author: DANIEL L. DYSART, Judge.

text:
    CITITAX GROUP, L.L.C. v. Leon J. GIBERT, Jr., Tracy Lynn Meyer, Josephine Gibert Adams Farwell and Charles E. Ruello. Leon J. Gibert, Jr. v. City of New Orleans.
    Nos. 2012-CA-0633, 2012-CA-0634.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2012.

      Scott J. Sonnier, Lemle & Kelleher, L.L.P., New Orleans, LA, for Plaintiff/Ap-pellee, Cititax Group, LLC.
    Joyce G. Joseph, Deputy City Attorney, Sharonda R. Williams, Chief of Litigation, Richard F. Cortizas, City Attorney, New Orleans, LA, for Defendant/Appellee, City of New Orleans.
    Craig J. Mor dock, Stephanie E. Swing, Butler Mordock P.L.C., New Orleans, LA, for Defendant/Appellant, Leon Gilbert, Jr.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

|, In this consolidated matter, defendant/appellant, Leon J. Gibert, Jr. (“Gi-bert”), appeals a trial court judgment quieting the title of plaintiff/appellee, Citi-tax Group, L.L.C. (“Cititax”) and declaring Cititax to be the sole owner of property bearing the municipal address of 3635 Iberville Street in New Orleans, Louisiana. For the following reasons, we reverse.

FACTUAL BACKGROUND

In March 2, 2010, Cititax filed a Petition to Quiet Title (“Petition”) on property located at 3635 Iberville Street, in New Orleans, Louisiana (“the Property”). The Petition named Gibert as a defendant and as the owner of the Property.

The Petition alleges the following facts. Gibert acquired the Property by Act of Sale dated June 16, 1995, which was recorded in the conveyance records for Orleans Parish. After the taxes on the Property became delinquent in 2000 and 2001, Cititax bid on and acquired the Property at a November 18, 2002 tax sale. The Property was deeded to Cititax on August 14, 2003 and the deed to the ^Property was registered in the Orleans Parish conveyance records on November 4, 2003.

Cititax then filed the instant lawsuit, pursuant to La. R.S. 47:2228, et seq. on March 2, 2010. Attached to Cititax’s Petition is a copy of the Tax Sale Deed by which ownership of the Property was transferred to Cititax.

On January 14, 2011, Gibert filed his own lawsuit, styled as a Petition for Redemption/Annulment of Tax Sale (“Petition to Annul”), against the City of New Orleans (the “City”). In this suit, Gibert alleged that the City conducted a tax sale of the Property without giving proper notice to him. Gibert alleges that, based on this lack of notice, the tax sale was invalid and an absolute nullity.

Gibert’s lawsuit was consolidated with the Cititax suit by order dated May 12, 2011 and the matter proceeded to a bench trial on December 12, 2011. At trial, two witnesses testified: Gibert and Walter O’Bryan (“O’Bryan”). Gibert testified that he has resided at 30 Newcomb Blvd. in New Orleans since 1985 and has never resided at 38 Newcomb Blvd.

O’Bryan, who works in the Department of Finance for the Treasury Bureau of the City of New Orleans, identified a return receipt from a certified letter that was addressed to Gibert at 38 Newcomb Blvd., the address provided to the Department by the assessor. According to O’Bryan, the date of delivery of the certified letter was September 16, 2002. He “assumed” that it had been “properly served.”

| Notably, on the return receipt offered into evidence, the name “Gilbert” is written on the line indicating “Received by: (Print Name).” Where a signature was required by “(Addressee or Agent),” the return receipt simply states “30 New-comfsic]”. There is no signature and the printed name (Gilbert) is clearly not the correct name.

Judgment was rendered in Cititax’s favor, with written reasons for judgment issued on January 17, 2012. The trial court noted that the certified copy of the tax deed “constitutes prima facie proof of the validity of the tax sale and the burden then shifts to defendants to establish any nullities to defeat the title.” The trial court found as follows:

Defendants were unable to establish any nullities to defeat the title. While defendant, Mr. Leon J. Gibert, Jr. asserted that he had not received notice of the tax sale, the evidence revealed that the notice given to defendant, Leon J. Gibert was reasonable. While it is questionable whether the notice was actually received by Mr. Gibert, notice was also published in the newspaper. The court finds that under the law as set forth in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the notice given was sufficient.

From this judgment, Gibert has appealed.

DISCUSSION

Validity of tax sale

Gibert urges this Court to review the facts of this matter de novo, on the basis that the trial court made “a reversible error of law or manifest error of material fact.” Ordinarily, appellate courts review both facts and law under the manifestly erroneous or clearly wrong applicable standard of review. See: S.J. v. Lafayette Parish School Bd., 2009-2195, p. 13 (La.7/6/10), 41 So.3d 1119, 1128. In this matter, we are not presented with an incorrect application of the law, as |4 Gibert suggests. Rather, this case presents a pure factual issue; namely, whether the trial court erred in finding, as a factual matter, that the notice provided to Gibert was sufficient and met the due process requirements established by Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983) and its progeny. As such, we review this matter under a manifest error/clearly wrong standard.

Cititax argues that the introduction of a certified copy of the tax deed in this matter, is prima facie proof of the validity of the 2002 tax sale. It further maintains that the tax sale was valid because the tax collector followed the provisions of La. R.S. 47:2180 (now, La. R.S. 47:2153), noting that “[i]t was uncontested that the publication provisions of La. R.S. 47:2180(B) were satisfied.” Cititax seems to suggest that the tax collector could reasonably rely on the return receipt from the certified letter as proof that delivery had been made and as such, the tax sale was valid. In this regard, Cititax argues that “[tjhere was no evidence presented that the tax collector was on notice that delivery was not made and that the mailing address was incorrect or that an alternative address was reasonably ascertainable.” Likewise, Cititax argues that actual receipt of notice by a property owner is not required for due process to be satisfied.

Our jurisprudence does indicate that a tax deed by a tax collector shall be prima facie evidence that a valid sale was made. Smitko v. Gulf South Shrimp, Inc., 2011-2566, p. 11 (La.7/2/12), 94 So.3d 750, 757. Likewise, Cititax is correct that proof of actual receipt of notice is not required to satisfy due process. Thomas v. New Orleans Redevelopment Authority, 2004-1964, p. 11 (La.App. 4 Cir. 10/6/06), 942 So.2d 1163, 1170, citing, Dusenbery v. United States, 534 U.S. 161, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). However, the inquiry does not end there.

| ¡^Contrary to Cititax’s arguments, the question of whether the notice provided to Gibert was reasonable and complied with due process is not examined from the perspective of the tax collector. Rather, the crucial inquiry is whether the notice was “sent by mail or other means certain to ensure actual notice if the party’s name and address are reasonable ascertainable.” Lewis v. Succession of Johnson, 2005-1192, p. 7 (La.4/4/06), 925 So.2d 1172, 1172, citing Mennonite, supra, 462 U.S. at 800, 103 S.Ct. 2706. Accordingly, we look to whether, in this particular case, the notice to Gibert, addressed at “38 Newcomb Blvd.” was “certain to ensure actual notice.”

As concerns the issue of whether the address on the certified letter (38 New-comb) was incorrect, we disregard altogether Cititax’s argument “the only evidence presented was the self-serving testimony of Mr. Gibert that he resided at BO Newcomb Blvd. and not 38 New-comb Blvd.” Mr. Gibert’s testimony at trial was unconditional — he has resided at 30 Newcomb Blvd. since 1985 and has never lived at the latter address. Cititax points to no facts in the record suggesting otherwise. We further note that the record contains a copy of the June 16, 1995 act of sale by which Gi-bert acquired the property at issue herein. It clearly provides Gibert’s address as “30 Newcomb Blvd., New Orleans, Louisiana 70118.” Accordingly, there can be no serious dispute as to Gibert’s actual address or the fact that notice was sent to Gibert at an incorrect address.

We likewise find no merit to the City’s argument that “the certified mail was delivered and the return receipt verified delivery to ‘Gilbert’ at ‘30 Newcomb’ ” [ r,and the City’s speculation as to what occurred when delivery of the certified mail was attempted. As we noted, no signature appears on the return receipt and it provides no confirmation that the certified letter was received by anyone.

In that regard, the trial court made no finding as to the delivery/receipt of the certified letter. In its reasons for judgment, the trial court found “questionable whether the notice was actually received by [Gibert].” The trial court seemed to conclude that Gibert’s receipt of the notice was irrelevant, given that “notice was also published in the newspaper.”

It is clear that notice of a tax sale published in a newspaper is insufficient to comply with due process requirements. This was one of the precise issues with which the Mennonite, and Lewis courts were confronted. Citing Mennonite, the Lewis court noted:

Expanding on its decision in Mullane, the Court added that notice by publication and posting is “designed primarily to attract prospective purchasers to the tax sale” and, consequently, is “unlikely to reach those who, although they have an interest in the property, do not make special efforts to keep abreast of such notices” ... Thus, the notice of the tax delinquency by publication of an advertisement for an upcoming tax sale, alone, does not pass constitutional muster if the owners of the property can be identified or are easily discovered. A taxpayer, therefore, must also have the opportunity to receive written notice, as a minimum requirement, to ensure protection of the owner’s property rights under the Fourteenth Amendment.
Id., p. 12, 925 So.2d at 1179. (Citations omitted).

