author: BROWN, Chief Judge.

text:
    Charles M. COSTELLO, et ux d/b/a Charles M. Costello Farms, Plaintiffs-Appellants v. CITIBANK (SOUTH DAKOTA), N.A., Regions Bank, Inc., Chase Bank Usa, N.A., GE Consumer Finance, Inc., Capital One Bank, N.A., Citifinancial, Inc., Farm Bureau Bank, FSB, and Dell Financial Services, L.P., Defendants-Appellees.
    No. 45,518-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 2010.

      Donald K. Carroll, Oak Grove, Louisiana, for Plaintiffs/Appellants.
    McGlinchey Stafford, PLLC by: Deirdre Claire McGlinchey, Monroe, Louisiana, for Defendant/Appellee, Citibank.
    Hayes, Harkey, Smith & Cascio by: Thomas M. Hayes, III, Laura S. Achord, Monroe, Louisiana, for Defendants/Appel-lees, Citibank, Regions Bank, and CitiFi-nancial Retail Services.
    Taylor, Porter, et al. by: Harry J. Philips, Jr., Baton Rouge, Louisiana, for Defendant/Appellee, Chase Bank USA.
    Michael D. Fisse, Daniel E. Buras, Jr., Covington, Louisiana, for Defendant/Ap-pellee, GE Consumer.
    Theus, Grisham, Davis & Leigh by: Edwin K. Theus, Jr., Kay S. Rector, Monroe, Louisiana, for Defendant/Appellee, Capital One.
    John Gerhardt Toerner, Hammond, Louisiana, for Defendani/Appellee, Farm Bureau.

      Stone, Pigman, Walther, & Wittman by: Kathryn M. Knight, New Orleans, Louisiana, for Defendant/Appellee, Dell Financial.
    Before BROWN, CARAWAY, and PEATROSS, JJ.
   BROWN, Chief Judge.

| jPlaintiffs, Charles M. and Carol Costello, doing business as Charles M. Costello Farms, sued to recoup from defendant banks and creditors funds stolen from plaintiffs by their employee/bookkeeper, who wrote company checks to pay her personal debts. The trial court found that plaintiffs’ action against defendant banks had prescribed and sustained defendants’ exceptions of prescription. Plaintiffs appealed. We affirm.

Facts and Procedural History

From 1971 to November 11, 2006, Maria LaForge worked as the bookkeeper for the Costellos and their farming operations. During this time, LaForge became close to the Costello family, and she was entrusted with control of their financial matters. In the late 1970s or early 1980s Charles Costello signed the necessary documents authorizing LaForge to sign cheeks drawn on his farm account which he maintained at Capital One Bank, N.A. Capital One sent Costello monthly bank statements showing all deposits and withdrawals, together with copies of the checks issued. At some point, Costello began to have all of his bank statements sent directly to the farm office. Later, he allowed LaForge to have the monthly statements sent to her home in Kilbourne. Costello acknowledged that he delegated everything concerning his bank account to LaForge. She was authorized to issue and sign checks, post all checks and deposits, receive and reconcile all bank statements, and perform any and all other bookkeeping and accounting functions.

|;>On or about November 8, 2006, Costello visited the Capital One branch in Bas-trop. While there, he noticed images on the teller’s computer monitor of checks drawn from his farm account that were payable to creditors with which he had no account. He obtained copies of these checks and confronted LaForge the following day. LaForge admitted that she had written and signed checks on the Costello farm account to pay her bills. Two days later, LaForge committed suicide.

Following LaForge’s death, Costello located the bank statements that Capital One had sent him and had his CPA review those statements. The CPA determined that from 2000 to 2006 LaForge had embezzled or converted funds in Costello’s account in the amount of approximately $280,437.33. In testimony, Charles Costello acknowledged that had he examined the bank statements, he would have realized that checks had been issued to entities which were not his creditors. Also, he admitted that he had given LaForge the opportunity to misappropriate funds from his account by allowing her to receive and have exclusive possession of his bank statements from Capital One.

The present suit was filed on October 2, 2007. The Costellos sought to recover from LaForge’s creditors/payees the amount of the checks that they received. They also sought recovery from Capital One for the unauthorized payment of these checks drawn on the Costello farm account. Defendants Citibank (South Dakota) N.A., Citifinancial, Inc., and Regions IsBank Inc., filed exceptions of prescription. Capital One also filed an exception of prescription. Defendants argued that plaintiffs’ claims were tort claims that are subject to a one-year liberative prescriptive period. Plaintiffs insisted that their claims were governed by the Uniform Fiduciaries Law, which does not set a prescriptive period for actions brought under it. La. R.S. 9:3801, et seq. Because there is no prescriptive period set under the Uniform Fiduciaries Law, plaintiffs argued that the prescriptive period of ten years as provided by La. C.C. art. 3499 is appropriate. La. C.C. art. 3499 states that “unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years-” Plaintiffs argued alternatively that even if the one-year liberative prescription applies, then the discovery rule under contra non valen-tón would suspend the running of prescription. They also argued a continuing tort theory, i.e., that the banks should not be able to avoid their misconduct when they never stopped engaging in it.

The trial court granted the exceptions and dismissed all prescribed claims against defendants Citibank, N.A., Citifinancial, Inc., Regions Bank Inc., and Capital One Bank, N.A. The other named defendants have either settled or taken no action and are not involved in this appeal. In response to plaintiffs’ request for written reasons for judgment, the trial court, on December 17, 2009, entered per curiam a order stating in part that:

... all of the plaintiffs’ claims or causes of action, however they may be classified, are subject to a one-year liberative prescription under the applicable statutes and the Court finds no basis under the circumstances to deny the peremptory exceptions. With respect to the issue of notice and the running or accrual of prescription, it is again the plaintiffs’ breach of |4duty with respect to review and reconciliation of the statements of the accounts in question and the accompanying failure to adequately supervise the book keeper and thereby timely identify unauthorized transactions which is the focal point of the Court’s analysis. The plaintiffs would have had notice and in fact are charged with having been reasonably notified at the time it became incumbent upon them to review and reconcile the statements in question.

Plaintiffs filed a timely appeal.

Discussion

Citibank, Citifinancial and Regions Bank

Plaintiffs alleged that LaForge issued some 618 checks to the different defendants. Specifically, plaintiffs alleged that Citibank, Citifinancial, and Regions Bank were personal creditors of LaForge and accepted checks written by her on the Costello farm account with actual or constructive knowledge of LaForge’s breach of her fiduciary duty.

It is clear that LaForge was guilty of conversion. A conversion claim is delictual and subject to a one-year prescriptive period. La. R.S. 10:3-420(0.

The Uniform Fiduciaries Law, La. R.S. 9:3805, provides:

If a check or other bill of exchange is drawn by a fiduciary as such or in the name of his principal by a fiduciary empowered to draw such instrument in the name of his principal, the payee is not bound to inquire whether the fiduciary is committing a breach of his obligation as fiduciary in drawing or de livering the instrument and is not chargeable with notice that the fiduciary is committing a breach of his obligation as fiduciary unless he takes the instrument with actual knowledge of such breach or with knowledge of such facts that his action in taking the instrument amounts to bad faith. If, however, such instrument is payable to a personal creditor of the fiduciary and delivered to the creditor in payment of, or as security for, a personal debt of the fiduciary, to the actual knowledge of the creditor, or is drawn and delivered in any transaction known by the payee to be for the personal benefit of the fiduciary, the creditor or other payee is liable to the principal if the fiduciary in fact commits a breach of his | ¿obligation as fiduciary in drawing or delivering the instrument. (Emphasis added).

Louisiana courts have examined claims similar to those made by plaintiffs and have applied a one-year liberative prescription. See Quality Gas Products v. Bank One Corporation, 03-1859 (La.App. 1st Cir.06/25/04), 885 So.2d 1179 (the plaintiffs/employer’s suit against defendant/employee for indorsing check payable to plaintiff and depositing the funds in a personal account amounted to conversion which was subject to a one-year prescriptive period); Peak Performance Physical Therapy and Fitness, LLC v. Hibernia Corporation, 07-2206 (La.App. 1st Cir.06/06/08), 992 So.2d 527, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018 (a one-year prescriptive period applied to a bank’s actions in accepting misappropriated checks, where a bookkeeper deposited-checks made payable to the LLC and its members into a personal account); Matthews v. Bank One Corp., 44,818 (La.App.2d Cir.10/28/09), 25 So.3d 952 (despite the contention of plaintiffs, the underlying conduct by the defendant was the unauthorized withdrawal of funds from plaintiffs’ account, and that such an action was in conversion or breach of fiduciary duty, both of which were subject to a one-year prescriptive period); Daube v. Bruno, 493 So.2d 606 (La.1986) (an action by a true owner and payee of check against payor for payment on a forged indorsement is a tort action, subject to a one-year prescriptive period).

The conduct underlying plaintiffs’ claims against defendant creditors is La-Forge’s conversion of checks from plaintiffs’ farm account and defendants’ acceptance of those check in satisfaction of LaForge’s personal | r,debt. Regardless of how plaintiffs classify their claims against defendants, Louisiana jurisprudence holds that they are conversion claims and such claims against financial institutions are subject to a one-year prescriptive period.

Additionally, regarding any claim of a fiduciary duty owed by these banks, La. R.S. 6:1124 provides, in pertinent part:

No financial institution ... shall be deemed or implied to be acting as a fiduciary, or have a fiduciary obligation or responsibility to its customers or to third parties ... unless there is a written agency or trust agreement under which the financial institution specifically agrees to act and perform in the capacity of a fiduciary.... Any claim for breach of a fiduciary responsibility of a financial institution ... may only be asserted with one year of the first occurrence thereof.

Defendants, Citibank, Citifinancial, and Regions, as creditors of LaForge, had no contractual, employment, or mandate relationship with the plaintiffs upon which to base a personal action subject to a ten-year prescriptive period.

