action, rather than the one that bars enforcement should be adopted. Rando, 16 So.3d at 1083.

Discussion

The first assignment of error Ames asserts is that the district court erred in granting Bank One’s exception of prescription where certain of her claims are subject to a ten-year prescriptive period and are not prescribed on their face. The nature of a cause of action must be determined before it can be decided which prescriptive term is applicable, dela Vergne v. dela Vergne, 99-0364 (La.App. 4 Cir. 11/17/99), 745 So.2d 1271, 1275. The character of an action disclosed in the pleadings determines the prescriptive period applicable to that action. Id. Plaintiffs petition alleges facts and specifically asserts eight causes of action: 1) violation of Louisiana Racketeering Act under La. R.S. 15:1353; 2) unjust enrichment; 3) breach of fiduciary duty; 4) breach of contract; 5) fraud; 6) detrimental reliance; 7) negligent misrepresentation; and 8) civil conspiracy. These claims were asserted against the Bank directly and based on the theory of respondeat superior.

Civil Violations of the Louisiana Racketeering Act

The first cause of action Ames asserts is a civil violation of the Louisiana Racketeering Act under La. R.S. 15:1351-56. Although these statutes are part of the Code of Criminal Procedure, they provide for a civil cause of action similar to the federal RICO statute. Thomas v. North 40 Land Development, Inc., 04-0610, p. |724 (La.App. 4 Cir. 1/26/05), 894 So.2d 1160,1175. The civil remedies provision of the statute provides the applicable prescriptive period, which is five years. La. R.S. 15:1356(H).

Unjust Enrichment

The second cause of action Ames assets is unjust enrichment. She contends that the defendants were unjustly enriched and that all the money taken from Ames as a result of their use of those funds should be returned to her. Ames is precluded from asserting a claim of unjust enrichment due to the presence of other remedies at law available to her. Dugas v. Thompson, 11-0178, p. 14 (La.App. 4 Cir. 6/29/11), 71 So.3d 1059, 1068 (citing La.C.C. art. 2298; Walters v. MedSouth Record Management, LLC, 10-0352, pp. 2-3 (La.6/4/10), 38 So.3d 241, 242). The unjust enrichment remedy is only applicable to fill a gap in the law where no express remedy is provided. Id. Ames has other available remedies; she asserts several other claims against the Bank in her petition. Further, it is irrelevant whether Ames’s other claims are prescribed. Id. Regardless whether Ames successfully pursues another available remedy, it does not give her the right to recover under the theory of unjust enrichment. Id.

Breach of Fiduciary Duty & Breach of Contract

The third cause of action Ames asserts in her petition is a breach of fiduciary duty claim against Bank One. She also asserts a fourth cause of action for breach |sof contract based on a fiduciary obligation. Specifically, Ames alleges that Ohle owed duties to her as Trustee, and Bank One owed duties to her as Ohle’s employer. Louisiana courts have applied La. R.S. 6:1124 to actions alleging a violation of a fiduciary duty against a financial institution. Holmgard v. First Nat’l Bank of Commerce, 96-0853, p. 10 (La.App. 4 Cir. 1/15/97), 687 So.2d 583, 588.

Under this statute, “[a]ny breach of a fiduciary responsibility of a financial institution or any officer or employee thereof may only be asserted within one year of the first occurrence thereof.” La. R.S. 6:1124 (Emphasis added). Assuming Ames has a claim for breach of fiduciary duty, she was required to assert her claim within one year of its occurrence or when the cause of action accrues.

Fraud

The fifth cause of action Ames asserts is fraud. Ames asserts that her claims of fraud are subject to a ten-year prescriptive period and relies on language from this Court in déla Vergne, supra, which addresses the First Circuit’s opinion in Beckstrom v. Parnell, 97-1200 (La.App. 1 Cir. 11/6/98), 730 So.2d 942. This Court noted that the First Circuit in Beckstom determined that “a fiduciary’s simple negligence should be treated as an offense subject to a one year prescriptive period, while deliberate actions, such as fraud, misrepresentation or conversion would be subject to the ten year prescriptive period.” dela Vergne, 745 So.2d at 1275-76. This permits greater accountability for deliberate acts, but also requires a higher burden of proof. Young v. Adolph, 02-67, p. 10 (La.App. 5 Cir. 5/15/02), 821 So.2d 101,106.

InAmes’s petition alleged the circumstances constituting fraud with particularity as required by La. C.C.P. art. 856. The petition pleads detailed factual allegations of fraudulent misrepresentations made by defendants. The fraud is not merely that the defendants made misrepresentations, but that they, specifically Ohle, made “knowingly false affirmative misrepresentations and intentional omissions of material facts” in the management of Ames’s investments; failed to disclose money taken from the trust; falsely stated that money withdrawn without Ames’s knowledge was put in investment vehicles; and fraudulently and knowingly misrepresented to that he (Ohle) did not receive any of the amounts taken from the Carpe Diem Fund investment.

Due to the intentional fraudulent conduct of a fiduciary pled by Ames, we find that her claim for fraud is personal and subject to the ten-year prescriptive period as opposed to a negligence claim which is delictual and prescribes in one year.

Negligent Misrepresentation

The sixth cause of action Ames asserts is negligent misrepresentation. Louisiana courts have recognized claims for negligent misrepresentation as delictual actions subject to the one-year prescriptive period of La. C.C. art. 3492. Nat'l Council on Compensation Ins. v. Quixx Temporary Services, Inc., 95-0725, p. 3 (La.App. 4 Cir. 11/16/95), 665 So.2d 120,122.

Detrimental Reliance

| inThe seventh cause of action Ames assets is detrimental reliance. In considering this claim the court must determine whether it is viewed as contractual in nature, and thus governed by the prescriptive period of ten years for personal actions, or delictual in nature, and thus governed by a one year prescription. Trinity Universal Ins. Co. v. Horton, 33,-157, p. 2 (La.App. 2 Cir. 4/5/00), 756 So.2d 637, 638. Louisiana courts have applied both prescriptive periods to claims of detrimental reliance because the nature of the action, rather than its label, governs which period applies. Id. The courts are not bound to accept a plaintiffs characterization of the nature of his cause of action if it is unsupported by factual allegations. Kroger Co. v. Barcus & Sons, Inc., 44,200, p. 3 (La.App. 2 Cir. 6/17/09), 13 So.3d 1232, 1235.

The Louisiana Supreme Court in Roger v. Dufrene, 613 So.2d 947 (La.1993), applied the distinction between nonfeasance and misfeasance to determine whether an action sounds in tort or contract for the purposes of prescription. In Roger, the Louisiana Supreme Court noted nonfea-sance was exclusively a breach of contract and that misfeasance could be a tort. Roger, 613 So.2d at 949. Nonfeasance of the performance of an obligation is considered a breach of contract claim governed by a ten-year prescriptive period, and misfeasance in the performance of a contract is governed by the tort prescription of one year. Id. In Roger, the Supreme Court stated:

The nature of certain professions is such that the fact of employment does not imply a promise of success, but an agreement to employ ordinary skill and care in the exercise of the particular profession. The duty imposed upon the insurance agent [the lawyer, |ndoctor, and accountant] upon whose advice the client or patient depends is that of “reasonable diligence” a breach of which duty results in an action in negligence.

Id. see also Copeland v. Wasserstein, 278 F.3d 472, 479 (5th Cir.2002) (The court applied this reasoning to a detrimental reliance claim against a financial advisor and determined that no specific promises were breached only the standard of care, which resulted in a delictual action).