17While the Lewis court held that “where the tax debtor’s correct address is known and used, certified mail is a reasonable method of notifying the debtor,” it follows that the address to which the certified mail is sent must be correct. See, e.g. 3525 North Causeway Blvd. Corp. v. Penney, 07-883, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 195, 199, writ denied, 2008-0771 (La.5/30/08), 983 So.2d 905.

In this matter, the record reflects that the certified letter was not sent to the correct address and the return receipt does not in any way confirm that the letter was delivered to the correct address. There is no question that Gibert’s correct address was known, as it is plainly set forth on the 1995 act of sale. Clearly, the tax collector made a mistaking in addressing the notice to Gibert, the effect of which is tantamount to notice never having been sent. Furthermore, as set forth herein, publication in the local newspaper of notice of the 2002 tax sale was insufficient to meet due process requirements. We therefore conclude that the tax sale, conducted without proper notice, violated Gi-bert’s due process rights and is an absolute nullity.

Timeliness of Gibert’s Petition to Annul

The City maintains that, even if the tax collector failed to properly notify Gibert of the tax sale, this failure is a “relative nullity, which is cured by the prescription [sic] period of five years,” citing La. Const. art. 7, § 25(C), La. R.S. 47:2266(A)(2), and Crain v. Vanderdoes Estate, 307 So.2d 157 (La.App. 1st Cir.1975).

|sThe statutory basis upon which the City relies is as follows. La. Const. art. 7, § 25(C), governing annulments of tax sales provides, in pertinent part, as follows:

No sale of property for taxes shall be set aside for any cause, except on proof of payment of the taxes prior to the date of the sale, unless the proceeding to annul is instituted within six months after service of notice of sale. A notice of sale shall not be served until the final day for redemption has ended. It must be served within five years after the date of the recordation of the tax deed if no notice is given.

La. R.S. 47:2266(A)(2) provides that “[i]f no proceeding to annul the sale has been instituted after the lapse of six months after the date of service of petition and citation, judgment shall be rendered quieting and confirming the title and the full ownership interest therein.”

We recognize the time limitations set forth under these provisions. We further recognize that the First Circuit in Crain noted the lack of notice of a tax sale to be a relative nullity which is cured by the applicable prescriptive period. However, Crain was decided “well before the Supreme Court in 1983 issued its opinion in Mennonite, which elevated the lack of notice in a tax sale to a due process violation rendering the tax sale null and of no effect. Since Mennonite, our court and the courts of this state have repeatedly held that the failure to give notice to a record property owner is a violation of the due process owed to the property owner and that the resulting tax sale is null and void in its entirety.” Smitko, supra, p. 14, 94 So.3d at 759.

In Smitko, the defendant (the former record property owner), who never received notice of a tax sale, filed a recon-ventional demand seeking to annul the tax sale sixteen months after filing its original answer to a petition to quiet title. |9The trial court granted summary judgment in favor of the tax purchaser. Part of its ruling was based on a prior finding that the defendant’s reconventional demand was barred because it was filed more than six months after the defendant was served with the petition and citation to quiet title. A divided First Circuit court affirmed, finding that the reconventional demand, filed after the six month time limitation set forth in La. R.S. 47:2228 (now, La. R.S. 47:2266) was untimely. In reversing the lower courts, the Louisiana Supreme Court stated:

[W]e find the failure of the Sheriff to provide notice of the tax delinquencies and tax sales to [defendant], if proven by [defendant], was a violation of due process that would preclude confirmation of the tax sales ... Accordingly, because the tax sales of June 25, 2003, were apparently of no legal force or effect, [defendant’s] April 24, 2008 reconven-tional demand to annul the tax sales for lack of due process was timely before the trial court.

Id., p. 14, 94 So.3d at 759.

As we have already concluded that the tax sale in this matter violated Gibert’s due process rights and, therefore, is an absolute nullity, we find that Gibert’s Petition to Annul is timely and is not barred by the provisions of either La. Const. art. 7, § 25(C) or 47:2266(A)(2). See also, Orleans Dist. Redevelopment Corp. v. Ocwen Loan Servicing, L.L.C., 2011-0260, pp. 11-12 (La.App. 4 Cir. 12/21/11), 83 So.3d 105, 112, writ denied, 2012-0175 (La.3/23/12), 85 So.3d 96, (“the failure to provide notice of delinquency to an owner or mortgagee offends the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and, consequently, renders the tax sale an absolute nullity, such that neither peremption nor prescription can save the sale”); Quantum Resources Management, L.L.C. v. Pirate Lake Oil Corp., 11-813, p. 4 (La.App. 5 Cir. 5/31/12), 98 So.3d 394, 398 (“[w]hen a tax sale of real property does not meet the constitutional and jurisprudential criteria, including if the debtor’s due process rights were violated because of lack of adequate notice as per Mennonite, the peremptive period of La. Constitution Article VII, § 25(C) does not run. The tax sale is an absolute nullity that may be attacked collaterally at any time, and is not cured by the constitutionally peremptive period”).

CONCLUSION

Based on the reasons set forth above, we conclude the trial court erred in quieting title in Cititax’s favor. We further conclude that the August 14, 2003 tax sale deed is null and void in its entirety for failure to provide notice of the tax sale to Gibert. The trial court’s judgment is reversed.

REVERSED

      .Also named as defendants are Tracy Lynn Meyer, Josephine Gibert Adams Farwell, as successor in interest to C & S Family Credit, Inc., and Charles E. Ruello, who were noted to be "persons with an encumbrance on the property filed in the mortgage records for the Parish of Orleans.”

      . La. R.S. 47:2228 was repealed effective January 1, 2009. It was replaced with La. R.S. 47:2266.

      . While Gibert states that he “became aware” of the tax sale, he does not indicate the date on which he became aware of the sale. In his appellate brief, he indicates that he learned of the tax sale through the co-defendants.

      . While Cititax objected at trial to the introduction of the 1995 act of sale, the trial court recognized it as being a "document in the record” which was attached to the Motion to Consolidate and we take judicial notice of the act of sale.

      . While there is no evidence in the record substantiating that notice of the tax sale was published in the newspaper, at trial, counsel for Cititax noted that two publications were placed in the local newspaper advertising the tax sale. No party disputes that notice of the tax sale was published in the newspaper and the trial court's reasons for judgment took note of this fact.

      . The City surmises that the tax collector was led to believe that "either 1) the address '30 Newcomb' is not the tax debtor and the notice was delivered to a neighbor [which would be insufficient notice], or 2) '30 Newcomb’ was written in because that is the correct address and the tax debtor received the notice.”

      . Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

      . Id., p. 10, 925 So.2d at 1178.

      . Smitko v. Gulf South Shrimp, Inc., 2010-0531 (La.App. 1 Cir. 10/19/11), 77 So.3d 1012, rev’d by Smitko v. Gulf South Shrimp, Inc., 2011-2566 (La.7/2/12), 94 So.3d 750.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Brigham BREDNICH v. BOURBON NITE-LIFE, LLC d/b/a Razzoo Company, Brevort Entertainment Enterprises, LLC, Eddie Robinson, Gaetana Edin, Essex Insurance Company and Mark Weathers.
    No. 2012-CA-1209.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 2012.

      Steven B. Witman, Jene Liggins, Law Offices of Steven B. Witman, Metairie, LA, for Defendant/Appellant.
    Corinne A. Morrison, Peter J. Rotolo, III, Kurt D. Duncan, Chaffe McCall, L.L.P., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

liThe appellant, Philippe Uson (“Uson”), appeals a final judgment rendered in favor of the appellee, Bourbon Nite-Life, L.L.C. (“BNL”), sustaining BNL’s exception of no right of action, dismissing with prejudice all of the claims in Uson’s reconventional demand brought against BNL. Uson also appeals the denial of his related motion for new trial. For the following reasons, we affirm the trial court’s judgments.

I.

In December 2003, BNL entered into a management agreement (the “Agreement”) with Bourbon Enterprises, Inc. (“BET”), whereby BET agreed to manage, operate, promote, and maintain Razzoo’s, a New Orleans Bourbon Street nightclub. On the last page of the Agreement, Uson, the owner of BET, individually intervened therein to personally guarantee the performance of BET’s corporate obligations as well as those obligations delegated specifically to Uson as enumerated therein. According to the Agreement, BET had the exclusive and full responsibility for staffing the nightclub and employee training and ensuring that Razzoo’s was a safe and secure facility.

|2On 19 July 2006, the plaintiff, Brigham Brednich, filed suit against BNL and BET seeking damages as a result of injuries he allegedly sustained in 2005 after being knocked down by a bouncer at Razzoo’s. BNL was named a party defendant as the owner of Razzoo’s and BET was named a party defendant as Razzoo’s manager.

Though the Agreement was in full force and effect on the date Brednich allegedly sustained his injuries, the Agreement was terminated in October 2009. Specifically, Gaetanna Edin Tammetta, on behalf of BNL, and Uson, on behalf of BET, entered into an agreement in principle on 27 October 2009 terminating the Agreement and addressing other related matters.

