author: PARRO, J. GUIDRY, J.,

text:
    Gene and Mary WILKERSON, as the Natural Parents of the Deceased, Katie Scarlette Wilkerson v. Eric Joseph BURAS and Abc Insurance Company.
    No. 2013 CA 1328.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 12, 2014.
    Rehearing Denied Sept. 11, 2014.

      Carl A. Perkins, Covington, LA, for Plaintiffs-Appellants, Gene and Mary Wilkerson, as the natural parents of the deceased, Katie Scarlette Wilkerson.
    Eric Joseph Buras, Angola, LA, Pro se, Defendant-Appellee.
    Before PARRO, KUHN, GUIDRY, PETTIGREW, and DRAKE, JJ.
   PARRO, J.

12Gene and Mary Wilkerson appeal a judgment dismissing their suit on the basis of abandonment, pursuant to LSA-C.C.P. art. 561(A). For the reasons that follow, we reverse the judgment and remand the case to the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 16, 2006, the Wilkersons filed suit against Eric Joseph Buras and ABC Insurance Company for damages resulting from the wrongful death of their daughter, Katie Scarlette Wilkerson. The Wilkersons alleged that Buras raped and battered Katie, resulting in her wrongful death. They also claimed damages for the pain and suffering Katie endured before her death.

As the case began to proceed, Buras filed a reconventional demand for defamation against the Wilkersons on July 6, 2007, In response, Gene and Mary Wilkerson asserted an exception raising the objection of prematurity and answered the reconventional demand on August 27, 2007. Buras then filed an exception raising the objection of no right of action on September 11, 2008. For reasons unclear from the record, the trial court took no action on this exception until after Buras filed an application for a writ of mandamus on May 26, 2009, to force a ruling. Ten months after Buras had filed the exception of no right of action, the court signed a judgment on July 10, 2009, denying the exception. The judgment was filed in the record on July 13, 2009.

On July 13, 2012, the Wilkersons moved for a pre-trial conference to establish discovery and motion deadlines and to set a date for trial. The conference was set for and held October 15, 2012. Buras, representing himself, appeared by telephone and told the court that he did not need discovery, only a copy of the record. The court granted Buras sixty days to file any motions.

At the conference, counsel for the Wilk-ersons indicated that they would waive a Igjury trial. The court informed Buras that once the Wilkersons filed a formal motion waiving a jury trial, Buras would then have ten days from that date to assert his right to a jury trial. The court set two trial dates, one for a judge trial and one for a jury trial, to be determined at the expiration of the ten days. The court stated that “standard” cutoff dates would be included in the pre-trial order. The record shows no further action by either party regarding their intention of going forward with either a jury or judge trial and shows no formal pre-trial order from the court.

On February 8, 2018, Buras moved to dismiss the Wilkersons’ suit on the basis of abandonment. Buras alleged in his motion that the parties had not engaged in any steps toward the prosecution or defense of the case since August 2007. The trial judge signed an ex parte order of dismissal on February 25, 2013. The order included a statement that the clerk of court was to notify all parties, and Buras certified that the Wilkersons were served notice of the dismissal via U.S. mail. The Wilkersons now appeal the dismissal.

ASSIGNMENTS OF ERROR

The Wilkersons submit the following assignments of error:

1. The trial court erred in ordering an ex parte dismissal based on abandonment without a contradictory hearing or, in lieu of a hearing, ordering the judgment served on the opposing party; and
2. The trial court erred in dismissing a suit as abandoned when the record clearly showed formal action to prosecute the matter, filed into the record, within a three-year period.

APPLICABLE LAW

Standard of Review

A court of appeal may not overturn a trial court judgment unless there is an error of law or a factual finding that is manifestly erroneous or clearly -wrong. Morris v. Safeway Ins. Co. of Louisiana, 03-1361 (La.App. 1st Cir.9/17/04), 897 So.2d 616, 617, writ denied, 04-2572 (La.12/17/04), 888 So.2d 872. In order to affirm the factual findings of the trier of fact, the supreme court posited a two-part test for the appellate review of facts: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court |4must further determine that the record establishes that the finding is not clearly -wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if,, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07-1686 (La.App. 1st Cir.8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092.

If the trier of fact’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse those findings even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Hulsey v. Sears, Roebuck & Co., 96-2704 (La.App. 1st Cir.12/29/97), 705 So.2d 1173, 1176-77. However, an appellate court may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story. Id., at 1177.

When a trial court incorrectly applies a principle of law, causing a substantial deprivation of a party’s rights or materially affecting the disposition, it commits legal error. Hains v. Hains, 09-1337 (La.App. 1st Cir.3/10/10), 36 So.3d 289, 296. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. When such a prejudicial error of law skews the trial court’s findings on a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Hains, 36 So.3d at 296.

Whether a step in the prosecution or defense of a case has been taken in the trial court within a period of three years is a question of fact subject to a manifest error ^analysis on appeal. On the other hand, whether a particular act, if proven, qualifies as a step in furtherance of the action and thereby precludes abandonment is a question of law that we review by simply determining whether the trial court’s interpretative decision is correct. See Hinds v. Global Int’l Marine, Inc., 10-1452 (La.App. 1st Cir.2/11/11), 57 So.3d 1181, 1183.

Abandonment

The controlling provision in this case, LSA-C.C.P. art. 561, provides, in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(3)This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.

Abandonment is both historically and theoretically a form of liberative prescription that is independent from the prescription that governs the underlying substantive claim. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779, 787. The underlying policy seeks to prevent protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. Abandonment is not a punitive measure, but is designed to discourage frivolous lawsuits by preventing plaintiffs from letting them linger indefinitely. Hinds, 57 So.3d at 1183.

Because dismissal is the harshest of punishments, the law favors and justice 1 (¡requires that an action be maintained whenever possible so that the aggrieved party has his day in court. Thus, any action or step taken to move the case toward judgment should be considered. If the plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon his lawsuit, dismissal is not warranted. Hinds, 57 So.3d at 1183-84.

Abandonment occurs automatically upon the passing of three years without either party taking a step in the prosecution or defense of the action. LSA-C.C.P. art. 561(A)(1) and (3). The jurisprudence has established three requirements to prevent abandonment under LSA-C.C.P. art. 561(A)(1). First, a party must take some “step” toward prosecution or defense of the lawsuit. A step is defined as taking formal action before the court that is intended to hasten the suit toward judgment or the taking of formal discovery. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the suit record. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party. Sufficient action by either plaintiff or defendant will be deemed a step. Clark, 785 So.2d at 784.

This court has recognized two jurisprudential exceptions to the abandonment rule: (1) a plaintiff-oriented exception, based on contra non valentum, that applies when the failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception, based on acknowledgement, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Clark, 785 So.2d at 784-85; Compensation Specialties, L.L.C. v. New England Mut. Life Ins. Co., 08-1549 (La.App. 1st Cir.2/13/09), 6 So.3d 275, 279-80, writ denied, 09-0575 (La.4/24/09), 7 So.3d 1200.

Unlike a plaintiff, whose post-abandonment actions cannot serve to revive an abandoned action, a defendant’s post-abandonment actions can serve to waive his right to plead abandonment. Whether the defendant’s action occurred before or after the abandonment period elapsed is a distinction without a difference. The timing of a | defendant’s conduct cannot be logically construed as altering its character insofar as whether it is sufficient to constitute a waiver of abandonment. Logic dictates that the same standard should apply regardless of whether the action occurred before or after the abandonment period elapsed. Clark, 785 So.2d at 789; Satterthwaite v. Byais, 05-0010 (La.App. 1st Cir.7/26/06), 943 So.2d 390, 393.

This waiver exception has been applied only where, after the abandonment period had accrued, a defendant has taken steps that facilitated a judicial resolution of the dispute on the merits and were an expression of the defendant’s willingness or consent to achieve judicial resolution of the dispute. Id. Whether a post-abandonment participation in a status conference constituted a waiver has largely depended upon the circumstances of the particular case and whether each defendant displayed an intention or willingness to move the case toward judgment. For example, in Seagrave v. Dean, 98-1295 (La.App. 1st Cir.7/6/99), 739 So.2d 923, 924, writ denied, 99-2856 (La.12/17/99), 751 So.2d 879, defense counsel’s appearance at a status conference and signing the case management schedule was held to be a waiver of the defendant’s right to claim abandonment. Similarly, in Tessier v. Pratt, 08-1268 (La.App. 1st Cir.2/13/09), 7 So.3d 768, 773, this court noted that defense counsel did more than just attend a status conference, Despite verbal assertions that she believed the case was abandoned, she signed a case management order and made no formal motion to preserve her right to claim abandonment. Because these two acts are inherently inconsistent, the simultaneous verbal assertion did not void the affirmative act of signing the scheduling order, which appeared in the record and clearly hastened the suit to judgment. This court held that to find otherwise would be in direct contravention of the jurisprudential policy in favor of maintaining a suit and allowing the plaintiffs their day in court. Id. at 778-74.