Ames alleges in her petition that she detrimentally relied on false statements and omissions by defendants when she entered into risky investment vehicles, paid exorbitant fees, and entered into a settlement agreement. Ames does not allege nonperformance of any specific promises made by defendants which could be considered nonfeasance. Ames asserts that she relied on false statements and omissions, not specific promises that were never performed. Therefore, the conduct alleged by Ames in her claim for detrimental reliance is delictual nature and subject to the prescription of one year.

Civil Conspiracy

The eighth cause of action Ames asserts is civil conspiracy. The Louisiana Supreme Court has held that conspiracy by itself is not an actionable claim under Louisiana law. Crutcher-Tufts Resources, Inc. v. Tufts, 07-1556, p. 3 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094 (citing Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546). The actionable element of a conspiracy claim is not the conspiracy itself but rather the tort that the conspirators agree to perpetrate and actually commit in whole or in part. Thomas, 04-0610 at p. 23, 894 So.2d at 1174. Ames’s cause of action for civil conspiracy pled in her petition does not 1T ¡.clearly identity the underlying tort that forms the basis for the alleged conspiracy. However based on the facts pled the court can conclude that the underlying tort is fraud or misrepresentation. The petition states:

Defendants, knowingly acted in concert to market and implement the risky investment vehicles and accompanying fraudulent and abusive tax shelter transaction ... they acted with full knowledge and awareness that the transactions were designed to give the false impression that the complex series of financial transactions were legitimate business transactions....

(Emphasis added). Because Ames’s claims for fraud and misrepresentation are subject to a one-year prescriptive period, her claim for civil conspiracy is likewise subject to a one-year prescriptive period.

Based on the foregoing, we find that Ames’s claims are subject to one, five, and ten-year prescriptive periods.

Ames’s second assignment of error is that the district court erred in granting Bank One’s exception of prescription because it failed to apply the correct standard to determine when her causes of action against the bank accrued. Under Louisiana law, prescription begins to run once there has been a determination that damage was sustained. Landry v. Blaise, Inc., 99-2617, p. 4, (La.App. 4 Cir. 8/2/00), 774 So.2d 187, 190. The determination is not one on the merits, but it is simply a determination that plaintiff sustained damage sufficient to support accrual of a cause of action against the defendants. Id. Prescription begins to run against a claimant when he obtains actual or constructive knowledge of facts indicating a cause of action. Barbe v. American Sugar Refining, Inc., 11-0544, p. 12 (La.App. 4 | lsCir. 12/14/11), 83 So.3d 75, writ denied, 12-0124, (La.3/23/12), 85 So.3d 92 (La.2012) (citing Campo v. Correa, 2001-2707, (La.6/21/02), 828 So.2d 502).

Constructive knowledge of facts indicating a cause of action is whatever notice is enough to excite attention and put the injured party on guard and call for further inquiry. Id. It also includes knowledge or notice of everything to which a reasonable inquiry may lead. Id. Constructive knowledge is sufficient to commence the running of prescription. Barbe, 11-0544, p. 13, 83 So.3d 75.

Ames asserts that the district court erred by relying on the fact that she had knowledge of Bank One in 2003, specifically that Ohle was employed there, when determining that her claims against the bank had prescribed. Ames acknowledges that she knew about the existence of Bank One in 2003; however, she asserts that she did not know about the conspiracy engaged in by the defendants until, at the earliest, Ohle’s indictment in November 2008, and more completely until Ohle’s criminal trial in May 2010. However, after a review of the allegations detailed in Ames’s complaint, this court finds that Ames had constructive notice in 2003 sufficient to commence the running of prescription.

Ames asserts that she first learned of Ohle’s mishandling of her funds in March 2003, after an accounting was requested on her behalf. It is unclear what the accounting fully disclosed. However, Ames asserts that she was told that she had been charged with $350,000 in fees, which she did not authorize, and that the 114fees were paid entirely to Steger. Ames’s petition further details other alleged misrepresentations and omissions by Ohle, which she relied on when entering into the 2003 settlement agreement. Although Ames did not have actual knowledge of the full details of Ohle’s conduct, she had enough knowledge of his mishandling of her funds to excite attention sufficient to prompt further inquiry, which would be considered constructive knowledge. It is unreasonable for Ames to have relied on the information Ohle gave her after she had already learned of his mishandling of her trust funds. Therefore, prescription began to run in March 2003.

As stated, Ames’s viable claims are subject to one, five and ten-year prescriptive periods. Ames did not file suit in federal court against the defendants until October 2009, which is beyond the one-year and five-year prescriptive periods. Based on the foregoing, Ames’s claims are prescribed except as to her claim for fraud which we find to have a ten-year prescriptive period.

Ames’s final assignment of error is that if her claims are prescribed on their face, the district court erred in failing to apply the doctrine of contra non valentem. She contends that the defendants’ acts of concealment and misrepresentations prevented her from discovering her injuries and tort causes of action.

The doctrine of contra non valentem agere nulla currit praescriptio prevents the running of liberative prescription when the cause of action is not known or reasonably knowable by the plaintiff. Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La.1993). There are four instances recognized by the Louisiana Supreme Court where contra non valentum is applied to prevent the running of prescription:

lis(l) where there is some legal cause which prevented the courts or their officials 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; or (4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though this ignorance is not induced by the defendant.

Dominion Exploration & Prod., Inc. v. Waters, 07-0386, p. 10 (La.App. 4 Cir. 11/14/07), 972 So.2d 350, 358.

Ames asserts that the third category of contra non valentum applies in this case due to the misrepresentations and omissions by Ohle in his 2003 accounting. The third category of contra non valentum applies when the defendant has done some act effectually to lull the victim into inaction and prevent him from availing himself of his cause of action. Dominion Exploration & Prod., Inc., 07-0386 at p. 11, 972 So.2d at 358. To trigger application of the third category, a defendant’s conduct that keeps the victim in ignorance must rise to the level of concealment, misrepresentation, fraud, or ill practices. Id. Where the plaintiff is able to establish such conduct, prescription is suspended until the plaintiff is made aware of the truth of the matter. Id. However, it is well settled that the principle of contra non valentum will not exempt a plaintiffs claim from running if his ignorance is attributable to his own willfulness, neglect, or unreasonableness. Dominion Exploration & Prod., Inc., 07-0386 at p. 14, 972 So.2d at 360.

Moreover, in Cole, supra, the Louisiana Supreme Court stated the following regarding prescription:

Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not 11fibe used to force a person who believes he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom he believes may be responsible for a specific injury.
When prescription begins to run depends on the reasonableness of a plaintiff’s action or inaction.

Cole, 620 So.2d at 1157 (Emphasis added) (citing Jordan v. Employee Transfer Corp., 509 So.2d 420 (La.1987)). In this case, the issue is whether, in light of the information known to Ames, was she reasonable to delay in filing suit. Id. (citing Knaps v. B & B Chemical Co., Inc., 828 F.2d 1138,1140 (5th Cir.1987)).