In April 2011, nearly five years after the inception of this litigation and 18 months after the termination of the Agreement, BNL filed a cross-claim against BET seeking any and all costs and attorneys’ fees incurred by BNL in defending against Brednich’s claims per the terms of the Agreement. BNL also sought recovery from BET of the amount of any judgment rendered against BNL on Brednich’s main demand. BET answered BNL’s cross-claim and filed its own cross-claim against BNL seeking indemnification and contribution for all amounts paid or to be paid for Brednich’s claims. BET’s cross-claim was silent as to any other claims it may have had against BNL.

In July 2011, BNL filed a third-party demand against Uson personally seeking defense and indemnity in accordance with Uson’s written personal guarantee to perform all obligations of BET per the Agreement. Uson answered the demand and, further, asserted a reconventional demand against BNL, alleging |sthat BNL breached the Agreement with BET resulting in personal damages to Uson. Specifically, Uson claimed that he personally suffered damages, including, but not limited to, (a) loss of compensation, of expense reimbursement, and of undistributed profits, all as allegedly provided for the by the Agreement, and (b) other unnamed damages to be proven at trial. In response, BNL filed an exception of no right of action averring that Uson, who was only an intervenor and not an actual party to the Agreement, lacked standing to individually assert any claims on behalf of BET.

BNL’s exception came for hearing on 10 January 2011, at which time the trial court granted the exception finding that Uson had no right of action against BNL for damages he personally sustained for an alleged breach of the Agreement. Judgment was rendered on 17 January 2012, dismissing Uson’s reconventional demand against BNL, with prejudice. Uson filed a motion for new trial, which the trial court denied by judgment dated 16 May 2012. Uson’s timely appeal followed.

II.

Uson contends the trial court erroneously granted BNL’s exception of no right of action because it failed to conclude that he was a party to the Agreement and, as such, maintained a right to sue for personal damages sustained as a result of BNL’s purported breach. We disagree.

Determination of whether a party has a right of action is a question of law. Acorn Community Land Ass’n of Louisiana, Inc. v. Zeno, 05-1489, p. 3 (La.App. 4 Cir. 6/21/06), 936 So.2d 836, 838. An appellate court reviews questions of law by making a determination as to whether the trial court was legally correct or legally incorrect. Id.

The function of an exception no right of action is to determine whether the party asserting the action belongs to a class of persons to whom the law grants the cause of action asserted. Industrial Companies, Inc. v. Durbin, 02-0665, p. 11 (La.1/28/03), 837 So.2d 1207, 1216. The no right of action exception assumes that the petition states a valid cause of action for some person. Id. at 12, 837 So.2d at 1216. The exception of no right of action does not raise the question of the party’s ability to prevail on the merits of the case. Wallace Drennan, Inc. v. Sewerage & Water Board, 98-2423, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 861, 864. Evidence is admissible to rebut or support an exception of no right of action when the grounds of the exception do not appear in the petition. La. C.C.P. art. 931. See also Eubanks v. Hoffman, 96-0629, pp. 5-6 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 600.

In order for Uson to maintain an action against BNL for losses he contends he individually incurred as a result of BNL’s alleged breach, one must first determine that Uson was an actual party to the Agreement. A copy of the Agreement was introduced into evidence. The trial court determined that Uson’s intervention into the Agreement was to guarantee the performance of BET’s obligations thereunder and did not make him a party thereto. The trial court determined that Uson, individually, had no enforceable interest in the Agreement |sand, therefore, could not sue for any personal damages he may have sustained from an alleged breach. We agree.

The Agreement states that it was being executed by and between BNL and BET. BET, not Uson, undertook complete responsibility for managing, operating, promoting, and maintaining Razzoo’s. All payments made pursuant to the Agreement were made to BET; no provision allowed for or entitled Uson to individual compensation or expenses. Moreover, Uson was the principal owner and an employee of BET. While various provisions of the Agreement established obligations for personal performance undertaken and agreed to by Uson, as well as an agreement to be personally responsible for the performance of BET’s obligations, no reciprocal obligations on the part of BNL to Uson were created by which Uson would be considered a party. Additionally, by intervening into the Agreement, Uson did not become a party to it or thereby acquire any personal benefits or rights against BNL. Uson’s intervention into the Agreement was made solely to provide security to BNL for the performance of BET’s obligations thereunder. See La. C.C. art. 1913. Uson was solely a guarantor or surety of BET’s obligations. See La. C.C. art. 8035. Accordingly, we find the trial court properly determined that Uson was not a party to the Agreement and, thus, had no personal right of action against BNL for personal damages that he may have sustained as a result of BNL’s purported breach.

Though Uson, as solely a guarantor or surety, lacked standing to bring a claim against BNL for his own personal losses, we note that Uson might have had ^standing at one time to assert an oblique action against BNL for a cause of action that BET may have had but failed to exercise against BNL for losses it sustained as a result of BNL’s alleged breach (i.e. wrongful termination of the Agreement, loss of net profits, etc.). However, in asserting an oblique action, Uson could only assert those rights belonging to BET.

The record shows that BET was named a defendant in the underlying suit by way of Brednich’s first supplemental and amending petition filed on 11 July 2008. Thereafter, on 19 May 2011, BET filed a cross-claim against BNL seeking indemnity and contribution. The cross-claim is devoid of any claim by BET that it may have had against BNL for breach of the Agreement or for loss of profits and/or compensation. La. C.C.P. art. 425 A provides that “[a] party shall assert all causes of action arising out of the same transaction or occurrence that is the subject matter of the litigation.” Because BET failed to assert all claims it may have had against BNL pertaining to the Agreement in its cross-claim as required by article 425, BET effectively waived those claims, thereby precluding Uson from asserting those claims against BNL in an oblique action.

III.

Accordingly, we conclude that Uson had no right of action against BNL for any personal damages he may have sustained as a result of any breach by BNL of the Agreement. Any right of action Uson would have had would have been in the form of an oblique action which he cannot now assert by virtue of BET’s failure to |7assert same in its cross-claim that is now res judicata. Having found no error of law in its judgment, we hold the trial court did not abuse its broad discretion when it denied Uson’s motion for new trial. La. C.C. art. 1972; see also Guillory v. Lee, 090075, p. 38 (La.6/26/09), 16 So.3d 1104, 1131; McGhee v. Wallace Drennan, Inc., 04-0950, p. 11 (La.App. 4 Cir. 4/20/05), 904 So.2d 3, 9.

AFFIRMED.

LOBRANO, J., concurs in the result.

      . It is undisputed that BET, while a corporation, was a one-person enterprise involving Uson. At all times pertinent, Uson was an employee of and compensated by BET.

      . Uson contends that BNL breached the Agreement by terminating it without cause and by failing to give Uson or BET written notice of default and thirty days within which to correct the alleged default resulting in his incurring personal damages.

      . Uson contends that his intervention into the Agreement, coupled with the obligations he personally undertook as set forth therein, made him an actual party rather than a mere guarantor of BET's obligations and, accordingly, vested him with certain contractual rights as against BNL.

      . La. C.C. art. 3035 relates to "suretyship,” which provides that a "[s]uretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so."

      . Oblique actions are governed by La. C.C. art. 2044, which provides:
      If an obligor causes or increases his insolvency by failing to exercise a right, the obligee may exercise it himself, unless the right is strictly personal to the obligor.
      For that purpose, the obligee must join in the suit his obligor and the third person against whom that right is asserted.


author: THIBODEAUX, Chief Judge.

text:
    SUCCESSION of James Robert COLE, Sr.
    No. 12-802.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 26, 2012.

      Byron Andrew Richie, Richie, Richie & Oberle, L.L.P., Shreveport, LA, for Appellant, Cynthia Anne Cole.
    Robert Patrick Vance, Jones, Walker, Waechter, Poitevent, Carrére & Denégre, L.L.P., New Orleans, LA, for Appellee, James R. Cole, Jr., Individually.
    Jean-Paul Perrault, McGlinchey, Stafford, P.L.L.C., Baton Rouge, LA, for Ap-pellee, James R. Cole, Jr., as Executor.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

hln this dispute over the appropriate disposition of shares of bank stocks inherited by two siblings, legatee Cynthia A. Cole (Cindy) appeals from a judgment dismissing her attempt to rescind a compromise and her claim of a breach of fiduciary duty, and granting the exceptions of her brother, co-heir, and executor of her father’s estate, James Robert Cole, Jr. (Jim). For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding a compromise between the parties and in granting Jim Cole’s exception of res judicata;
(2) whether the trial court erred in granting Jim Cole’s exception of prescription and dismissing Cindy Cole’s claims for damages for breach of fiduciary duty; and
(3) whether the trial court abused its discretion in charging one half of the litigation expenses to the estate.

II.

FACTS AND PROCEDURAL HISTORY

The deceased, James Robert Cole, Sr. (Mr. Cole), was the majority stockholder of Sabine Bancshares, Inc. (SBI), a bank holding company which owned 100% of the shares of Sabine State Bank & Trust Company in Sabine Parish, Louisiana. In 2006 Mr. Cole executed a six-page will naming his son Jim as the executor of his succession. At the time of his death in April 2007, Mr. Cole owned 7,041 shares, representing 70.67%, of the 9,963 outstanding shares in SBI; Jim and Cindy each owned 1,406 shares; and thirteen other shareholders owned a total of 110 shares. Mr. Cole’s will provided for special bequests of movable and immovable property, specific charitable donations, and it created a family trust for the ^grandchildren, naming Jim as trustee and bequeathing 1,000 shares of the SBI stock to the trust. The remaining 6,041 shares of SBI stock fell to the residual estate which Mr. Cole left to his two children, Jim and Cindy, to “share and share, alike.”