Nevertheless, in Compensation Specialties, 6 So.3d at 283-84, participation in a status conference after the trial court denied defendant’s motion to dismiss was not found to be a step that facilitated judicial resolution and expressed defendant’s willingness or consent to achieve judicial resolution. Because defendant had appealed |8the denial, this court found defendant’s action to be merely in response to plaintiffs action and in compliance with court orders while awaiting appellate review. Thus, this defendant did not waive his right to plead abandonment. Id.

Abandonment is effective without a court order. Therefore, in order to avoid a possible waiver of the right to assert abandonment, LSA-C.C.P. art. 561(A)(3) instructs the parties on the proper procedure to obtain a formal order of dismissal by an ex parte motion. Such a motion shall include an affidavit attesting that no step has been timely taken in the prosecution or defense of the action. The trial court shall enter a formal order of dismissal as of the date of its abandonment, and the sheriff shall serve the order. LSA-C.C.P. art. 561(A)(3).

ANALYSIS

The Wilkersons contend that the court erred in ordering the dismissal of their case ex parte and by failing to order service of the dismissal by the sheriff. Under Article 561, there is no requirement that an ex parte motion for abandonment be served on opposing counsel before the trial court can validly enter a formal order of dismissal. The formal order of dismissal merely recognizes that which has already occurred through operation of law. Article 561(A)(3) provides that either party may file an ex parte motion with the court, including an affidavit stating that no step has been taken in the prosecution or defense of the action for a period of three years and asking the court to declare the matter abandoned. Upon the filing of that motion, the court shall enter a formal order of dismissal as of the date of its abandonment. Buras properly followed this procedure when he filed his motion for dismissal. Therefore, the court clearly operated within the authority of Article 561 in ordering the dismissal of the case on Buras’s ex parte motion.

Admittedly, Article 561 also states that the court’s signed order of dismissal is to be served on the other party by the sheriff. The record in this, case indicates that Buras certified that he served the motion and order of dismissal on the Wilk-ersons by mailing a copy of it to their attorney of record. The signed order of dismissal orders the clerk of court to notify all parties involved in the suit. Although the court did not order the 19sheriff to serve the Wilkersons with notice of the dismissal in accordance with LSA-C.C.P. art. 561(A)(3), allowing them to petition the court for a rehearing within thirty days of the sheriffs service, the Wilkersons are not denied judicial review of the dismissal. Because the record does not contain a return on service, the time periods to move for a rehearing or an appeal did not commence. See Reese v. Jackson, 37,-268 (La.App. 2nd Cir.6/25/03), 850 So.2d 1011, 1014-15. Thus, this court is reviewing the dismissal by way of this appeal, and the inadequate service was a harmless error and did not penalize the Wilkersons in any way. See Stemley v. Foti, 40,379 (La.App. 2nd Cir.10/26/05), 914 So.2d 642, 646, unit denied, 06-0224 (La.4/24/06), 926 So.2d 551.

However, we must examine whether Buras waived his abandonment defense with his appearance via telephone at the status conference in October 2012. He did not sign a case management schedule, as the defendants had done in the cases noted above. Buras appeared at the status conference in compliance with the court’s order. He indicated that he did not need any discovery, but asked the court for a copy of “the dates, the filing dates, for anything filed in the matter; all filings in the case, from the initial lawsuit up until this most recent one, each date and what has actually been filed in the court.” The court indicated that, since the record was not very long, the entire record would be sent to Buras. Buras also stated that he would probably be filing some motions, once he had accurate dates to present to the court, and the court set a time period within which such motions could be filed. His actions showed an intention to move the ease toward judicial resolution, which might be considered a waiver of his right to claim abandonment. However, given that the only information Buras requested from the court pertained to the dates on which pleadings were filed, so that he could file certain pleadings using those dates, it appears he had in mind the possibility that the abandonment period had run. Therefore, we conclude that, under these facts, Buras did not waive his right to assert the defense of abandonment.

A claim is abandoned when neither party takes a step in its prosecution or defense in the trial court for a period of three years. LSA-C.C.P. art. 561(A)(1). Although Buras claimed that the last step taken by either party was taken by the | mWilkersons in August 2007, the record shows that Buras’s application for writ of mandamus, filed on May 26, 2009, to force a ruling on his exception of no right of action, was the last step taken by one of the parties. The court ruled on the motion on July 10, 2009, and filed the judgment into the record on July 13, 2009. The question before us is on which of these three dates the period for abandonment began to accrue.

This court recently held that an action by the court on its own motion, in this instance continuing the trial due to the parties’ failure to file pre-trial statements, did not interrupt the period for abandonment. Hilbert v. Miley, 12-2108 (La.App. 1st Cir.11/14/13), 136 So.3d 847, 849-50. The last “step” taken by either party in the Hilbert case was the plaintiffs motion to set the matter for trial, which was filed on February 6, 2009. Trial was set for April 21, 2009, but continued by the court on its own motion. Nothing further was done by either party until April 2, 2012, when the plaintiff filed another motion to set the matter for trial. This court held that the action taken by the court to continue the trial date did not interrupt the abandonment period, because it was not taken by one of the parties. Hilbert, 136 So.3d at 849-50.

However, this court, in the Hinds case, held that the abandonment period began to run anew on the day after the trial court declared that the plaintiffs motion to set the matter for trial was “moot,” in effect denying the motion. Hinds-, 57 So.3d at 1185. There, the plaintiff had filed a motion to continue and reset a hearing date on October 18, 2004. The court took no action on the plaintiffs motion to reset the hearing until May 14, 2007, when it marked the motion as “moot” and returned it to the clerk of court for filing. The next step toward prosecution was taken by the plaintiff on June 3, 2009, by filing another motion to set the matter for a hearing. This court stated that on May 14, 2007, when the trial court in effect denied the plaintiffs motion filed on October 18, 2004, by declaring it “moot,” the step initiated by the plaintiff was completed and the abandonment period began anew at that time. The obvious difference between the Hinds case and the Hilbert case is that the court’s action in Hinds was taken in response to an action taken by a party, thereby completing that |nparty’s “step.” In contrast, in the Hilbert case, the trial court’s action was not taken in response to anything done or requested by a party. Therefore, it did not interrupt the abandonment period.

The facts in this case more closely resemble those in Hinds than those in Hil-bei~t. Buras’s application for a writ of mandamus, filed on May 26, 2009, to force a ruling on his exception of no right of action, was the last step taken by one of the parties. However, the court’s action in filing the July 10, 2009 judgment in the record on July 13, 2009, at 2:34 p.m., completed that party’s step. In accordance with LSA-C.C.P. art. 5059, in computing the period of time prescribed by law, the date of the act after which the period begins to run is not to be included. The last day of the period is to be included, and therefore, in this case, the Wilkersons had the entirety of July 13, 2012, within which to file a pleading to maintain the action. On July 13, 2012, at 4:38 p.m., the Wilker-sons moved for a pre-trial conference. Accordingly, this action taken by the Wilker-sons was within the three-year period, such that their case was not abandoned.

In reaching this conclusion, we also recognize that the jurisprudence interpreting LSA-C.C.P. art. 561 establishes that, with the exception of formal discovery, in order to interrupt the running of the abandonment period, the step must be taken in the proceedings and “must appear in the record of the suit.” See Clark, 785 So.2d at 784. In this case, the signing of the judgment on July 10, 2009, did not appear in the suit record until July 13, 2009, when it was filed. Therefore, it was the filing date of the judgment that completed the step taken by Buras to force a ruling on his exception of no right of action.

CONCLUSION

For these reasons, the judgment of the trial court is reversed, and this case is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Eric Joseph Buras.

REVERSED AND REMANDED.

GUIDRY, J., dissents in part and assigns reasons.

GUIDRY, J.,

dissenting in part.

Lin order to preserve the lawsuit in this case, the majority relies on the date a judgment was filed into the record, rather than the date on which the judgment was signed or rendered, citing to Hinds v. Global International Marine, Inc., 10-1452 (La.App. 1st Cir.2/11/11), 57 So.3d 1181. In Hinds, however, the date used was the date of the ruling. In particular, the court in Hinds observed that a ruling on a party’s motion remained pending “until May 14, 2007, when the order was marked ‘MOOT,’ returned unsigned to the Clerk of Court, and filed on May 17, 2007” Hinds, 10-1452 at p. 2, 57 So.3d at 1183 (emphasis added). The court in Hinds concluded that the step initiated concluded on the date the court ruled on the plaintiffs motion and that abandonment began to run anew on the day after the court ruled on the plaintiffs motion. Hinds, 10-1452 at p. 6, 57 So.3d at 1185. As pointed out, the court was well aware and even observed the date the ruling was filed into the record, yet this later date was not used in Hinds as the date for commencing the running of the period for abandonment.

Somewhat in line with Hinds is a fourth circuit opinion that held that it was the hearing date rather than the date the prevailing party filed the proposed | ¿judgment or even the later date of when the proposed judgment was signed that commenced the running of the period of abandonment. Argence v. Box Opportunities, Inc., 11-1732, p. 4 (La.App. 4th Cir.5/23/12), 95 So.3d 539, 541. Therefore, I respectfully dissent.