Capital One

A similar holding is compelled on the companion claim of plaintiffs for the unauthorized payment of checks drawn on the farm account at Capital One Bank. First, LaForge was an authorized signatory party for the farm account. Therefore, under La. R.S. 10:4-401(a), “[a]n item is properly payable if it is authorized by the customer and is in accordance with any agreement between the customer and bank.”

Next, although these claims sound in breach of contract that arise from the payment of negotiable instruments, plaintiffs breached their duty to examine and reconcile bank statements sent to them by Capital One Bank. | ./Therefore, their claims have prescribed under La. R.S. 10:4 — 406(f) which provides:

Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (Subsection (a)) discover and report the customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.

Plaintiffs’ failure to review the statements which were sent to them has caused their claims to prescribe.

Contra non valentem

Plaintiffs’ argument in favor of applying the doctrine of contra non valen-tem is likewise without merit. The supreme court discussed the doctrine of contra non valentem in Wimberly v. Gatch, 93-2361 (La.04/11/94), 635 So.2d 206. The courts created the doctrine of contra non valentem as an exception to the general rules of prescription. The doctrine is contrary to the express provisions of the Civil Code. The principles of equity and justice which form the mainstay of the doctrine, however, demand that under certain circumstances prescription be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.

Generally, the doctrine of contra non valentem suspends prescription where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Rajnowski v. St. Patrick’s Hospital, 564 So.2d 671 (La.1990).

Had Costello merely glanced at the farm account bank statement at any' time, he would have determined the embezzlement by LaForge. In fact, |8when he had a quick glimpse of the computer screen at the bank he immediately knew something was wrong.

The use of negotiable instruments was intended to facilitate the rapid flow of commerce by providing certainty and finality in commercial transactions. Strict application of the limitation period serves this purpose. LaForge’s conversion did not become unlawful after she issued a series of Costello Farms’ checks to her personal creditors; rather, each conversion was unlawful when it occurred. This was not tortious conduct that manifested itself over time. Each time LaForge issued a check on the Costello account to pay one of her bills, she committed a separate wrong and a finite ascertainable amount of damages was sustained.

In Peak Performance, supra at 533, the First Circuit quoted Pero’s Steak House v. Lee, 90 S.W.3d 614 (Tenn.2002), where the Tennessee Supreme Court stated:

Negotiable instruments are intended to facilitate the rapid flow of commerce by providing certainty and finality in commercial transactions. These policies are best served by refusing to apply the discovery rule and by finding that the cause of action for conversion of negotiable instruments accrues when the instrument is negotiated. Of course, adoption of the majority rule also fosters uniformity, which is a fundamental objective of the Uniform Commercial Code....

We find that the doctrine of contra, non valentem does not apply to suspend prescription of a cause of action for the conversion of a negotiable instrument under La. R.S. 10:3 — 420(f), except in the event of fraudulent concealment. Peak Performance, supra.

| ^Continuing Tort

Plaintiffs assert that the actions of defendants constituted a continuing tort, and thus prescription did not begin to run until the date of the last cashed check. This argument lacks merit. Each deposited check written by LaForge constituted a separate conversion with separate damages. The operating cause of the injury was not a continuous one giving rise to successive damages. There was neither a continuous action on the part of the payees nor a continuous damage suffered by the Costellos, both of which are necessary to find a continuing tort. Metro Electric Maintenance, Inc. v. Bank One Corp., 05-1045 (La.App. 3d Cir.03/01/06), 924 So.2d 446; Ready v. State, 95-1564 (La.App. 3d Cir.06/25/97), 707 So.2d 1250, writ denied, 98-1125 (La.06/05/98), 720 So.2d 687.

Actions on Negotiable and Nonnegotiable Instruments/Payment of Things not Owed

We find no merit in plaintiffs’ second and fourth issues presented for review. The prescriptive period of five years provided for in La. C.C. art. 3498 for actions on negotiable and nonnegotiable instruments is not applicable to the present appeal because the action brought by plaintiffs is not an action on a negotiable instrument, but an action under the Uniform Fiduciaries Law. Also, the prescriptive period of ten years for actions to recover for the payment of things not owed is not applicable to the present case because it is undisputed that the defendants were owed the debts that were paid by LaForge.

| TnConclusion

Based on the foregoing reasons, we affirm the granting of the exceptions of prescription and dismiss those claims that have prescribed, (there are some claims that have not prescribed; i.e. the checks that were cashed within one year of the suit being instituted), against Citibank N.A., Citifinancial Inc., Regions Bank Inc., and Capital One Bank N.A. and remand the case to the trial court for further proceedings consistent with this opinion. Plaintiffs are assessed the cost of appeal.

AFFIRMED AND REMANDED.

      . At the time that authorization was granted, the Bank was known as Bastrop National Bank. It was subsequently merged into Hibernia National Bank, which merged into Capital One, N.A., a defendant in this case.

      . Citibank (South Dakota), N.A., Regions Bank, Inc., Chase Bank USA, N.A., GE Consumer Finance, Inc., Capital One Bank, N.A., Citifinancial, Inc., Farm Bureau Bank, FSB, and Dell Financial Services, L.P. were named as defendants.


source: Caselaw Access Project

license: Public Domain

text:
    Joe CUPIT, Plaintiff-Appellant v. Lyda Gilfoil HERNANDEZ and Isidro Hernandez, Defendants-Appellees.
    No. 45,670-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 2010.

      Shows, Cali, Berthelot, & Walsh, LLP by E. Wade Shows, Jeffrey K. Cody, Bris-ter & Brister by Kenneth A. Brister, Lake Providence, Louisiana, for Appellant.
    Theodore J. Coenen, III, Theodore J. Coenen, IV, Monroe, Louisiana, for Appel-lees.
    Before BROWN, GASKINS, and DREW, JJ.
   BROWN, Chief Judge.

|, The plaintiff homebuilder filed a petition seeking to recover the balance due on a construction contract. The defendants filed a reconventional demand in which they asserted a claim under the New Home Warranty Act (“NHWA”) and sought, inter alia, repair costs. After a bench trial, the court awarded plaintiff, Joe Cupit, $8,178.64 on his contractual claim, and defendants, Lyda and Isidro Hernandez, $80,000 on their NHWA claim. Costs were apportioned between the parties, and defendants were awarded attorney fees in the amount of $5,000. It is from this judgment that plaintiff, Joe Cu-pit, has appealed.

Discussion

The trial court’s factual findings in cases involving the NHWA are subject to manifest error review. Craig v. Adams Interior, Inc., 34,591 (La.App.2d Cir.04/06/01), 785 So.2d 997; Sowers v. Dixie Shell Homes of América, Inc., 33,390 (La.App.2d Cir.05/15/00), 762 So.2d 186 writ denied, 00-1770 (La.09/22/00), 768 So.2d 1286.

Notice of Defects

In his first assignment of error, plaintiff asserts that the trial court erred in failing to dismiss defendants’ reconventional demand based upon the fact that defendants did not comply with the mandatory notice requirement of the NHWA.

La. R.S. 9:3145(A) provides that: Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects, and giving the guilder a reasonable opportunity to comply with the provisions of this Chapter.

|2Absent compliance with the notice requirement set forth in La. R.S. 9:3145, recovery under the NHWA is precluded. Thorn v. Caskey, 32,310 (La.App.2d Cir.09/22/99), 745 So.2d 653; Jenkins Building Supply, Inc. v. Thigpen, 09-0903 (La.App. 1st Cir.12/23/09), 34 So.3d 867.

It is undisputed that defendants, prior to filing their reconventional demand, failed to provide plaintiff with the written notice required by La. R.S. 9:3145(A). Recently, however, several courts have held that the owners’ failure to comply with the technical requirements of La. R.S. 9:3145(A) is not necessarily fatal to their NHWA claim when they have provided actual notice of specific defects within the time limits to the builder.

In Frank v. Tran, 07-983 (La.App. 3d Cir.01/30/08), 974 So.2d 861, the home-builder sued the owner for failure to make the final two payments on the parties’ residential construction contract. In a re-conventional demand, the owner asserted, inter alia, a claim under the NHWA. The trial court dismissed the owner’s reconven-tional demand based upon its finding that the owner did not provide proper notice of the complained of defects to the builder as required by La. R.S. 9:3145(A).

In reversing the trial court, the Third Circuit found that the builder had actual written notice of the owner’s specific complaints and concerns. Therefore, strict compliance with La. R.S. 9:3145 was not required under the facts of the case. The record showed that during the home’s construction, the owner began voicing complaints. The affidavit of the vice-president of the bank which financed the construction loan for the owner also evidenced |sthat the owner made complaints during construction. Furthermore, the lender, at the owner’s request, discussed with the builder (and provided a copy of) a list of specific concerns to be corrected that the owner prepared. A similar notification of the owner’s specific concerns and complaints was sent by the owner’s attorney to the builder’s attorney. All of these communications were made during or shortly after construction. The court also observed that the builder was given an opportunity to remedy the alleged deficiencies, given that the dates of the above notifications were before he was ultimately prevented from returning to the home in April 2004.

In Barrack v. J.F. Day & Co., Inc., 07-97 (La.App. 4th Cir.08/29/07), 966 So.2d 1064, the homeowners began experiencing immediate problems with customized, specially installed windows. They notified their contractor, who contacted the manufacturer of the windows. After several repairs were unsuccessful, a senior sales representative from the manufacturer opined that while there was product design failure, there was also a problem with the installation and/or mulling by the contractor. In defending the NHWA claim filed by the owners, the contractor contended lack of notice in accordance with La. R.S. 9:3145.

The Fourth Circuit observed that not only did the owners give the contractor verbal notice of the specific defects within the statutory time limits, they allowed him several opportunities to remedy the defects. Furthermore, they provided the contractor with written notice of the specific notice prior to filing suit (although after the time limits had run). The court emphasized that the fact that the contractor notified the window | manufacturer and salespeople of the problems on numerous occasions was proof that he had notice/notification within the intendment of the statute.