As executor of the succession, during the eight months following his father’s death, Jim filed approximately twenty-five petitions seeking authority to continue business, pay estate debts, invest funds, sell timber, and sell immovable property in private sales and public auctions. One of the directives in the will instructed that the new trust created by the bequeathal of 1,000 shares of SBI stock, be free of all estate and inheritance taxes of any nature, with all such taxes to be paid from the residual estate. The federal estate and gift transfer taxes owed by the succession came to approximately twenty-one million dollars, and they were due on January 17, 2008.

On December 10, 2007, Jim filed a twelve-page petition for authority to apportion the 6,041 shares of SBI stock, and the tax liability, equally between himself and Cindy. The petition asserted that, while the executor [Jim] had netted $9,466,207.00 for the succession, there remained a cash deficiency of $11,327,003.00 for the taxes due the following month. It sought authority for the executor to borrow up to $8,000,000.00 and to collect $1,971,550.00 each, from Cindy and Jim, via advances on their inheritances. The petition further sought authority to sell over 400 of Cindy’s shares of SBI stock to fund her cash contribution.

On January 4, 2008, Cindy filed an opposition to the December 10 petition, asserting that the succession had the financial capacity to borrow all of the funds necessary to meet the tax liability without using the “extraordinary” means suggested by Jim. She further asserted that Jim had failed in his duty as succession representative to act in the best interest of the succession and its legatees by refusing to consider alternative means of obtaining the funds to pay the taxes.

|aOn January 7, 2008, the trial court conducted a contradictory hearing on Jim’s December 10 petition and Cindy’s opposition to it. Both Jim and Cindy were present, and both were represented by counsel. After the entry of opening statements, exhibits, stipulations, and some testimony by Cindy, the court recessed. When court reconvened, the parties had reached an agreement, the terms of which were read into the record by Jim’s attorney, characterizing the agreement as a compromise. Cindy’s attorney agreed to the stipulated agreement as cited and further stipulated that Jim had “complied with his fiduciary obligation as succession representative insofar as the payment of the federal estate and generation skipping tax.”

On January 23, 2008, the parties jointly submitted and signed a consent judgment entitled, Judgment on Petition by Succession Representative for Authority Filed December 10, 2007. The 2008 consent judgment authorized the executor [Jim] to apportion the 6,041 shares of SBI stock equally between Jim and Cindy, allocating 3,020.5 shares to each. Subsequently, Cindy obtained new counsel, and a dispute arose over the division of the shares. The premise of Cindy’s dispute is that she inherited an undivided interest in 6,041 shares, whose value as a controlling majority block was severely diminished by the in-kind division authorized in the consent judgment. She apparently seeks a partition by licitation at some point.

Cindy attempted unsuccessfully in March 2011 to get Jim to join her in a motion to modify and partially annul the 2008 consent judgment. Jim filed a petition for a declaratory judgment confirming the 2008 consent judgment.

On May 26, 2011, Cindy filed reconven-tional demands seeking to set aside the 2008 consent judgment; seeking a declaratory judgment regarding the indivisión ownership of the stock; and seeking damages and attorney fees for breach of fiduciary duty resulting in diminution of the value of the allocated shares.

Jim filed exceptions of res judicata and no cause of action as to Cindy’s demands for setting aside the 2008 consent judgment, and he filed an exception of ^prescription as to Cindy’s demand for damages for breach of fiduciary duty. Due to a dispute over the succession’s attorney fees, Jim also filed a motion for payment of attorney fees.

Following a contradictory hearing, the trial court dismissed Cindy’s claims regarding the allocation of the stock, declaring that the 2008 consent judgment was a valid and enforceable compromise not subject to set aside or modification on any of the grounds asserted. The judgment declared that the 6,041 shares of SBI stock would be divided in kind with 3,020.5 shares going to each, Jim and Cindy, after all debts and charges of the succession were paid.

The court’s judgment granted Jim’s exception of res judicata regarding the pre-clusive effect of compromise; it pretermit-ted Jim’s exception of res judicata as it pertained to a final judgment; and it pre-termitted Jim’s exception of no cause of action.

The judgment also granted Jim’s exception of prescription as to any and all of Cindy’s claims based upon breach of fiduciary duty; and it granted in part and denied in part Jim’s request for the payment of attorney fees from the succession. Cindy filed the appeal. We must affirm the judgment of the trial court.

III.

STANDARD OF REVIEW

“The standard of review of a ruling sustaining an exception of res judicata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties.” Steckler v. Lafayette Consol. Gov’t, 11-427, p. 2 (La.App. 3 Cir. 11/2/11), 76 So.3d 161, 164 (citations omitted). An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).

JiV.

LAW AND DISCUSSION

ISSUE (1): THE 2008 CONSENT JUDGMENT

Cindy now challenges the validity of the 2008 consent judgment as a compromise and an apportionment of the inherited stock, asserting that it should be set aside on grounds of mutual error, exceptional circumstances, the capacity of Jim individually and as executor, non-compliance with notice/publication requirements, violation of the Bank Holding Company Act of 1956, and provisional partition. We find no manifest error in the trial court’s judgment dismissing these claims for the following reasons.

Compromise

Compromise is governed by La.Civ.Code arts. 3071 through 3083. “A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or uncertainty concerning an obligation or other legal relationship.” La.Civ.Code art. 3071. It must be “made in writing or recited in open court” rendering it “susceptible of being transcribed from the record of the proceedings.” La. Civ.Code art. 3072. “A compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” La.Civ.Code art. 3080.

Compromise agreements made to avoid litigation are favored by law, and courts will not declare a settlement void without a clear showing that it violates good morals or the public interest. Brignac v. Brignac, 96-1702 (La.App. 3 Cir. 6/18/97), 698 So.2d 953, writ denied, 97-2584 (La.1/16/98), 706 So.2d 976.

The essential elements of a compromise are (1) mutual intention of putting an end to the litigation and (2) reciprocal concessions of the parties in adjustment of their differences. The Code also specifically requires a contract in writing. The party urging an exception of res judicata based on a contract of compromise has the |fiburden of proving each of the essential requirements by a preponderance of the evidence.

Rivett v. State Farm Fire and Cas. Co., 508 So.2d 1356, 1359 (La.1987) (footnotes omitted).

Here, the trial court found that the first element of compromise was satisfied because Cindy and Jim appeared at the January 2008 hearing on Jim’s disputed petition of December 10th which specifically asked for a partition of the 6,041 shares of SBI stock in the residual estate. During a recess of the hearing, the parties expressed their intent to resolve the issues in the petition and thereafter placed a compromise before the court and read it into the record, making apparent the mutual intention of putting an end to this step of the litigation.

The trial court found the second element of a compromise met because Jim and Cindy made reciprocal concessions in adjustment of their differences. In the December 10th petition, Jim had sought to apportion the stock equally, or in kind, resulting in the separate ownership of 3,020.5 shares each; he also sought authority to reduce Cindy’s allocated shares from 3,020.5 to 2,604.5 and to sell those 416 shares for book value in order to pay what he considered Cindy’s portion of the estate taxes, $1,971,550.00. Cindy did not want her shares reduced and sold, and she did not want to contribute $1,971,550.00 toward the payment of estate taxes. She wanted the estate to borrow all funds needed for the difference between the tax debt and the cash on hand, approximately $12,000,000.00, instead of borrowing only the $8,000,000.00 that Jim had initially suggested.

Jim conceded, agreeing to apportion the stock at 3,020.5 shares each, without reducing Cindy’s allocation and without selling 416 of her shares to pay the taxes; Jim further agreed to borrow up to $12,000,000.00 for the payment of taxes, instead of $8,000,000.00; and he withdrew the requirement of the $1,971,550.00 contribution from Cindy toward the payment of taxes. Cindy in turn stipulated that | vJim had fulfilled his fiduciary duty in funding the tax liability, thereby foregoing future litigation on that issue.

The trial court found that the writing requirement was also satisfied. The compromise was recited into the record in open court on the day of the hearing, January 7, 2008, becoming part of the written minutes and written transcript of the hearing. It was then recorded as a consent judgment signed by the court on January 23, 2008. Accordingly, the elements of a compromise are met under La.Civ. Code arts. 3071 and 3072.

The compromise in this case also became a consent judgment wherein the trial judge ORDERED, ADJUDGED, AND DECREED fourteen issues between the parties.

A consent judgment is a determination of the rights of the parties and acquires the authority of the thing adjudged. McLain v. McLain, 486 So.2d 1044 (La.App. 2d Cir.1986); Townsend v. Townsend, 421 So.2d 969 (La.App. 3d Cir.1982), writ denied, 427 So.2d 1211 (La.1983). The thing adjudged is said of that which has been decided by final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been affirmed on appeal. La. C.C. art. 3556(31); McLain, 486 So.2d at 1046.

Thibodeaux v. Thibodeaux, 511 So.2d 102, 105 (La.App. 3 Cir.1987).

