author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Jakeith L. FRANCIS, Appellant
    No. 51,048-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered January 11, 2017

      LOUISIANA APPELLATE PROJECT, By: Peggy J. Sullivan, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, REBECCA A. EDWARDS, JANET L. SILVIE, Assistant District Attorneys, Counsel for Appellee
    Before MOORE, GARRETT, and CARAWAY (ad hoc), JJ.
   GARRETT, J.

[iThe defendant, Jakeith L. Francis, was found guilty by a jury of one count of attempted possession of a Schedule III controlled dangerous substance (“CDS”) (acetaminophen with codeine), in violation of La. R.S. 40:968(C) and La. R.S. 14:27, and one count of attempted possession of a Schedule II CDS (methamphetamine), in violation of La. R.S. 40:967(C) and La. R.S. 14:27. He was sentenced to serve 12 months at hard labor on each count, with the sentences to be served concurrently, and was given credit for time served. He appeals, claiming there was insufficient evidence to support his convictions. For the following reasons, we affirm the convictions and sentences.

FACTS

On February 12, 2015, Francis was stopped for speeding by Officers Joseph Bassett and Josh Owen of the Shreveport Police Department. Francis’s girlfriend, Euradell Lewis, was a passenger in the car. Officer Bassett smelled a strong odor of marijuana and removed Francis and Lewis from the vehicle. One of the officers noticed a bulge in Lewis’s clothing. She gave the officer a plastic bag containing various drags. According to Lewis, when the officers activated their lights to pull Francis over, he removed the bag from his pocket, threw it into her lap, and told her to hide it.

Both Francis and Lewis were arrested. Francis was originally charged with possession of acetaminophen with codeine, possession of marijuana, second offense, and possession of Ecstasy (“MDMA”). The bill of information was later amended to charge him with possession of acetaminophen with codeine and possession of methamphetamine. He was 1 gtried by jury on February 2, 2016, and was convicted of the responsive verdicts of attempted possession on both counts. He was sentenced as set forth above. On appeal, he claims the evidence was not sufficient to support his convictions.

LEGAL PRINCIPLES

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La. 5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App. 2 Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086; State v. Crossley, 48,149 (La.App. 2 Cir. 6/26/18), 117 So.3d 586, writ denied, 2013-1798 (La. 2/14/14), 132 So.3d 410. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La. 2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297; State v. Crossley, supra.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct | ¡¡evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La. 1983); State v. Speed, 43,-786 (La.App. 2 Cir. 1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La. 11/6/09), 21 So.3d 299; State v. Crossley, supra.

Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, supra; State v. Allen, 36,180 (La.App. 2 Cir. 9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La. 3/28/03), 840 So.2d 566, 2002-2997 (La. 6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004); State v. Crossley, supra. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Randle, 49,952 (La.App. 2 Cir. 6/24/15), 166 So.3d 465.

An accomplice is a competent witness to testify against his co-perpetrator even if the prosecution offers him inducements to testify; these inducements only affect the witness’s credibility. State v. Eason, 43,788 (La.App. 2 Cir. 2/25/09), 3 So.3d 685, writ denied, 2009-0725 (La. 12/11/09), 23 So.3d 913; State v. Jetton, 32,893 (La.App. 2 Cir. 4/5/00), 756 So.2d 1206, writ denied, 2000-1568 (La. 3/16/01), 787 So.2d 299. See also State v. Wilhite, 40,539 (La.App. 2 Cir. 12/30/05), 917 So.2d 1252, writ denied, 2006-1078 (La. 11/9/06), 941 So.2d 35. The credibility of an accomplice’s testimony is not within the province of the court of appeal to Rdecide. Rather, credibility evaluations are within the province of the jury as trier of fact. The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Eason, supra; State v. Casey, 1999-0023 (La. 1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).

Francis was convicted of the responsive verdicts of attempted possession of a Schedule III CDS, and attempted possession of a Schedule II CDS. La. R.S. 40:968(C) provides in relevant part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance classified in Schedule III unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, or as provided in R.S. 40:978 or R.S. 40:1239, while acting in the course of his professional practice or except as otherwise authorized by this Part.

La. R.S. 40:967(C) states in pertinent part:

It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part.

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose. La. R.S. 14:27. An attempt is a separate but lesser grade of the intended crime; and any person may be | ^convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt. La. R.S. 14:27(C); State v. McNair, 597 So.2d 1096 (La. App. 2d Cir. 1992), writ denied, 605 So.2d 1118 (La. 1992).

The elements of attempted possession of a CDS require a person to knowingly or intentionally do or omit an act for the purpose of and tending directly toward the accomplishing of the possession of the CDS, without a valid prescription or in the absence of an enumerated professional practice. La. R.S. 14:27; La. R.S. 40:967(C); La. R.S. 40:968(C). See State v. McGraw, 43,778 (La.App. 2 Cir. 12/10/08), 1 So.3d 645, writ denied, 2009-0317 (La. 11/6/09), 21 So.3d 297; State v. Holloway, 37,021 (La.App. 2 Cir. 5/16/03), 847 So.2d 200, writs denied, 2003-1720 (La. 12/19/03), 861 So.2d 558, 2003-1929 (La. 12/19/03), 861 So.2d 560.

Attempted possession of a controlled dangerous substance may be proved by constructive possession. State v. Taylor, 39,651 (La.App. 2 Cir. 4/6/05), 900 So.2d 212; State v. Daniels, 614 So.2d 97 (La. App. 2d Cir. 1993), writ denied, 619 So.2d 573 (La. 1993). Constructive possession is shown when the state proves that the contraband was within the defendant’s dominion and control and that the defendant had knowledge of its presence. See State v. Toups, 2001-1875 (La. 10/15/02), 833 So.2d 910; State v. McGraw, supra.

DISCUSSION

At the jury trial, Bassett, one of the officers who stopped Francis, testified that he was patrolling in the Ingleside area of Shreveport on the afternoon of this offense, when he noticed a car traveling at 40 mph in a 25 mph zone. He activated the lights on his patrol car and pulled the driver llover. While approaching, Officer Bassett smelled a strong odor associated with high-grade marijuana coming from the stopped vehicle. He asked the driver, Francis, to get out of the car. Francis was searched for weapons and put into the police car. He was wearing a hat with the word “Kush” on it, a term for high-grade marijuana. Eventually, the passenger, Lewis, was also asked to get out of the car and Owen searched the vehicle while the officers waited to determine if there were any outstanding warrants for Francis or Lewis. An open container of alcohol was found in the car. Francis and Lewis were both subject to arrest for violation of the open container law.

The officers noticed a bulge in Lewis’s pants. Officer Bassett told her if she was arrested and had drugs on her person that were discovered while she was being booked into jail, she could also be guilty of introducing contraband into a penal facility. Lewis gave the officers the bag containing the CDS, explaining that the drugs were not hers and that Francis made her hide them for him. Officer Bassett stated that, based upon Lewis's behavior, he believed her.

A lengthy video recording of the traffic stop and arrest was played for the jury and introduced into evidence. We have reviewed the video, which corroborates the testimony of Officer Bassett. It also captures numerous comments made by Francis while he was in the patrol car. Among these was his observation that the officers were trying to play him and Lewis against each other. He also said that if the officers would let Lewis go, he would take the charge.

Randal Robillard, an expert in forensic chemistry with the North Louisiana Crime Lab, testified regarding the analysis of the drugs turned |7over by Lewis, which included marijuana, acetaminophen with codeine, and methamphetamine.

Lewis testified on behalf of the state. She had been attending Louisiana State University in Shreveport for two and one-half years, majoring in criminal justice. At the time of this offense, she had been in a relationship with Francis for five months, but they did not live together. Francis picked Lewis up on the afternoon of February 12, 2015, after she got out of class. He was driving a car that Lewis had rented. As they were traveling, Francis noticed that a police car pulled in behind him. According to Lewis, Francis took a clear bag out of his pocket, which was “wrapped up tight,” threw it into her lap, and told her to “hold it for me, stuff it.” She said this meant for her to put it in her clothes. Because she was somewhat fearful of Francis, and also panicked, she complied and put the bag in her pants. After the police stopped the car, Lewis said she sat in the vehicle for several minutes before the police asked her to get out. One of-the officers smelled marijuana and asked if there was anything illegal in the car. She told him “no” because she was scared. The officer told her he could smell marijuana and noticed the bulge in her pants. He told her to pull it out, which she did. She testified that she does not smoke marijuana or take pills and denied that the drugs belonged to her.