      . The petition was "fax-filed" on November 14, 2006, but is stamped as filed on November 16, 2006.

      . Buras has since pled guilty to second degree murder and was sentenced on October 26, 2009.

      .The Wilkersons’ exception and answer to the reconventional demand is stamped "fax filed” on August 23, 2007, but is stamped as filed on August 27, 2007. In addition, the deputy clerk signed the document and dated the filing as August 27, 2007.

      . In the Hinds case, this court did not take into consideration the constraint noted in Clark that the step "must appear in the record of the suit,” when it referred to the date that the court “marked” the motion as moot as being the completion of the party’s step.


source: Caselaw Access Project

author: JAMES F. McKAY III, Chief Judge.

license: Public Domain

text:
    Anthony C. McMASTER v. PROGRESSIVE SECURITY INSURANCE COMPANY, ABC Insurance Company, D & S Steering Service, Inc. and James M. Stevens.
    No. 2014-CA-0155.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 29, 2014.
    Rehearing Denied Nov. 19, 2014.

      Wayne M. LeBlanc, Metairie, Louisiana, for PlaintifRAppellant.
    Nat G. Kiefer, Jr., Megan C. Kiefer, Kris P. Kiefer, Kiefer & Kiefer, Metairie, Louisiana, for Defendants/Appellees.
    ■ (Court composed of Chief Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Chief Judge.

hln this auto tort case, the plaintiff, Anthony McMaster, appeals the quantum of damages awarded by the jury and a number of rulings made by the trial court. The defendants, James Stevens, D & S Steering Services, Inc. and Progressive Insurance Company, have answered the plaintiffs appeal and seek damages for a frivolous appeal. For the following reasons, we affirm the judgment below and deny the defendants’ request for damages.

FACTS AND PROCEDURAL HISTORY

On November 2, 2009, Anthony McMas-ter was allegedly injured when the car he was driving was struck from the rear by a vehicle driven by James Stevens, who was in the course and scope of his employment with D & S Steering Services, Inc. At the time of this accident, Mr. McMaster was employed as a chef at Byblos Restaurant. Prior to this accident, Mr. McMaster had been involved in an automobile accident in 1999. Following the 1999 accident, he received treatment for his neck for a year and a half from Drs. John Cazale and Jay Binder, both orthopedists. The last time Mr. McMaster saw either of these doctors, his neck 12pain remained symptomatic. In connection with the 1999 accident and his associated injuries, Mr. McMaster filed a lawsuit alleging “severe” injuries to his neck causing “permanent disability.”

Following the November 2, 2009 accident, Mr. McMaster sought medical attention at the Touro Infirmary emergency room. Shortly thereafter, Mr. McMaster retained legal representation and his attorney referred him to a chiropractor, Michael Haydel. On December 15, 2009, Dr. Haydel referred Mr. McMaster to Dr. Daniel Johnson for a cervical MRI, which showed a disc herniation at C5-6, but no pathology at C4-5. Mr. McMaster then underwent an EMG with Dr. Daniel Tra-hant on May 11, 2010. Dr. Trahant diagnosed pathology at C5-6 but found no injury at C4-5. As his treatment progressed, Mr. McMaster was referred to Dr. Lucienne Marianne, a neurosurgeon, on June 4, 2010. Dr. Miranne ordered Mr. McMaster undergo a second MRI in June of 2010 and a myelogram CT in August of 2010. Dr. Miranne and Dr. John Joslyn, a neuroradiologist, reviewed the two MRI’s and the myelogram and determined that Mr. McMaster had a herniation at C5-6, but no pathology at C4-5. Thereafter, on August 27, 2010, Dr. Miranne recommended that Mr. McMaster undergo a one level arthroplasty at C5-6. Instead, Mr. McMaster did not treat for his neck with - any doctor for. a period of five months. Mr. McMaster returned to Dr. Miranne on January 31, 2011, after a subsequent injury where he felt a “pop in the neck” and reported an increase in pain. Dr. Miranne noted that the physical exam of Mr. McMaster’s neck had worsened and recommended that he undergo a third MRI. |3The third MRI revealed a new herniation at C4-5 and a worsening of the injury at C5-6. As a result of this new injury, Mr, McMaster underwent a two level fusion on April 28, 2011. Dr. Miranne did not relate the C4-5 herniation or the fusion to the November 2, 2009 accident. On December 21, 2011, Mr. McMaster first saw Dr. Charles Aprill, who performed pulse mode procedures and administered steroids to him. Following the November 2, 2009 accident, Mr. McMaster was also under treatment for mental health issues which he claimed were related to the accident. However, Mr. McMaster had a history of anxiety problems and panic attacks.

As stated above, Mr. McMaster worked as a chef at Byblos at the time of the accident. However, he was let go by Byblos on February 10, 2010, when he missed work without calling in to report his absence. Thereafter, Mr. McMaster received unemployment for seven months. During this time,. Mr. McMaster had to certify that he was able to work and place job applications; Mr. McMaster also made a claim with the Deepwater Horizon Claims Center for lost wages due to the BP oil spill. By July of 2011, Mr. McMas-ter was doing some manual labor for his girlfriend’s business, United Hauling. This work consisted of cutting grass, debris removal, boarding up windows, cleaning houses, etc. for several hours per week.

On February 8, 2010, Mr. McMaster filed suit against James Stevens, D & S Steering Systems, Inc. and Progressive Insurance Company. Prior to trial, the district court granted a summary judgment in favor of the plaintiff, determining that the accident was caused solely by the fault of James Stevens. The matter was |4tried before a jury on the issues of medical causation and damages on September 9— 16, 2013. The jury returned a verdict awarding the plaintiff $38,000.00; this consisted of $25,000.00 for past medical expenses, $10,000.00 for pain and suffering, and $3,000.00 for past lost wages. On September 26, 2013, the trial court entered judgment on the jury’s verdict. The plaintiff then moved for judgment notwithstanding the verdict (JNOV) and/or a new trial, which the trial court denied on November 26, 2013. The plaintiff now appeals to this Court. The defendants have answered the appeal requesting damages for a frivolous appeal.

DISCUSSION

On appeal, the plaintiff raises the following assignments of error: 1) the jury was manifestly erroneous in awarding only $3,000.00 for past loss of earnings; 2) the jury was manifestly erroneous in awarding zero dollars for future loss of earnings and earning capacity; 3) the jury was manifestly erroneous in awarding only $25,000.00 for past medical expenses; 4) the jury was manifestly erroneous in awarding zero dollars for future medical expenses; 5) the jury was manifestly erroneous in awarding only $10,000.00 for physical pain, suffering and impairment; 6) the jury was manifestly erroneous in awarding zero dollars for mental pain and suffering; 7) the jury was manifestly erroneous in awarding zero dollars for loss of enjoyment of life; 8) the trial court erred in the submission of the jury verdict form which was missing Progressive Insurance Company as a lead defendant in the case caption, creating a belief that there was no insurance coverage for the defendants; 9) the defendants committed reversible error on crossjexam6 of plaintiffs’ witnesses; 10) the trial court erred in ruling that plaintiff’s 1999 accident and minor injuries were relevant to an accident and injuries occurring in 2009, ten years apart and no treatment for nine years; 11) the trial judge erred in reversing her ruling on a motion in limine where she allowed only the medical records of the 1999 accident rather than her previous ruling allowing the entire claims file; 12) the trial court erred in not granting a JNOV or additur; and 13) whether defendants committed reversible error in referring to D & S Steering Services, Inc. as a “mom and pop” company that employs 10 — 13 workers, in voir dire and in opening, without introducing any evidence of either during the trial. In their answer to the appeal, the defendants argue that they should be awarded damages because the plaintiffs appeal is frivolous.

In his first seven assignments of error, the appellant contends that the jury was manifestly erroneous in its awarding of damages. It is well settled that a judge or jury is given great discretion in its assessment of quantum, both general and special damages. Iles v. Ogden, 09-0820, p. 4 (La.App. 4 Cir. 2/26/10), 37 So.3d 427. La. C.C. art. 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by the trial judge or jury is a determination of fact, one entitled to great deference on review. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74. The jury has the latitude to choose between witnesses, including expert witnesses, and to use such expert testimony together | nwith its own common sense and experience to arrive at its conclusions of fact. La. C.E. art. 704; Burns v. CLK Investments V, L.L.C., 10-0277, p. 10 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152. A jury may choose the opinion of one expert, or even reject the opinion of the sole expert. See Bachemin v. Anderson, 97-2471, p. 4 (La.App. 4 Cir. 7/29/98), 717 So.2d 677, 680. The jury’s acceptance of part or all of each expert’s testimony is within its discretion in fact finding. Joseph v. Archdiocese of New Orleans, 10-0659, p. 3 (La.App. 4 Cir. 11/10/10), 52 So.3d 203.

In the instant case, the jury had two versions of medical evidence to choose from. The plaintiff had a history of preexisting conditions from prior accidents and a checkered work history. The plaintiff’s testimony at trial was also impeached on numerous occasions. Based on the evidence before it and using its own common sense, the jury made certain findings of fact. Accordingly, the jury was not manifestly erroneous in its awarding of damages to the plaintiff.