A consent judgment is, by its very nature, an agreement between the parties to resolve their differences and as such, it is not limited by the pleadings. In other words, while the relief granted by the courts is limited by the demands of the parties, the parties can, by agreement, expand on that authority by means of a consent judgment.

McLain, 486 So.2d at 1047.

Here, Cindy did not appeal or challenge the validity of the 2008 compromise and consent judgment for over three years. She now assigns six errors by the trial court in its April 2012 judgment for refusing to set aside the 2008 consent judgment.

| ¡Mutual Error

Cindy asserts that the trial court erred in finding that the ownership interest of the stock was knowingly in dispute at the January 7, 2008 hearing and in failing to set aside the compromise on the basis of mutual error. We disagree. “A compromise may be rescinded for error, fraud, and other grounds for the annulment of contracts. Nevertheless, a compromise cannot be rescinded on grounds of error of law or lesion.” La.Civ.Code art. 3082. Cindy argues that the allocation in the compromise embodies an erroneous interpretation of her father’s testament, which she claims was a factual error that can be used to rescind a compromise. This argument has no merit. The interpretation of a testament is a question of law. Succession of Collett, 09-70 (La.App. 3 Cir. 6/3/09), 11 So.3d 724, writ denied, 09-1485 (La.10/2/09), 18 So.3d 112. It, therefore, cannot form the basis for the rescission of a compromise.

Cindy cites La.Civ.Code art. 3076, which states: “A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” La.Civ. Code art. 3076. The record is clear that the apportionment of the stock was intended to be a part of the compromise. Cindy knew about stock valuations, and she wanted the apportionment. The expert report that Cindy explains in depth as establishing the value difference between majority and minority shares was issued in November of 2007 before the January 2008 hearing, compromise, and consent judgment.

Further, in her deposition on December 18, 2007, Cindy testified that she had read the will and understood that the residual estate was to be divided equally between herself and Jim. She stated at least four times that she agreed to the allocation of 3,020.5 shares to each of them. Following the consent judgment in 2008, Cindy’s second set of attorneys filed pleadings in 2009 and 2010 asserting that the will of the deceased bequeathed half of the stock at issue to Jim and half to Cindy. It 13was not until Cindy hired her third set of attorneys that she argued in May of 2011 that the apportionment was not part of the compromise. Under La.Civ.Code art. 3076, the ultimate loss in value was a necessary consequence of the division of the shares in the compromise.

Exceptional Circumstances

Cindy asserts that the trial court erred in failing to set aside the 2008 judgment based upon “exceptional circumstances” pursuant to La.R.S. 13:4232(A)(1), which provides exceptions to the general rule of res judicata. It states, in pertinent part, that “[a] judgment does not bar another action by the plaintiff [w]hen exceptional circumstances justify relief from the res judicata effect of the judgment.” La. R.S. 13:4232(A)(1). The exceptional circumstance urged by Cindy and considered by the trial court was “the unknowing destruction of a controlling interest in a $685,000,000.00 corporation.” The statute’s historical notes provide that the discretion given to the judge to grant relief from a judgment for exceptional circumstances “is necessary to allow the court to balance the principle of res judicata with the interests of justice.” La.R.S. 13:4232, Comment — 1990. However, this “discretion must be exercised on a case by case basis and such relief should be granted only in truly exceptional cases, otherwise the purpose of res judicata would be defeated.” Id.

The trial court found that the stock was susceptible to division in kind and that such partitions in kind are favored by law under La.Code Civ.P. art. 4606. The trial court articulated that, while dividing a majority block of stock equally between two heirs may decrease its fair market value because of the loss of the control | inpremium, the court could “think of no instance where that would not be true for any close[d] corporation as it is the nature of the corporate beast.” Where the court found no exception carved out for corporate shares, it concluded that the loss of value was commonplace rather than exceptional in corporate existence. It, therefore, did not rise to the degree necessary to defeat a claim of res judicata.

The trial court further found that Cindy had knowledge of the valuation and control premium before the 2008 judgment and that she should have raised the issue or reserved it prior to signing the consent judgment. We agree. Comment — 1990 to La.R.S. 13:4232 states that the exception for exceptional circumstances “is not intended to apply in the case where the plaintiff has simply failed to assert a right or claim for damages through oversight or lack of proper preparation.” Accordingly, we find no abuse of the trial court’s discretion in declining to find exceptional circumstances.

Provisional or Definitive Partition

Cindy asserts that the trial court erred in failing to set aside the allocation as a “provisional” partition rather than a “final” partition. We disagree. While the trial court did not provide written reasons on this issue, the Louisiana Civil Code provides for the nature of the partition of succession property:

Art. 1295. Definitive and provisional partitions, definitions
Every partition is either definitive or provisional:
Definitive partition is that which is made in a permanent and irrevocable manner;
Provisional partition is that which is made provisionally, either of certain things before the rest can be divided, or even of everything that is to be divided, when the parties are not in a situation to make an irrevocable partition.
Art. 1296. Definitive and provisional partitions, distinguished
InBy definitive partition is also understood the judicial partition, made according to law; and by provisional partition, that in which the formalities prescribed by law have not been observed, or that by which the parties are not definitively bound.

The allocation of shares in this case was definitive because the matter was settled in a valid compromise, and, as previously indicated, the formal requirements of a compromise under La.Civ.Code art. 3072 were met. The compromise has, as between the interested parties, a force equal to the authority of things adjudged. La. Civ.Code art. 3078. Further, in this case, the compromise containing the allocation became a signed judgment of the court; therefore, it was a judicial partition which is a definitive partition under La.Civ.Code art. 1296. We find the following case instructive.

In Lapeyrouse v. Lapeyrouse, 98-0271 (La.App. 1 Cir. 2/19/99), 729 So.2d 682, the parties in ongoing litigation, prior to the trial to partition the community property, notified the court that the matter had been settled, and both parties executed a partition of community property agreement. In addition to the agreement, a consent judgment was prepared and approved both by the plaintiff’s attorney and the defendant’s attorney, and it was signed by the trial court and attached to the court’s judgment. When the husband filed a pleading to rescind the partition for lesion under La.Civ.Code art. 814, the first circuit concluded that the partition at issue was a judicial partition and that an action for lesion would lie only against an | ^extrajudicial partition. It, therefore, upheld the exception of no cause of action and dismissed the plaintiffs suit.

Similarly, in Daigle v. Daigle, 06-346 (La.App. 3 Cir. 9/27/06), 940 So.2d 891, writ denied, 06-2914 (La.2/16/07), 949 So.2d 418, when the husband sought to annul the parties’ original partition of community property, arguing that it was extrajudicial and subject to rescission on the grounds of lesion, pursuant to La.Civ.Code art. 814, our court found that his action was barred by res judicata. Our court stated that Daigle’s request that the trial court partition the community property merely asked the trial court to do what had already been done. The original partition was not an extrajudicial partition, but one approved by the trial court four years earlier; therefore, the consent judgment was final, and options for reversal had prescribed and no longer existed.

It is the public policy of our judicial system to provide an unalterable method to terminate litigation. The Louisiana Supreme Court has consistently held that legally confected in-court judicial settlements are binding. Collins v. Capital Valve and Fitting Co., 409 So.2d 579 (La.1982); Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981).

Adams v. Adams, 529 So.2d 877, 879 (La.App. 4 Cir.), writ denied, 533 So.2d 363 (La.1988).

Publication of Notice

Cindy further contends that the trial court erred in not setting aside the compromise where Jim failed to publish notice of the compromise pursuant to the La. Code Civ.P. arts. 3198 and 3229. Article 3198 provides that a succession representative may “[ejffect a compromise of an action or right of action by or against the succession” with court approval “after notice as provided by Article 3229.” Article 3229 provides that notice of an application for a court order under certain articles, including Article 3198, be published once in the parish where the succession proceeding is pending.

Citing Couret v. Couret, 206 La. 85, 18 So.2d 661 (La.1944), the trial court found that Cindy had waived her right to attack the judgment procedurally when she knowingly, and with advice of counsel, consented to its rendition. Citing Brown v. Sutton, 356 So.2d 965 (La.1978), the trial court stated that because Cindy was present and well-represented by competent counsel, the lack of formal notice was cured by actual notice. We find no manifest error in the trial court’s finding.

Capacity

Cindy asserts that Jim appeared in the compromise as the succession representative, and not in a personal capacity. Thus, there was no compromise between the co-heirs, only a compromise between Cindy as co-heir and Jim as succession representative. This argument has no merit. While Jim did file the 2007 petition for authority, and the 2008 compromise and consent judgment, as the executor of the succession, he also appeared personally as the only other co-heir. Contrary to Cindy’s assertions attempting to analogize this compromise to the compromise in Succession of Ramp, 252 La. 660, 212 So.2d 419 (1968), there were no absent heirs when the compromise was confected. Jim was not absent, he was physically there in person with Cindy, and they, alongside their attorneys, effected the compromise together as the only two heirs to the succession.