Lewis testified that she had no prior criminal record and that Francis wanted her to “take the charge” because he did have a prior record and thought he was facing a significant sentence if convicted. At some point after they were arrested, Lewis claimed they got into a heated argument that became physical, and she ended the relationship. She reiterated that she was 100% certain that Francis gave her the drugs to hide in her pants. She stated Isthat her charges were still pending and that she was not granted immunity in exchange for her testimony.

Francis testified on his own behalf and presented a different version of the events. According to Francis, he had been in a relationship with Lewis for nine months and she had lived with him at his residence for seven months. He claimed she moved in after an altercation with her mother. Francis acknowledged that marijuana had been smoked in the vehicle earlier in the day. He claimed it was not uncommon for Lewis to smoke marijuana and that they had smoked together in the past. He said that Lewis drove .the car to school and came to his residence when her classes were over. They decided to go get her something to drink, but he did not drink. Later, they were going to spend the night at a local casino. Francis claimed he had been in the car eight to 10 minutes when he was stopped by the police and he was not speeding.

Francis saw one of the officers grab at Lewis’s pants and ask her what the bulge was. Francis insisted that the drugs were not his and he did not know that Lewis had drugs with her. He denied giving her the bag of drugs to hide. Francis stated that, if he had thrown drugs into Lewis’s lap, she should have told the officers that immediately when they walked to the car. Francis said that when he saw Lewis remove the plastic bag from her pants, he thought it was just marijuana. He said, “All I know her to smoke is marijuana so I never knew about any pills or anything like that.” He was then asked if he had ever seen Lewis take pills. He responded he had seen her take Ecstasy, but not codeine. Francis claimed that' he had last used Ecstasy in 2013. He acknowledged that, while in the back of the police car, he offered to take the charges, but he denied confessing that the drugs were |flhis. On cross-examination, Francis admitted to a 2003 conviction for possession of cocaine and a 2008 aggravated battery conviction.

Lewis testified again on rebuttal and disputed many of the statements made by Francis. She denied that she lived with Francis or that she had an altercation with her mother. She stated she had been in a relationship with Francis for only five months, not nine months as he claimed. She denied smoking marijuana frequently, as claimed by Francis, and denied ever taking Ecstasy or codeine. She also denied knowing that Francis had a hotel room at a casino or that they planned to spend the night there. Lewis reiterated that Francis drove her to school on the day of their arrest and picked her up when school was over. She said that Francis wanted to use the car that day. She insisted that when they were stopped by the police, Francis threw the drugs into her lap and told her to hide them. She panicked and did as he said.

Tamila Lewis, Lewis’s mother, also testified on rebuttal. She said she did not have an altercation with her daughter and her daughter did not live with Francis. She asserted that her daughter was living with her when this incident occurred and that she had never met Francis.

The jury obviously believed the testimony given by Lewis over that offered by Francis. That credibility determination is entitled to great deference. As stated above, in the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. Lewis’s version of this incident was consistent throughout. She testified that Lewis had possession of the drugs, threw them into her lap, and ordered her to hide them from the police. Lewis’s testimony was sufficient | into show that Francis knowingly and intentionally committed an act for the purpose of and tending directly toward the accomplishing of possession of the Schedule II and Schedule III CDS at issue here. Her testimony also established that the drugs were in the dominion and control of Francis and that he had knowledge of their presence. This was sufficient evidence to show, beyond a reasonable doubt, all of the necessary elements of attempted possession of both CDS drugs.

CONCLUSION

For the reasons stated above, we affirm the convictions and sentences of the defendant, Jakeith L. Francis, for one count of attempted possession of a Schedule III CDS (acetaminophen with codeine), and one count of attempted possession of a Schedule II CDS (methamphetamine).

AFFIRMED.


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    ADVANCED SLEEP CENTER, INC. and Advanced Neurodiagnostic Center, Inc. v. CERTAIN UNDERWRITERS AT LLOYD’S, London
    NO. 16-CA-525
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, ADVANCED SLEEP CENTER, INC. AND ADVANCED NEURODIAG-NOSTIC CENTER, INC., Conrad Meyer, Glenn S. Newbauer, Michael S. Brandner, David D. Bravo
    COUNSEL FOR DEFENDANT/AP-PELLEE, CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, L. Lane Roy, Kelly F. Walsh
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   MURPHY, J.

| j Appellants, Advanced Sleep Center, Inc. and Advanced Neurodiagnostic Center, Inc., have appealed the trial court judgment in favor of defendant, Certain Underwriters at Lloyd’s London. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Defendant issued a policy of insurance to insure plaintiffs’ property, (hereinafter referred to as “the subject property”), which consists of a three-story stucco building, located at 2905 Kingman Street in Metairie, Louisiana, for the policy period from June 29, 2012 to June 29, 2013. Hurricane Isaac struck the area where the subject property is located on August 29, 2012. On October 11, 2012, Dr. Morteza Shamsnia, one of the owners of the plaintiff corporations, submitted a property loss notice to their insurance broker asserting that winds from the hurricane caused damage to the subject property’s roof, which resulted in damaged flooring, and that “damage to the building caused power outage and medicines were destroyed.” Defendant denied coverage for the alleged losses and plaintiffs filed suit.

At trial, Daniel Onofrey testified that he is a licensed commercial contractor and has worked in the construction industry for forty years. Prior to 2008, he was an insurance adjuster and handled property damage claims for insurance companies and property owners. Mr. Onofrey had a long standing relationship with Dr. Shams-nia. At the time Hurricane Isaac struck, he was in the process of constructing a building for Dr. Shamsnia, located next door to the subject property. Dr. Shamsnia asked Mr. Onofrey to look at the subject property after Hurricane Isaac. Mr. Onofrey met with Dr. Shamsnia’s maintenance man, identified as |2Mohammad Tareh, to repair the roof of the subject property. In repairing the roof, Mr. Tareh applied an elas-tomeric coating to the roof.

Mr. Onofrey testified that there was widespread water damage to the building, which was caused by water intrusion from Hurricane Isaac. In his deposition, Mr. Onofrey stated that the leaks into the building were caused by the parapet wall surrounding the roof. At trial, Mr. Onofrey testified that water came in through the flashing for the parapet wall, explaining that the flashing “waffled up” allowing water to enter. Mr, Onofrey stated that he had recently realized that the flashing “was lifting and a breach of the counter flashing caused water intrusion” and this was the only thing that could cause so much widespread damage. Mr. Onofrey stated that this damage to the flashing was visible, and referred to pictures of the flashing, which Mr. Onofrey stated was “waffling up.”

At Dr. Shamsnia’s request, Mr. Onofrey prepared a repair estimate for damage to the building alleged to be caused by the hurricane. The estimate includes the costs to repair roof leaks and the exterior stucco, as well as numerous interior repairs throughout the building including replacing insulation, ceiling tiles, flooring, cabinetry, countertops, sinks, light fixtures, cameras, smoke detectors, blinds, window hardware, replace and/or repair and paint drywall, and paint molding and doors. The total estimated cost of these repairs was $369,693.89. Mr. Onofrey explained that this estimate was compiled from items Dr. Shamsnia pointed out as they walked through the building, Mr. Onofrey took notes during this inspection but he no longer had the notes at the time of trial. Mr. Onofrey testified that he did not take pictures during this inspection. Mr. Ono-frey was listed as the insured’s contact person on the property loss claim form.

Mr. Onofrey testified that he inspected the building with the adjuster assigned to the claim by defendant, J. Scott McClary. Mr. Onofrey pointed out [¡¡damage to the building as he walked through the building with Mr. McClary. Mr, Onofrey accompanied Mr. McClary to the roof of the building.

Dr. Shamsnia, a professor of neurology, testified that he and his wife work in the subject building, where they operate a sleep study center and a neurodiagnostic center. He testified that defendant inspected the property twenty-eight days before the storm and determined the building was in “good standing.”

Dr. Shamsnia stated that he and his wife, Simin Mirtaheri, evacuated to Los Angeles for Hurricane Isaac. When he went into the building after the storm, there were multiple areas of damage on the second and third floors from water getting into the building from the windows and roof. He instructed his “superintendent,” Mohammad Tareh, to make the necessary repairs to stop water from leaking into the building from the roof. Mr. Tareh tightened the screws on the roof and changed the seals at the bottom of windows. Mr. Tareh also picked up wet carpet and dried it. Some of the carpet was replaced with laminate flooring. The minimum amount of repairs were done to make the building functional so Dr. Shamsnia and his wife could resume patient care. Dr. Shamsnia did not have an invoice or a list of the repairs performed by Mr. Tareh.