In the appellant’s eighth assignment of error, he contends the trial court erred in the submission of a jury form missing Progressive Insurance Company as a lead defendant in the case caption. However, the appellant did not object to the jury form at trial and has not briefed this issue on appeal. An appellant cannot advance an argument on appeal that is not raised or objected to at trial. See Trans-Global Alloy, Ltd. v. First Nat’l Bank, 583 So.2d 443, 448-449 (La.1991). It is also well settled that if an appellant identifies an assignment of error or an issue presented for review, but fails to brief that point with citations to the record and ^support in the law, that issue or assignment is deemed waived. See Uniform Rules Courts of Appeal, Rule 2-12.4(B)(4). Accordingly, we find no merit in the appellant’s eighth assignment of error.

The appellant’s ninth assignment of error concerns the cross-examination of expert witnesses. However, this Court is unclear as to appellant’s argument regarding the expert witnesses. In any event, the appellant did not object to these cross-examinations at trial and did not brief this issue on appeal. Accordingly, for the same reasons stated above, this assignment of error is waived.

In the appellant’s tenth assignment of error, he contends that the trial court erred in allowing the jury to hear evidence of his 1999 accident, including the lawsuit he filed alleging “severe injury” to his neck, and see the medical records from that accident. However, the appellant did not object to the appellees offering into evidence the certified petition related to the 1999 accident, nor did he object to the admission of the certified medical records related to that accident. Additionally, the appellant’s counsel alluded to the 1999 accident and lawsuit in his opening statement. Accordingly, this assignment of error is without merit.

The appellant, in his eleventh assignment of error, argues that the trial court erred in reversing its ruling on a motion in limine, whereby it allowed only the medical records from the 1999 accident to be introduced rather than allowing the introduction of the entire claims file. Again, the appellant did not object to the trial court’s ruling at trial. Accordingly, this argument is waived.

|8In his twelfth assignment of error, the appellant argues that the trial court erred in not granting a JNOV or additur. Again, the appellant failed to brief this issue. As stated above, to the extent an assignment of error or issue is not briefed, it is waived. In any event, a JNOV “is limited by the jurisprudence to those cases where the jury’s verdict is absolutely unsupported by any competent evidence.” Boudreaux v. Schwegmann Giant Supermarkets, 585 So.2d 588, 585 (La.App. 4 Cir.1991). In the instant case, there was competent evidence to support the jury’s verdict. Accordingly, we find no error in the trial court’s refusal to grant a JNOV or additur.

In his thirteenth assignment of error, the appellant argues that the jury’s verdict should be reversed because the trial court allowed defense counsel to refer to D & S Steering as a “mom and pop” company, employing 10 to 13 workers. This assignment of error is without merit. The appellant did not object when defense counsel referred to D & S Steering as a small “mom and pop” company in his opening statement, thereby waving any such argument now. Furthermore, the trial court instructed the jury not to consider the arguments of counsel as evidence. On a related note, the appellant also complains that the trial court erred in not letting him show a photograph of D & S Steering’s building to the jury. However, the appellant failed to proffer the photograph, so there is nothing for this Court to review.

The appellees argue that not only should the appellant’s brief be disregarded, but also that he should be sanctioned for filing a frivolous appeal because counsel |gfor appellant has judicially admitted that there is evidence to support the jury verdict. While the appellant’s appeal lacked merit in many respects, we cannot say that his appeal was entirely lacking in good faith. Accordingly, we will not sanction him for a frivolous appeal.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment below. We also decline to sanction the appellant and award damages to the appellees.

AFFIRMED.

      . We are aware that appellant has already been sanctioned for frivolous appeal and frivolous writ application in litigation related to this case. McMaster v. Progressive Ins. Co., 2013-CA-1411 (La.App. 4 Cir. 3/26/14), 2014 WL 1260979; Writ Granted, 2014-C-1038 (La.9/19/14), 147 So.3d 687.


author: KEATY, Judge.

text:
    Emile MOUTON v. GENERAC POWER SYSTEMS, INC., et al.
    No. 14-350.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Matthew D. McConnell, McConnell Law Offices, Lafayette, LA, for Plaintiff/Appellant, Emile Mouton.
    Ronald J. White, Murphy, Rogers, Sloss & Gambel, New Orleans, LA, for Defendant/Appellee, Generac Power Systems, Inc.
    Cearley W. Fontenot, Oats & Marino, Lafayette, LA, for Defendani/Appellee, Metro Electric & Maintenance, Inc.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

| plaintiff appeals from the trial court’s judgment granting Defendants’ exceptions of prescription. For the following reasons, the trial court’s judgment is affirmed in part, reversed in part, and remanded.

FACTS AND PROCEDURAL BACKGROUND

On or about August 29, 2006, Plaintiff, Emile Mouton, purchased a residential generator from, and which was subsequently installed by, Metro Electric & Maintenance, Inc. The generator was manufactured by Generac Power Systems, Inc. Mouton also purchased an equipment maintenance contract from Metro Electric that became effective on September 5, 2006. Pursuant to this maintenance contract, Metro Electric was obligated to service the generator twice a year. Mouton continued purchasing this maintenance contract annually through July of 2011, and it expired in July of 2012.

Mouton contends that during this six-year period from 2006 to 2012, the generator failed to perform properly and/or required repair service every year. On April 28, 2012, Mouton filed suit against Defendants for the following: “A. Redhibition/Rescission; B. Breach of Contract and/or Implied and/or Express Warranties; C. Negligent Installation, Maintenance, and/or Repair.” Mouton seeks reimbursement of the purchase price of the generator along with maintenance and repair costs. Mouton requests attorney fees, non-pecuniary damages, court costs, and legal interest.

Defendants filed answers which included affirmative defenses and peremptory exceptions. In its answer, Metro Electric filed a cross-claim adverse to Generac as the manufacturer. Mouton subsequently answered written discovery and supplied Defendants with his expert’s report. Prior to Defendants’ experts’ | inspection of the generator, each Defendant filed exceptions of prescription, alleging that Mouton’s suit had prescribed under Louisiana redhibition law pursuant to La.Civ.Code art. 2520. Metro Electric further asserted that Mouton had no right of action for negligent installation pursuant to La.Civ. Code art. 2520.

Mouton subsequently filed a motion to continue the hearing on the peremptory exceptions which were scheduled for June 24, 2013. Since Generac’s expert inspected the generator on May 15, 2013, Mouton alleged that the extra time would allow him to propound written discovery and obtain depositions from Generac’s expert on prescriptive issues. The motion to continue was denied. After the hearing, the trial court granted all of Defendants’ exceptions without reasons, dismissing the entire lawsuit against both Defendants.

Mouton then filed a motion for new trial and/or to amend judgment seeking to reverse the trial court’s judgment on grounds of prescription and alternatively seeking to amend the judgment to reinstate the breach of service contract and negligent maintenance and repair claims. The trial court denied the motion, and Mouton appealed.

On appeal, Mouton asserts the following six assignments of error:

1¾(1) the trial court manifestly erred in granting Defendants’ exceptions of prescription regarding his redhibi-tory and negligent installation claims;
(2) the trial court manifestly erred in relying on facts alleged by Defendants although not proven by sworn affidavits or testimony;
(3) the trial court manifestly erred in granting Defendants’ exceptions via summary judgment where Mouton presented material issues of fact;
(4) the trial court manifestly erred by making impermissible credibility determinations;
(5) the trial court manifestly erred by denying Mouton time to conduct adequate discovery before it heard Defendants’ exceptions of prescription; and
(6) the tria} court manifestly and legally erred by dismissing the entire lawsuit even though Defendants’ exceptions challenged only a couple of Mouton’s alternative legal theories of liability.

STANDARD OF REVIEW

At the outset, we note that evidence was submitted at the hearing on the exceptions. In that regard, Louisiana jurisprudence provides for the following standard of review:

If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-elearly wrong standard of review. Stobart v. State, through DOTD, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id., 617 So.2d at 882-83.

Menard v. Iberia Parish Sheriff's Office, 11-707, p. 2 (La.App. 3 Cir. 12/7/11), 77 So.3d 1090, 1092 (quoting Rando v. Anco Insulations, Inc., 08-1163, p. 20 (La.5/22/09), 16 So.3d 1065, 1082), writ denied, 12-73 (La.3/9/12), 84 So.3d 553. Thus, we will review the trial court’s findings of fact utilizing the manifest error-clearly wrong standard of review.

J^DISCUSSION

I. Prescription as to Redhibition and Negligent Installation

A.Redhibition

In Louisiana, prescription in a redhibition claim is codified at La.Civ.Code art. 2534 which provides:

A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.
C. In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.

Comment (b) under La.Civ.Code art. 2534 further provides that “[u]nder this Article, an action in redhibition prescribes ten years from the time of perfection of the contract regardless of whether the seller was in good or bad faith. See C.C. Art. 3499.”