In the instant case, defendants moved into the main house in June 2007; construction of the cook house was still ongoing. Almost immediately, defendants noticed problems with movement and vibration of the structure, as well as doors sticking and uneven floors. After rains in July 2007, the structure of the house shifted further and became more unstable. The Hernandezes made repeated verbal complaints about these specific problems to Cupit, who disputed that there were any problems, except with the doors. To remedy defendants’ complaints about the doors, plaintiff cut off several of the doors so they could open. Defendants continued to voice concerns about the stability of their home, and plaintiff installed diagonal and horizontal 2" x 4" braces between the support columns, but this stopped neither the vibration nor shifting of the floors. When defendants informed plaintiff that the bracing had failed to address their foundation problems, he refused to make any further efforts to address their complaints.

Defendants refused to make their final payment to plaintiff based upon their dissatisfaction with his response to their continued complaints about, inter alia, the instability of their home’s foundation. At that time, in September 2007, plaintiff refused to undertake any further repairs. Cupit filed his claim in November 2007, and the Hernandezes hired a structural engineer, Mark Thomey, to investigate the stability of their home.

Thomey inspected defendants’ home in December 2007 and took photographs of the foundation and joist structure. He also prepared a twoj¡oage5 blueprint showing how the main home’s foundation could be repaired. This blueprint was attached to a letter sent by defendants’ attorney to plaintiffs counsel in December 2007, informing him that defendants had their home inspected by a structural engineer who had prepared a plan showing what needed to be done for the house to be structurally secure. Defendants offered Cupit the opportunity to undertake the repairs or to pay for defendants to have them done by another contractor. They received no response to this letter.

Thereafter, defendants filed their answer and counterclaim in June 2008. Further clarification and specification of the defects defendants sought redress for was provided to plaintiff in the pretrial statement filed on April 30, 2008, and the structural engineer’s April 16, 2009, narrative report. As noted by the First Circuit in Graf v. Jim Walter Homes, Inc., 97-1143 (La.App. 1st Cir.05/15/98), 713 So.2d 682, the NHWA was enacted to provide warranties for the purchasers and occupants of new homes in Louisiana. It was not enacted to allow a builder to shield himself from liability for numerous defects, of which he had actual knowledge and actual time to remedy, merely because the defects may not have been itemized in a timely written notice.'

As did the courts in Frank, supra, and Barrack, supra, we find that actual notice of the defects, as well as a reasonable time to remedy/repair, was provided in this case, first by repeated verbal complaints by the homeowners to the builder, and secondly by way of the letter sent by | (-.defendants’ attorney to plaintiffs counsel in December 2007, more than six months before defendants asserted their counterclaim. The fact that a very detailed and specific list of defects in the home’s foundation was not provided to plaintiff prior to suit does not prove fatal to defendants’ claim under the facts of this case. As noted above, defendants made numerous verbal complaints about foundational shifting and instability, none of which were satisfactorily addressed by plaintiff. Additionally, they gave plaintiff a more than reasonable amount of time within which he could have repaired the defects. Instead, plaintiff refused based upon defendants’ failure to pay the balance due under the construction contract. There is no merit to this assignment of error.

Applicability of La. R.S. 9:2771

In his second assignment of error, Cupit urges that the trial court erred in finding that he was not immune from liability under La. R.S. 9:2771 because he constructed the residence in accordance with specifications provided to him.

A contractor is not the guarantor of the sufficiency of plans and specifications drawn by another, and if he complies with those plans and specifications, he is entitled to immunity under La. R.S. 9:2771. Morgan v. Lafourche Recreation District No. 5, 01-1191 (La.App. 1st Cir.06/21/02), 822 So.2d 716, writ denied, 02-1980 (La.10/25/02), 827 So.2d 1156. There is no immunity, however, when a contractor does not follow plans and specifications provided to him by the homeowners. Paragon Lofts Condominium Owners Association, Inc. v. Paragon Lofts, L.L.C., 09-0943 (La.App. 4th Cir.02/10/10), 32 So.3d 303; Wilkinson v. Landreneau, 525 So.2d 617 (La.App. 5th Cir.1988).

Likewise, there is no immunity or protection under La. R.S. 9:2771 when the evidence shows that the defects were not the result of the insufficiency of plans and specifications, but were the result of the quality of the work done by a contractor. Allstate Enterprises, Inc. v. Brown, 39,467 (La.App.2d Cir.06/29/05), 907 So.2d 904; Calcasieu Parish School Board v. Lewing Construction Co., Inc., 05-928 (La.App. 3d Cir.05/31/06), 931 So.2d 492.

The record in this case supports the trial court’s finding that plaintiff is not entitled to immunity under La. R.S. 9:2771. The evidence shows that defendants provided plaintiff with: (1) a hand-drawn dimension and layout for the home, which was not to scale and did not specify method of construction, materials to be used or set forth any measurements; (2) a proposal prepared by United Bilt Homes which contained more detailed information, including a materials list.

As noted by the trial court, plaintiff was not instructed to use or follow the United Bilt Homes proposal, which did not contain plans or specs for reinforcing the concrete, set forth the number of pilings, give the dimensions of the piling holes, state how far apart to put the pilings, or provide whether or not to double the sills. The construction specifications followed by plaintiff differed in a number of ways from those set forth in the United Bilt Homes proposal, e.g., post size, floor joist size, and concrete configuration. Plaintiff came up with and followed his own plan for the Isconcrete foundation, 6x6 columns, materials, and the spacing of the substructure. Even if the United Bilt Homes proposal was considered to constitute plans or specifications under La. R.S. 9:2771, because plaintiff did not follow them, but made extensive modifications and adaptations, he is not entitled to immunity under La. R.S. 9:2771.

Evidence of Major Structural Defects

Plaintiff next asserts that there was insufficient evidence from which the trial court could have found major structural defects in the home he constructed for defendants.

La. R.S. 9:3143(5) defines “[mjajor structural defects” as:

Any actual physical damage to the following designated load-bearing portions of a home caused by failure of the load-bearing portions which affects their load-bearing functions to the extent the home becomes unsafe, unsanitary, or is otherwise unlivable:
(a) foundation systems and footings;
(b) beams;
(c) girders;
(d) lintels;
(e) columns;
(f) walls and partitions;
(g) floor systems; and
(h) roof framing systems.

As noted by the court in Prestridge v. Elliott, 03-94 (La.06/04/03), 847 So.2d 789, physical damage to the foundation systems and footings is a “major structural defect” pursuant to La. R.S. 9:3143(5) which is covered by the NHWA.

After hearing the testimony of both parties’ experts, the trial court found “persuasive and compelling” that of Mark Tho-mey, the structural civil engineer retained by defendants. The court observed that Thomey’s analysis |fland conclusions were consistent with the testimony of defendants regarding the movement of their home.

Mark Thomey testified that he examined the home, completed a computer model of the construction, and performed an analysis of the structures with computer software. Thomey testified that some of the loads or structure members were twice what they were designed for. He described the floor joists as adequate but the floor beams or supports as inadequate. According to Thomey, these floor beams needed to be doubled.

While Thomey found the size of the 6 x 6 posts to be adequate, he described the method of their support as inadequate. Thomey opined that Cupit’s design would allow the concrete to separate from the posts which would cause the posts to sink further.

Thomey performed an excavation below one post which revealed that there was no concrete below or around that particular post, only above ground where the 2x4 forms had been used to build the linear concrete slabs. Thomey also observed cracking and separating of the concrete around another post, which indicated that the concrete was poured only above ground. According to Thomey, even if plaintiffs specifications for depth and width of concrete were met, the foundation would still be inadequate.

Thomey also found the following structural deficiencies upon visual inspection: inadequate embedment and encasement of the 6x6 timber columns; incorrect installation/use of light gauge, steel joist hangers; insufficient nailing of joint-to-beam connections; and insufficient nailing of beam-to-column connections.

110Thomey applied the 2001 National Design Standard for timber framing in discussing his engineering analysis/code check of the structure members, and opined that, “The results of the analysis and code check showed that the primary 2 x 12 floor beams were significantly overstressed, and that the lateral displacement of the entire structure, as originally constructed, would have led to a partial, if not global, collapse of the structure.”

In light of the overwhelming testimony by Mark Thomey regarding the deficiencies in both the support systems (floor beams) and the foundation of the home constructed by plaintiff, both of which are major structural defects as defined by La. R.S. 9:3143(5), the trial court did not err in finding that these defects were the result of the quality of the workmanship of plaintiff and they made defendants’ home unsafe, unsanitary or otherwise unlivable.

Amount of Damages

Plaintiff contends that the trial court erred in awarding defendants $80,000 as the reasonable cost of repair or replacement necessary to cure the defects. Cupit’s primary complaint is that this amount includes an estimate for repair of the cook house, which was not analyzed or inspected by defendants’ structural engineer.

General Contractor Mark Holyfield provided an estimate of the cost, of the structural repairs recommended by Mark Tho-mey. The total cost of labor and materials for the three studios was $62,703.60. Including the cook house, Holyfield projected a total estimate of $80,000 for all four buildings.

| nWe find no abuse of the trial court’s discretion in this case. The trial court did not award any amounts to defendants for “cosmetic deficiencies” (such as warping and separating of handrails and posts, inadequate painting and sealing of exposed framing and decking) based upon its finding that defendants offered inadequate proof of such defects. Instead, the court limited its award to $80,000, which we find to be reasonable based upon the evidence in this case.

Attorney Fees

Finally, plaintiff takes issue with the trial court’s award to defendants of attorney fees in the amount of $5,000. According to plaintiff, there was insufficient evidence to support this award.