After Mr. Tareh worked on the roof, Dr. Shamsnia had roofing work performed by the roofing contractor who was working on his new building. Dr. Shamsnia was told by this contractor that the roof needed to be replaced. Dr. Shamsnia testified that the roof had not been replaced and it can be observed that the “flanges and all of that are bent.” Dr. Shamsnia testified that the water damage inside the building is' obvious—there are water stains on the ceiling and walls throughout the building, some of the windows are “buckled,” and the building smells ft’om the water damage. In Dr. Shamsnia’s view the pictures of the building that were entered into evidence do not show all of the damage to the building.

|4In addition to the damage to the building, plaintiffs also submitted a claim for loss of medications. Dr. Shamsnia testified that there were medications in the building which had to be stored at a constant temperature. These medications are ruined if they are not held' at the recommended temperature for more than twenty-four hours. Dr. Shamsnia retained the ruined medications and pictures of the ruined medication were submitted into evidence at trial. Dr. Shamsnia testified that there was a “direct power loss” to the building based on the inspection performed by “his” electrician. He gave a copy of the electri-eian’s report to defendant’s adjuster. Although defendant denied that this report was dated, Dr. Shamsnia testified that the report was dated.

Dr. Shamsnia received the letter denying his claim for damages in December 2012. In July 2013, he contacted Daniel Scott Claire, a public insurance adjuster, to inspect the building. Mr. Claire prepared a second repair estimate which totals $142,597.00. On July 30, 2013, Dr. Shamsnia mailed this repair estimate, along with a letter, to defendant stating that he disagreed with the decision to deny the claim and requested to proceed under the “request for appraisal” provision of the policy. Dr. Shamsnia testified that he did not receive a response to this letter from defendant; however, the property was reinspected by defendant in August 2013.

Glen Scarsone, an engineer for Entergy, which supplied power to the subject building, testified that there was a widespread power outage in Metairie which began at 6:01 a.m. on August 29, 2012 and lasted over twenty-four hours. He explained that the subject property was located in the area that was affected by the power outage.

■ J. Scott McClary testified that he works for Worley Catastrophe Response. This claim was assigned to Worley on October 15, 2012. Mr. McClary testified Rthat the initial adjuster assigned to the claim was unable to get in touch with plaintiffs to inspect the property before the claim was reassigned to Mr. McClary. Mr. McClary was assigned the claim on November 4, 2012 and he inspected the property on November 13, 2012. Mr. Onofrey accompanied Mr. MeClary during his inspection of the building. Mr. McClary took numerous photographs of the property during the inspection, which were admitted into evidence. ,

Mr. McClary testified that Mr. Onofrey told him that repairs were made to the second floor of the building, including replacing the flooring and ceiling tiles. Mr. McClary asked for pictures of the building prior to repairs being made and Mr. Ono-frey stated he would provide the pictures. However, pictures of the building prior to repairs were never provided. Mr. McClary was told that repairs had not been made to the third floor of the building. Mr. McClary was not able to access all areas of the third floor due to patients being present. Photographs taken by Mr. McClary depict the lobby and hallways of the third floor. The carpet and ceiling tiles have not been replaced. Mr. McClary testified that he did not see any water damage on the third floor of the building.

Mr. McClary testified that the pictures of the front of the building do not show any exterior damage to the building, including the roof. Mr. McClary explained that the roof of the building is made of sheet metal consisting of panels that are held down with screws and held at the edges by fasteners. While inspecting the roof, he looked for evidence of movement of the panels, such as loosened fasteners, and movement of the seams. He explained that if the panel moved, the area of the panel which the fastener previously covered would be cleaner than the surrounding area. He did not see any evidence of movement of the panels. He inspected the area around the parapet wall, noting that this area can be a “problem” on this type of roof. He did not see any loosening of the seams or ^fasteners. He went over the numerous pictures he took of the roof and explained that they did not show any damage to the roof. Mr. McClary referred to pictures of the flashing which Mr. Onofrey stated was “waffling up.” Mr. McClary was unsure of what “waffling up” meant, but testified that the flashing on this building looked normal. Mr. McClary pointed out that the pictures show maintenance on the roof such as elastometric sealant around the roof vents; this is normal maintenance for this type of roof.

Mr. McClary explained that the insurance policy issued by defendant on this property only covers interior damage if it is caused by water entering the building due to damage to the roof or exterior of the building. Mr. McClary recommended that the claim be denied because he saw no damage to the roof or exterior of the building. Mr. McClary further explained that the policy only covered losses for contents of the property that were caused by a power failure that occurred on the premises. He recommended that the claim for the ruined medications also be denied because the power failure was caused by an off premises, widespread power outage in the area.

Mr. McClary inspected the property for the second time on August 15, 2013. At that inspection, he was accompanied by Dr. Shamsnia and Mr. Claire. Mr. McClary again took numerous pictures of the property. Mr. McClary went over these pictures during trial and testified that there was no difference in the building between his initial inspection on November 13, 2012 and the second inspection on August 15, 2013. Mr. McClary went over several pictures of the roof taken during the second inspection. Referring to the south and southwestern areas of the roof, he explained that there was no evidence of wind damage. He testified that there was no evidence of any movement of the panels, flashing or screws of the roof.

Mr. McClary testified that the third floor of the building was in the same condition as it was on his prior inspection of November 2012. The same carpet was in place and did not show any water damage.

Following the second inspection, Mr. McClary wrote a report recommending that the claim be denied because there was no storm created opening in the roof that caused interior water damage. He took pictures of the ruined medications but further recommended that this claim be denied because the loss of power was due to an off premises power failure.

Kevin Vanderbrook, who was stipulated to and accepted by the court as an expert in engineering, testified that he inspected the property in April of 2015. He inspected the interior and exterior of the building and did not see any water damage. He went over photographs taken during his inspection of the interior of the building, which did not show any water damage to the walls or ceiling.

Mr. Vanderbrook inspected the roof of the building, which he described as a low-sloped corrugated metal roof which slopes towards the rear of the building that faces west and is protected by a parapet wall. Mr. Vanderbrook opined that the only susceptible area of the roof is the rear, which is opened. He inspected this area for any type of wind damage that had not been repaired. He explained that the rubber washers between the metal and the screws deteriorate over time. During his inspection he noted one loose screw. This screw had been covered by a type of foam that is not intended for exterior use. Mr. Vander-brook explained that the screws work themselves out over time and this is not related to wind damage.

Mr. Vanderbrook testified that he carefully inspected the flashing around the parapet wall because this is a potential area for water intrusion. The inspection did not reveal anything that was loose or had been changed or repaired. When questioned as to “waffling” of the flashing, Mr. Vanderbrook opined that [ ¡/‘waffling” can occur from temperature changes, which is a not an unusual occurrence in flashing. “Waffling” is not indicative of-wind damage. Mr, Vanderbrook did not observe “waffling” on the flashing. According to Mr. Vanderbrook, there was no evidence to support any damage that would have caused the seams of the roof to separate.

Mr. Vanderbrook referred to photographs of the conduit containing the pow-erlines to the building. If the power to the building had previously been via a wire attached to the building, he would have seen evidence of a bracket having been removed. Mr. Vanderbrook testified that there is no indication of damage to the power supply to the building.

Mr. Vanderbrook explained that when this type of roof is damaged, the edges bend upward and pull the fasteners out. His inspection did not reveal that this roof had been bent upwards. Mr. Vanderbrook testified that based on the pictures taken by Mr. McClary in November 2012, the roof was in the same condition as when he inspected it in April 2015. Mr. Vander-brook explained that Hurricane Isaac had low wind speeds and this type of roof is designed to resist damage from that type of weather. Mr. Vanderbrook concluded that there was no wind created opening from Hurricane Isaac that allowed water to enter the building. The repair estimate prepared by Mr. Onofrey lists damage to every room of the building. According to Mr. Vanderbrook, the lack of physical damage to the exterior of the building and the roof does not correspond to the inflated damages listed by Mr. Onofrey.

At the conclusion of trial, the trial judge took the matter under advisement. On April 8, 2016, the trial judge issued judgment in favor of defendant dismissing plaintiffs’ claims with prejudice. This timely appeal followed.

JciLAW AND DISCUSSION

On appeal, plaintiffs argue that the trial judge committed reversible error by: (1) requiring plaintiffs to prove that the exclusionary provisions do not apply rather than having defendant prove why the exclusions do apply, (2) misinterpreting the phrase “satisfactory proof of loss,” (3) misinterpreting the. fiduciary duty of defendants to investigate the claim, and (4) misinterpreting the appraisal provision of the policy and excusing defendant from the appraisal process.