In his first assignment of error, Mouton contends that the trial court manifestly erred in granting Defendants’ exceptions regarding his redhibitory claim. Mouton states that the ten-year prescriptive period as stated in Comment (b) is applicable. Since the petition was filed on April 23, 2012, which was less than 1Bsix years after the generator was purchased, Mouton contends that it has not prescribed on its face as to his redhibition claim.

In opposition, Defendants contend that the ten-year prescriptive period is inapplicable. Metro Electric contends that the four-year or one-year prescriptive period is applicable pursuant to La.Civ.Code art. 2534(A)(1). As a manufacturer, Generac contends that only the one-year prescriptive period, as opposed to the four-year prescriptive period, applies to it pursuant to La.Civ.Code art. 2534(B). Metro Electric further states that Mouton’s reliance on Comment (b) is misplaced.

In support of its argument that Mouton’s reliance on Comment (b) is misplaced, Metro Electric cites the Louisiana federal court case of Tiger Bend, L.L.C. v. Temple-Inland, Inc., 56 F.Supp.2d 686 (M.D.La.1999). In Tiger Bend, 56 F.Supp.2d at 690, the court analyzed Comment (b) as follows:

[0]fficial comment (b) of article 2534 explains that this article does not allow an unlimited time period to discover a defect. The comment points to La.Giv. Code Art. 3499 as the maximum time limit in which a party can bring a claim for redhibition. The comment states that “[u]nder this article [2534], an action in redhibition prescribes ten years from the time of perfection of the contract regardless of whether the seller was in good or bad faith.” Article 3499, which is referenced in article 2534 comment (b), explains that “[ujnless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

Metro Electric states that Comment (b) simply explains that there is not an unlimited time to discover a defect and refers to La.Civ.Code art. 3499 as the maximum time limit for a party to bring a redhibi-tory action. Metro Electric ^contends that Comment (b) provides an absolute deadline of ten years for prescription of a redhibitory claim in conjunction with the discovery of a defect.

We agree with Metro Electric in that Mouton’s reliance on Comment (b) is misplaced. As cited by Generac, Cunard Line Ltd. Co. v. Datrex, Inc., 05-1171, p. 7 (La.App. 3 Cir.4/5/06), 926 So.2d 109, 114, provides that when a cause of action is based on a defect, “it is limited to the prescriptive period for redhibitory defects and may not avail itself of the ten-year prescriptive period for conventional obligations.” Since the petition alleges that the generator “began to show signs that it was defective” and that the generator “has proven defective for purposes of Louisiana redhibition law,” it is clear that Mouton’s cause of action lies in redhibitory law. As such, the ten-year prescription period is inapplicable, and we must review the petition to determine whether Mouton’s cause of action prescribed within the four-year or one-year period provided for in La.Civ. Code art. 2534(A)(1) and La.Civ.Code art. 2534(B).

Normally, “[tjhe party pleading prescription has the burden of proof.” Ins. Storage Pool, Inc. v. Parish Nat’l Bank, 97-2757, p. 7 (La.App. 1 Cir.5/14/99), 732 So.2d 815, 820. “If on the face of the petition it appears prescription has run, however, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period.” Reno v. Perkins Engines, Inc., 98-1686, p. 2 (La.App. 1 Cir.9/24/99), 754 So.2d 1032, 1034 (footnote/citation omitted), writ denied, 99-3058 (La.1/7/00), 752 So.2d 863. Thus, we will review the petition to see if prescription has run on its face.

|7In his petition, Mouton states that the sale of the generator took place on August 29, 2006. Mouton alleges that soon after installation, the generator “began to show signs that it was defective.” Mouton contends that “[wjithin the first year that it was placed in service METRO ELECTRIC personnel reported that the cooler filler cap and the starter required replacement/repair.” Mouton alleges that “[i]n August and September 2008, the Standby Generator failed to provide automatic substitute electrical power when the utility service was interrupted during Hurricanes Gustav and Ike, respectively.” Mouton contends that the generator “has failed to function properly and/or required repair service every year, up to and including 2012, since it was purchased and installed.”

Metro Electric’s job tickets and Gene-rac’s warranty claims, which are contained in the record, support Mouton’s allegation in his petition that the generator required repairs in 2006 and 2007 for a radiator cap and a starter. Defendants’ records, however, fail to show that repairs were performed after 2007. In his discovery responses, which are contained in the record, Mouton was unable to provide evidence showing that the generator required repair after 2007.

Thus, November 11, 2007 was the date of the last repair that occurred on the machine. The four-year prescriptive period began to run on November 11, 2007 and prescribed on November 11, 2011. Mouton filed suit on April 23, 2012. Based on the face of the petition, the four-year prescriptive period had run. The | sburden, therefore, shifted to Mouton to prove a suspension or interruption of the prescriptive period.

In that regard, Mouton contends in his appellate brief that prescription was interrupted annually from 2006 through 2012 when Metro Electric performed maintenance and service on the generator pursuant to the maintenance contract. Mouton alleges that prescription began anew every year when Metro Electric tendered the generator back to Mouton. We disagree.

The annual maintenance contracts which are contained in the record as exhibits show that Metro Electric serviced the generator twice a year. This included a complete check-up of the operation of the equipment. Metro Electric also inspected the following: fuel lines for wear, cracks, and leaks; exhaust system for safety and leaks; exhaust lines, muffler for cracks and leaks; drain moisture from condensation traps; air shrouds for leaks and security; clean cooling fins; check electrical wire for fray and connections; fuel filter, battery water, gravity of cells and connections; generator brushes and bearings; alternator for charging; control box wiring, voltage frequency settings; transfer switch for proper settings and operation; includes if needed: spark plugs, points, and condenser; and replace oil, oil filter, and air filter twice a year.

Metro Electric’s job tickets which are also contained in the record show the notes taken during the regularly-scheduled maintenance performed after November 11, 2007. Specifically, no problems were reported on April 9, 2008. On March 18, 2009, a latch on the machine was broken. A broken latch does not interfere, however, with the operation of the generator. On September 16, 2009, the broken latch was replaced. On April 14, 2010, no problems were noted. On May 21, 2011, and October 29, 2011, the generator was noted to be in good [¡¡condition. During Metro Electric’s final maintenance of the generator on July 13, 2012, it was noted that the generator “[cjranked [r]ight up.” The foregoing shows that the generator did not fail during the regularly-scheduled testing. In his petition and discovery responses, Mouton also stated that the generator “usually performed appropriately for regular-scheduled testing.”

Keeping in mind the annual tests, we point to Williams v. Ford Motor Co., 307 So.2d 159 (LaApp. 1 Cir.1974), writ denied, 309 So.2d 684 (La.1975), a first circuit case cited by Defendants wherein the plaintiff brought a redhibitory action against the manufacturer and dealer to rescind the sale of a car. The trial court dismissed the action, and the plaintiff appealed. The appellate court affirmed the trial court’s judgment and held that “[i]t is well settled in our jurisprudence that where the seller attempts to remedy a defect in the object sold, the one year prescription in bringing the redhibitory action begins to run only from the time the seller abandons his attempt to repair the defect.” Id. at 160. The appellate court stated:

Based upon the facts presented we sustain the judgment of the trial court. Plaintiff shows that she returned her automobile to Richard’s Ford Company, Inc. on October 27,1972, and complained about excessive oil consumption and a defective speedometer. The speedometer was repaired and the engine was filled with oil. No work was performed on the engine to correct the excessive use of oil. Plaintiff was billed for this service but she testifies that she never paid this bill. Plaintiff next returned her automobile to the defendant on February 22, 1973, for a State Safety Inspection and her horn was repaired at this time for inspection purposes for which she was billed and for which she paid. Subsequently plaintiff had her automobile serviced and repaired at establishments other than that of the defendant.
At the time that this suit was filed more than one year had elapsed since the last time the defendant may be presumed to have made an attempt to remedy the defects of which plaintiff complained. The vanning of prescription was not interrupted on February 22, 1973, when the horn was repaired for the purposes of safety inspection.

| mId. (emphasis added).

Similar to the safety inspection in Williams, the generator in the present case was inspected and serviced by Metro Electric twice a year pursuant to the maintenance contract. Just as the court in Williams found that the repair of the horn did not address the defects complained of in the plaintiffs petition, the annual maintenance performed on the generator in the present case, which Mouton admitted was successful, did not address the defects complained of in his petition. Thus, the annual inspections in the present case did not interrupt prescription as per Williams. For the same reasons cited in Williams, the broken latch Mouton complained of, and which was repaired in 2009, also failed to interrupt prescription.

We further find that Mouton’s claim prescribed pursuant to the one-year prescriptive period provided for in La.Civ. Code art. 2534(A)(1) and La.Civ.Code art. 2534(B). In that regard, “prescription begins to run when the defect manifests itself, not on the date the underlying cause of the defect is found.” Am. Zurich Ins. Co. v. Caterpillar, Inc., 12-270, p. 3 (La.App. 3 Cir. 10/3/12), 99 So.3d 739, 741. Mouton provided supplemental discovery responses which are contained in the record wherein he lists the following dates that his generator failed to work during power outages: September 27, 2006; December 13, 2006; July 1, 2007; March 6, 2008; August 7, 2010; November 26, 2010; December 27, 2010; January 31, 2012; February 26, 2012; August 19, 2012; and October 5, 2012. Since the last repair occurred on November 11, 2007, the next time Mouton experienced a power outage following the last repair was on March 6, 2008. At this point, Mouton should have known that the generator did not work despite the repairs. He also | nshould have known that he had one year to assert a redhibitory action, i.e., until March 6, 2009.