A reasonable attorney’s fee is determined by the facts of an individual case. Filson v. Windsor Court Hotel, 07-0755 (La.App. 4th Cir.07/23/08), 990 So.2d 63; Gottsegen v. Diagnostic Imaging Services, 95-977 (La.App. 5th Cir.03/13/96), 672 So.2d 940, writ denied, 96-0707 (La.04/26/96), 672 So.2d 909. The trial court has discretion to determine the amount of an attorney’s fee based upon the court’s own knowledge, the evidence, and the court’s observation of the case and the record. Custom-Built Cabinet & Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App.2d Cir.12/08/99), 748 So.2d 594; Filson, supra. A court does not have to hear evidence concerning time spent or hourly rates charged in order to make an award since the record will reflect much of the services rendered. Filson, supra; Burford v. Burford, 95-2318 (La.App. 1st Cir.06/28/96), 677 So.2d 722.

|iaBased upon the facts of this case, we can not say that the trial court abused its discretion in awarding defendants attorney fees of $5,000. The record reflects time spent preparing pleadings, getting ready for trial, and the trial itself. There were expert witnesses, detailed exhibits and extensive testimony by the parties. This assignment of error is without merit.

Conclusion

For the reasons set forth above, the judgment of the trial court is AFFIRMED. Costs of this appeal are to be borne by plaintiff-appellant, Joe Cupit.

      . There was no separate schematic drawing of the cook house since it was constructed with a similar foundation.


text:
    STATE of Louisiana, Appellee, v. Nelson A. YOUNGBLOOD, Appellant.
    No. 45,576-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 2010.
    Rehearing Denied Oct. 28, 2010.

      Mark O. Foster, Louisiana Appellate Project, for Appellant.

      Charles R. Scott, II, District Attorney, Tommy J. Johnson, William J. Edwards, Sarah S. Midboe, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS, and DREW, JJ.
   BROWN, Chief Judge.

|]On May 19, 2007, Keisha and Jerome Avery drove from Houston to Shreveport, Louisiana, with a large amount of marijuana to sell to defendant, Nelson “Boo” Youngblood. The week before, defendant contacted Keisha and requested a substantially large amount of marijuana, 50 pounds, and 1,000 ecstasy pills. Once she and her husband obtained the marijuana, she contacted defendant to arrange the meeting. The parties did not meet until that evening because defendant kept stating that he was waiting on “his people.” Rather than meeting as planned at a Sonic restaurant, defendant requested that the Averys meet him at a residence on Abilene Street, a location Keisha knew because she had been there before. When the couple arrived at Abilene Street, it was dark and they drove past the house. Defendant went to the end of the driveway and waved them back. A tall man, not known by the Averys, came outside and, without saying a word, turned around and went back into the house. As Jerome Avery took two garbage bags containing 30 pounds of marijuana out of the trunk, Keisha began chatting with defendant.

Defendant stated that “his people” were in the house. As Jerome Avery proceeded to enter the house, Keisha and defendant continued talking. Immediately upon entering the house, Jerome saw the tall man who had come outside sitting at a table and another man with a black bandana around his face holding an assault rifle. Jerome immediately dropped the marijuana bags, then turned around and ran out the house. Keisha was shot seven times by two different weapons, and she died as a result of her injuries.

12Approximately two weeks prior to Keisha’s murder, on May 3, 2007, defendant took Sakoria Williams to a pawn shop and she purchased for him an assault rifle, a Romanian WASR-10, and four boxes of Wolf 7.62x39 ammunition. No weapon was found at the scene; however, Wolf 7.62x39 spent cartridges were recovered.

Defendant and the two shooters fled with the marijuana. Defendant was subsequently arrested in Pearland, Texas, on November 24, 2007. Defendant, Nelson “Boo” Youngblood, was charged with the second degree murder of Keisha Avery, in violation of La. R.S. 14:30.1. Following a jury trial, defendant was found guilty as charged and he was sentenced to life imprisonment without benefits. Defendant has appealed his conviction. We affirm.

Discussion

Sufficiency of the Evidence

Defendant admits that he was a participant in a felonious drug transaction. He denies any knowledge or intent concerning an armed robbery and murder.

A defendant may be entitled to an acquittal or a manslaughter verdict under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.04/02/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

Pursuant to La. R.S. 14:30.1, Second Degree Murder is the killing of a human being:

(1) when the offender has a specific intent to kill or to inflict great bodily harm; or
(2) when the offender is engaged in the perpetration or attempted perpetration of ... armed robbery, first degree robbery, second degree robbery, simple robbery, ... even though he has no intent to kill or to inflict great bodily harm.

Manslaughter is a homicide without any intent to cause death or great bodily harm while engaged in any felony not enumerated in article 30 or 30.1. La. R.S. 14:31(2)(a).

Armed Robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon. La. R.S. 14:64.

La. R.S. 14:24 states that all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

A person who aids and abets another in a crime by participating in the planning or execution of that crime is liable to the same extent as the person who directly commits the crime, although he may be convicted of a higher or lower degree of the crime, depending upon the mental element proved at trial. State v. Watson, 397 So.2d 1337 (La.1981), cert. denied, 454 U.S. 903, 102 S.Ct. 410, 70 L.Ed.2d 222 (1981); State v. Durden, 36,-842 (La.App.2d Cir.04/09/03),. 842 So.2d 1244, writ denied, 03-1350 (La.11/26/03), 860 So.2d 1131. The determination of whether the requisite intent is present in a criminal case is for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Durden, supra. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685, writ denied, 09-0725 (La.12/11/09), 23 So.3d 913, appeal after new sentencing hearing, 45,133 (La.App.2d Cir.04/28/10), 36 So.3d 396, cert. denied, — U.S. —, 130 S.Ct. 3472, 177 L.Ed.2d 1068 (2010).

Intent must necessarily be inferred from the circumstances. State v. Kahey, 436 So.2d 475 (La.1983); State v. Durden, supra. Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Durden, supra.

La. R.S. 14:30.1 Specific Intent

Was the evidence sufficient to support the jury’s finding that defendant, although not the triggerman, had the specific intent to kill or inflict great bodily harm upon Keisha and/or Jerome Avery? The evidence clearly established a specifically intended killing as well as an attempted murder. The only serious question relates to defendant’s role in the killing and the proof of his specific intent.

1 ¿There was direct evidence of defendant’s participation in this set-up murder/robbery. Defendant’s participation was not minor. A rational juror, viewing the overall evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that defendant actively participated in the killing of the victim (whose death was obviously purposefully inflicted). Jackson v. Virginia, supra. Given the evidence presented, it was certainly reasonable for the jury to conclude that defendant’s role was that of an equal partner in all of the crimes committed during this episode, including the murder. See State v. Captville, 448 So.2d 676 (La.1984); State v. Chism, 436 So.2d 464 (La.1983); State v. Sutton, 436 So.2d 471 (La.1983); State v. Wingo, 457 So.2d 1159 (La.1984), cert. denied, 471 U.S. 1145, 105 S.Ct. 2691, 86 L.Ed.2d 708 (1985).

A review of the evidence presented at trial, according to the Jackson standard, leads to the conclusion that the evidence is sufficient to support defendant’s conviction of second degree murder. At trial, Stephanie Rogers testified that she put Keisha Avery in contact with defendant on March 18, 2007. Ms. Rogers informed Keisha that defendant was in the business of distributing narcotics in the Cedar Grove area of Shreveport, a business the victim, Keisha Avery, was engaged in with her husband. Ms. Rogers’ testimony established that defendant was acquainted with Keisha Avery. Defendant’s own statement confirmed that he knew both Keisha and Jerome Avery through Stephanie Rogers. In fact, prior to Keisha’s murder, |6some small drug transactions occurred between defendant and Keisha Avery.

Sakoria Williams testified that approximately 16 days before the murder of Keisha Avery, defendant took her to National Jewelry and Loan, a pawnshop, to purchase an AK-47 assault rifle and Wolf brand 7.62x39 caliber ammunition. Casey Bolin, the pawn shop employee, corroborated Ms. Williams’ testimony regarding the purchase of this rifle and ammunition. Ms. Williams testified that after she purchased the weapon, she left it in the vehicle with defendant. Ms. Williams further testified that defendant asked her to buy the weapon for him because he was a convicted felon and could not do so on his own.

Richard Beighley, firearms supervisor at the North Louisiana Crime Lab, testified that the shell casings recovered from the scene were consistent with being fired from a rifle and not a handgun. Both the SKS and AK-47 look alike and use the same ammunition. Detective Rod Johnson also testified that the evidence obtained from the crime scene was consistent with the information provided on the sales receipt from National Jewelry and Loan in that the shell casings were of the same caliber and brand of ammunition purchased by Ms. Williams for defendant.

Jerome Avery testified that he knew defendant through his wife, Keisha, who met defendant through Stephanie Rogers. While Avery testified that he was in the business of transporting narcotics, defendant was primarily his wife’s contact. Avery stated that on two previous occasions 17his wife had delivered approximately three pounds of marijuana to defendant at a location on Abilene Street in Shreveport, Louisiana.

Jerome Avery testified that approximately one week before his wife’s murder, defendant contacted her to request a substantially large amount of marijuana, 50 pounds, and 1,000 ecstasy pills. The transaction was scheduled to take place on May 19, 2007. Avery testified that defendant requested that they meet on Abilene Street, where Keisha had previously transacted business with him. Defendant in his statement to detectives confirmed that he was the one who requested they meet at the Abilene Street house.

When Keisha and Jerome Avery arrived at the residence on Abilene Street, Avery saw a tall man come outside before going back into the house. Defendant told Avery that “his people” were in the house. Avery testified that he took the marijuana bags out of the car and walked up to the house with Keisha and defendant following him. As soon as he entered, Avery noticed two men, one the tall guy who had just come outside; and the other man in the house was a shorter man holding an SKS assault rifle, his face was obscured by a bandana. Avery testified that, at that point, he knew a robbery and possibly a murder were about to happen, so he dropped the marijuana bags and ran. As soon as he took approximately two steps, the man with the assault rifle shot his wife. Because it happened within seconds of his entering the house, Avery testified that defendant was still under the carport because he had been following Keisha Avery into the house.

1 sJerome Avery identified defendant in court as the person he and his wife talked to on the phone, then met on Abilene Street. He testified that defendant was the only person who knew that they were transporting the marijuana. Lieutenant Carl Townely testified that the value of the amount of marijuana described by Avery ranged somewhere from $80,000 to $150,000.