Defendant responds that plaintiffs bore the burden of proving coverage under the policy and were required to prove that the wind created an opening through the roof which caused water to enter the building. Defendant contends plaintiffs offered no evidence to show any damage to the roof or the exterior of the building.

BURDENS OF PROOF

The insured bears the burden of proving that a claim falls within the policy coverage. Doerr v. Mobil Oil Corp., 00-947 (La. 12/19/00), 774 So.2d 119. However, the insurer has the burden of proving the claim is not covered due to the applicability of an exclusionary clause within the policy. Id. at 124. An insured, seeking to recover under an insurance contract, has the burden of proving every fact essential to his cause of action. Rosen v. United States Auto Assn, 12-284 (La. App. 4 Cir. 11/14/12), 235 La. 511, 104 So.2d 633, 639; Collins v. New Orleans Pub. Serv., Inc., 234 So.2d 270, 272 (La. App. 4 Cir. 1970), writ refused, 256 La. 375, 236 So.2d 503 (1970).

Section A of the insurance policy insuring the subject property provides:

A. Coverage
| mWe will pay for direct physical loss of or damage to Covered Property at the premises described in the declarations caused by or resulting from a Covered Cause of Loss.

Coverage under the policy lists causes of loss, including section C which states:

C. Limitations
The following limitations apply to all policy forms and endorsements unless otherwise stated.
1. We will not pay for loss of or damage to the property, as described and limited in this section. In addition, we will not pay for any loss that is a consequence of loss or damage as described and limited in this section.
c. The interior of any building or structure, or to personal property in the building or structure, caused by or resulting from rain, snow, sleet, ice sand or dust, whether driven by wind or not, unless:
(1) the building or structure first sustains damage by a Covered Cause of Loss to its roof or walls through which the rain, snow, sleet ice, sand, or dust enters...

Section B of the causes of loss contains exclusions, which state in pertinent part:

B. Exclusions ■
1. We will not pay for loss or damage caused directly or indirectly by any of the following. Such loss or damage is excluded regardless of any other cause or event that contributes concurrently or in any sequence to the loss.
c. Utility Service
The failure of power or other utility service supplied to the described premises, however caused, if the failure occurs away from the described premises.

Thus, the policy provides coverage for interior damage of the building if there is damage to the roof or exterior of the building which allows water to enter the property. Accordingly, plaintiffs had the burden of proving damage to the roof |nor exterior of the property caused by Hurricane Isaac that allowed water to enter the property and damage the interior of the property.

Further, the policy excludes coverage for contents of the building -that are damaged due to a power outage that does not occur on the premises. Accordingly, defendant had the burden of proving the claim for ruined medications was caused by a power outage that did not occur on the premises.

In an attempt to carry their burden of proof, plaintiffs presented the testimony of Mr. Onofrey, who prepared a detailed estimate of the cost of repairs for damage allegedly caused by Hurricane Isaac. Mr. Onofrey testified that there was widespread water damage to the building, which was caused by water intrusion from Hurricane Isaac. In his deposition, Mr. Onofrey stated that the leaks into the building were caused by the parapet wall surrounding the roof. At trial, Mr. Onofrey testified that water came in through the flashing for the parapet wall, explaining that the flashing “waffled up” allowing water to enter. Mr. Onofrey stated that he had recently realized that the flashing “was lifting and a breach of the counter flashing caused water intrusion” and this was the only thing that could cause so much widespread damage. Mr. Onofrey stated that this damage to the flashing was visible, and referred to pictures of the flashing, which Mr. Onofrey stated was “waffling up.” Mr. Onofrey acknowledged that he was a licensed contractor but was not ah engineer.

Plaintiffs also presented the testimony of Dr. Shamsnia who testified that some rfepairs were performed on the roof after the storm. No documents were presented to describe the roof repairs, nor were any invoices submitted for labor or materials for the repairs. Dr. Shamsnia testified that the roof had not been replaced and it can be observed that the “flanges and all of that are bent.” Dr. Shamsnia was 112told by a roofing contractor that the roof heeded to be replaced. Dr. Shamsnia testified that some windows are “buckled.”

Defendant presented the testimony of Mr. McClary who testified that there was no visible damage to the roof or exterior of the building on either of the two inspections he performed. He was unsure of what Mr. Onofrey meant by stating the flashing was “waffling up,” but he testified that the flashing looked normal in the photographs.

Defendant also presented the testimony of Mr. Vanderbrook, who was accepted by the trial court as an expert in engineering. Mr. Vanderbrook testified that the “waffling up” of the flashing that Mr. Onofrey referred to occurs due to the variations in temperatures. Mr. Vanderbrook testified that there was no waffling of the flashing depicted in the pictures of this roof. Mr. Vanderbrook gave detailed testimony regarding his inspection of the roof. His inspection of the flashing did not reveal any areas that had been repaired or replaced. He explained that when this type of roof is damaged, the edges bend upwards and pull the fasteners out. His inspection did not reveal that this roof had been bent upwards. Although he did observe one loose screw on the roof, this is a normal occurrence on this type of roof and was not caused by wind. Mr. Vanderbrook did not observe any evidence that the seams of the roof had separated or that the panels of the roof had become loose.

Although Mr. Onofrey and Dr. Shamsnia testified that there was damage to the roof that had been repaired, they did not offer any pictures of the condition of the roof prior to the repairs. Dr. Shamsnia testified that Mr. Tereh repaired the roof after the storm, yet Dr. Shamsnia did not produce any documents to show exactly what repairs were performed. Dr. Shamsnia testified that Mr. Tareh is an hourly employee; however, Dr. Shamsnia did not submit any documentation | ^related to the time spent for repairs of the roof. Plaintiffs did submit an unsigned, undated report that appears to have been prepared by William Ricely, which states that in his opinion the “metal roof panels were lifted and the fastening grommet screws were ripped up from the metal purling that they were secured to along the leading edge of the bottom of the roof (on the lower east corner of the roof)” by the winds from Hurricane Isaac. However, this report was refuted by the testimony of Mr. McClary and Mr. Vanderbrook, who both stated that there was no evidence that the roof had been pulled up or that the fasteners had become loose or were replaced or that the panels shifted. Mr. Onofrey testified that visible damage could be seen in the pictures taken by Mr. McClary; however, this was refuted by Mr. McClary and Mr. Vanderbrook. The trial court relied on the testimony of Mr. McClary and Mr. Van-derbrook in determining that there was insufficient evidence to support plaintiffs’ theory that waffling of the flashing along the parapet wall caused by the hurricane allowed water intrusion. Thus, the trial court’s determination that plaintiffs failed to prove that the insured property sustained an opening in the roof which allowed water to enter the building causing interior damage is supported by the record.

With regard to plaintiffs’ claim for loss of medications caused by the power outage, defendant presented the testimony of Mr. Scarsone, an Entergy engineer, who testified that the subject property was included in the area of a widespread power outage which began on August 29, 2012 at 6:01 a.m. and lasted over | utwenty-four hours. Contrary to plaintiffs’ assertion that the wind pulled the power supply from the building, Mr. Vanderbrook testified that there was no evidence to show an on the premises power outage, and further that the power to this building is supplied in a covered conduit. Relying on the testimony of Mr. Scarsone and Mr. Vanderbrook, the trial court found that the medication spoliation was not covered under the policy because the power outage occurred off the premises. This finding is supported by the record.

Having found that the trial court did not commit an error of law as defendant contends, the trial court’s finding is subject to the manifest error standard of review on appeal. Under the manifest error standard of review, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844-45 (La. 1989). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Sto-bart v. State through DOTD, 617 So.2d 880, 882 (La. 1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id

The trial court in this case was presented with two opposing views of the evidence—either Hurricane Isaac caused an opening in the roof of the insured property which caused water to enter the property, or the hurricane did not cause an opening in the roof of the property which allowed water to enter. The trial court found that there was “insufficient evidence to support waffling of the flashing |1fialong the parapet wall caused by the hurricane.” This finding is supported by the record based on the testimony of Mr. McClary and Mr. Van-derbrook. Thus, the trial court did not err in finding that there was “insufficient evidence to support waffling of the flashing along the parapet wall caused by the hurricane.”

Further, the trial court did not err in its finding that the spoiled medication was caused by an off premises power outage, as this finding is supported by the record. Defendant presented testimony from the power company’s representative that there was a widespread power outage affecting this property which began on August 29, 2012 at 6:01 a.m. and lasted over twenty-four hours. Plaintiffs’ assertion that the power was disconnected from the building by wind was refuted by Mr. Vanderbrook, who testified that the power to the building was supplied by a powerline inside of a conduit, and further that there was no evidence of a bracket holding a powerline to the building which had been removed.