The trial court found that Jim acted in a dual capacity for a number of reasons: (1) the verification affidavit of the December 2007 petition adds Jim as an individual coheir and bespeaks his individual intent; (2) Jim effected the 2008 compromise and consent judgment with added individual capacity where the judgment referred to him as the succession representative, and it also adjudicated his individual rights via the obligation that he personally loan nearly two million dollars to the succession; (3) the succession was powerless to obligate a co-heir to a personal loan; therefore, it was Jim’s “additional, present and appearing capacity as individual |uco-heir that personally obligated him ... [and] his two personas became fused in the 2008 Judgment;” (4) Cindy’s “wrong hat” claim must be available for all co-heirs, including Jim, and there would be no logic in allowing Jim to unravel his personal obligation and back out of the personal loan because he was wearing the hat of executor of the succession. We agree with the trial court, “one mind obligated two personas.”

Bank Holding Company Act

Cindy asserts that the apportionment which divided the controlling interest in SBI should have been set aside under the Bank Holding Company Act of 1956, 12 U.S.C. §§ 1841-1852, and the regulations adopted thereunder which govern the transfer of a controlling interest in a bank holding company. More specifically, she argues that, pursuant to 12 C.F.R. 225.41(a), the parties are required to give the Federal Reserve Board sixty days written notice before acquiring control of a bank holding company unless the acquisition is exempt under 12 C.F.R. 225.42. Accordingly, the Code of Federal Regulations at Title Twelve (12), on “Banks and Banking,” provides just such an exemption at 12 C.F.R. 225.42(b)(i) for the “[acquisition of voting securities through inheritance.”

The trial court further articulated:

Given that this court has yet to render a judgment of possession on the allocated stock (presently pledged as loan security in the interim), there has been no “acquisition” to trigger the notice period. Thus, Cindy Cole’s argument fails.

On appeal, Cindy responds by asserting that the 2008 partition was not binding or final because the parties have not been put in possession of the stock. 11fiHowever, a binding partition can be effected between co-heirs without possession. La.Civ.Code art. 1320.

In McLain, 486 So.2d 1044, the court found a consent judgment partitioning property binding, even though it was con-fected before the legal separation, divorce, and dissolution of community property, “where the judgment specifically provided that partition would be effective after legal separation or divorce, which subsequently occurred.” Id. at 1046 (emphasis added).

Similarly, here, the partition judgment in 2008 directed the executor to apportion the stock at 3,020.5 shares each, subject to the loan agreement to which the stock was being pledged. Likewise, the current 2012 judgment under appeal confirmed the 2008 stock allocation and specifically stated that:

[U]pon the termination of the administration of the Succession’s affairs, the payment of all debts and ... all accounts have been filed in accordance with law, that the Succession Representative is hereby authorized and directed to divide the Succession’s interest in the common stock of Sabine Bancshares, Inc., in kind such that 3,020½ shares shall issue to each of Jim and Cindy.

Accordingly, we find, as the trial court found, that none of the grounds asserted by Cindy for setting aside the 2008 compromise and consent judgment has merit. We agree with the court’s finding that the compromise was valid and enforceable.

| Kfies Judicata

The peremptory exception of res judicata is the proper mechanism to raise the defense that a suit is barred by a written compromise agreement. In re Tutorship of Witt, 99-646 (La.App. 3 Cir. 11/3/99), 747 So.2d 1142, writ denied, 99-3426 (La.2/4/00), 754 So.2d 238. “'While the doctrine of res judicata is ordinarily premised on a final judgment on the merits, it also applies where there is a transaction or settlement of a disputed or compromised matter that has been entered into by the parties. Thus, compromises have the legal efficacy of the thing adjudged.” Ortego v. State, Dep’t of Transp. and Dev., 96-1322, p. 6 (La.2/25/97), 689 So.2d 1358, 1363 (citations omitted).

Moreover, a consent judgment is a final judgment subject to res judicata if there is no appeal or request for a new trial within the delays allowed by law. See Kepco Operating, Inc. v. Eubanks, 10-1166 (La.App. 3 Cir. 3/9/11), 58 So.3d 1047, writ denied, 11-705 (La.6/3/11), 63 So.3d 1017; Weinstein v. Weinstein, 10-1083 (La.App. 3 Cir. 4/13/11), 62 So.3d 878.

Based upon the foregoing, as to the first issue under review, we find no error by the trial court in finding a valid and enforceable compromise and consent judgment and in dismissing Cindy’s claims regarding the partition of the stock pursuant to Jim’s exception of res judicata.

ISSUE (2): BREACH OF FIDUCIARY DUTY & PRESCRIPTION

Cindy asserts that the trial court erred in granting Jim’s exception of prescription on Cindy’s claims for breach of fiduciary duty. We disagree. When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. London Towne Condo. Homeowner’s Ass’n v. London Towne Co., 06-0401 (La.10/17/06), 939 So.2d 1227. Ordinarily, the exceptor bears the burden of proof at the trial of a peremptory exception of prescription; however, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. SS v. State ex rel. Dep’t of Soc. Servs., 02-831 (La.12/4/02), 831 So.2d 926.

Here, the trial court applied La.Civ. Code art. 3492, which provides that delic-tual actions are subject to a liberative prescription of one year. The court found that Cindy’s reconventional demand was filed in May 2011, “clearly more than one year” from the January 7, 2008 compromise and the January 23, 2008 consent judgment. Then, without discussing what conduct was claimed by Cindy as a breach of fiduciary duty entitling her to damages, the trial court found that any claim for damages by Cindy, “insofar as a breach of fiduciary duty sounds in tort, has prescribed.”

The character a plaintiff gives her pleadings determines the prescription period applicable. When a plaintiff sues for the value of property wrongfully taken or detained, the action is regarded as one for damages based upon an offense or quasi offense, and the prescription of one year is applicable. See Edward Levy Metals, Inc. v. New Orleans Public Belt R.R., 139 So.2d 80 (La.App. 4 Cir.1962).

Cindy’s reconventional demands of May 26, 2011, assert that Jim breached his fiduciary duty by causing, and then refusing to rescind, the apportionment in January 2008 because the apportionment diluted the controlling interest in SBI and diminished the fair market value of the stock. We find that, regarding Cindy’s claims for breach of duty against Jim due to the partition, whether against Jim personally for detriment to her inheritance, and/or against Jim as executor 11sfor detriment to the estate, those claims have been addressed substantively, and prescription is moot.

Cindy’s reconventional demands of May 26, 2011, also assert that Jim breached his fiduciary duty through several acts in January 2008 leading to the passage of the shareholder agreement and board member election. She alleges conflicts of interest and asserts that Jim combined his position as Chairman of the Board of SBI, and his position as executor of the succession owning 70% of SBI, to pass a shareholder agreement that impermissibly restricted her ability to sell her shares, including her pre-existing 1,406 shares, to anyone but Jim, and for any value except book value, thereby diminishing the value of her shares by 50%. She further asserts that Jim made a motion and voted to reduce the board seats resulting in her removal from SBI’s board of directors. Cindy prays for damages for diminution of the value of the shares, attorney fees, and costs against Jim in his personal and representative capacity.

The record reveals that on January 16, 2008, Jim did vote the 7,041 estate shares to reduce the board membership, even though he had earlier, on January 7th, agreed to allocate 3,020.5 of those shares to Cindy. Cindy admits that La. R.S. 12:75(E) authorizes Jim to vote the succession shares. We have found that the 2008 compromise and consent judgment, and the trial court’s 2012 judgment confirming it, authorize Jim to ultimately divide the shares of stock, in kind, upon the termination of the succession. Therefore, the division has not taken place as yet; Jim is still the |Tnexecutor of the succession, which is still under his administration. Thus, La.R.S. 12:75(E) is still applicable.

Further, it was not Jim’s conduct in voting the 3,020.5 shares slated for allocation to Cindy that caused the passage of the shareholder agreement or the elimination of the board seat. Those items were passed by the votes of the other thirteen shareholders voting their 110 shares in SBI as well. Hence, the result would have been the same if the 7,041 succession shares had not been voted. Jim and Cindy voted opposite each other, so their preexisting ownership of 1,406 shares, each, basically cancelled each other out. It was the remaining thirteen shareholders, voting, either in person or by proxy, all of their 110 shares in favor of the shareholder agreement and the board seat elimination, who caused the passage of those items. Not only is causation missing, but there is also an issue of actual damages since neither possession nor sale of the stock has yet occurred.

With regard to the conflict of interest, La.Code Civ.P. art. 3351.1 indicates that the shared role as officer of a corporation and executor of a succession owning the majority of the shares in the corporation results in limitations on the amount of the executor’s compensation, but the shared role is not forbidden as a conflict of interest.

The executor’s fiduciary duty is as follows:

lanA succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.

La.Code Civ.P. art. 3191.

Cindy asserts that the trial court erred in not applying La.R.S. 9:5621, which provides for a two-year prescriptive period for actions against succession representatives. She correctly states that this prescriptive period does not begin to run until the day of the judgment homologating the final account, which has not occurred. Therefore, the action for breach of fiduciary duty under this article is premature. It is true that the trial court did not address this statute; however, neither can the claims urged thus far by Cindy, because the damages cannot yet have occurred.

ISSUE (3): PARTIAL PAYMENT OF FEES BY THE ESTATE

Jim petitioned the court for approval for the succession to pay the McGlinchey Stafford law firm fees incurred by the firm while acting as counsel for the succession representative for the work of defending the 2008 judgment. The trial court granted in part, and denied in part, Jim’s petition, assessing one half of the fees to Jim personally and one half of the fees to the succession. Jim does not appeal the judgment.