The State also introduced evidence that defendant fled the jurisdiction. Layne Malich testified that defendant was on parole supervision and was not allowed to leave the jurisdiction without permission of the court. Additionally, defendant was required to report in to the office of probation and parole. While he reported regularly for a while, defendant’s last report was on May 18, 2007, a day before this incident occurred. H.B. Shaver, Jr., testified that an ongoing search was initiated for defendant who was finally apprehended in Pearland, Texas, in November of 2007.

La. R.S. 14:30.1 Unintended Killing During an Armed Robbery

Contrary to defendant’s argument, the evidence in this case was sufficient to show that defendant was a principal to an armed robbery which resulted in the death of Keisha Avery. Defendant was the only person, out of all the people present at the house on Abilene Street, who knew all of the persons involved and knew that a large amount of marijuana would be delivered by the Averys. Defendant changed the meeting location to Abilene Street where two men with guns and bandanas were lying in wait. The shooting took place immediately. There was no negotiating, talking, or |9confrontation. None of the marijuana was recovered from the scene. The jury could have easily found that defendant was a principal to armed robbery which resulted in a murder. State v. Dur-den, supra.

The state was able to demonstrate that defendant had the motive and opportunity to participate in an armed robbery in that he planned and prepared for a drug transaction involving a substantial amount of marijuana with Keisha Avery, someone he was familiar with, having conducted business with her on previous occasions. Defendant arranged for the purchase of an assault rifle, and he determined the location of the drug transaction. This assignment of error is without merit.

Other Crimes Evidence

La. C.E. 404(B) in pertinent part states: (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

For evidence of other crimes to be admissible, the state must prove with clear and convincing evidence that the other acts or crimes occurred and were committed by the defendant; demonstrate that the other acts satisfy one of the requirements of La. C.E. art. 404(B)(1), i.e., motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or | inaccident; and show that the probative value of the evidence outweighs its prejudicial effect. State v. Jackson, 625 So.2d 146 (La.1993).

Evidence of other crimes, wrongs or acts may be introduced when it relates to conduct that forms an integral part of the act or transaction that is the subject of the present proceedings. La. C.E. art. 404(B)(1); State v. Colomb, 98-2813 (La.10/01/99), 747 So.2d 1074; State v. Coates, 27,287 (La.App.2d Cir.09/27/95), 661 So.2d 571, writ denied, 95-2613 (La.02/28/96), 668 So.2d 365.

The erroneous introduction of other crimes evidence is subject to harmless error review. State v. Roberson, 40,809 (La.App.2d Cir.04/19/06), 929 So.2d 789; State v. Gatti, 39,833 (La.App.2d Cir.10/13/05), 914 So.2d 74, writ denied, 05-2394 (La.04/17/06), 926 So.2d 511.

The state filed two notices of intent to introduce other crimes, wrongs or acts committed by the defendant. The first notice informed defendant of the state’s intent to introduce the testimony of Stephanie Rogers to show that she facilitated the connection between defendant and the victim, Keisha Avery, for the purpose of setting up drug transactions, as well as the testimony of Jerome Avery to show that he and/or his wife, Keisha Avery, made other drug transactions with the defendant in 2007. The second notice provided that the state would introduce the testimony of Sakoria Williams wherein she would state that she bought an assault rifle and ammunition for defendant who was a convicted felon. The state also informed defendant that evidence would be introduced that indicated the defendant was on [^parole with the Louisiana State Probation and Parole Office and that he was apprehended in Pearland, Texas, in violation of his parole. The defense filed a memo in opposition to the state’s 404(B) notices. Prior to the start of trial, a 404(B) hearing was held.

At the 404(B) hearing, the testimony adduced from Stephanie Rogers, Sakoria Williams, Jerome Avery, Detective Johnson, and Layne Malich was consistent with their testimony at the subsequent trial in this matter.

After arguments, the trial court ruled that the evidence that was the subject of the 404(B) notices went to planning, intent, guilty knowledge and motive. Additionally, the court found that the probative value outweighed any prejudicial effect. Thus, the court ruled that the evidence sought to be introduced would be admissible at trial.

Considering the testimony presented at trial in conjunction with the arguments presented at the hearing, there is no showing that the trial court’s ruling was an abuse of discretion; therefore, the ruling will not be overturned. State v. Scales, 93-2003 (La.05/22/95), 655 So.2d 1326, cert. denied, 516 U.S. 1050, 116 S.Ct. 716, 133 L.Ed.2d 670 (1996); State v. Caston, 43,-565 (La.App.2d Cir.09/24/08), 996 So.2d 480.

With the exception of the testimony concerning defendant being on parole, the evidence was an integral part of the criminal transaction — the evidence convincingly showed that this was a planned robbery/murder.

The State’s showing to the jury of an AK-47 assault rifle “similar” to the weapon used to shoot Keisha Avery is problematic. No weapons were recovered in connection with this murder and the rifle shown to the jury l12looked like but was not the same model as the one alleged to have been purchased by Sakoria Williams for defendant two weeks prior to Keisha Avery’s murder. If error, however, it was harmless. See State v. Burd, 40,490 (La.App.2d Cir.01/27/06), 921 So.2d 219, writ denied, 06-1083 (La.11/09/06), 941 So.2d 35.

The testimony of defendant’s parole officer is also troubling. The state argues that this testimony showed flight. The evidence of defendant’s status as a parolee did not show system, knowledge, intent, planning or motivation. Defendant’s flight was demonstrated by other evidence. However, this was harmless error. Other admissible evidence had already shown that defendant was on parole.

Conclusion

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, DREW and LOLLEY, JJ.

Rehearing denied.

      . Actually, the evidence supports a finding that he was guilty of first degree murder.


text:
    Sarah Ann HOLLIER, et al., Plaintiffs-Appellees v. BROOKSHIRE GROCERY COMPANY, et al., Defendants-Appellants.
    No. 45,551-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 2010.

      Nelson, Zentner, Sartor & Snellings by David Nelson, Monroe, Louisiana, for Appellants.
    Anthony J. Bruscato, Monroe, Louisiana, for Appellees.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

| ]Defendants, Brookshire Grocery Co. and Katy Buntyn, appeal from the judgment of the trial court finding them liable for damages suffered by plaintiffs, Sarah Ann Hollier and Bobby Hollier, as a result of Mrs. Hollier receiving an excessive dosage of Decadron. For the following reasons, we affirm.

Facts and Procedural Background

On March 13, 2008, plaintiff, Sarah Hol-lier, visited her physician, Dr. Gregory Green, for treatment of bronchitis. Dr. Green wrote prescriptions for several medications, one of which was for a Decadron Dose Pak. Plaintiff took the prescriptions to Super One Pharmacy, where Katy Bun-tyn was the pharmacist on duty and Rachel Graves was the licensed pharmacy technician assisting.

Ms. Buntyn, who had only been licensed for one year, was familiar with Decadron, but not the Decadron Dose Pak, which unbeknownst to her had been discontinued in 2004. After a search through the pharmacy’s computer revealed that they did not have a Decadron Dose Pak, Ms. Bun-tyn called the Walgreen’s Pharmacy across the street to see if they had one available; they did not. Thereafter, Ms. Buntyn instructed Ms. Graves to call Dr. Green’s office for clarification on how to fill the prescription. Ms. Graves spoke to Kristy Hotard, Dr. Green’s nurse, and asked her how Dr. Green wanted the prescription filled. According to Ms. Graves’ testimony, and the information noted on the prescription by Ms. Graves, Ms. Hotard | {Instructed her to fill the prescription with 4 mg tablets and to do a “step down dosage.” Ms. Buntyn filled the prescription accordingly.

The next day (Friday) Mrs. Hollier began taking the prescription as ordered. Initially, Mrs. Hollier experienced feelings of extreme energy, then ultimately feelings of sleeplessness, increased heart rate, and nausea. Mr. Hollier, a licensed pharmacist himself, recognized her symptoms as effects of Decadron, so on the third day (Sunday) he advised her to stop taking the Decadron prescription.

After another day or two of Mrs. Hollier’s continued symptoms, Mr. Hollier decided to look at the bottle that contained the Decadron. Mr. Hollier immediately noticed that the Decadron tablets were 4 mg each, as opposed to 0.75 mg tablets that the Decadron Dose Pak contained when it was on the market. Mr. Hollier immediately called the pharmacy to report the mistake. He spoke with Greg Slocum, the chief pharmacist.

After receiving the phone call from Mr. Hollier, Mr. Slocum investigated the matter. He reviewed the materials in the office, which included the prescription with the handwritten note showing a 4 mg step down dosage, per Kristy at Dr. Green’s office. Mr. Slocum then called Dr. Green’s office, at which time, according to Mr. Slocum’s testimony, Kristy confirmed that she had instructed Ms. Graves to fill the prescription with 4 mg tablets.

The Holliers filed suit against Brook-shire Grocery Company and Katy Buntyn. The matter was heard in Monroe City Court on September 21, 2009. The trial court issued its reasons for judgment on November 16, |s2009, finding in favor or plaintiffs and awarding Mrs. Hollier $7,500 in general damages, $827.08 for medical bills, and costs, and Mr. Hollier $1,500 in general damages. Defendants have appealed, contending liability and the amount of damages awarded. Plaintiffs answered the appeal urging inadequacy of the damages awarded.

Discussion

Defendants contend that the trial court erred in determining that Ms. Buntyn breached the standard of care she owed to plaintiff.

Establishing liability for damages in a negligence case requires a plaintiff to prove the following: (1) that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (8) that the defendant’s substandard conduct was a cause-in-faet of the plaintiffs injuries (the cause-in-fact element); (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); (5) proof of actual damages (the damages element). McKee v. Wal-Mart Stores, Inc., 06-1672 (La.App. 1st Cir.06/08/07), 964 So.2d 1008, writ denied, 07-1655 (La.10/26/07), 966 So.2d 588.