We find it is unreasonable for Ames to not have made further inquiry into the information given to her by Ohle. She was aware to some extent of his misconduct. Ames asserts that she and her advisors, including an attorney and accountant, were given financial statements in 2003 from Ohle and that although they conducted an “extensive” investigation, they were unable to uncover the conspiracy. However, there are facts noted in Ames’s federal suit which question the thoroughness of the investigation into Ohle’s accounting. The federal court indicated that although Ohle allegedly advised Ames that the $350,000 in fees were paid entirely to Steger, at no point does Ames suggest that she expended any efforts to research what happened to the actual fee. Ames, 2010 WL 5055893, p. 3 (E.D.2010). The federal court further indicated that:

Ames argues that Ohle failed to disclose his transfer of an additional $347,834 from the Trust to Carpe Diem. However, these transfers were all available in the bank records of the Trust, which obviously could have been the subject of discovery with minimal effort. Indeed, in the final accounting that Ohle provided to Ames there is an entry for $347,834 as a “loan to LFC” on November 21, 2001. Ohle’s final accounting is replete with similar “loan” entries, despite the fact that he had no authority to loan any of the Trust’s funds. Ames was also 117aware that Ohle had deposited $4.1 million of Ames’ personal funds in the Trust’s bank account without her informed consent. Despite these warning signs of misconduct, Plaintiff agreed to settle all known and unknown claims she had with Ohle regarding his management of the Trust.

Id. There is no indication in the record that there was an inquiry into these issues during Ames’s investigation into Ohle’s accounting. Based on these facts, Ames was unreasonable in her inaction. Ames had enough information to excite attention and prompt further inquiry into these facts which would have revealed further details of Ohle’s misconduct. Thus, Ames’s reliance on the doctrine of contra non valen-tum is misplaced.

At the hearing on the exceptions of prescription in the instant case, the trial court explicitly held that contra non valentum did not prevent Ames from pursuing her claims against the bank. Based on a review of the record, we fail to find exceptional circumstances to warrant the application of contra non valentum.

Thus all of Ames’s claims are prescribed except as to her claim for fraud.

DECREE

For the foregoing reasons, we affirm the portion of the trial court’s judgment granting Bank One’s exception of prescription as to Ames’s claims for violation of Louisiana Racketeering Act under La. R.S. 15:1353, unjust enrichment, breach of fiduciary duty, breach of contract, detrimental reliance, negligent misrepresentation, and civil conspiracy. We reverse the) ^portion of the trial court’s judgment sustaining Bank One’s exception of prescription as to her claim for fraud and remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

McKAY, J., concurs in the result.

ON APPLICATION FOR REHEARING

(Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).

ROSEMARY LEDET, Judge.

_JjWe grant rehearing for the sole purpose of clarifying our May 23, 2012 opinion in the following respect. We stated that since “Ames’s claims for fraud and misrepresentation are subject to a one-year prescriptive period, her claim for civil conspiracy is likewise subject to a one-year prescriptive period.” Ames v. Ohle, 11-1540, p. 12 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 394. However, we determined that Ames’s claim for negligent misrepresentation is subject to a one-year prescriptive period and her fraud claim is subject to a ten-year prescriptive period. Ames, 11-1540, at p. 5, 97 So.3d at 390-91.

The precept for civil conspiracy is set forth under La. C.C. article 2324, which provides:

He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.

New Orleans Jazz and Heritage Foundation, Inc. v. Kirksey, 09-1433, p. 22 (La.App. 4 Cir. 5/26/10), 40 So.3d 394, 408; La.C.C. art. 2324. However, |¡>we noted that conspiracy by itself is not an actionable claim under Louisiana law. Ames, 11-1540, at p. 6, 97 So.3d at 391. Instead, the actionable element under Article 2324 is the intentional tort the conspirators agreed to commit and committed in whole or in part causing plaintiffs injury. New Orleans Jazz and Heritage Foundation, Inc., 40 So.3d at 408.

In this case, the tortious conduct alleged is misrepresentation and fraud. Ames’s negligent misrepresentation claim is prescribed and is no longer actionable. However, we determined that Ames’s fraud claim has a prescriptive period of ten-years. Thus, Ames’s civil conspiracy claim based on fraud also has a prescriptive period of ten-years.

Bank One argues by allowing Ames’s fraud claim to go forward this Court circumvents La. R.S. 6:1124 that provides a one-year prescriptive period for breach of fiduciary duty by a bank. However, after a review of the legislative history of La. R.S. 6:1124, this Court in BizCapital Business & Industrial Development Corp. v. Union Planters Corp., 03-2208, p. 5 (La.App. 4 Cir. 9/8/04), 884 So.2d 623, 627, determined that the legislature did not intend to totally immunize banks from all legal duties in their relationship with customers and third parties. See also Priola Const. Corp. v. Profast Development Group, Inc., 09-342 (La.App. 3 Cir. 10/7/09), 21 So.3d 456.

Ames alleges that Bank One’s conduct was more than a passive failure to properly supervise Ohle but were affirmative actions to conceal their self-dealing transactions. The alleged intentional and deliberate acts are independent of the fiduciary duty owed by Bank One. Therefore, | sAmes’s fraud action is personal in nature as defined by La. C.C.P. art. 422 and subject to a ten-year prescriptive period.

CLARIFIED IN PART ON PLAINTIFF’S REHEARING AND DEFENDANT’S REHEARING DENIED.

      . La. R.S. 15:1356(H) provides in pertinent part:
      Notwithstanding any other provision of law, a criminal or civil action or proceeding under this Chapter may be commenced at any time within five years after the conduct in violation of a provision of this Chapter terminates or the cause of action accrues.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    CHATEAU HOMES BY RJM, INC. v. Chad J. AUCOIN and Candace R. Aucoin. Chad J. Aucoin and Candace R. Aucoin v. Chateau Homes by RJM, Inc.
    Nos. 11-CA-1118, 11-CA-1119.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Daniel J. Caruso, Christopher B. Conley, Attorneys at Law, New Orleans, LA, Timothy S. Marcel, Attorney at Law, Lul-ing, LA, for, Plaintiffs/Appellees.
    Dwight C. Paulsen, III, David E. Red-man, Jr., Michael C. Mims, Attorneys at Law, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ^Appellants, Chad and Candace Aucoin (“the Aucoins”), have appealed the trial court’s judgment granting an involuntary dismissal of their fraud claims against Ray Matherne and Ron Matherne (collectively, “the Mathernes”). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 17, 2007, Chateau Homes by RJM, Inc. (“Chateau”) filed suit against the Aucoins alleging that the Aucoins had entered into a building contract with Chateau for the construction of a new home for them on a lot they had recently purchased in St. Charles Parish. The contract provided for a total construction price of $202,312, payable in five installments as construction of the home progressed. Chateau’s petition alleged that the fourth installment under the contract was payable upon installation of the bricks and sheetrock, that the brick and sheet-rock work was completed, and that when demand for the fourth installment was made, the Aucoins reported that their lender’s building inspector |4had rejected Chateau’s workmanship and/or materials. The Aucoins refused to tender the fourth installment to Chateau. By letter dated October 13, 2006, the Aucoins terminated the building contract. Chateau alleged that this unilateral termination of the contract constituted a bad faith breach of the contract and claimed it still was owed $81,724.80 under the contract.

On June 6, 2007, the Aucoins answered Chateau’s petition admitting that they had entered into the building contract with Chateau, but alleged that their termination of the contract was with cause due to the numerous defects and errors made during the construction. They then specifically listed numerous defects, including defects in the roof, windows, master bathroom, fireplace, and bricks.

On September 14, 2007, the Aucoins filed their own petition for damages against Chateau, alleging that Chateau failed to comply with the terms of the building contract when it subcontracted the construction of their home to Kreative Kustom Homes, L.L.C. (“Kreative”). This petition alleged that Kreative acted as agent for Chateau and that the home was not built in a proper and workmanlike manner. The Aucoins then asserted a claim under the Louisiana New Home Warranty Act and listed the numerous construction defects.

On February 28, 2008, Chateau filed a motion to consolidate the suits, which was granted on March 7, 2008.