Cindy asserts that the trial court erred when it apportioned to the estate one half of the attorney fees because the legal representation at issue was primarily for the personal benefit of Jim. She argues that the succession did not incur fees until March 2011 when she asked Jim for modification of the 2008 judgment. Jim argues that the succession sustained fees defend-mg the testator’s intent and largely from Cindy’s litigious flip-flopping of her position on the allocation of shares, voting rights, and other issues.

[ 2i The payment of succession debts and expenses is authorized throughout the Louisiana Code of Civil Procedure, including articles 3301, et seq., and the Louisiana Civil Code, including articles 1421, et seq. See also, La.Code Civ.P. art. 3244. The trial court articulated as follows:

[Fjinding that Jim Cole and Cindy Cole entered into a compromise representing one hundred percent of all heirs to the residuary estate, no intent of the testator was at risk to require defending to the degree the succession claims. As discussed supra, as heirs, being sui jur-is and being the only persons having an interest in the residuary estate of their father, [they] opted to partition the shares without concern of the testator’s intent or issue regarding the joint or separate legacy. Therefore, it is Jim and Cindy Cole litigating their personal interests in the compromise.
37. However, the 2008 Judgment also had Jim Cole appearing as succession representative as the compromise addressed how the estate taxes were to be paid. As the succession had an interest that the taxes be paid as agreed and defend its reliance upon the compromise to do so, this court finds that half of the subject fees of this motion be paid by the succession and the other half by Jim Cole, individually and as co-heir.

The trial court made reasonable factual findings, supported by the record, and we will not disturb those findings on appeal.

V.

CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed in all respects. The costs of this appeal are assessed against the appellant, Cynthia A. Cole.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 4606 provides: "Except as otherwise provided by law, or unless the property is indivisible by nature or cannot conveniently be divided, the court shall order the partition to be made in kind.”

      . We further note that La.Civ.Code art. 814 allows rescission of an extrajudicial partition for lesion "if the value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion he should have received.” Here, the fair market value of the stock was settled with the IRS at $6,000.00 per share. One fourth (!A) or 25% of $6,000.00 is $1,500.00. Therefore, to rescind a partition for lesion under Article 814, if there were a determination of extrajudicial partition, which there is not, there must be a loss greater than $1,500.00 per share. Cindy asserts a book value of $4,636.00 and a loss of $1,364.00 per share for the loss of the control premium. Therefore, the loss per share would not be enough to rescind the partition for lesion under Article 814. Further, as previously stated, the partition here was a compromise, which "cannot be rescinded on grounds of error of law or lesion." La.Civ. Code art. 3082.

      . The Louisiana Civil Code, Book III, Title I, Chapter 12, Section 2, Among What Persons Partition Can Be Sued For, Article 1320 provides as follows:
      Art. 1320. Ownership as basis for action of partition
      It is not necessary, to support the action of partition, that the coheirs, or the party commencing it, should be in actual possession of the succession or of the thing to be divided; for among coheirs and coproprietors, it is not the possession but the ownership, which is the basis of the action.

      . However, we make note of the fact that Cindy has asserted that both parties ''unknowingly” diminished the value of the stock by partition, which is reflective of a claim based upon negligence with a one-year prescriptive period under La.Civ.Code art. 3492.

      . Any person in whose name shares are registered in a fiduciary capacity, may, so far as concerns the corporation, vote the same in person or by proxy for all purposes, and without the necessity of any authorization by a court or of any judicial or other proceeding provided in particular laws.
      La.R.S. 12:75(E).

      . Unless expressly stated in the testament appointing the succession representative, if the succession representative, in discharging his duties as succession representative, is or becomes an officer of a corporation, in which the majority of outstanding shares were owned by the decedent at the time of his death, or is or becomes the managing partner of a partnership in which the decedent at the time of his death owned a majority interest, the succession representative shall not receive compensation both as a succession representative and as an officer of the corporation, or managing partner of the partnership; however, the compensation of a succession representative shall be reduced by the amount of compensation which he received and which was attributable to the performance of his duties as an officer of the corporation or managing partner of the partnership.
      La.Code Civ.P. art. 3351.1(A) (emphasis added).


text:
    STATE of Louisiana v. Reginald WILLIAMS.
    No. 2012-K-1604.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 7, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Relator, State of Louisiana.
    Reginald Williams, Angola, LA, Respondent.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

|/We find no error in the trial court’s ruling on Reginald Williams’ “Motion to Correct Illegal Sentence,” inter alia, because the relator, State of Louisiana, acknowledges that under Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the automatic imposition of life imprisonment without benefit of parole for a murder conviction of a defendant who was a juvenile at the time of the offense violates the U.S. Constitution’s Eighth Amendment’s prohibition of cruel and unusual punishment. Miller is retroactive to cases that were final in Louisiana at the time the decision in Miller was rendered by application of the per curiam in State v. Simmons, 11-1810 (La.10/12/12), 99 So.3d 28.

SUPERVISORY WRIT DENIED.

      . In the limited record before us, we note the absence of any indication that the trial court has entered an order to determine counsel for Mr. Williams for the hearing, a requirement, in our view, under Miller.


author: MADELEINE M. LANDRIEU, Judge.

text:
    Robyn PAPANIA, Individually and on Behalf of her Minor Child, Bradley Taylor Papania v. STATE of Louisiana, through the BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, et al. Robyn Papania, Individually and on Behalf of her Minor Child, Bradley Taylor Papania v. State of Louisiana, through the Board of Supervisors of Louisiana State University, et al.
    Nos. 2012-CA-0551, 2012-CA-0552.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 9, 2013.

      T. Carey Wicker, III, J. Alex Watkins, Capetelli & Wicker, New Orleans, LA, for Plaintiff/Appelleé, Robyn Papania, et al.
    Dennis J. Phayer, Scott O. Gaspard, Burglass & Tankersley, L.L.C., Metairie, LA, for Defendants/Appellants, State of Louisiana and Dr. Toni Denson.
    (Court composed of Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET).
   MADELEINE M. LANDRIEU, Judge.

|T Robyn Papania filed a medical malpractice action, individually and on behalf of her minor child, Bradley Papania, against the State of Louisiana through the Board of Supervisors of Louisiana State University Agricultural and Mechanical College d/b/a/ the Medical Center of Louisiana, New Orleans (“Charity Hospital”) and Dr. Toni Denson. Charity Hospital filed this appeal of a trial court judgment on a jury verdict finding that Charity Hospital breached the stándard of care and that this breach was a proximate cause of the damages sustained by the plaintiffs. Charity Hospital asserts that the jury erred in finding that it was independently liable, separate and distinct from its vicarious liability for any of its employee health care providers. Ms. Papania filed a cross-appeal alleging that the jury erred in finding that Dr. Denson’s negligence was not a proximate cause of the plaintiffs’ damages. For the reasons that follow, we affirm the judgment of the trial court.

FACTS

In June and July of 1999, Bradley Papa-nia was brought by his mother to the Charity Hospital emergency room four times in a one month period, each time with ^virtually the same symptoms. On July 22, 1999, within approximately twelve to fourteen hours of his release following the fourth visit, 20-month old Bradley died as a result of an undiagnosed volvulus (a twisted intestine) that led to internal bleeding. The history of his treatment is as follows:

On June 21, 1999, Bradley was admitted to the emergency room with abdominal pain, vomiting and diarrhea. He was released that day with a diagnosis of gastroenteritis.

Bradley’s mother brought him back to the emergency room five days later with symptoms of abdominal pain, vomiting, streaks of blood in his diarrhea, and de-, creased appetite. He was admitted to Charity Hospital’s intensive care unit. Once stable, Bradley was transferred to the pediatric ward where he remained hospitalized for two weeks. During this hospital stay, a CT scan and ultrasound of his abdomen were performed. Despite the fact that both test results were abnormal, the CT scan was never repeated prior to his discharge. Several subsequent ultrasounds were performed. Each one showed signs of improvement, with the last one being designated as “normal.” Bradley was discharged on July 11, 1999 without a diagnosis.

As was standard procedure at Charity Hospital at the time, upon discharge, Ms. Papania received an unsigned and undated piece of paper containing a short summary of Bradley’s medical history from this hospital stay. This information was apparently given to Bradley’s mother so that she could pass it along to physicians providing follow-up care. Notably, certain critical information on this piece of paper was incorrect. It erroneously recorded that both the CT scan and | ^ultrasound were normal, when, in fact, the CT scan was abnormal and two prior ultrasounds had been abnormal. Bradley returned to the Charity Hospital emergency room two days later, on July 13, 1999, with the exact same symptoms as the previous visit. He was discharged that day, still with no diagnosis.

Eight days later, on July 21,1999, Bradley returned to the Charity Hospital emergency room with the same symptoms for the fourth time. On this date, he was under the care of Dr. Denson, a third year resident. When Bradley was admitted to the emergency room, Ms. Papania gave Dr. Denson the summary that she received from Charity Hospital when Bradley was discharged after his two-week stay. Dr. Denson requested and received from the record room Bradley’s 110-page medical record from this two-week stay; however, she acknowledged that she did not review the record in its entirety. Notably absent from this record, however, was the discharge summary from Bradley’s earlier hospital admission as it had not yet been dictated. Again, following a six-hour stay in the emergency room, Bradley was discharged with a diagnosis of a bleeding disorder, abdominal pain, and gastroenteritis. Approximately twelve to fourteen hours after his discharge, Bradley died.