A pharmacist has a duty to fill a prescription correctly and to warn the patient or to notify the prescribing physician of an excessive dosage or of obvious inadequacies on the face of the prescription which create a substantial risk of harm to the patient. Guillory v. Dr. X, 96-85 (La.App. 3d Cir.08/28/96), 679 So.2d 1004.

14An appellate court may not set aside a finding of fact by a trial court in the absence of manifest error or unless it is clearly wrong. Further, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appeal. Hayes v. Travelers Ins. Co., 609 So.2d 1084 (La.App. 2d Cir.1992), writ denied, 613 So.2d 975 (La.1993).

Defendants argue that by calling Dr. Green’s office after learning that Decadron Dose Paks were no longer on the market, Ms. Buntyn fulfilled the duty owed by her to plaintiff. This argument, however, fails to address a primary contention of plaintiff, which is that Ms. Bun-tyn filled the Decadron prescription with an initial daily dosage amount of more than two and one-half times what the De-cadron package insert states as the top end of an initial daily dosage, and eight times what was actually intended by Dr. Green.

The Decadron package insert put into evidence by plaintiff, which Ms. Buntyn testified she read prior to filling plaintiffs prescription, states: “The initial dosage varies from 0.75 mg to 9 mg a day depending on the disease being. treated.” Had Ms. Buntyn filled the prescription as intended, plaintiff would have taken a daily dosage of 3 mg the first day, 3 mg the second day, and 1.5 mg the third day. Instead, following the instructions given to her by Ms. Buntyn, plaintiff took 24 mg the first day, 20 mg the second day, and 16 mg the third day, which is when she stopped taking the medication. The trial court found that Ms. Buntyn’s filling the prescription with such a high dosage, compared to what the prescribing physician | ^intended, amounted to a breach of duty; we do not find this determination to be clearly wrong.

A pharmacist has a duty to warn a patient or notify the prescribing physician of (1) an excessive dosage, or (2) obvious inadequacies on the face of the prescription. Ms. Buntyn claims that when she learned that Decadron no longer came in Dose Pak form she had her pharmacy technician call Dr. Green’s office to notify them of the mistake and to find out how to proceed. According to Ms. Graves’ notations on the prescription, Dr. Green’s nurse, Kristy, said to fill the prescription with 4 mg loose tablets, to be taken in “step down dosage.” Relying solely on this newly altered prescription, Ms. Bun-tyn filled the prescription with an excessive dosage. Clearly, the fact that the package insert lists the top end of an initial daily dosage of Decadron at 9 mg should have aroused Ms. Buntyn’s suspicions that a 24 mg initial daily dosage was excessive. Ms. Buntyn should have inquired further. As such, we do not find that the trial court was manifestly erroneous in its finding that Ms. Buntyn breached her duty to plaintiff by supplying her with an excessive dosage of Decadron.

Next, all parties argue that the trial court erred in its assessment of damages.

The standard of review applicable to a general damages award is the abuse of discretion standard. Bouquet v. Wal-Mart Stores, Inc., 08-0309 (La.04/04/08), 979 So.2d 456. The trier of fact is afforded much discretion in assessing the facts and rendering an award because it is in the best position to evaluate witness credibility and see the evidence firsthand. Id. ROnly after a review of the facts reveals that a trier of fact has abused its discretion, is it appropriate for the appellate court to resort to a review of prior similar awards. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085.

A review of the facts show that plaintiff spent an extended period of time feeling the ill effects of the overdose. She and her husband feared and continue to fear for her overall well being and the possibility that she may suffer a heart attack or other long term damage. As a further result of the overdose, plaintiff had to miss work and undergo multiple days of medical testing. Based upon these facts we cannot conclude that the trial court abused its discretion in making any of the damages awards

Conclusion

For the foregoing reasons, the judgment of the trial court finding defendants, Brookshire Grocery Co. and Katy Buntyn, liable for damages sustained by plaintiffs, Sarah Ann Hollier and Bobby Hollier, is hereby affirmed. Costs of this appeal are assessed to defendants.

      . Super One Pharmacy is owned and operated by Brookshire Grocery Company.


author: WILLIAMS, J.

text:
    Donnie D. SCOTT, Plaintiff-Appellant v. SUPER ONE FOODS, Defendant-Appellee.
    No. 45,636-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 29, 2010.

      John B. Morneau, Vivian, Louisiana, for Appellant.
    Dale G. Cox, Shreveport, Louisiana, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   WILLIAMS, J.

| TClaimant, Donnie D. Scott, appeals the workers’ compensation judge’s decision, finding that claimant failed to meet his burden of proving that he had suffered two compensable work-related injuries. For the following reasons, we affirm.

FACTS

Claimant was hired by Super One Foods (“Super One”) on July 31, 2002 as a “perishable manager.” His duties including ordering perishable goods, unloading trucks and stocking the store’s shelves with perishable goods. Claimant worked the “graveyard” shift, from approximately 10:00 p.m. until approximately 7:00 a.m. He alleged that he injured his back at work on two separate occasions — on November 19, 2005 and in January 2006. Claimant stated that he verbally reported both injuries to Ronnie Turner, the store’s grocery manager; however, no written injury/accident report was completed after either incident. Claimant testified that despite being in pain, he completed the remaining hours of his shifts on the nights of the injuries and did not miss any days from work thereafter.

On January 17, 2006, claimant presented to the Shreveport Family Medicine Clinic complaining of back pain. He informed the physician on duty that he had been experiencing back pain for approximately three weeks; however, he stated that the pain was not the result of any trauma. Claimant returned to the clinic on January 31, 2006 and was treated by Dr. |2Floyd James, an internal medicine physician. During that visit, Dr. James noted that claimant reported that he “may have lifted something” and “felt a pop” in his back. Dr. James also noted that claimant had undergone “back surgery eight years ago.” He referred claimant to Dr. Pierce Nun-ley, the orthopedic surgeon who had performed an IDET (“intradiscal electrother-mal therapy”) procedure on claimant’s back in 2000.

On February 1, 2006, claimant completed a report of injury at Super One. In the report, claimant stated that on November 19, 2005, he was unloading perishable items from a truck when he “stepped back and twisted” and felt a “sharp pain in [his] lower back radiating to [his] thigh and groin area.” Claimant also reported that on January 10, 2006, he slipped and hit his back against a ramp as he was unloading a truck.

Eddie Crawford was the risk manager for Brookshire Grocery Company, Super One’s self-insured parent company. Crawford testified that he was not aware of claimant’s alleged injuries until March 2006, when he was contacted by Dr. Nun-ley’s office for authorization to provide medical treatment to claimant. Crawford stated that he initiated an investigation and obtained claimant’s medical records. He learned that claimant had an extensive history of back injuries. Crawford discovered that claimant had been treated by Dr. Nunley for various back ailments from 1999 through 2002. Crawford also learned that Dr. Nunley had performed an IDET procedure on claimant’s back on August 15, 2000. When claimant |3continued to complain of back pain, Dr. Nunley had recommended that claimant undergo a lumbar “360 fusion” in November 2000.

Crawford also interviewed some of Super One’s employees and discovered that claimant had been in a car accident in January 2006 and had told at least one coworker that he had injured his back in that accident. Subsequently, Crawford obtained additional medical records from Willis Knighton Medical Center and learned that claimant had been treated there for back pain since 1991. Crawford spoke to claimant, who stated that his previous back pain was “cured” after the IDET procedure in 2000. However, claimant’s medical records revealed that statement was untrue, as claimant continued to report to his physicians that his pain had not abated.

Additionally, Crawford examined employee time cards and learned that Ronnie Turner, the grocery manager to whom claimant allegedly reported both accidents, was not working on November 19, 2005, the date of the first alleged injury. Claimant had alleged that Marvel Taylor witnessed both the November and January accidents/injuries. Crawford examined Taylor’s “witness statement” and learned that Taylor described the injury claimant allegedly sustained in November 2005; however, Taylor did not mention the alleged January 2006 injury. Crawford also discovered that Taylor’s time card revealed that he was not working on the date claimant initially stated that the second injury occurred. Due to | ¿inconsistencies in claimant’s statements and claimant’s extensive history of back pain, Crawford denied his claim for workers’ compensation benefits.

Claimant continued to work until April 2006. On April 13, 2006, he filed a disputed claim for compensation. Claimant alleged that he injured his “low back” at work on November 19, 2005 and “about” January 15, 2006. On January 28, 2007, claimant moved for partial summary judgment, seeking a judgment declaring that he had suffered two compensable work-related injuries. The motion was denied on April 9, 2007.

This matter was tried for five days over a six-month period, and the WCJ took the matter under advisement. During the post-trial briefing period, Super One received additional medical reports and discovered that after undergoing a lumbar fusion at LSU Health Sciences Center (“LSU”) on August 17, 2007, claimant reported that he was “dropped” by hospital personnel as he was entering his car after being discharged from the hospital. Claimant informed his surgeon, Dr. J. Eric Bicknell, that he was suffering from “unrelenting back pain” as a result of that incident. However, claimant never mentioned the hospital incident during the workers’ compensation trial. Super One filed a motion to reopen the record. The WCJ granted the motion and allowed Super One to introduce into evidence claimant’s LSU medical records and Dr. Bicknell’s post-trial | ¿deposition.

The WCJ denied the claim for workers’ compensation benefits, finding that claimant failed to meet his burden of proving that a work-related accident had occurred. The WCJ expressly found that the testimony provided by claimant was not credible. Claimant appeals.

DISCUSSION

Claimant contends the WCJ erred in dismissing his claim for workers’ compensation benefits. Claimant admits that he had an extensive history of back injuries. However, he argues that he had not been treated for back-related issues since 2002, prior to sustaining the two work-related injuries at issue herein. Therefore, claimant maintains that the testimony and medical evidence were sufficient to show, at the very least, that the work-related incidents aggravated a preexisting condition.