On September 10, 2010, the Aucoins filed a supplemental and amending answer to Chateau’s petition, and a reconventional demand and supplemental and amending petition for damages. In this pleading, the Aucoins asserted that they were within their rights to terminate the building contract based on Chateau’s repeated failure to perform, that Chateau had not substantially performed its obligation under the building contract, and that Chateau’s failure to perform substantially impaired their interest in their home. Alternatively, the Aucoins |,^alleged that if the court concluded that they were not justified in terminating the building contract, then misrepresentations made by Chateau’s owner and President, Ray Matherne (“Ray”), and its Vice President, Ron Matherne (“Ron”), as to who was to build their home constituted fraud which vitiated their consent to the contract and constituted grounds for rescission of the contract.

In their reconventional demand, the Au-coins named Chateau and the Mathernes, individually, as defendants. They alleged that on April 28, 2006, they finalized a building contract with Chateau for construction of their new home for a total price of $202,312. In order to convince them to enter into the building contract, the Mathernes represented to them that Chateau would build their home and that Ron would personally oversee construction of their home. The petition further alleged that Chateau and the Mathernes never intended for Chateau or Ron to build their home; rather, Chateau entered into a contract with Kreative on May 8, 2006 to build their home for $178,845. They asked Ron about Chateau’s relationship with Kreative and Ron did not disclose that Chateau had entered into the contract with Kreative. The petition alleges that Chateau and the Mathernes misrepresented and suppressed the fact that they did not intend to build the Aucoins’ home in order to secure a profit of $23,467 for Chateau, and had they known the truth, they would not have contracted with Chateau.

In their supplemental and amending petition, the Aucoins alleged that the decision by the defendants to enter into the agreement with Kreative was the genesis of the defects in their home. They alleged that it was not possible for Kreative to construct their house for $178,845 and still make a reasonable profit thereon, and that Krea-tive had failed to use the materials called for in their house plans which were required by the building contract. Finally, they allege that the defendants were guilty of negligent misrepresentation.

| fiThis matter proceeded to a three-day judge trial. At trial, Chateau proceeded first with its claim against the Aucoins. Ron testified that he was Vice President of Chateau, which was owned by his father, Ray. As Vice President, he oversaw all home construction and dealt with the contractors and subcontractors. He stated that in 1999, Chad was employed by Chateau to do electrical work. In 2006, the Aucoins contacted RJM Enterprises, his father’s real estate development firm, about purchasing a lot. After purchasing a lot from RJM Enterprises, the Aucoins contacted Ray and asked for a price to build a home on the lot. The Aucoins provided the plans and specifications for the home. The parties agreed on a price and payment schedule. Ron signed the permit application and it was submitted on May 11, 2006. Ron testified that the Au-coins were involved in the construction of the home throughout the entire process. He and the owners were “there at every major milestone throughout construction.” There were some issues with the plans that the framers brought to his attention. These issues were discussed with the Au-coins, and the decision was made to modify the ceiling heights in the master bedroom and living room to resolve these issues. Ron’s own home was only a block away from the Aucoins’ home, so he was at the Aucoin construction site frequently (on an almost daily basis, but in any event a minimum of three times per week). Chad performed the electrical work on the house, and after the brick and sheetrock phase, Ron requested the fourth payment from the Aucoins. He was told that the bank inspector had concerns about the windows and attic insulation and did not release the funds. Ron stated that he called the bank the next week and was told that the funds had been released to the Aucoins the week before. He then called Chad to request the fourth payment and according to Ron, Chad “threw us off the job.” The next week, he received a letter from the Aucoins’ attorney | germinating the contract. He did not return to the jobsite and did not receive any further payments.

When questioned as to the contract with Kreative, Ron testified that he signed the contract with Kreative to build the Au-coins’ home for $178,845. Chateau had worked out a partnership for Kreative to construct several homes. The Aucoins’ home was the fifth home that Chateau was constructing in this manner. At the time, Ray was sick with cancer and was not around to assist in the building of homes. Ron admitted that there was no actual partnership agreement between Chateau and Kreative. Ron did not recall who the subcontractors were that worked on the Aucoins’ house, but acknowledged that Kreative selected the subcontractors for the Aucoins’ house. Neither he nor Ray told the Aucoins about the contract between Chateau and Kreative. This was the manner in which Chateau was building homes at the time. There had been no major problems with the other houses Kreative had built for Chateau. Ron testified that it was not Chateau’s practice to give the owner a copy of the contract between Chateau and Kreative. Also, Ron felt that the Aucoins knew of Kreative’s involvement early in the construction process. Ron stated that it was not Chateau’s policy to disclose the names of every subcontractor to the homeowner. He acknowledged that at the time the contract was terminated, there were some issues with the Aucoins’ home, specifically some of the windows were not plumb and there was a problem in the attic, possibly insulation. Chateau was not given an opportunity, however, to address these problems because they were removed from the job. Ron stated that his role was to oversee the project and he was going to get these issues resolved. He was not surprised that issues came up during construction because it is typical to have issues with every construction project throughout the construction process. |sHe was not aware that the Aucoins were unhappy with Krea-tive as they were dealing with Kreative on almost daily basis.

Chad testified that he and his wife Candace purchased their lot from RJM Enterprises who was represented by Ray. Ray told them that his son Ron could build their home. He and Candace met with the Mathernes and reviewed plans for some of the other homes they had built. They did not find one that they wanted to build, so the Mathernes told them to go to A1 Champagne to have their plans drawn. After they were turned down for financing for the house by Chad’s credit union, the Mathernes suggested that they go to First National Bank who agreed to finance their loan. Chad testified that when he signed the contract with Ron, Ron told him that he would oversee the project, and it was his impression that Chateau through Ron would build the house. He admitted that the framers told him that Kreative was building the house. Once he became aware that Kreative was building the house, he questioned Ron and Ron said that Kreative was their partner. He was not aware that Chateau signed a building contract with Kreative. He only saw Ron on the jobsite on one occasion. He testified that Ron did not communicate with him on a regular basis, and did not return his phone calls. He stated that he would not have signed the contract with Chateau if he had known that Kreative was going to build the home.

Chad then went on to describe the numerous defects in the house: the roof was buckled, there was a hole in the roof over the back patio, the windows did not operate properly because they were improperly installed, the wrong windows and wrong shingles were installed, some walls were bowed, there were loose bricks, the brick ledges under the windows were flat which did not allow the water to drain off of them, and the shower and tub in the master bath were not installed correctly causing them to crack.

| gCandace took the stand and her testimony corroborated Chad’s. She emphasized that the contract did not mention Chateau assigning construction of their home to another general contractor. She stated that Ron told them that he would be on the site every day to ensure that everything was going to be the way it was supposed to be. She never saw Ron at the construction site however. She became aware of Kreative’s involvement in the project when they put a sign in their yard during framing of the house. She and Chad terminated the contract with Chateau because they were not satisfied with the quality of the work.

Robert Foley, who was accepted by the court as an expert general contractor and cost estimating, testified on behalf of the Aucoins as to the numerous defects in the Aucoins’ home, the work necessary to repair the defects, and the cost of these repairs.