Following trial, the jury rendered a verdict for the plaintiffs. In answering the jury interrogatories, the jury found that both Dr. Denson and Charity Hospital breached the applicable standard of care owed to Bradley. The jury further found that the breach by Dr. Denson was not a proximate cause of the damages suffered by the plaintiffs, but that the breach by Charity was a proximate cause of the damages. It is from this judgment that Charity Hospital appeals. Ms. Papania has filed a cross appeal in which she alleges that the jury erred in finding that Dr. Denson’s breach was not a proximate cause of their damages.

I «ASSIGNMENTS OF ERROR

I. In its appeal, Charity Hospital contends that the jury erred in finding it independently hable, separate and distinct from its vicarious liability for any of its employee health care providers.
II. In her cross-appeal, Ms. Papania contends that the jury erred in finding that Dr. Denson’s breach of the standard of care was not a proximate cause of Bradley’s death.

DISCUSSION

It is well settled that a court of appeal may not set aside a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong; and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are reasonable. Johnson v. Morehouse General Hosp., 2010-0387, p. 12 (La.5/10/11), 63 So.3d 87, 96; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). To reverse a jury’s factual findings, an appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. Johnson, 2010-0387 at p. 12, 63 So.3d at 96; Kaiser v. Hardin, 2006-2092, pp. 11-12 (La.4/11/07), 953 So.2d 802, 810. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Johnson, at p. 12, 63 So.3d at 96; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

I. Charity Hospital’s independent liability.

In order to recover damages for the independent liability of a hospital in a medical malpractice case, the plaintiff must establish the following elements through expert medical testimony: (1) the standard of care applicable to the defendant health-care provider; (2) breach of the standard of care by the defendant health-care provider; (3) cause-in-fact between the breach and the damages [.¡suffered; and (4) actual damages. La. R.S. 40:1299.39; Marchetta ex rel. Marchetta v. CPC of Louisiana, Inc., 99-0485, p. 11 (La.App. 4 Cir. 3/22/00), 759 So.2d 151, 158. Charity Hospital asserts that the jury’s finding that Charity Hospital breached the standard of care and that this breach was a proximate cause of the damages suffered by the plaintiffs is contrary to the evidence and the law. Further, Charity Hospital alleges that Ms. Papania failed to provide expert testimony of administrative negligence on its part. This assignment of error is without merit.

Our courts have formulated duties of care on an individual basis to determine when a hospital is responsible for its own acts or omissions which cause injury to a patient. Sibley v. Board of Sup’rs of Louisiana State University, 477 So.2d 1094, 1099 (La.1985) (“Sibley I”). Examples include: a governing board’s duty to select its employees with reasonable care, Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), overruled on other grounds by Garlington v. Kingsley, 289 So.2d 88 (La.1974); the board’s duty to furnish the hospital with reasonably adequate supplies, equipment and facilities for use in treatment and diagnosis of patients, Snipes v. Southern Baptist Hospital, 243 So.2d 298 (La.App. 4th Cir.1971); Lauro v. Travelers Ins. Co., 261 So.2d 261 (La.App. 4th Cir.1972); and a duty to provide adequate procedures for maintenance and safety of its grounds and buildings, Head v. St. Paul Fire & Marine Ins. Co., 408 So.2d 1174 (La.App. 3d Cir.1982); Roark v. St. Paul Fire & Marine Ins. Co., 415 So.2d 295 (La.App. 2d Cir.1982). A breach of one of the above listed duties or a similar duty which causes injury to the patient may constitute independent negligence of a hospital’s governing board even in the absence of any finding of negligent conduct by an | r,employee. Sibley I, 477 So.2d at 1099; Armand v. State, Dept. of Health & Human Res., 97-2958, pp. 7-8 (La.App. 1 Cir. 2/23/99), 729 So.2d 1085, 1088-89.

In the instant case, the record is replete with expert testimony from which the jury could reasonably infer administrative or system negligence on the part of Charity Hospital.

Dr. Gerald M. Haase, an expert qualified by the court in the fields of pediatric surgery and critical care, testified that two different “system failures” led to Bradley’s death. He first testified that the failure of the system to follow up on a “markedly abnormal study” was a “collective failure of the Charity Hospital’s system to follow up on a very serious abnormal study.” The second system failure identified by Dr. Haase was the “lack of right information, lack of communication and lack of documentation” available to Dr. Denson and Dr. Marsh, all of which led to Bradley’s death.

At the time of Bradley’s treatment at Charity Hospital, Charity Hospital had a procedure in place for a detailed summary of the patient’s admission history to be dictated and transcribed at discharge. In Bradley’s case, however, this discharge summary from his two-week in-patient stay was not dictated until after his death. As a result, it was unavailable to Dr. Den-son when Bradley came under her care. Initially, Dr. Denson testified that she had reviewed the July 11, 1999 discharge summary from the two-week hospitalization. However, when confronted with evidence that established that the discharge summary was not dictated until August 10, 1999 and was not transcribed until August 11,1999, two weeks after Bradley died, Dr. Denson recanted and realized she did not have the benefit of this history. Bradley’s complete medical records from his two-week hospitalization (including time in ICU) contained critical information necessary for his continuity of care. 17The failure of Charity Hospital to have had the discharge summary dictated, transcribed, and available to subsequent healthcare providers within its system, supports a finding of an administrative breach. While the jury might have held Dr. Denson responsible for this lack of attention to a prior history, it did not. It chose to lay the blame for this omission on Charity Hospital. As there is adequate support for this finding in the record, we will not disturb it on appeal.

The second system failure identified by Dr. Haase was the absence of any continuity of care in the care provided to Bradley. Dr. Haase testified that he determined that the “sequence of error” of the transmission of incorrect information cost Bradley his life. Specifically, Dr. Haase testified that Charity Hospital’s practice upon discharge of providing patients with partial summaries of their medical treatment on a scrap of paper was a breach in the standard of care owed to Bradley. He further testified that this undated, unsigned, unverified piece of paper containing incorrect information was a cause of Bradley’s death.

Dr. Haase’s opinion on this point was supported by the testimony of both Dr. Denson and Dr. Marsh. Dr. Denson testified that these summaries were a common practice at Charity Hospital. She stated that because they did not have electronic records, the physicians would have to order the charts from the record room. Sometimes they received them in a useful time period; sometimes they never received them. As such, they considered these hand-written summaries in the treatment of patients. In the instant case, Dr. Denson testified that although she received the record from the record room, it was voluminous. Thus,’ she relied on the history provided by Ms. Papania, the admit notes, and this piece of paper — which incorrectly stated that the CT scan and the ultrasound results were normal.

| sThis “sequence of error” continued when Dr. Denson presented Bradley’s case to the attending physician, Dr. Melinda Marsh. According to Dr. Marsh’s testimony, it was not unusual for a family to receive a summary of a hospitalization when their child was discharged. She also stated that these summaries were not 100% accurate, and, as such, she would not rely solely on such a summary. She further testified that she “presumed” that Dr. Denson verified the information with the record. This assumption was incorrect. We find it reasonable that the jury could have found that this “sequence of error” constituted a system failure on the part of Charity Hospital.

The jury verdict is fully supported by the record. As such, we find no error.

II. Dr. Denson’s breach of the standard of care.

The jury found that Dr. Denson breached the standard of care regarding Bradley’s medical treatment, but found that this breach was not a proximate cause of the damages suffered by the plaintiffs. Ms. Papania contends that the jury erred in its finding and that there is ample evidence in the record to support causation on the part of Dr. Denson. She further asserts that Dr. Denson made an admission at trial as to her part in the causation of Bradley’s death and that this constitutes a judicial admission.

In order to reverse the jury’s determination of fact under the manifest error standard of review, the appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) must further determine that the record establishes that the factfinder is clearly wrong and manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Here, the jury was presented with two permissible views, both supported by expert testimony. Dr. Denson and Charity Hospital | (¡presented evidence and the expert testimony of Dr. Nicholas Danna. Ms. Papania presented evidence and the expert testimony of Dr. Haase.

The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Hanks v. Entergy Corp., 2006-477, pp. 23-24 (La.12/18/06), 944 So.2d 564, 580-581; Lasyone v. Kansas City Southern R.R., 2000-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693. Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error. Hanks, 2006-477 at p. 24, 944 So.2d at 581; Lasyone, 2000-2628 at p. 13, 786 So.2d at 693. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Galen-Med, Inc. v. Porter, 2005-0788, pp. 13-14 (La.App. 4 Cir. 3/29/06), 928 So.2d 681, 688.

As discussed above, the jury might have concluded that Dr. Denson’s breach of the standard of care was a proximate cause of Bradley’s injuries. Instead, it chose to lay the blame on Charity Hospital for its administrative and/or system failures. Based on the record before us, we cannot say that this finding is clearly erroneous. Thus, we find no error.

CONCLUSION

We fail to find manifest error on the part of the trial court. The judgment is affirmed.

AFFIRMED

      . Suit is brought pursuant to the Medical Liability for State Services Act, La. R.S. 40:1299.39 et. seq.

      . Testimony at trial reflects that this summary was probably written by a resident or an intern.