SATISFACTORY PROOF OF LOSS

Plaintiffs acknowledge that their cause of action against defendant for penalties under La. R.S. 22:1892 and La. R.S. 22:1973 for failing to promptly adjust and pay their claim is dependent upon whether they provided defendant with satisfactory proof of loss. Plaintiffs argue that the trial court erred in finding that they did not supply satisfactory proof of loss.

It is well settled that a “satisfactory proof of loss” is only that which is “sufficient to fully apprise the insurer of the insured’s claims.” Louisiana Bag Co., Inc. v. Audubon Indem. Co., 08-453 (La. 12/2/08), 999 So.2d 1104, 1119. As a predicate to showing that the insurer was arbitrary and capricious or without probable cause, the insured bears the burden of proving that the insurer received satisfactory proof of loss. Reed v. State Farm Mut. Auto Ins. Co., 03-107 (La. 10/21/03), 857 So.2d 1012, 1019. Notice of a claim does not fully apprise the 110insurer of the claim and extent of damages and is not sufficient to constitute satisfactory proof of loss. See, Aunt Sally’s Praline Shop, Inc., v. United Fire and Casualty Company, 2009 WL 1702029 (E.D. La. 2009).

The evidence at trial established that plaintiffs submitted an estimate for repair of damages alleged to have been caused by Hurricane Isaac to defendant. However, when Mr. McClary inspected the property on behalf of defendant, he did not find any evidence of damage to the roof or the exterior of the building which was required under the policy to allow coverage for plaintiffs’ alleged loss. Further, although Mr. Onofrey and Dr. Shamsnia testified that there was damage to the building which was repaired, no evidence was submitted to support this testimony—there were no pictures of the property prior to the repairs being made and no documents related to labor or materials for the repairs. Additionally, although Mr. Onofrey and Dr. Shamsnia testified that there was still visible damage to the building, both Mr. McClary and Mr. Vanderbrook testified that there was no visible damage to the building. Based on the lack of evidence presented by plaintiffs at trial and the testimony of Mr. McClary regarding his inspection of the building, plaintiffs failed to prove that they provided defendant with satisfactory proof of loss. Accordingly, the trial court correctly found that plaintiffs are precluded from obtaining statutory penalties for defendant’s alleged failure to pay their claim.

DUTY TO INVESTIGATE

Plaintiffs argue that defendant breached its fiduciary duty and failed to fulfill its obligation to take affirmative steps to accumulate the necessary facts to investigate this claim. Specifically, plaintiffs claim that defendant breached its duty by relying on the recommendation of Mr. McClary to deny their claim.

l17In support of this argument, plaintiffs rely on the case of Varmall v. Bankers Specialty Ins. Co., 15-223 (La.App. 5 Cir. 10/28/15), 178 So.3d 181. In Varmall, this Court held that an insurer may not in good faith rely on the opinion of an adjuster who is unable to determine the cause of interior water intrusion and who took no further steps to determine the source of the water intrusion, especially when the adjuster has no expertise in determining the cause of damages. Id. at 190. However, the facts of the case at bar can easily be distinguished from those in Varmall. In Varmall, the adjuster did observe water damage to the insured property, whereas in the ease at bar, Mr. McClary testified repeatedly that he did not observe any water damage on the interior of the property. Rather, Mr. McClary was only told by Mr. Onofrey that there was interior water damage, consisting of damage to the floors and ceiling that had been repaired prior to Mr. McClary’s inspection. Mr. McClary testified that he requested information from plaintiffs to support the claim of interior water damage but plaintiffs failed to comply with this request. Although Mr. Onofrey told Mr. McClary he would provide him with pictures of the condition of the interior of the building prior to the repairs being made, Mr. Ono-frey ignored Mr. McClary’s request for pictures. At trial, Mr. Onofrey testified that he had not taken any such pictures. In addition, with regard to the power outage, Mr. McClary testified that Ms. Mirtaheri told him there was a widespread power outage in the area causing loss of power to the building. Mr. McClary testified that he was investigating numerous claims of damage from Hurricane Isaac at the time he was investigating plaintiffs’ claim and was aware of the widespread power outages as a result of these investigations. When Mr. McClary was presented with an undated document from Spark Electric purportedly showing that a repair to the power supply for the building was performed, Mr. McClary attempted to obtain further information to substantiate plaintiffs’ claim that the power outage was caused by the power supply being | ^disconnected from the building; however, plaintiffs and Spark Electric failed to provide any further information.

Based on the testimony presented at trial, we find no evidence that the trial court misinterpreted defendant’s duty to investigate the claim.

APPRAISAL

Plaintiffs argue that the trial court misinterpreted the appraisal provisions of the insurance policy.

Section E of the Building and Personal Property Coverage Form contains the following:

D. Loss Conditions
The following conditions apply in addition to the Common Policy Conditions and the Commercial Policy Conditions
2. Appraisal
If we and you disagree on the value of the property or the amount of the loss, either may make written demand for an appraisal of the loss....
If there is an appraisal, we will still retain our right to deny the claim.

The deposition of the claims manager, Heather O’sullivan, was admitted into evidence. Ms. O’sullivan is defendant’s corporate representative and supervisor of the management of this claim. She testified that the word “loss” in the appraisal provision refers to the financial amount of the loss rather than the physical damage. She explained that the appraisal clause is triggered when the insured and the insurer cannot agree on the amount of the cost to repair damages to an insured property. In this case, there was not a disagreement with regard to the amount of the loss; rather there was a disagreement as to whether the property sustained any loss that was covered under the policy. Hence, the appraisal clause [ 19under the policy was not applicable. In any event, the evidence indicates that defendant did not ignore plaintiffs’ request to proceed under the appraisal clause. The evidence indicates that defendant had Mr. McClary inspect the property a second time and also had the property inspected by an engineer, Mr. Vanderbrook, who explained how he inspected the roof for any signs of wind damage. Further, in the letter requesting to proceed under the appraisal clause, plaintiffs imply that they received a damage estimate from defendant. However, the record is clear that plaintiffs never received a damage estimate from defendant. For all of the above reasons, the trial court correctly found that proceeding under the appraisal clause of the policy was not appropriate in this case.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . The Certain Underwriters at Lloyd's London include ACE. Global Markets, Sagicor at Lloyd’s, Ascot, Argo International, W.R. Berk-ley, and Canopius.

      . Apparently, Dr, Shamsnia is referring to Kevin Williams of Spark Electric.

      . Defendant argues that this report should be stricken from the record because it was not properly admitted into evidence. The transcript of the trial indicates that this document was introduced into evidence along with the deposition of Heather O'sullivan. When the deposition was introduced into evidence, the trial judge questioned plaintiffs’ counsel about the documents attached to the deposition. Plaintiffs offered these documents in globo with the deposition and they were received into evidence without objection by defendant. Thus, defendant’s motion to strike was denied.

      . The record indicates that plaintiffs claimed extensive damage to the interior of the subject building. Both Mr. Onofrey and Dr. Shamsnia testified that some flooring and ceiling tiles were replaced after Hurricane Isaac due to water damage. However, no photographs were taken of the damage prior to repairs. Contrary to the testimony of Mr. Onofrey and Dr. Shamsnia, Mr. McClary and Mr. Vander-brook testified that the pictures taken during Mr. McClary’s inspections of the building do not show any water damage.

      . Plaintiffs attempted to carry their burden of proving that the power outage occurred by the power supply being disconnected from the building with an undated statement from Spark Electric. Plaintiffs did not respond to Mr. McClary’s requests for documentation to substantiate this statement, such as a dated statement and/or a check for services performed as a result of this statement.


author: LILJEBERG, J.

text:
    Thomas C. CERULLO v. Alan P. HEISSER, Ralph W. Savoie, Guardian Life Insurance Company of America, and Savoie Financial Group, LLC
    NO. 16-CA-558
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, THOMAS C. CERULLO, Brad P. Scott
    COUNSEL FOR DEFENDANT/AP-PELLEE, ALAN P. HEISSER, RALPH W. SAVOIE AND SAVOIE FINANCIAL GROUP, LLC, Duris L. Holmes
    COUNSEL FOR DEFENDANT/AP-PELLEE, THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, Maura Z. Pelleteri, Amy S. Malish
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   LILJEBERG, J.

h Plaintiff, Thomas C. Cerullo, appeals the trial court’s judgment granting exceptions of peremption and prescription filed by defendants, Aan P. Heisser, Ralph W. Savoie, Guardian Life Insurance Company of America (“Guardian”) and Savoie Financial Group, L.L.C. For the reasons stated more fully below, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Cerullo earned a large fee as an attorney after obtaining a favorable settlement for a client. Mr. Cerullo alleges that he approached Mr. Heisser and Mr. Savoie about investing the funds he earned in an annuity. He claims that instead of purchasing an annuity, defendants invested his funds in a whole life insurance policy issued by Guardian. Mr. Cerullo alleges that he paid a premium in the amount of $108,294.26, and defendants told him this was a one-time payment with no additional payments required to maintain the investment. However, near the end of following year, Mr. Cerullo received a statement from Guardian requesting payment of another annual premium in excess of $100,000.