Ray testified that the contract between the Aucoins and Chateau called for Chateau to be the general contractor on the Aucoins’ home. The contract Ron signed with Kreative was to build the Aucoins’ home as the subcontractor. The Aucoins were not told about this contract or the contract with any other subcontractors. He stated that it was not Chateau’s normal practice to tell the owners who the subcontractors are. He also stated that it was not an unusual practice in the construction business for there to be an agreement between a contractor and a subcontractor for the constructing of an entire home by the subcontractor. He testified that the subject about the contract between Chateau and Kreative never came up with the Aucoins. He was unable to testify regarding Kreative’s profit margin. According to Ray, Kreative has its own employees, warehouse, and bulk materials. Finally, Ray admitted that Chateau was currently inactive because he had shut down several companies and consolidated his activities.

| ipFollowing Ray’s testimony, the Au-coins rested their case. All defendants then moved for an involuntary dismissal of the Aucoins’ case under La.Code of Civil Procedure Code article 1672(B) on the issues of fraud and personal liability of the individual defendants. They argued that the Aucoins failed to show an attempt to defraud them and that there was no evidence of misrepresentation. The Aucoins responded that they had selected Chateau as their builder because they believed Chateau would be the one selecting the subcontractors and overseeing the job. They argued that Chateau did not select the subcontractors and Ron did not oversee the project. They further argued the scope of the contract between them and Chateau and noted that the scope of the contract between Chateau and Kreative was exactly the same, and that this was not a classic contractor-subcontractor relationship. They further noted that the general contractor’s representative who was on the jobsite daily was a Kreative employee, not Ron or Ray. They contended that they believed that Chateau was going to build their house, and because the Math-ernes never intended to build their house from the beginning, there was error in the contract which was knowingly induced by the Mathernes.

The Aucoins then requested time to file a memorandum in response to defendants’ motion. The trial court denied the Au-coins’ request, then explained that the Au-coins had the burden of proving fraud by a preponderance of the evidence. The court explained that there was no evidence adduced to show fraud and granted the involuntary dismissal as to the Mathernes. The trial court then stated that he would render a written judgment on the involuntary dismissal at the, conclusion of the trial with the final judgment. The trial then continued with defendants’ presentation of their case. At the conclusion of the trial, the court took the matter under advisement.

InOn April 6, 2011, the trial court rendered judgment in favor of the Aucoins and against Chateau in the amount of $46,664.64 under the New Home Warranty Act, plus twenty-five percent attorneys’ fees and costs. The judgment was accompanied by sixteen pages of reasons for judgment. The Aucoins were then granted a new trial on the issue of attorneys’ fees, and their award of attorneys’ fees was increased to $84,227.50, plus costs. In awarding the attorneys’ fees, the trial court noted that while the Aucoins submitted evidence of $68,455.00 in attorneys’ fees, they were only awarded fifty percent of that amount because although they recovered under the New Home Warranty Act, their remaining causes of action were dismissed.

On August 5, 2011, the Aucoins filed a petition to appeal the judgment granting the motion to dismiss their fraud claims, denying their claim for recovery of the amount to satisfy a materialman’s lien, denying their claims for mental anguish or non-pecuniary damages, and the amount of attorneys’ fees and costs. On appeal, the Aucoins only brief their arguments relative to the dismissal of their fraud claims, stating that Chateau has since filed for bankruptcy protection. Thus, the only issue before us in this appeal is the grant of the defendants’ motion for involuntary dismissal of the Aucoins’ fraud claim.

ASSIGNMENT OF ERROR

The district court erred in granting an involuntary dismissal of the Aucoins’ tort fraud claims against the Mathernes when the evidence adduced at trial established that they told the Aucoins Chateau would build the house, Ron would supervise the construction, Chateau entered into a secret contract with Kreative to build the house, and the Aucoins relied on the Mathernes’ fraudulent misrepresentations to their detriment.

In their brief, the Aucoins first argue that Louisiana law authorizes tort fraud claims against officers and shareholders of a corporation. This argument by the | iaAucoins ⅛ misplaced. The trial court did not find that a tort fraud claim against the Mathernes was not allowed; rather, the court found that the Aucoins did not prove fraud by the Mathernes by a preponderance of the evidence.

Next, the Aueoins state the elements of the tort of fraud and the burden and nature of proof, and contend that they proved a misrepresentation of material fact made with the intent to deceive, justifiable reliance by them, and resulting injury. They then explain that the Mathernes never intended for Chateau to perform its obligation under the building contract; rather the Mathernes intended to enter into a separate secret contract with Krea-tive to build the home, noting that both Ray and Ron testified that they never told the Aueoins about their contract with Kreative. The Aueoins also contend that Ron lied to them when they questioned him as to Kreative’s involvement by stating that Kreative was Chateau’s partner when it was shown that there was no partnership agreement between the companies. The Aueoins conclude that their error as to who was going to build their home was “induced by the intentional misrepresentations” of the Mathernes and warrants rescission of the building contract for fraud. The Aueoins further argue that the Mathernes had an obligation to disclose Chateau’s relationship with Kreative when they questioned Ron about Kreative’s involvement. They cite inconsistencies in both the Mathernes’ testimony as to whether there had been any suits filed relative to the other homes that Krea-tive constructed for Chateau, as well as inconsistencies as to the status of Chateau at the time of trial.

The Aueoins then argue that they were justified in relying on Chateau’s advertisements that it specializes in building custom homes and uses local subcontractors. The Mathernes represented that Ron would personally oversee the construction of their home. The Aueoins argue they were reasonable in relying on | isthe representations made by the Mathernes based on their prior dealings with the Mathernes and the Mathernes having a good reputation in the community.

Finally, the Aueoins argue that their damages are directly attributable to Chateau’s decision to enter into a separate, secret contract with Kreative, ensuring that Chateau would make a profit of $23,467 on their home. The Aueoins reason that Ray either knew or should have known that Kreative had to hire the cheapest subcontractors and try to save money on the materials used in construction of the home in order to make a profit for Kreative.

The Aueoins conclude that in light of the extensive evidence that the Mathernes perpetrated a “serious fraud” on them and the district court’s finding that there was not “a scintilla of evidence adduced to show [the Mathernes’] fraud” at trial, this Court must conduct a de novo review of their fraud claims. Alternatively, the Au-eoins argue that the trial court’s ruling is manifestly erroneous and should be overturned.

The Mathernes contend that this appeal should be dismissed because Chateau has applied for bankruptcy and they personally were not parties to the contract sued upon. We find the appeal is properly before this Court as the Aueoins have appealed the judgment dismissing their fraud claims against the Mathernes.

LAW AND DISCUSSION

Louisiana jurisprudence indicates that the elements of the tort of fraud are a misrepresentation of material fact made with the intent to deceive when there was reasonable or justifiable reliance by the plaintiff and resulting injury. Schaumburg v. State Farm Mut. Auto. Ins. Co., 421 Fed.Appx. 434, 442 (5th Cir. 2011). For 114 purposes of the tort of fraud, the intent to deceive is a specific intent.

Id. In order to find fraud from silence or suppression of the truth, there must exist a duty to speak or disclose information. Id.

A motion for involuntary dismissal is raised in a judge trial after the plaintiff has completed the presentation of his evidence. Brock v. Singleton, 10-550 (La.App. 5 Cir. 3/29/11), 65 So.3d 649, 660. In this motion, a party may move for a dismissal of the action against him on the ground that the plaintiff has shown no right to relief based upon the facts presented and the law. Id. The trial court has much discretion in determining whether to grant a motion for involuntary dismissal and an appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Id. In determining whether an involuntary dismissal should be granted after the plaintiff has completed the presentation of his evidence during a bench trial, the appropriate standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Id. On appeal, the issue to be resolved is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Id.