An employee is entitled to workers’ compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. LSA-R.S. 23:1031(A); McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135. A workers’ compensation claimant has the burden of proving, by a preponderance of the evidence, that the disability suffered is related to an on-the-job injury. Modicue v. Graphic Packaging, 44,049 (La.App.2d Cir.2/25/09), 4 So.3d 968; Taylor v. Columbian Chemicals, 32,411 (La.App.2d Cir.10/27/99), 744 So.2d 704. The causal connection between the disability and the on-the-job injury can be established when the employee proves that before the accident he was in good health, but commencing with the accident the ] ^symptoms of the disabling condition appeared. See, Poland v. Kroger, No. 404, 32,576 (La.App.2d Cir. 12/8/99), 747 So.2d 711, writ denied, 2000-0583 (La.4/7/00), 759 So.2d 764.

A claimant’s own testimony may be sufficient to prove causation, provided (1) no other evidence discredits or casts serious doubt upon the claimant’s version of the incident, and (2) the claimant’s testimony is corroborated by circumstances surrounding the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992); Dugan v. St. Francis Medical Center, 45,149 (La.App.2d Cir.4/14/10), 34 So.3d 1157. In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Dugan, supra; Sheppard v. Isle of Capri, 40,048 (La.App.2d Cir.8/17/05), 909 So.2d 699; Blair v. Wal-Mart Stores Inc., 2001-2211 (La.App. 4th Cir.5/15/02), 818 So.2d 1042, citing 13 H. Alston Johnson III, Workers’ Compensation Law & Practice (La. Civil Law Treatise) § 253 (4th ed.2002); 1 Denis Paul Juge, Louisiana Workers’ Compensation, § 8:1 (2d ed.2002).

The question of whether a claimant is entitled to compensation benefits is a question of fact, and a WCJ’s determination may not be disturbed on appeal absent manifest error. Morrison v. First Baptist Church of West Monroe, 44,189 (La.App.2d Cir.4/8/09), 7 So.3d 873; Jones v. Hollywood Casino Shreveport, 42,819 (La.App.2d Cir.12/5/07), 972 So.2d 1189. Under the manifest error rule, the reviewing court does not decide |7whether the factfinder was right or wrong, but only whether its findings are reasonable. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560, citing Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880; Sheppard, supra. When there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. Id. Thus, even when the appellate court is convinced it would have weighed the evidence differently had it been sitting as trier of fact, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.

In the instant case, claimant testified that the first injury occurred in November 2005, “before Thanksgiving.” He stated that he had finished unloading a truck and was in the process of separating meat, dairy and produce items. Claimant testified:

I reached up to grab a box of chitlins, the handle broke as I was coming down, so I slipped. And when I slipped I turned and I was trying not to drop the chitlins. So I put them down on the pallet and I just hollered, you know.

Claimant further testified that he told Marvel Taylor, a fellow-employee, “Man, I think I pulled something.... It hurt like crap.... ” Claimant stated that he continued to work and later reported the incident to Ronnie Turner, the grocery manager on duty that night. Claimant testified:

I told [Turner] I had, I think I had twisted my back when I was unloading the meat, the chitlins thing. I told him, I say, I was pulling on it. I say, I twisted it. He said, you all right. I said, man, it hurts like, you know what I’m saying. He said, do you think you’ll make it through the night because they didn’t have anybody to replace me. I told him yes, I think I’ll be all right, you know, I guess
and I continued to work.

| «Claimant stated that he continued to work, night after night. He stated, “I was sore, but I was still doing my job though.”

Claimant also testified that the second incident occurred “either right before New Year’s or right after New Year’s.” He stated that he was unloading frozen products from a truck surrounded by ice cream and popsicles stacked on a wooden pallet with “plastic wrapped around it.” Claimant testified that his “feet got tangled up in the plastic and I was falling back ... [b]ut when I fell back, I hit the back plate and I came over the back plate.” He stated that he continued to work and reported the incident to Turner.

Claimant testified that he decided to seek medical attention after the second incident because he “kept hurting.” He stated that he did not inform the doctor that it was a work-related injury because “I was still thinking it was a pulled muscle.... I told the doctor I think I pulled a muscle.” Claimant also testified that he did not tell the physician that he had been injured on the job “because you have to have the papers to show it was a workman’s comp case. I didn’t have any paperwork.”

Claimant admitted that he had been involved in an automobile accident in December 2005, after the first alleged work-related injury, but prior to the second alleged work-related injury. However, he maintained that he was not injured in the automobile accident.

Marvel Taylor testified that he worked for Super One as a “perishable clerk” from 2004-2007. Taylor testified that he and claimant were unloading items one night “around Thanksgiving,” when he heard claimant | ¡/‘scream oh s — t.” He stated that he approached claimant and asked him if he was all right. He testified that claimant told him that he had “probably pulled a muscle or something in his back or something.” Taylor also testified that he and claimant “went outside [and] told [Ronnie Turner] that [claimant] hurt his back.” Taylor further testified that claimant continued to work but he walked “slow with a limp” for the reminder of the night. Taylor stated that the following morning, he and claimant reported the injury to Eric Bean, the store manager. Taylor also testified that claimant’s second injury occurred “after New Year’s, day after New Year’s.” Taylor stated that he was not scheduled to work that night, but he reported to work because claimant “called me in.” He testified that he and claimant were unloading a truck when claimant fell and “hurt his back again.” Taylor further stated that claimant reported the injury to “whichever on duty manager it was.”

Ronnie Turner testified that claimant did not report any work-related injuries to him, and he never spoke to claimant about an injury in November 2005. Turner’s attendance records revealed that he was not working on November 19, 2005, the date of the alleged first injury. Turner testified that he noticed that claimant seemed to be in pain “after the first of the year.” Turner stated:

I saw he was in the perishable department one night and I thought, he looked like he was in pain. And I walked over to him and I asked him. I said, ‘Donnie, are you all right, man?’ And he said, well his back was bothering | Tnhim. And his shift continued throughout the night and he said he was going to go home and rest. And that’s how I found out about it.

Turner also testified that “about a week or so later,” he learned from Taylor that claimant “supposedly hurt his back on the job.”

Tony Edwards testified that he was employed by Super One as grocery “stocker” and he worked the “graveyard” shift with claimant and Taylor. Edwards testified that claimant occasionally came to work complaining of back pain. He also testified that Taylor was not working the night claimant sustained the second injury. Edwards testified that claimant “hit his back on a pallet” and did not report the injury to anyone. Edwards stated:

I asked Mr. Scott [if] he [was] going to report it to Mr. Turner, because Mr. Turner was on duty that night. And he said, no, he was all right. And he kept working. Plus we both that day, before we came to work, we both were drinking.
* * *
And then after he hurt himself he did not report it because he had alcohol on his breath. And then he came back to work the next night. Me and him supposed to work dairy again. And he brung (sic) Marvel in to help him finish the dairy that nightf.]

Eric Bean, the store’s assistant manager, also testified at trial. He testified that when he learned about the alleged accidents, he instructed claimant and Taylor “to make sure they had gotten with a manager that would have been on duty at the time, because I wasn’t there, been a witness to it.” Bean also testified claimant and Taylor completed the report in his office at the store.

|nTammy Caston, who worked with claimant at a different Super One store, also testified. She stated that claimant came into the store where she worked and “he was limping.” Caston testified that claimant told her “he had hurt his back on his, he said T hurt myself with the job.’ ”

Claimant’s medical records detail his extensive history of back pain, dating back to the early 1990s. The medical records revealed that claimant has presented to physicians and emergency rooms all over the Shreveport area, reporting back pain due to various work-related accidents, as well as a number of motor-vehicle accidents. As stated above, claimant underwent back surgery at LSU in 2007, after which he reported that he further injured his back when he was “dropped” by the hospital staff.

After hearing the testimony and reviewing the medical records, the WCJ stated:

The [claimant’s] testimony concerning the accident is not supported by the medical evidence or the testimony of the witnesses. The Court finds that the testimony of Marvelle Taylor and Tammy Caston was not reliable in helping prove the occurrence of a work-related accident. Additionally, the record is replete with instances that call into question the credibility of the claimant. During the trial, [the claimant] was asked to discuss all accidents and injuries that he suffered. Although many accidents and injuries were discussed, [the claimant] failed to mention the facts that were provided in the post-trial deposition of J. Eric Bicknell, M.D. This information revealed another example of claimant’s lack of credibility. The record reflects that claimant fell, or was dropped, while leaving the hospital after a surgery in August of 2007. Significant to this Court is the fact that this injury, although revealed as significant in the medical records, was not mentioned by claimant at trial.

112Super One presented ample evidence which discredited and cast serious doubt upon the credibility of the testimony of claimant and his witnesses. The WCJ, as the trier-of-fact, heard the testimony and observed the demeanor of the witnesses. The WCJ expressly concluded that claimant, Taylor and Caston were not credible witnesses. We find no manifest error in the WCJ’s findings.

Claimant initially alleged that the first injury occurred on November 19, 2005. That date was listed as the date of injury on the accident/injury report and in claimant’s disputed claim for workers’ compensation. Claimant also stipulated in his pretrial statement that he was injured on that date. Subsequently — perhaps after learning that Ronnie Turner, the grocery manager to whom claimant asserted that he initially reported the injury, was not working on that date — claimant has since maintained that he does not know the date of the first alleged injury. Claimant has provided several dates with regard to the date of the second alleged incident.

When claimant presented to the Shreveport Family Medicine Clinic in January of 2006, he specifically denied suffering a work-related injury. When he presented to Dr. Nunley’s office in February 2006, the physician’s report stated that claimant was “not connecting this to a work injury at this time. He does report this is the same pain he had prior to his IDET and prior to the lifting accident in November 2005.” When asked to explain why he initially told the physicians that he had not been injured at work, claimant stated, ‘You have to have the papers to show it was a workman’s comp case. I didn’t have any paperwork.” At one point, claimant testified h3that he did not tell the physicians that he had sustained a work-related injury because he was “still thinking it was a pulled muscle.”