Mr. Cerullo does not provide dates for these events in his petition for damages. However, according to the evidence in the record, Mr. Cerullo signed an application for a life insurance policy on November 30, 2004. The application indicated that the proposed policy provided a death benefit of $2,522,588. Mr. Cerullo also signed a policy illustration on that same date which indicated annual premiums of $108,294.25 would be payable through the age of 99.

The policy was amended effective December 22, 2004, pursuant to an amendment to the application executed by Mr. Cerullo on December 27, 2004. The application indicated the policy’s death benefit increased to $2,608,924 and changed the Policy’s owner and beneficiary to the Thomas C. Cerullo ÁPLC Defined Benefit Plan. Mr. Cerullo also signed a policy illustration which again |2stated annual premiums of $108,294.26 would be payable until he reached the age of 99. The policy also provided that the annual premium is $108,294.25 and the annual premium is payable in years “1 THRU 41.”

In late 2005, Guardian transmitted an annual benefit statement to Mr. Cerullo which provided notice that the annual premium of $108,294.26 was due. The annual benefit statement also indicated that the policy’s premiums were “payable annually.” When Mr. Cerullo failed to remit the required premium due on December 15, 2015, Guardian sent a reminder advising that the policy’s premium was overdue.

Defendants further contend that prior to the termination of the policy in 2006, Mr. Cerullo met with Guardian’s general agent, Rick Villavasso, regarding options with respect to the policy and another annuity he purchased from Guardian. Mr. Cerullo elected to reduce the annuity’s face amount to avoid additional payments, but allegedly rejected Mr. Villavasso’s suggestions with respect to the whole life policy. On April 14, 2006, Guardian transmitted a notice to Mr. Cerullo terminating the policy due to the failure to pay the annual premium.

In May 2006, Mr. Cerullo prepared a letter to Guardian requesting the return of his premium payment on the grounds that the funding requirements for the whole life policy were not adequately explained to him. Guardian contends that it did not receive this letter. Guardian also contends Mr. Cerullo continued to purchase insurance products from Mr. Heisser and Mr. Savoie, including the transfer of his Guardian annuity to ING with the assistance of Mr. Heisser in June 2006.

According to the evidence, nothing further occurred until June 23, 2011, when Mr. Cerullo sent a letter to Guardian requesting the return of his premium payment. He explained the whole life policy was sold to him with “serious Immaterial misrepresentations” and attached a copy of the annual benefit statement Guardian sent to him in late 2005. In response, Guardian sent a letter dated July 26, 2011, requesting more specific information regarding the misrepresentations. Mr. Cerul-lo responded in a letter to Guardian dated March 28, 2012, providing a more detailed explanation regarding Mr. Savoie’s and Mr. Heisser’s misrepresentations regarding the life insurance policy and again requested the return of his premium, which Guardian subsequently declined to return.

Almost three years later on March 9, 2015, Mr. Cerullo sued defendants for unfair trade practices, fraud, breach of fiduciary duty, and negligence based on misrepresentations in the sale of an insurance policy. Mr. Cerullo alleged that Mr. Heis-ser and Mr, Savoie knew he did not have the financial ability to sustain an ongoing obligation to pay an annual premium in excess of $100,000 to maintain the investment. He further alleged these defendants fraudulently represented the nature of the financial product and the ongoing requirement to pay annual premiums to avoid losing the investment.

In response to the petition, defendants filed exceptions of peremption, prescription, no cause of action and no right of action. On November 80, 2015, the trial court held an evidentiary hearing, and on the same day, the trial court granted the exceptions of peremption and prescription and denied the remaining exceptions as moot. Mr. Cerullo filed a timely notice for devolutive appeal, which the trial court granted on January 25,2016.

On October 25, 2016, this Court entered an order finding the trial court’s judgment lacked required decretal language because it merely stated that defendants’ exceptions were granted and failed to include language dismissing Mr. Cerullo’s claims against defendants. This Court invoked its supervisory jurisdiction and ordered the trial court to amend the judgment. The trial court entered an amended judgment on October 27, 2016, dismissing Mr. Cerullo’s |4claims against defendants for negligence, breach of fiduciary duty, and violation of the Louisiana Unfair Trade Practices Act.

LAW AND DISCUSSION

In his first assignment of error, Mr. Cerullo argues the trial court erred by failing to recognize that fraud is an exception to the peremptive and prescriptive periods set forth in La. R..S. 9:5606(A). As discussed more fully below, we do not find that the trial court failed to apply the fraud exception in its rulings.

The rules governing the burden of proof as to prescription also apply to peremption. Rondo v. Anco Insulations, Inc., 08-1163 c/w 08-1169 (La. 5/22/99), 16 So.3d 1065, 1082, . Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Id; Carter v. Haygood, 04-0646 (La. 1/19/05), 892 So.2d 1261, 1267. If prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action is not prescribed. Lomont v. Myer-Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620. However, when a plaintiffs petition does not contain specific dates for the conduct at issue, the petition is not prescribed on its face. See Perret v. Louisiana Dept. of Public Safety and Corr., 01-2837 (La.App. 1 Cir. 9/27/02), 835 So.2d 602, 605. In the instant matter, Mr. Cerullo did not allege specific dates in his petition. Therefore, the burden of proof remained with defendants.

At a hearing on a peremptory pleaded prior to trial, evidence may be introduced to support or controvert the exception. La. C.C.P. art. 931. When evidence is introduced and evaluated at a hearing on an exception of prescription or peremption, the district court’s findings of fact are reviewed under the manifest error standard. Herrera v. Gallegos, 13-204 (La. App. 5 Cir. 10/9/13), 128 So.3d 306, 309.

lfiThe relevant provisions of La. R.S. 9:5606 provide:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
* * ⅜
C. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
D. The one-year and three-year periods of limitation provided in Subsection A of this Section are per-emptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted or suspended.

Prior to addressing the fraud exception, Mr. Cerullo argues in his appellate brief for the first time on appeal that La. R.S. 9:5606 does not apply to his claims because he intended to purchase an annuity product as opposed to an insurance policy. We note the relevant applications and illustrations signed by Mr. Cerullo indicated they pertained to the purchase of a life insurance policy. Regardless, this Court does not consider contentions for the first time on appeal which were not raised and addressed with the trial court. Brown v. Cutbertu Almanza, 12-165 La.App. 5 Cir. 10/1/12, 102 So.3d 981, 983. Therefore, we will not address this argument further on appeal.

Mr. Cerullo next argues that even if La. R.S. 9:5606 applies to his transactions with defendants, Section C contains an exemption for claims arising out of fraud. He further contends his fraud claim is subject to a ten-year prescriptive period. Defendants concede the peremptive periods set forth under La. R.S. 9:5606 do not apply to fraud claims, but contend Mr. Cerullo’s fraud claim is time-barred by the one-year prescriptive period set forth in La. C.C. art. 3492.

According to La. C.C. art. 3492, delictual actions are subject to a liberative prescription of one year and commence to run from the day injury or damage is sustained. This Court examined similar issues in Shermohmad v. Ebrahimi, 06-512 (La. App. 5 Cir. 10/31/06), 945 So.2d 119, and determined the plaintiffs fraud claims were subject to the one-year prescriptive period set forth in La. C.C. art. 3492.