Our review of the record in this case convinces us that the trial court’s grant of the Mathernes’ motion for involuntary dismissal was reasonable. The Au-coins testified that pursuant to the contract they entered into with Chateau, they expected Ron to supervise the building of their home. Ron testified that one of his job duties as Vice President of Chateau was to oversee all of Chateau’s home construction projects. Ron testified that he lived near the Aucoins’ home and “a lot of times” he went to the site on a daily basis and was at the site a minimum of three times per |iaweek. While Chad testified that he only saw Ron at the site on one occasion and Candace testified that she never saw Ron at the site, both Chad and Candace admitted that they worked during the day, inferring that they visited the site in the evenings and/or on weekends.

The Aucoins argue that the Mathernes committed fraud because they were not told of the contract between Chateau and Kreative. However, Ray testified that the contract between Chateau and Kreative was akin to one between a general contractor and a subcontractor. Ray testified that it is not uncommon practice for a general contractor to have an agreement with a subcontractor specifically to construct a home. Ray further testified that it is not common practice for the general contractor to disclose to the owner the names or agreements between the general contractor and the subcontractors. While both the expert who testified on behalf of the Aucoins and the expert who testified on behalf of defendants testified that it is unusual for a general contractor to sign a contract with another general contractor to build a home, they both testified that it is not common practice for the general contractor to disclose the names or agreements of the subcontractors to the owners. Ron testified that at the time Chateau entered into the contract with the Aucoins to build their home, Chateau had a “partnership” with Kreative to build homes. While admitting that there was no formal partnership agreement between Chateau and Kreative, Ron explained that “this was the way” Chateau was building homes at the time, explaining that at the time Ray was sick with cancer and was not available to assist in the construction process. Ray testified that Kreative had its own employees, warehouse and bulk materials, inferring that it was possible for Kreative to build the same quality home as Chateau for a lower price.

The Aucoins contend that the Mathernes were untruthful as to.whether they knew or should have known that Kreative had a history or poor workmanship and | 1fiargue that the trial court erred in limiting their ability to question the Mathernes regarding this history. They argue that they were required to prove that the Mathernes acted with “intent to deceive” and they were attempting to introduce evidence of Kreative’s prior bad acts to prove the intent of the Mathernes. The record before us indicates that although the trial court did limit questioning regarding issues of poor workmanship with the other houses built by Kreative for Chateau, the record does include indications of poor workmanship in two of the other houses that Krea-tive built for Chateau. Accordingly, the trial court was aware of evidence of poor workmanship in other houses that Krea-tive built for Chateau and based on this and all of the evidence introduced in the Aucoins’ case-in-chief still found that there was no intent by the Mathernes to deceive the Aucoins. The record reflects that the trial court was reasonably generous in allowing the Aucoins to present their case and in our opinion did not err in limiting the Aucoins in their efforts to present the evidence in question.

Our review of the evidence presented by the Aucoins at trial convinces us that they did not establish by a preponderance of the evidence that the Mathernes committed fraud. Ron testified that at the time Chateau entered into the contract to build the Aucoins’ home, Chateau was building homes by contracting with Kreative. Ron testified that he oversaw the construction of the Aucoins’ home until the Aucoins terminated the contract. When the Au-coins questioned Ron as to Chateau’s relationship with Kreative, Ron informed the Aucoins that Chateau had a partnership with Kreative. While it is clear that there was no formal legal partnership between Chateau and Kreative, Ron explained that at the time the Aucoins’ home was being constructed, Chateau was building homes by contracting with Kreative. While the Aucoins testified that they contracted with Chateau because they used local subcontractors, with the exception of the insinuation that |17the roofing subcontractor was not local, there was no evidence that the subcontractors who worked on the Au-coins’ home were not local and were not subcontractors that Chateau had also used in the past. Although the testimony is clear that Kreative selected the subcontractors for the Aucoins’ home, there was no evidence introduced that Chateau would have used different subcontractors.

Based on our overall review of the record in this case, we find that the trial court’s grant of the Mathernes’ motion for involuntary dismissal was not manifestly erroneous.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The Aucoins are cast with all costs of this appeal.

AFFIRMED

      . In their brief, defendants argue that tort fraud was not an issue submitted to the trial court. We find no merit to this contention, as the transcript indicates that there was an expansion of the pleadings to include tort fraud.

      . See also Wooley v. Lucksinger, 06-1140, 06-1143, 06-1158, 06-1160 (La.App. 1 Cir. 12/30/08), 14 So.3d 311, writ granted, 09-0585 (La. 12/18/09), 23 So.3d 951, writ granted, 09-0586 (La. 12/18/09), 23 So.3d 951, writ granted 09-0584 (La. 12/18/09), 23 So.3d 952, writ granted, 09-0571 (La. 12/18/09), 23 So.3d 953, affirmed in part, reversed in part, 09-0571, 09-0586, 09-0584, 09-0585 (La.4/1/11),


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Sherri HOTARD v. MURPHY, ROGERS, SLOSS & GAMBEL.
    No. 11-CA-1143.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 31, 2012.

      Christine L. Desue, Richard R. Schulze, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    Natasha Z. Wilson, Matthew C. Wilson, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and ROBERT A. CHAISSON.
   FREDERICKA HOMBERG WICKER, Judge.

12The plaintiff/appellant appeals the trial court’s judgment which dismissed her workers’ compensation claim. For the reasons that follow, the judgment appealed from is affirmed.

Factual and Procedural Background

The plaintiff/appellant, Mrs. Sherri Ho-tard, filed a Disputed Claim for Compensation (1008 compensation claim) on October 31, 2007 due to a workplace injury that occurred while she was under the employ of the defendant/appellee, Murphy, Rogers, Sloss, and Gamble (Murphy Rogers). The 1008 compensation claim form contends that Mrs. Hotard fell on her left side and injured her neck and shoulder when she tripped over a telephone cord on October 27, 2006. Murphy Rogers excepted to the petition on January 24, 2008, alleging prematurity pursuant to La. R.S. 23:1314. Mrs. Hotard responded to the exception on June 13, 2008, by amending the 1008 compensation claim on June 13, 2008, alleging that CNA — Murphy Rogers’ insurer— failed to reimburse her out-of-pocket expenses and has repeatedly denied reasonable medical treatment. Murphy Rogers subsequently |sfiled a motion to reclassify benefits from temporary total disability benefits (TTD) to supplemental earnings benefits (SEBs) on the ground that a doctor had never deemed Mrs. Hotard unable to work. The trial court denied that motion on October 14, 2009, and the case proceeded to trial on July 12, 2010.

Testimony

Drs. John Lee Moss, Joseph Crapanza-no, Andrew Todd, Todd Finney, Gordon Nutik, Bradley Bartholomew, and Robert Applebaum were some of the doctors who were deposed in preparation for trial.

Dr. John Lee Moss, a general orthopedic surgeon at Southern Orthopedic Specialists, Inc. (Southern Orthopedic), testified about Mrs. Hotard’s treatment at the clinic.

He stated that Mrs. Hotard first began treating at Southern Orthopedic in 1999 when she presented with bursitis in the right elbow and forearm. She was then seen in 2003 for problems associated with her right shoulder and arm, as well as for arthritis. Dr. Moss explained that Mrs. Hotard was injured in a car accident on June 18, 2004, and returned to Southern Orthopedic with neck and back pain, which she described as a burning sensation that radiated down her left arm. The 2004 MRI revealed degenerative bulging discs. Dr. Moss stated that Mrs. Hotard’s last visit, prior to the time he began treating her, occurred on May 25, 2005, and was a follow-up examination of her neck and back.