Mouton’s supplemental discovery responses further indicated that there were no power outages in 2009. As mentioned above, the generator worked for the annual maintenance which occurred during 2009. Mouton contends that his generator failed to work on August 7, 2010, November 26, 2010, and December 27, 2010. Even if Mouton had no knowledge of a defect in the years prior to 2010, he should have known of a defect following these three power outages in the latter part of 2010. He should have discovered a defect by December 27, 2010. At that point, the one-year prescriptive period began to run at which time Mouton had until December 27, 2011, to assert a claim for redhibition. Suit was not filed until over one year later on April 23, 2012, and, thus, was untimely. Similarly, Metro Electric’s subsequent repair to the generator in February 2012 did not interrupt prescription since prescription had already run on December 27, 2011.

Thus, any claim for redhibition utilizing the four-year prescriptive period or one-year prescriptive period prescribed by April 23, 2012. Accordingly, the trial court was not manifestly erroneous in granting Defendants’ exceptions of prescription.

B. Negligent Installation

Mouton further contends that the trial court manifestly erred in granting Metro Electric’s peremptory exception on his negligent installation claim. Mouton alleges that his negligent installation claim is timely pursuant to the ten-year prescriptive period provided for in La.Civ.Code art. 3499. In opposition, Metro | ]2Electric cites Sharpe v. Claiborne Enterprises, Inc., 461 So.2d 591 (La.App. 1 Cir.1984), writ denied, (La.1985), 464 So.2d 302, in support of its argument that Mouton’s suit prescribed. Metro Electric contends that the one-year prescriptive period governing redhibitory defects is applicable rather than the ten-year prescriptive period governing breach or negligent execution of an installation contract.

In Sharpe, a purchaser of automobile wheels brought suit against the seller for injuries sustained in an automobile accident. Believing that the one-year prescriptive period was applicable rather than the ten-year prescriptive period, the trial court granted a peremptory exception in favor of the defendant. On appeal, the issue was which prescriptive period applied.

Notably, the plaintiffs alleged that when they purchased the wheels from the defendant, the sales contract was both a contract to sell and a contract to install the wheels on the vehicle. The plaintiffs contended that the defendant’s negligence in improperly installing the wheels constituted a negligent breach of the installation contract which gave rise to a breach of contract claim for personal injury damages. In opposition, the defendants argued that any contractual liability was governed by the sales articles on redhibition because the principal obligation of the contract was that of sale.

The appellate court in Sharpe noted that in reviewing prior cases regarding the characterization of sales and service contracts, the principal obligation of the contract determines its characterization. In affirming the trial court’s judgment, the appellate court held:

We are not convinced by the allegations of plaintiffs’ petition that Claiborne entered into an installation contract with Mr. Sharpe. The principal obligation of the contract was the sale of the mag | ^wheels. The fact that Claiborne undertook to install them on the truck incidental to the sale does not change the transaction from that of a sales contract to an installation contract. “The mere fact that an obligor may be involved in the installation and delivery of the equipment will not change the characterization of the obligation from that of a sales contract and therefore the rules governing a sale will control.”

Id. at 593 (citations omitted).

Similar to the facts in Sharpe, the generator in the present case was purchased on or about August 29, 2006. Thus, the principal obligation of the contract was the sale of the generator. The fact that Metro Electric installed it at Mouton’s residence in addition to the sale does not change the transaction from that of a sales contract to an installation contract. Accordingly, the one-year prescriptive period governing redhibitory defects governs. Given the applicability of the one-year prescriptive period, Mouton’s suit for negligent installation has prescribed pursuant to our reasoning above. Accordingly, the trial court was not manifestly erroneous in granting Defendants’ exceptions with respect to his negligent installation claim.

II. Necessity of Sworn Affidavits or Testimony

In his second assignment of error, Mouton alleges that the trial court was manifestly erroneous in relying on Defendants’ alleged facts which were not proven through sworn affidavits or testimony. Evidence introduced by Defendants was in the form of Metro Electric equipment maintenance contracts, the petition, warranty claims submitted to Generac for the two repairs required in 2006 and 2007, and the maintenance records. According to the trial transcript, Mouton did not object to the inclusion of the documents into the record. Rather, he adopted the exhibits as his at the hearing.

114Louisiana Code of Civil Procedure Article 931 provides, in pertinent part: “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” While the statute indicates that evidence may be introduced, it fails to state that such evidence must be in the form of sworn affidavits or testimony. Mouton, likewise, has failed to cite any authority in support of his position. On the other hand, Generac correctly cites Boneno v. Lasseigne, 514 So.2d 276, 279 (La.App. 5 Cir.1987), wherein the court held that a sworn affidavit is hearsay and there is “no such statutory exception permitting the use of affidavits in a trial of a peremptory exception of prescription.” Since there is no requirement that sworn affidavits or testimony must be utilized and since Louisiana jurisprudence directly conflicts with Mouton’s allegation, the trial court was not manifestly erroneous in relying on Defendants’ evidence even though it was not in the form of sworn affidavits or testimony.

III. Contra Non Valentum

Mouton also asserts that the doctrine of contra non valentum suspends prescription. The right to assert this doctrine, according to Mouton, arises from the generator inspection wherein defects were revealed. Mouton further asserts that this right also stems from modification and repair attempts after installation which concealed problems.

Louisiana jurisprudence recognizes contra non valentem as a way to suspend prescription when the circumstances fall into one of the four following categories:

(1) where thére was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract |15or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant.

Wells v. Zadeck, 11-1232, pp. 8-9 (La.3/30/12), 89 So.3d 1145, 1150.

Our review of the petition shows that Mouton alleges that the generator never properly worked and was defective from the time it was purchased in 2006. The contra non valentum defense Mouton asserts, however, is based on the alleged concealment of the defect. Concealment of a defect directly contradicts Mouton’s redhibition claim. Thus, Mouton’s contra non valentum defense fails.

IV. Material Issues of Fact

In his third assignment of error, Mouton contends that the trial court manifestly erred in granting Defendants’ exceptions by summary judgment where he presented material issues of fact.

Our review of the record shows that the exceptions were peremptory exceptions of prescription. As previously discussed, there is no requirement for the submission of sworn affidavits or testimony “[o]n the trial of the peremptory exception.” La. Code Civ.P. art. 931. Since the matter before the trial court was not on summary judgment which is tried utilizing affidavit testimony, Mouton’s assignment of error is without merit. Accordingly, the trial court was not manifestly erroneous in this regard.

Y. Credibility Determinations

In his fourth assignment of error, Mouton contends that the trial court manifestly erred by making impermissible credibility determinations. Mouton alleges that since he submitted sworn affidavit testimony creating a material issue 11Rof fact, the trial court made an impermissible credibility determination whereby it favored Defendants’ evidence as opposed to his affidavit. In support, Mouton cites Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 4 (La.2/29/00), 755 So.2d 226, 236, for the proposition that “the trial judge cannot make credibility determinations on a motion for summary judgment.”

As previously mentioned, this was not a summary judgment hearing wherein the outcome depends on affidavit testimony. Accordingly, Mouton’s assignment of error is without merit, and the trial court was not manifestly erroneous in this regard.

VI. Adequate Discovery

In his fifth assignment of error, Mouton contends that the trial court manifestly erred when it denied him time to conduct adequate discovery before hearing Defendants’ exceptions of prescription.

Our review of Defendants’ exceptions shows that they were based on the time the lawsuit was filed and on Mouton’s discovery responses. As indicated above, the lawsuit is prescribed on its face. Since the filing of the lawsuit occurred on April 24, 2012, and in addition to the reasons explained above, December 27, 2011, was the latest date that the lawsuit could have been filed. Mouton had enough time to conduct discovery. According to Mouton’s expert’s report, which is contained in the record, his expert inspected the generator in September 2012. Since this inspection occurred nine months prior to the June 24, 2013 hearing on the exceptions, Mouton had that time, i.e., nine months, to conduct discovery of an alleged concealment of a defect. Accordingly, Mouton’s assignment of error is without merit, and the trial court was not manifestly erroneous in this regard.

|17VII. Alternative Legal Theories of Liability

In his sixth assignment of error, Mouton contends that the trial court manifestly and legally erred by dismissing the entire lawsuit even though Defendants’ exceptions challenged only a couple of his alternative theories of liability. Mouton filed suit against Defendants for redhibition, negligent installation, breach of contract, negligent maintenance, and negligent repair. Mouton asserts that his redhibitory and negligent installation claims were the only two claims challenged in Defendants’ exceptions. Since Defendants’ exceptions failed to challenge his breach of contract, negligent maintenance, and negligent repair claims, Mouton contends that the trial court was manifestly erroneous in dismissing these claims.