In Shermohmad, supra, the plaintiff alleged that in 1993 and 1994, she purchased two whole life policies based on promises she would only owe premiums for four years. She learned in 1995 that this promise was false and the policies eventually lapsed. In 1997, the plaintiff also purchased two variable life insurance policies based on the promise she would only owe premiums for five years. In 1999, she learned the policies would not be completely paid within five years, and in 2001, she discovered she would owe premiums on these policies for the rest of her life. In 2003, the plaintiff filed suit alleging she sustained damages as a result of the defendant’s false promises and material misrepresentations regarding the purchase of the life insurance policies. Id. at 121.

|7On appeal, this Court noted the per-emptive periods in La. R.S. 9:5606 did not apply to the plaintiffs fraud claims. Id. at 122. This Court further determined that the fraud claims were subject to a one-year prescriptive period applicable to del-ictual actions set forth in La. C.C. art. 3492. Id. We noted that prescription began to accrue upon delivery of the policies to the plaintiff, and at the latest, the plaintiff knew of the defendant’s misrepresentations in 1995 and 1999. The plaintiff argued that the insurer continued to conduct an investigation into the matter as late as February 2003, but we found the investigation did not interrupt the prescriptive period. Id. As a result, this Court ruled that the plaintiffs lawsuit against her agent and the insurer filed more than a year after the discovery of her fraud claims in 1995 for the first set of policies, and in 1999 for the second set of policies, was prescribed. Id.; see also Bergeron v. Pan American Assurance Co., 98-2421 (La. App. 4 Cir. 4/7/99), 731 So.2d 1037 (applying one-year prescriptive period set forth in La. C.C. art. 3492 to fraud claims against agent for misrepresentation regarding the number of premium payments required for a life insurance policy).

In support of his argument to apply a ten-year prescriptive period, Mr. Cerullo cites to Ames v Okie, 11-1540 (La.App. 4 Cir. 5/23/12), 97 So.3d 386. In Ames, a financial planner employed by a bank was appointed as a trustee of his client’s account. The plaintiff alleged the financial planner mishandled funds from the trust, and fraudulently and knowingly represented to the clients that he did not receive any funds taken from the trust. The appellate court found that because the plaintiff alleged that a fiduciary engaged in intentional fraudulent conduct, the fraud claim was personal and subject to a ten-year prescriptive period.

We find the Ames case distinguishable because it involved claims against a trustee for the handling of trust assets, and unlike Shermohmad, supra, did not involve the sale of life insurance policies. Therefore, the one-year prescriptive [speriod set forth in La. C.C. art. 3492 applies and Mr. Cerullo’s fraud claims are time-barred as he admits he had knowledge of defendants’ alleged material misrepresentations in 2005. Mr. Cerullo’s fraud claims filed in 2015 were not timely.

We further find that even if a ten-year prescriptive period applied to Mr. Cerullo’s fraud claims, the evidence indicates Mr. Cerullo should have known of the alleged fraudulent misrepresentations more than ten years prior to filing suit. In December 2004, Mr. Cerullo, an attorney, signed applications and illustrations indicating he would owe premiums on the policies at issue through the age of 99. In addition, the policy disclosed this information. Mr. Cerullo did not file his petition until over ten years later on March 9, 2015. Therefore, we find even if a ten-year prescriptive period applied to Mr. Cerullo’s claims, they are time-barred.

Mr. Cerullo also argues that he maintains a claim for breach of fiduciary duty against defendants which is a personal action subject to a ten-year prescriptive period under La. C.C. art. 3499. However, La. R.S. 9:5606(C) does not create an exception to the peremptive periods for breach of fiduciary duty claims, only fraud claims. In support of his argument, Mr. Cerullo cites to Beckstrom v. Parnell, 97-1200 (La.App. 1 Cir. 5/15/98), 714 So.2d 188, on rehearing, 97-1200 (La.App. 1 Cir. 11/6/98), 730 So.2d 942. However, the case involved claims against stockbrokers for the sale of securities rather than the sale of an insurance policy, and thus did not involve the application of the peremptive periods set forth in La. R.S. 9:5606.

DECREE

Based on the foregoing, we affirm the trial court’s judgment which granted the exceptions of prescription and preemption filed by defendants and dismissed plaintiffs claims against them with prejudice.

AFFIRMED

      . The annuity is not at issue in this appeal.

      . This list includes all claims Mr. Cerullo alleged against defendants in his pleadings.

      . Mr. Cerullo does not contest the dismissal of his claims for negligence and unfair trade practices pursuant to La. R.S. 9:5606.

      . La. C.C. art. 1953 provides that "[f]raud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.”

      . We note other Louisiana state and federal courts have ruled claims stemming from the purchase of an annuity are subject to La. R.S. 9:5606. See Klein v. American Life & Cas. Co., 01-2336 (La.App. 1 Cir. 6/27/03), 858 So.2d 527, 531, writ denied, 03-2101 (La. 11/7/03), 857 So.2d 499; Mumford v. Jackson Nat'l Ins. Co., 06-1412 (La.App. 4 Cir. 11/7/07), 968 So.2d 357; Potier v. JBS Liberty Secs., Inc., 13-789, p. 11 (W.D. La. 5/7/15), 2015 WL 2185832, 2015 U.S. Dist. LEXIS 60189; see also La. R.S. 22:47(17) (classifying an annuity as a type of insurance).


author: JOHNSON, J.

text:
    B.G. MART, INC. v. JACOBSEN SPECIALTY SERVICES, INC., and George Jacobsen, Jr.
    NO. 16-CA-675
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017
    COUNSEL FOR PLAINTIFF/APPELLANT, B.G. MART, INC., Connie P. Trieu
    COUNSEL FOR DEFENDANT/AP-PELLEE, JACOBSEN SPECIALTY SERVICES, INC., AND GEORGE JA-COBSEN, JR., Roy M. Bowes, Joshua P. Mathews
    Panel composed of Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg
   JOHNSON, J.

| -(Plaintiff appeals the trial court’s sustaining of Defendants’ exception of no cause of action. For the following reasons, we dismiss the appeal for lack of jurisdiction.

On March 2, 2016, Plaintiff, B.G. Mart, Inc. (“B.G.”), filed a petition for damages against Jacobsen Specialty Services, Inc. and its owner, George Jacobsen, Jr., for breach of contract. B.G. alleged that it contracted with Defendants for the purchase and installation of two fuel tanks and dispenser accessories, and that Defendants defectively installed the tanks and dispenser accessories. B.G. sought damages for defects in the workmanship under La. C.C. art. 2769. After filing an answer, Defendant George Jacobsen, Jr. filed an exception of no cause of action and/or no right of action, claiming that the contract at issue was between B.G. and Jacobsen Specialty and that he was not a party to the contract. B.G. opposed the exception claiming that Mr. Jacobsen, a shareholder in Jacob-sen Specialty committed fraud and acted as an alter ego to the corporation and, thus, could be held personally hable.

On July 26, 2016, the trial court sustained Mr. Jacobsen’s exception of no cause of action and ordered B.G. to amend its petition within 15 days. Instead of amending its petition, B.G. filed a motion for appeal, which was granted on September 15, 2016. On appeal, B.G. contends that Mr. Jacobsen is personally liable for the improper installation of the fuel tanks because he personally guaranteed performance as an agent of the corporation. B.G. argues that the trial court erred in granting the exception before adequate discovery had been completed to show there is a basis for piercing the corporate veil or that Mr. Jacobsen committed fraud.

We note a jurisdictional defect that precludes us from considering this appeal. Only final judgments, judgments reformed in accordance with a remittitur |2or additur, and interlocutory judgments expressly provided by law are appealable. La. C.C.P. art. 2083. The judgment appealed from in this case is none of these: it does not determine the merits of the case and the law does not expressly provide that the judgment is appealable. A ruling maintaining an exception of no cause of action and granting time to amend the petition is not a final judgment or an ap-pealable interlocutory judgment. Taylor v. Leger Construction, LLC, 10-29 (La.App. 3 Cir. 3/17/10), 33 So.3d 435, 437-38; Hughes v. Energy & Marine Underwriters, Inc., 07-490 (La.App. 5 Cir. 3/11/08); 978 So.2d 566, 567-68, writ denied, 08-957 (La. 8/29/08); 989 So.2d 100; McKenzie v. Marino, 554 So.2d 803, 805 (La. App. 5th Cir. 1989); Succession of Agamy v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 487 So.2d 579, 580 (La. App. 4th Cir. 1986). In this instance, a final appealable judgment will result only when a judgment is entered expressly dismissing B.G.’s claims against Mr. Jacobsen.

Accordingly, we dismiss B.G.’s appeal at its cost.