Dr. Moss first examined Mrs. Hotard on October 24, 2006. At that time, she informed him that she had recently been doing a lot of house and yard work and was having increasing pain in her neck, left shoulder, and upper extremity, as well as left arm numbness. Dr. Moss noted that the symptoms Mrs. Hotard presented with on October 24, 2006, were similar to the symptoms she experienced after the 2004 car accident. He stated that the physical examination he performed on | ^October 24th revealed an absent triceps reflex on the left. He opined that such a finding was indicative that something was going on at the C6-C7 level in the neck but that it could also be indicative of an injury directly below the elbow. He further opined that Mrs. Hotard had a preexisting degenerative condition in her cervical spine on October 24, 2006.

Dr. Moss stated that Mrs. Hotard returned to his office on October 30, 2006, indicating that she had suffered a workplace fall on October 27, 2006. The only change he noted from her October 24th examination, six days earlier, was that she had a more limited range of motion in her neck. Besides that, the only changes were her subjective complaints of pain in the left shoulder, left elbow, and left hand. Dr. Moss opined that Mrs. Hotard’s workplace accident aggravated her preexisting degenerative condition.

Dr. Joseph Crapanzano, an expert in pain management, stated that he first saw Mrs. Hotard on December 4, 2006, when she presented with left neck, arm, and shoulder pain. He administered an epidural steroid injection (ESI) two days later on December 6, 2006, and gave her a second injection on January 3, 2007 when she indicated that her pain returned. On January 23, 2007, Mrs. Hotard returned to his office and explained that she had near complete relief in her left arm, adding that her pain level had decreased from an 8 out of 10 to a 5/6 out of 10. When she returned on March 1, 2007, Dr. Crapanzano stated that he withheld the ESI because Mrs. Hotard stated that her shoulder had improved. He stated, however, that her symptoms later returned, and he administered a third ESI on June 27, 2007.

Dr. Crapanzano noted that he did not see Mrs. Hotard again until November 10, 2009, when she presented with left arm weakness, rating her pain as 10 out of 10. He noted that she had diminished range of motion in her cervical spine and Isdecreased sensation in the deltoid region of her left arm. He, therefore, recommended another ESI, which she received on January 4, 2010. Ten days after the injection, Mrs. Hotard returned to his office stating that she had not gotten any relief. Finally, Dr. Crapanzano opined that Mrs. Hotard could return to light duty work, with the proviso that she would likely not work well.

Dr. Andrew Todd, a spine surgeon at Southern Orthopedic, testified that Mrs. Hotard presented to him with complaints of left arm and neck pain as well as pain in the upper thoracic spine. He diagnosed her with degenerative disc disease and/or disc herniation at multiple levels on the neck. Initially, he felt that Mrs. Hotard was a good candidate for interior cervical discectomy and fusion. He later changed his opinion because other diagnostic testing revealed that she did not have severe stenosis and because her complaints became less about her arm and more about her neck. Dr. Moss stated that Mrs. Ho-tard complained of overhead activities and more localized pain in her shoulder on January 22, 2008, and an examination showed signs of either impingement or rotator cuff tendonitis in the shoulder, which he treated with steroid injections. He further stated that Mrs. Hotard returned on July 30, 2008, indicating that the pain had returned. At that point, he opined that she might be suffering from rotator cuff tendinitis, so he administered another steroid injection. When she returned on September 11, 2008, however, with significant shoulder pain, Dr. Todd stated that he referred her to Dr. Todd Finney. Finally, Dr. Todd stated that he would release Mrs. Hotard to work within the limitations noted in the functional capacity evaluation (FCE).

Dr. Todd Finney, an orthopedist at Southern Orthopedic, testified that he first treated Mrs. Hotard on September 29, 2008, upon Dr. Todd’s referral. He noted, however, that Mrs. Hotard denied having any pre-existing shoulder problems. Dr. Finney stated that Mrs. Hotard’s MRI showed pathology in the |,¡rotator cuff. He opined that the labral tear was associated with her 2006 workplace fall but opined that the rotator cuff was more chronic. He performed an arthroscopy on October 9, 2008, and noted that Mrs. Hotard had completed physical therapy by November 21, 2008. Dr. Finney stated that once he received the FCE on January 23, 2009, he felt that Mrs. Hotard could return to work by February 23, 2009 and would have reached maximum medical improvement, for her shoulder, by that date as well. He stated that Mrs. Hotard, however, had concerns about returning to work on that date. Due to her concerns, Dr. Finney stated that he might have said that he would keep her out of work until he obtained another FCE. He stated, however, that he does not recall specifically revoking the return-to-work letter.

Dr. Gordon Nutik examined Mrs. Ho-tard on March 10, 2009. His examination revealed that she had limited range of motion in her neck. He also performed a Tinel and Phalen’s test, both of which were negative. He noted that “per the patient and the exam, the left elbow and wrist complaints had resolved.” Dr. Nutik stated that he reviewed the 2004 MRI with the MRI from the workplace accident and noted progression at the C5-6 and C6-7 levels. He opined that the progression was more likely a progressive degenerative change rather than a result of her workplace fall. He added that Mrs. Hotard’s symptoms were likely preexisting considering that she reported the same symptoms a few days before her fall. Finally, Dr. Nutik opined that Mrs. Hotard could have returned to sedentary work at the time he examined her.

Dr. Bradley Bartholomew examined Mrs. Hotard once on April 8, 2010. His physical examination revealed carpal tunnel syndrome in her left hand. He, therefore, recommended a carpal tunnel release, which he opined could possibly alleviate her neck pain. Dr. Bartholomew stated that he may have mentioned a |7cervical fusion as a possibility after the carpal tunnel release but denied actually recommending the procedure. He opined that Mrs. Hotard’s hand condition was related to her workplace fall, adding that her neck and arm symptoms were an aggravation of a preexisting condition. Although Dr. Bartholomew stated that Mrs. Hotard’s workplace fall could have either caused or aggravated a preexisting carpal tunnel syndrome, he stated the he did not see any evidence of preexisting carpal tunnel syndrome in her medical records. He opined, however, that if she previously had carpal tunnel syndrome, the fall likely aggravated it. Finally, Dr. Bartholomew opined that Mrs. Hotard could not return to work within the parameters set forth in the FCE.

Dr. Robert Applebaum, a neurosurgeon, examined Mrs. Hotard on May 6, 2010. He stated that Mrs. Hotard did not report falling on her left wrist, adding that his examination did not reveal carpal tunnel syndrome. He noted, however, that her medical records revealed a history of prior left wrist injury. He performed a physical examination that revealed rigidity in her neck. He related that finding to her degenerative disc disease of the cervical spine, which he opined may have been temporarily aggravated by her workplace fall. Dr. Applebaum further opined that Mrs. Hotard’s symptoms were the natural progression of her underlying cervical spondylosis, adding that she had reached maximum medical improvement by the time he examined her. Finally, he opined that Mrs. Hotard could have returned to work within three to six months after her workplace fall based on the job description provided by Murphy Rogers.

Ms. Debbie Lociero, the office manager at Murphy Rogers, testified at the trial. She stated that Mrs. Hotard was a valued employee, adding that they made every effort to accommodate her. She explained that Mrs. Hotard was allowed to use an ice pack at work and was allowed to work from home when needed. She Instated that Mrs. Hotard was even allowed to leave work freely for doctors’ appointments without receiving a dock in her pay.

At the conclusion of trial, the office of workers’ compensation judge took the matter under advisement. The court issued its judgment on June 6, 2011 which found, in pertinent part, that Mrs. Hotard’s claims were without merit. The court ordered Mrs. Hotard to reimburse Murphy Rogers all TTD benefits she had received before October 9, 2008 and after February 23, 2009. She was further ordered to reimburse all medical expenses incurred for treatment for aggravation of her preexisting cervical and shoulder injuries after the end of April, 2007. Mrs. Hotard appeals the trial court’s judgment.