In its peremptory exception of prescription, Metro Electric excepted to Mouton’s lawsuit on the grounds that it “has prescribed and that [Mouton] has no right of action in Redhibition or negligent installation pursuant to La. C.C. art. 2520, et seq.” Metro Electric challenged only Mouton’s redhibition and negligent installation claims.

In its peremptory exception of prescription, Generac excepted to Mouton’s lawsuit “on the grounds that [Mouton’s] claims ... against Generac under Louisiana redhibition law, La. Civ. Code art. 2520, et seq., are prescribed.” Thus, Generac challenged only Mouton’s redhibition claim.

In order to succeed on a breach of contract claim, the plaintiff must prove the existence of a contract, a breach of that contract, and damages. See Ledet v. Campo, 12-1193 (La.App. 3 Cir.3/6/13), 128 So.3d 1034. In his petition, 118Mouton alleged that he “has annually purchased from METRO ELECTRIC an Equipment Maintenance Contract to maintain” the generator. According to Mouton, the generator “failed to function properly and/or required repair service every year, up to and including 2012” and each time he reported problems, Metro Electric “responded by purportedly servicing the [generator] and representing that the problem was taken care of and that [it] would function appropriately ‘next time.’ ” Mouton alleged that, despite Metro Electric’s “repeated annual assurances,” the generator would “provide automatic substitute electrical service,” it “NEVER provided automatic substitute electrical service in the event of an actual interruption in electrical-utility service.” Although Metro Electric supposedly “fixed” a problem in February of 2012, Mouton “recalled] that the alleged problem on the occasion of that service was one that previously had reportedly been fixed already.” Based on the foregoing allegations, Mouton contended that Defendants were liable to him for “Breach of Contract and/or Implied and/or Express Warranties” along with “Negligent Installation, Maintenance, and/or Repair.” In his prayer for relief, Mouton seeks actual, consequential, and incidental damages; rescission, including reimbursement of the purchase price along with maintenance and repair costs; attorney fees; court costs; and legal interest.

Upon review of Mouton’s petition and accepting his well-pleaded allegations as true, we find that he sufficiently pled that a contract existed between he and Metro Electric. Mouton alleged that Metro Electric, in failing to comply with the requirements provided for in the maintenance contract, breached the contract between the parties and that, as a result of its breach, Mouton suffered damages. Mouton has likewise asserted a claim for negligent maintenance and |1flnegligent repair since both arise out of Metro Electric’s alleged breach of the maintenance contract.

In determining whether Mouton’s contractual claims have prescribed against Metro Electric, the maintenance contract must be viewed separately from the sale and installation contract. The principal obligation of the maintenance contract, which was annually renewed, was that of maintaining the generator. Mouton signed the final maintenance contract in July of 2011. A breach of contract claim “is subject to a liberative prescription of ten-years.” La.Civ.Code art. 3499. Based upon the face of the petition, Mouton’s claims for breach of contract, negligent maintenance,- and negligent repair were timely filed and have not prescribed. Accordingly, the trial court was manifestly erroneous in dismissing Mouton’s contractual claims against Metro Electric.

On the other hand, the petition is void of any allegations regarding a contractual relationship existing between Mouton and Generac. Therefore, Mouton failed to state a cause of action against Generac for breach of contract, negligent maintenance, or negligent repair. Accordingly, the trial court was not manifestly erroneous in granting Generac’s exception.

This matter is remanded to the trial court for further proceedings on the contractual claims against Metro Electric only.

DECREE

The judgment of the trial court is affirmed in part, reversed in part, and remanded. All costs of this appeal are divided equally between Plaintiff/Appellant, Emile Mouton, and Defendant/Appellee, Metro Electric & Maintenance, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . Louisiana Civil Code Article 2520 provides:
      The seller warrants the buyer against red-hibitory defects, or vices, in the thing sold.
      A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
      A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The 'existence of such a defect limits the right of a buyer to a reduction of the price.

      . Louisiana Civil Code Article 3499 provides that “[ujnless otherwise provided by legislation, a personal action is subject to a libera-tive prescription of ten years.”

      . According to Goodman v. Roberts, 587 So.2d 807 (La.App. 3 Cir.1991), a manufacturer is presumed to know of the defect in its product. As such, prescription commences to run against the manufacturer one year after discovery of the defect by the consumer. Id. This presumption is codified in La.Civ.Code art. 2545.

      .The federal court in Tiger Bend, stated that La.Civ.Code art. 3499 is not a preemptive provision but rather a prescriptive provision. As such, it is subject to suspension and interruption. The court explained that under La. Civ.Code art. 2534, "the running of prescription depends on the plaintiff's knowledge of the cause of action, i.e., discovery of the defect.” Id. at 691.

      . Generac's records show that November 11, 2007 was the date that the starter was replaced.

      . Although Mouton did not specifically state that November 11, 2007 was when the generator was repaired, his petition states that “[w]ithin the first year that it was placed in service METRO ELECTRIC personnel reported that the cooler filler cap and the starter required replacement/repair.” Since Mouton's petition states that it was purchased in 2006, 2007 would be "within the first year that it was placed in service.”

      . Louisiana Civil Code Article 3499 provides, "[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

      . Mouton’s expert is Joey Meloz.

      . Mouton contends that Metro Electric challenged his redhibition and negligent installation claims whereas Generac challenged only his redhibition claim.


author: TERRI F. LOVE, Judge. BELSOME, J.,

text:
    Larry Van JACKSON, Jr. v. John C. PFEIFER.
    No. 2014-CA-0062.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 12, 2014.

      John A.E. Davidson, Christopher J. Davidson, Davidson & Davidson, APLC, Metairie, LA, for Plaintiff/Appellant, Larry Van Jackson, Jr.
    Rachel Wisdom, John Mark Fezio, Stone Pigman Walther Wittman L.L.P., New Orleans, LA, for Defendant/Appellee, Marquee Investment Properties, LLC.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   TERRI F. LOVE, Judge.

LThis appeal arises from the issuance of a preliminary injunction against the defendant-in-reconvention, who claims ownership of plaintiff-in-reconvention’s alleged blighted immovable property via acquisitive prescription. The defendant-in-recon-vention contends that the trial court erred in granting the preliminary injunction, in denying his request for injunctive relief, and for denying his claim for damages, costs, and attorney’s fees regarding the temporary restraining order and preliminary injunction. We find that the trial court did not abuse its discretion in granting plaintiff-in-reconvention’s request for a preliminary injunction because it presented a prima facie case that it would prevail in a trial on the merits of the petitory action. However, the defendant-in-recon-vention failed to present a prima facie case that demonstrated he would likely prevail in his possessory action. Thus, the trial court did not abuse its discretion in denying his request for a preliminary injunction. Lastly, we find that the trial court did not abuse its discretion in denying the request for “Damages for Dissolution of Wrongfully Issued Preliminary Injunction,” and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

John Pfeifer purchased the immovable property located at 7049 Magazine Street/ 203 Audubon Street (“Property”) in January 1992, and resided there until ^August 2005. From August 2005 to May 2008, Mr. Pfeifer visited the Property regularly. The Property was declared blighted after May 2008. From May 2008 to January 10, 2013, Mr. Pfeifer allegedly intended to continue possessing the Property. On August 18, 2010, Citywide Development Services, L.L.C. (“Citywide”) filed an Affidavit of Possession, in accordance with La. R.S. 9:5633, on the Property. Larry Van Jackson, Jr. signed the affidavit on behalf of the affiant, Citywide.

Mr. Jackson, Jr. filed a possessory action against Mr. Pfeifer in 2012, praying for a judgment recognizing his possession of the Property in his individual capacity. On January 10, 2013, Mr. Pfeifer sold the Property to Marquee Investment Properties, LLC (“Marquee”). Marquee then filed a motion to be substituted for Mr. Pfeifer as the defendant in Mr. Jackson, Jr.’s possessory action. Subsequently, Marquee filed its Answer, Reconventional Demand, Petition for Writ of Mandamus, Petition for Temporary Restraining Order, Preliminary and Permanent Injunction. Marquee contended, as the plaintiff-in-re-convention, that the possessory action should be converted into a petitory action, and requested that Mr. Pfeifer be enjoined from trespassing on the Property.

The duty judge issued a temporary restraining order (“TRO”) and a preliminary injunction in favor of Marquee. However, this Court vacated the preliminary injunction on supervisory review because the duty judge did not have the authority to grant the injunction. Marquee then re-urged the motion for a preliminary injunction before Division C, the division that was allotted the case. The trial court denied Mr. Jackson, Jr.’s Motion for Preliminary Injunction. Mr. 14Jackson, Jr.’s “Exceptions of No Cause of Action/Improper Use of Summary Proceedings and for Damages for Dissolution of Wrongfully Issued Preliminary Injunction” were also denied. The trial court granted Marquee’s Motion for Preliminary Injunction. The trial court “enjoined and prohibited” Mr. Jackson, Jr. “from entering on the” Property. Mr. Jackson, Jr.’s devolutive appeal followed.