Claimant testified briefly about his post-surgery condition, and reported that his back pain “comes and goes.” Claimant testified about an incident in which he “slipped” in the shower at home, but he did not mention a “fall” he had experienced at LSU following his surgery in 2007. He testified that he did not know what was causing his current pain, stating, “I don’t know what it is — I don’t know. I don’t know nothing. Only thing I know is they took more xrays and I’m just waiting to see what the problem is. I don’t know.”

When questioned on cross-examination about the various work-related injuries and motor-vehicle accidents, claimant was evasive and, at times, answered in the form of a question. The WCJ repeatedly admonished claimant and instructed him that he was required to answer questions posed by opposing counsel. While other witnesses were testifying, the WCJ admonished claimant about making gestures and certain facial expressions.

Taylor reported that he had witnessed both accidents, but failed to mention the second alleged accident in the report of injury. Taylor testified 114at trial that he accompanied claimant when both incidents were reported to Turner. However, as noted above, Turner’s employee records reveal that he was not working the night of the first alleged incident. Additionally, Taylor’s testimony with regard to the second alleged injury was contradicted by Edwards’ testimony. Edwards testified that he, not Taylor, was working with claimant on the night claimant allegedly sustained the second injury. Taylor also testified that both he and claimant worked seven nights a week. However, the time and attendance records contradicted this testimony. Taylor explained the discrepancy by testifying that he and claimant often worked “off the clock” and were not always paid for their labor.

Caston admittedly did not witness either of the alleged incidents. She testified that she and claimant were friends and had discussed her impending testimony days before the trial.

We have conducted a thorough review of this entire record, including the testimony and claimant’s medical records. We conclude that the WCJ did not commit manifest error in finding that claimant failed to prove that he sustained a work-related injury.

CONCLUSION

For the foregoing reasons, we affirm the WCJ’s ruling dismissing claimant’s workers’ compensation claim. Costs of this appeal are assessed to claimant, Donnie D. Scott.

AFFIRMED.

      . The date of the alleged second injury remains unclear. In the injury report dated February 1, 2006, claimant stated that he injured his back on November 19, 2005 and January 10, 2006. On the disputed claim for compensation, claimant alleged that the second injury occurred "about” January 15, 2006. In claimant’s pretrial statement, he stipulated that the second injury occurred "on or about January 4, 2006.”

      . IDET is a procedure by which a small probe or catheter is surgically inserted into a herniated or degenerative disc. The probe delivers precise levels of heat into the tissues within the disc, eliminating painful nerve endings and blood vessels, which, in turn, relieves pain.

      . Claimant underwent a lumbar 360 fusion in August 2007 at LSU Health Sciences Center in Shreveport.

      . At some places in the record, Taylor's name is spelled "Marvelle Taylor.” Also, some of the witnesses refer to Taylor as "Ben.” Taylor testified that "Ben” is his nickname.

      . On April 20, 2007, claimant filed a "Petition for Overtime Wages, Petition for Damages Arising From Failure to Pay Overtime Wages, Continuing Intentional Tort, Intentional Deprivation of Workers Compensation Benefits, Breach of Employment Contract, Retaliatory Termination, [and] Intentional Deprivation of Medical Benefits Under Group Medical Plan and Short Term Disability Benefits Plan.” The suit was filed in the 26th Judicial District Court in Bossier Parish, Louisiana. Named as defendants were Super One, Brookshire Grocery Company, Crawford, Turner, Eric Beene, store director, and Mark McGrew, assistant store director. According to statements made during the trial, that lawsuit is still pending and is not the subject of this appeal.

      . Taylor was unable to recall the date of the injury, stating, “I can't remember if it was the day after Thanksgiving, day before Thanksgiving. It was somewhere around Thanksgiving, that week around Thanksgiving.”

      . Bean’s testimony contradicts the testimony of claimant and his wife, who both testified that the report was completed by claimant’s wife at their home.

      . According to the records from LSU, a hospital employee was assisting claimant "from wheelchair to car” when claimant "plunged over into car seat and then slouched to knees.” Claimant was then transported to the hospital's emergency room with complaints of back pain. Claimant reported to the physician that he was "dropped” and landed on his "buttocks, causing severe pain.”

      . Additionally, claimant and his wife both adamantly denied that claimant had ever been examined by a pain specialist or psychologist. However, claimant’s medical records reveal that claimant was evaluated by a pain specialist, who opined that claimant had "complex psychosocial issues [and] ongoing litigation with evidence of symptom magnification.” Claimant was referred to Dr. Thomas Staats for a "full psychological workup.”


author: JAMES F. McKAY, III, Judge.

text:
    James E. BATES, Jr. and Patricia C. Bates v. ALLSTATE INSURANCE COMPANY, Frank B. Capella III and ABC Insurance Company.
    No. 2010-CA-0234.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 29, 2010.

      Paul C. Miniclier, Hoy R. Hughes Law Office of Paul C. Miniclier New Orleans, LA, for Plaintiffs/Appellants.
    Jaime M. Cambre Kelly Cambre Bogart, Duplass Zwain Bourgeois Pfister & Wein-stock Metairie, LA, for Defendant/Appel-lee, Frank B. Capella III.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS, JR.).
   JAMES F. McKAY, III, Judge.

Lin this case, which involves a Hurricane Katrina insurance claim, the plaintiffs, James E. Bates, Jr. and Patricia C. Bates, appeal the trial court’s granting of an exception of peremption in favor of the defendants, Frank B. Capella, III and Allstate Insurance Company. We affirm.

FACTS AND PROCEDURAL HISTORY

James and Patricia Bates first purchased insurance policies from Allstate through Allstate agent Frank B. Capella, III in 1994. In March of 2005, Mr. Bates called Mr. Capella to discuss a change in the hurricane deductible. During this conversation, Mr. Bates requested from Mr. Capella that he provide full coverage. On August 29, 2005, the Bateses’ home was severely damaged by Hurricane Katrina.

On October 24, 2005, Mr. and Mrs. Bates discovered that the rebuild estimate on their home was $234,000.00. However, their homeowner’s policy had limits of $162,878.00 for structure, $16,288.00 for other structures, $122,159.00 |2for contents, and up to twelve months of additional living expenses; their flood policy had limits of $150,000.00 for structure and $60,000.00 for contents.

On August 29, 2006, Mr. and Mrs. Bates brought suit against Mr. Capella and Allstate. Specifically with regards to Mr. Capella, Mr. and Mrs. Bates alleged agent negligence and or breach of contract. On April 13, 2009, Mr. Capella filed a motion for summary judgment arguing that the claims were perempted pursuant to La. R.S. 9:5606 and the plaintiffs could not prove that he had made any misrepresentations or breached any duty. On May 8, 2009, a hearing was held on the motion for summary judgment and other matters. However, due to the need for further discovery, the court deferred ruling on the motion for summary judgment.

On November 5, 2009, Mr. Capella filed a motion to reset his motion for summary judgment as well as an exception of per-emption wherein he again argued that all of the plaintiffs’ claims against him were perempted pursuant to La. R.S. 9:5606. On November 20, 2009, the trial court granted Mr. Capella’s exception of per-emption and declared his motion for summary judgment moot. It is from this judgment that Mr. and Mrs. Bates now appeal. DISCUSSION

On appeal, the issue before this Court is whether the trial court properly granted Mr. Capella’s exception of per-emption. Where a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case. La. C.C.P. art. 929. When evidence is introduced and evaluated at the trial of the exception, an appellate court must evaluate subject to the | ^traditional rules governing appellate review of facts. Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127, 129. Therefore, “the trial court’s factual determinations regarding preemption [sic]/prescription should not be reversed in the absence of manifest error, as the issue to be decided by the appellate court is not whether the trier if fact was right or wrong, but rather whether the fact finder’s conclusion was a reasonable one.” Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 149. Accordingly, we will not overturn the trial court’s finding of fact unless it is clearly wrong or in the absence of manifest error. Stobart v. State Through Dept. of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

La. R.S. 9:5606 provides for the time limits for actions against a professional insurance agent. In pertinent part, that statute states:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

La. R.S. 9:5606.

In Burk Property Investments, LLC v. Alliance Insurance Agency Services, Inc., 2008-0489 (La.App. 4 Cir. 9/10/08), 993 So.2d 810, an insured filed a claim Ragainst its insurance agent alleging that the agent had a duty to advise the insured that it needed to obtain flood insurance for its properties. The insurance agency claimed that plaintiffs claims were perempted under La. R.S. 9:5606 because the plaintiff knew or should have known that it did not have flood coverage in June of 2005 and did not file suit until August 29, 2006. This Court held that the plaintiff received signed application statements for the subject properties that delineated that there was no monetary amount for flood coverage on June 13, 2005. This Court found at that date that the plaintiff knew or should have known it did not have flood insurance. Therefore, the filing of their suit on August 29, 2006, more than one year after June 13, 2005 was untimely pursuant to La. R.S. 9:5606.

In the instant case, Mr. Bates testified that he knew what his limits were for his homeowner’s policy as of August 18, 2005. Therefore, as of August 18, 2005, the plaintiffs knew or should have known what their policy limits were or whether they were underinsured on their homeowner’s policy. The plaintiffs filed suit on August 29, 2006, more than one year after when they knew or should have known what their homeowner’s policy limits and coverages were, and therefore when they knew or should have known whether they were adequately insured. Accordingly, the plaintiffs’ claims regarding their homeowners’ policies against Mr. Capella were perempted pursuant to La. R.S. 9:5606.

Additionally, Mr. Bates received his flood renewal declaration page for the policy in question sometime in October of 2004. Furthermore, in May 2005, the plaintiffs received a notice of an endorsement to their flood policy changing the mortgage holder. This endorsement included a declarations page setting forth the policy limits and coverages. This document was received by the plaintiffs after the alleged March 2005 “fully insured” conversation Mr. Bates testified that he had | swith Mr. Capella. Accordingly, as of May 2005, plaintiffs knew or should have known what their flood coverages and limits were during the time of Katrina and whether they were underinsured or “fully covered.”

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s granting of the defendants’ exception of peremption.

AFFIRMED.