Assignments of Error

Mrs. Hotard assigns the following errors:

1. the trial court committed reversible error by finding that her shoulder injury was not related to her work related injury;
2. the trial court committed reversible error by finding that all of her claims were meritless and should be dismissed at her costs;
3. the trial court committed reversible error by denying her request for carpal tunnel release;
4. the trial court committed reversible error by finding that Murphy Rogers was entitled to reimbursement of TTD benefits before October 9, 2008 and after February 23, 2009;
5. the trial court committed reversible error by finding that Murphy Rogers should receive reimbursement for all medical expenses incurred after April 2007; and
6. the trial court committed reversible error by failing to order supplemental earnings benefits and vocational rehabilitation.

| ¡Discussion

Standard of Review

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, citing, Brown v. Coastal Constr. Engg, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id., citing, Robinson v. North Am. Salt Co., 02-1869 (LaApp. 1 Cir. 6/7/03), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

First Assignment of Error

In her first assignment of error, Mrs. Hotard contends that the trial court erred in failing to find that her shoulder injury was not related to her workplace fall.

Jurisprudence holds that because an employer takes his employee as he finds him, “a preexisting condition does not prevent recovery through workers’ compensation.” Tate v. Cabot Corp., 01-1652 (La.App. 3 Cir. 7/3/02), 824 So.2d 456, 461, citing, Curtis v. Wet Solutions, Inc., 98-0789 (La.App. 3 Cir. 12/9/98), 722 So.2d 421. Aggravation of a preexisting injury may constitute a disabling Iminjury when, for example, the plaintiff begins to suffer new symptoms after the second workplace accident. Id. (citation omitted) (emphasis added). The Third Circuit explained in Tate, supra:

[a] pre-existing disease or infirmity does not disqualify the claimant from receiving benefits if the workplace accident aggravated, accelerated, or combined with the disease to produce the disability for which compensation is claimed. Thus, the element of causation is satisfied if the employee’s work-related accident was a factor in bringing about the employee’s disabled status. Whether a causal relationship exists between the disability and the employment is a question of fact. The hearing officer’s determination in this regard cannot be reversed unless it is manifestly erroneous based on examination of the record as a whole.
The employee’s workplace accident is presumed to have caused or aggravated her disability when she proves that: (1) before the accident, she had not manifested disabling symptoms; (2) commencing with the accident, the disabling symptoms appeared; and (3) there is medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and activation of the disabling condition. Once an employee establishes the presumption of a casual [sic] relationship, the employer must produce evidence and persuade the trier of fact that it is more probable than not that the injury was not caused by the work accident.

Thus, “[t]he presumption of causation may attach to a claimant who exhibited symptoms of her allegedly disabling illness in the distant past provided that she had suffered no such symptoms immediately prior to her workplace accident.” Id. at 461, citing, Rideaux v. Franklin Nursing Home, 95-0240, p. 5 (La.App. 3 Cir. 11/22/95), 664 So.2d 750, 755.

Turning to the present case, it is undisputed that Mrs. Hotard suffered with preexisting degenerative disc disease. Thus, our inquiry is two-fold. First, we must determine whether Mrs. Hotard was asymptomatic immediately before the fall. Then, we must determine whether any aggravation of her preexisting condition resulted in a greater disability. See Clark v. Aqua Air Indus., Inc., 435 So.2d 492 (La.App. 5 Cir.1983).

InMrs. Hotard’s medical records reveal that she sustained injuries in a motor vehicle accident on June 18, 2004, and was diagnosed with degenerative cervical discs and a lumbar sprain. She remained under the doctors’ care until May 25, 2005, but it does not appear that her symptoms had completed resolved by that time. In fact, her medical records from that date state, “she has persistent symptoms that she feels are increasing”—evidencing that her symptoms were, in fact, ongoing. Mrs. Hotard returned to the doctor on October 24, 2006, with increasing pain in her neck, left shoulder, and left upper extremity, which Mrs. Hotard stated was precipitated by house and yard work Thus, disabling symptoms were immediately apparent three days before the workplace fall. As this Court stated, however, a plaintiff need not “be free from pain relating to the preexisting condition. Rather, the question is whether or not the subsequent injury causes a greater disability than that which existed prior to the accident.” Clark, supra, at 495 (emphasis in original). In this case, there is no evidence that Mrs. Hotard’s workplace fall caused a greater disability than her 2004 ear accident.

The record reflects that Mrs. Hotard rated her pain an 8 out of 10 after the car accident and after the workplace fall. She further stated, in both instances, that it felt as if she had broken her arm. In 2004, Mrs. Hotard said that she could not sit for long periods of time without discomfort. She further stated that she had to discontinue activities such as lifting baskets of clothes and playing basketball with her daughter. At the trial of this case, Mrs. Hotard similarly stated that sitting for long periods of time was bothersome— specifically stating that she could not go to the movies anymore and that she experienced spasms after sitting through Mass. She added that she could no longer participate in daily activities such as mopping, vacuuming, or cleaning the bathtub. Despite the similarities between Mrs. Ho-tard’s subjective complaints after the 2004 car accident and her workplace fall, |12she nevertheless contends that her injuries from the workplace fall were more significant because she is now no longer able to work.

The workplace fall occurred on October 27, 2006, but Mrs. Hotard maintained her employ with Murphy Rogers until September 7, 2007 — approximately nine months

after the accident occurred. Her resignation, however, was not precipitated by the insurmountable pain she contends to have experienced. Rather, the record reveals that she resigned due to a workplace grievance she had with a colleague. Three days later, on September 10, 2010, she began her new employment with Dutel and Tranchina where she remained until August 30, 2008. Thus, Mrs. Hotard was continuously employed for approximately two years after the workplace fall, which is almost the same amount of time that she worked after the 2004 car accident. In addition, the record supports a finding that Mrs. Hotard is, in fact, capable of working. The FCE described the limitations within which Mrs. Hotard could work. Drs. Todd, Finney, and Nutik opined that she could work within those limitations, and Dr. Applebaum opined that she could have returned to work within three to six months after the fall occurred. Dr. Bartholomew was the only doctor who determined that Mrs. Hotard could not work within the limitations set forth in the FCE.

Nevertheless, Mrs. Hotard urges this Court to give great weight to Dr. Finney’s finding that the labral tear was associated with the workplace fall. We note, however, that Dr. Finney testified more specifically that the labral tear was associated with an acute trauma, which he identified as the workplace fall. That opinion, however, was qualified on Mrs. Hotard’s misrepresentation that she had not sustained any previous shoulder injury. Thus, the workplace fall was the only acute trauma upon which Dr. Finney could relate the labral tear. And because Mrs. Hotard was not forthcoming about her preexisting shoulder injury, Dr. Finney’s |1sopinion was based on unreliable information. Nevertheless, the trial court allowed Mrs. Hotard to retain the TTD benefits she received between October 9, 2008, the day the arthroscopy was performed, and February 22, 2009, the day before she was released to return to work.

The findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Dean, supra. Based on the entirety of the record, we cannot say that the trial court was manifestly erroneous in finding that Mrs. Hotard’s shoulder injury was not caused or aggravated by the workplace fall such that it resulted in a compensable injury. As a result of this finding, the remaining assignments of error are rendered moot. The judgment appealed from is affirmed.

AFFIRMED