Mr. Jackson, Jr. contends that the trial court erred by 1) dismissing his claims for damages, costs, and attorney’s fees from the temporary restraining order and preliminary injunction; 2) denying his request for injunctive relief; and 3) granting Marquee’s Motion for Preliminary Injunction.

STANDARD OF REVIEW

“The standard of review for factual findings is that of manifest error.” Sander v. Brousseau, 00-0098, p. 3 (La.App. 4 Cir. 10/4/00), 772 So.2d 709, 710. “Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong.” Coutee v. Global Marine Drilling Co., 06-0756, p. 5 (La.2/22/06), 924 So.2d 112, 116. “In order to reverse a fact finder’s determination of fact, an 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) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous.” Id. “The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently.” Id.

“Legal questions are reviewed utilizing the de novo standard of review.” Robert v. Robert Mgmt. Co., LLC, 11-0406, p. 3 (La.App. 4 Cir. 12/7/11), 82 So.3d 396, 398.

| ¿PRELIMINARY INJUNCTION

Mr. Jackson, Jr. asserts that the trial court erred in granting Marquee’s request for injunctive relief and in denying his request for injunctive relief.

La. C.C.P. art. 3601 provides, in pertinent part, that:

An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law; provided, however, that no court shall have jurisdiction to issue, or cause to be issued, any temporary restraining order, preliminary injunction, or permanent injunction against any state department, board, or agency, or any officer, administrator, or head thereof, or any officer of the state of Louisiana in any suit involving the expenditure of public funds under any statute or law of this state to compel the expenditure of state funds when the director of such department, board, or agency or the governor shall certify that the expenditure of such funds would have the effect of creating a deficit in the funds of said agency or be in violation of the requirements placed upon the expenditure of such funds by the legislature.
During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.

“In order to prevail at a hearing for preliminary injunction, the moving party must show [three] things: (1) that the injury, loss or damage he will suffer if the injunction is not issued may be irreparable; (2) that he is entitled to the relief sought; and (3) that he will be likely to prevail on the merits of the case.” Burnham Broad. Co. v. Williams, 629 So.2d 1335, 1338 (La.App. 4th Cir.1993). “Only a prima facie showing is required; therefore, the petitioner is required to offer less proof than is necessary in an ordinary proceeding for permanent injunction.” Id. “Since a preliminary injunction is an interlocutory procedural device designed to preserve the status as it exists between the parties pending trial |6on the merits, a trial judge has great discretion to grant or deny the relief requested.” Id.

Petitory Action

Marquee was required to prove, with a prima facie case, that it was entitled to a preliminary injunction due to irreparable damage and that it would likely prevail on the merits of the petitory action.

“Injunctive relief ... to protect or restore possession of immovable property or of a real right therein, is available to ... [a] person who is disturbed in the possession which he and his ancestors in title have had for more than a year of immovable property.” • La. C.C.P. art. 3663. “A preliminary injunction brought pursuant to La. C.C.P. art. 3663 does not require a showing of irreparable injury.” Monroe Real Estate & Dev. Co. v. Sunshine Equip. Co., 35,555, p. 4 (La.App. 2 Cir. 1/23/02), 805 So.2d 1200, 1202. See also Chotin Tramp., Inc. v. Harbor Towing & Fleeting, Inc., 00-0803, p. 3 (La.App. 4 Cir. 10/3/01), 804 So.2d 78, 81.

While evidence of irreparable harm was not required because Marquee’s request for a preliminary injunction was “to protect or restore possession of immovable property or of a real right in immovable property of which he claims ownership, possession or ’enjoyment,” the record documents the alterations Mr. Jackson, Jr. previously made or attempted to make to the Property, including the attempted demolition to the Property, as well as the items Mr. Jackson, Jr. removed from the Property. See Monroe, 35,555, p. 4, 805 So.2d at 1202. Therefore, the possibility of irreparable harm was demonstrated.

La. C.C.P. art. 3653 provides that:

To obtain a judgment recognizing his ownership of | immovable property or real right therein, the plaintiff in a peti-tory action shall:
(1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
(2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof. When the titles of the parties are traced to a common author, he is presumed to be the previous owner.

“The petitory action- is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.” La. C.C.P. art. 3651.

Marquee purchased the Property from Mr. Pfeifer on January 10, 2013. As the current title holder to the Property, Marquee presented a prima facie case that it is entitled to injunctive relief and would likely prevail on the merits of the petitory action, i.e., to establish title to the Property. Accordingly, we do not find that the trial court abused its discretion in granting Marquee a preliminary injunction.

Possessory Action

Mr. Jackson, Jr. asserts that Marquee judicially confessed to his possession of the Property thereby entitling him to a preliminary injunction. See La. C.C.P. art. 3657. However, a judicial confession as to Mr. Jackson, Jr.’s possession does not equate with confessing “a legal right to possession.” Pendarvis v. Ormet Corp., 135 F.3d 1036, 1039 (5th Cir.1998). See also Vanado v. Meyer & Neugass Co., 12 La.App. 543, 126 So. 544, 544 (1st Cir.1930). Thus, having found that the trial court did not commit manifest error in its findings or abuse its discretion in granting Marquee a preliminary injunction, we find that the trial court did not err in denying Mr. Jackson injunctive relief because he failed to present a prima facie | Rcase that he would likely prevail on the merits.

DAMAGES, COSTS, & ATTORNEY’S FEES

Mr. Jackson contends that the trial court should have awarded him damages and fees associated with the allegedly wrongfully obtained TRO/preliminary injunction.

La. C.C.P. art. 3608 provides that “[t]he court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconventional demand.” Additionally, “[attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.” La. C.C.P. art. 3608. “[T]he provision .which authorizes assessment of damages for the wrongful issuance of in-junctive relief is not mandatory in its application.” ARCO Oil & Gas Co., a Div. of Atl. Richfield Co. v. DeShazer, 98-1487, p. 4 (La.1/20/99), 728 So.2d 841, 844.

“A preliminary injunction is wrongfully issued if it infringes upon some right of the enjoined party regardless of whether or not the injunction was requested on good faith grounds.” HCNO Servs., Inc. v. Secure Computing Sys., Inc., 96-1693, p. 15 (La.App. 4 Cir. 4/23/97), 693 So.2d 835, 843. “A wrongful issuance is injunctive relief that has been issued when it should not have been issued because the plaintiff had no right to it.” Id. Further, “[a]n award of damages and attorney fees to a successful party on a motion to dissolve a preliminary injunction is discretionary with the trial court and will not be disturbed absent a clear abuse of discretion.” Id., 96-1693, p. 15, 693 So.2d at 844. See also Arco, 98-1487, p. 4, 728 So.2d at 844.

|8Given our holding that the trial court properly granted Marquee a preliminary injunction, as Marquee is the title holder of the Property, we find that the trial court did not abuse its discretion in denying Mr. Jackson, Jr.’s request for “Damages for Dissolution, of Wrongfully Issued Preliminary Injunction.”

DECREE

For the above-mentioned reasons, we find that the trial court did not abuse its discretion in granting Marquee’s request for a preliminary injunction because it presented a prima fade case that it would prevail in a trial on the merits of the petitory action. Mr. Jackson, Jr. failed to present a prima fade case that demonstrated he would likely prevail in his pos-sessory- action. Thus, the trial court did not abuse its discretion in denying Mr. Jackson, Jr.’s request for a preliminary injunction. Lastly, we find that the trial court did not abuse its discretion in denying Mr. Jackson, Jr.’s request for “Damages for Dissolution of Wrongfully Issued Preliminary Injunction,” and affirm.

AFFIRMED.

BELSOME, J., concurs in the result and assigns reasons.

BELSOME, J.,

concurs in the result and assigns reasons.

I agree that the trial court correctly granted Marquee Investment Property’s motion for preliminary injunction pursuant to La. C.C.P art. 3663(2). La. C.C.P. art. 3663(2) permits injunctive relief to persons who are “disturbed in the possession in which he and his ancestors in title have had for more than a year of immovable property or of a real right of which he claims the ownership, possession, or the enjoyment” (emphasis supplied). Marquee' was disrupted of a real right in immovable property to which it claimed ownership; therefore, a preliminary injunction under La. C.C.P. art. 3663(2) was permissible. Since Marquee established that it would likely prevail on the merits of its claim, the trial court did not abuse its discretion in granting Marquee’s motion for preliminary injunction. Because this finding is disposi-tive of the- issue, discussion of the denial of Jackson’s motion for preliminary injunction is unnecessary. For these reasons, I concur in the result reached by the majority.

      . The duty judge was Judge Kern A. Reese.

      . The trial court judge in Division C was Judge Sidney H. Cates, IV.

      . Mr. Pfeifer purchased the Property in January 1992.

      . The first TRO resulted in a preliminary injunction, which was vacated and remanded to the trial court by this Court on procedural grounds. Jackson v. Pfeifer, unpub., 13-0440; 13-0450 (La.App. 4 Cir. 7/31/13). .