APPEAL DISMISSED


author: JUDE G. GRAVOIS, JUDGE

text:
    John E. ACKER and Raquel S. Acker, Individually and as Administrators for their Minor Children, Alyssa Acker and Devin J. Acker v. AMERICA FIRST INSURANCE COMPANY, Jimmy Lee, and Earl’s Plumbing & Heating, L.L.C.
    NO. 16-CA-486
    Court of Appeal of Louisiana, Fifth Circuit.
    February 08, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, JOHN E. ACKER AND RAQUEL S. ACKER James B. Guest
    COUNSEL FOR DEFENDANT/AP-PELLEE, AMERICAN FIRST INSURANCE COMPANY, JIMMY LEE AND EARL’S PLUMBING AND HEATING, LLC Paul M. Elvir, Jr.
    Panel composed of Jude G. Gravois, Robert M. Murphy, and Hans J. Liljeberg
   JUDE G. GRAVOIS, JUDGE

| Plaintiffs, John E. Acker and Raquel S. Acker, appeal damage awards rendered in their favor by a jury, arguing that the jury abused its discretion in awarding them inadequate general damages and in failing to award loss of consortium damages in favor of their minor children. They also argue that the trial court erred in denying their motion for judgment notwithstanding the verdict, or in the alternative for a new trial, or in the alternative for additur. For the following reasons, we affirm the trial court’s judgment rendered pursuant to the jury’s verdict. We further affirm the trial court’s judgment that denied plaintiffs’ motion for judgment notwithstanding the verdict, or in the alternative for a new trial, or in the alternative for additur.

FACTS AND PROCEDURAL HISTORY

This matter arises from a vehicular accident that occurred on February 7, 2012 on Interstate Highway 10 (“I—10”) in Metair-ie, Louisiana, between plaintiffs’ vehicle (a Chevy Tahoe SUV) and a dump truck owned by defendant, Earl’s Plumbing & Heating, L.L.C. (“Earl’s Plumbing”), and being driven by its employee, Jimmy Lee. On January 24, 2013, Mr. and Mrs. Acker filed a petition for damages against Earl’s Plumbing and Mr. Lee, seeking damages they allegedly sustained as a result of said accident., A jury trial was conducted on the matter on November 3 and 4, 2015.

The accident in question occurred as plaintiffs were on their way to pick up an insulin pump for their daughter, Alyssa, who was seated in the back seat of their vehicle. Plaintiffs were traveling in the right eastbound lane of 1-10 near the Veterans Boulevard overpass. Mr. Lee was also traveling eastbound in the center 12lane of I—10 a short distance behind plaintiffs’ vehicle. As Mr. Lee drove up the overpass, he changed into the right lane of travel in anticipation of exiting the interstate at its next exit. As Mr. Lee came over the overpass, he saw that plaintiffs’ vehicle was braking because of a slowed or stopped vehicle (hereinafter, the “third party/unknown vehicle”) in front of plaintiffs’ vehicle. Mr. Lee attempted to slow down and also quickly attempted to avoid plaintiffs’ vehicle by changing back into the center lane, but in doing so, the left side of his dump truck struck a Wal-Mart tractor-trailer. The impact of that contact pushed Mr. Lee’s dump truck back into the direction of plaintiffs’ lane of travel. Mr. Acker testified that he saw the dump truck coming up quickly behind his vehicle and attempted to avoid the dump truck by steering his vehicle to the right. Mr. Lee was able to avoid striking the back of plaintiffs’ vehicle, but in the process of passing along the left side of plaintiffs’ vehicle, scraped plaintiffs’ vehicle, causing scuffing, scraping, and other relatively minor damages to the driver’s side of plaintiffs’ vehicle, including knocking loose the left rear wheel fender trim of plaintiffs’ vehicle, as well as dislodging the driver’s side mirror of plaintiffs’ vehicle.

Following the accident, after speaking with the police, plaintiffs continued on their errand. The next day, after feeling his back and neck “cramping up,” Mr. Acker went to see Dr. Mitchell Brien, a chiropractor who had treated him following a previous car accident in 2008. Mr. Acker complained to Dr. Brien of not being able to fully turn his neck, and also of hearing grinding when he did turn it, as well as back pain. Following a full examination, Dr. Brien released Mr. Acker to full duty at work as an equipment operator and ordered conservative treatment twice a week for several months. After about eight months, Mr. Acker’s back pain resolved, but not his neck symptoms. Consequently, Dr. Brien ordered an MRI, which he determined showed bulging discs in Mr. Acker’s neck. In November of 2012, Mr. Acker was referred to Dr. Lucien Miranne, a ^neurosurgeon. The evidence shows that Mr. Acker did not further treat with Dr. Brien after his referral to Dr. Miranne.

Dr. Miranne ordered that Mr. Acker undergo several additional diagnostic tests, including a myelogram and an E.M.G. study. These studies showed that Mr. Acker, who was 44 years old at the time of this injury, had a “disc spur complex” at “C4-5.” Dr. Miranne, who testified as an expert at trial, said that these findings indicated evidence of both old and new changes to the disc area. Dr. Miranne had no reason to doubt that Mr. Acker’s neck symptoms were caused by the instant accident, but felt that no surgery was indicated at the present time and could not say that surgery was definitely indicated in the future. Dr. Miranne testified that Mr. Acker did not tell him about his previous accidents.

Mr. Acker testified regarding his past accidents and injuries. He said that in 1986, he was in a ear accident involving an overturned vehicle, for which he filed a lawsuit. In 1998, he was in a second car accident in which he sustained back and neck injuries, for which he sought chiropractic treatment from Dr. Brien. Mr. Acker also filed a lawsuit in connection with that accident.

Mr. Acker slipped and fell at his work place in 1998, and was off of work under disability for approximately two years while he underwent conservative treatment for back symptoms. He refused recommended surgery. That job entailed heavy lifting. He testified that he was able to return to the same type of work, labor and equipment operating, by practicing yoga, martial arts, and weaning off of pain medication. In 2008, Mr. Acker was involved in another car accident, injuring his back again, for which he filed a lawsuit. His pain resolved with chiropractic treatment, and according to him, he was not symptomatic at the time of the instant accident.

Mr. Acker testified that he has always participated in martial arts. He admitted that he was treated for a groin muscle injury he sustained in 2013, after the instant accident, while allegedly attempting to do a front or forward flip.

Mrs. Acker, thirty-three years old at the time of the instant accident, also sought treatment with Dr. Brien. Her complaints to him after this accident consisted primarily of lingering low back pain, with radiation to the left buttock, though she also initially reported headaches and neck pain. She was also treated conservatively by Dr. Brien for several months, with twice weekly heat, stretching, massage, and chiropractic adjustment, which she said helped alleviate her symptoms for several days, but which would return after that. When Mrs. Acker’s reported symptoms did not abate, Dr. Brien ordered an MRI, which was performed in October of 2012 and which showed a bulging disc at “L4-5.” She was also referred to Dr. Miranne for consultation.

Dr. Miranne compared the findings of Mrs. Acker’s 2012 MRI to a previous MRI scan of Mrs. Acker from 2008, when she had injured her back at work, and opined that the disc herniation was not present on the earlier scan. He related her current symptoms to the 2012 accident at issue. However, he did not recommend surgery for Mrs. Acker.

Mrs. Acker testified to a history of several accidents as well. In 2008, she injured her back at work lifting heavy pallets. She missed four months of work and was treated by Dr. Ralph Gessner, a chiropractor. In 2009, she was in a car accident that caused serious damage to her vehicle, for which she was at fault. However, she denied being injured in that accident.

Mrs. Acker testified at trial that she can no longer participate in Zumba, or play basketball with her son, or ride bikes on the levee with her daughter.

|fiAt the conclusion of the trial, the jury apportioned liability between Mr. Lee (80%) and the “third party/unknown vehicle” (20%). Plaintiffs were found to be free from fault in causing the accident. The jury concluded that Mr. and Mrs. Acker were injured in the accident, and awarded them $17,000.00 and $9,500.00 in past medical expenses, respectively. The jury did not award the Ackers damages for future medical expenses. The jury also awarded Mr. and Mrs. Acker $3,000.00 each for past and future mental anguish and loss of enjoyment of life, and $3,000.00 and $1,000.00, respectively, for past and future pain and suffering. The jury declined to award the Ackers’ minor children loss of consortium damages. On December 11, 2015, the trial court rendered a written judgment in accordance with the jury’s verdict.

On December 17, 2015, plaintiffs filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, or in the alternative for additur. At the end of a hearing conducted on the motion on March 21, 2016, the trial court orally denied the motion. A written judgment to that effect was signed by the trial court on April 1, 2016.

Defendants have not appealed the jury’s finding regarding liability, nor the jury’s finding that Mr. and Mrs. Acker were injured in the accident, nor the jury’s damage awards made to Mr. and Mrs. Acker.

On appeal, plaintiffs have asserted the following assignments of error, to-wit:

1) The jury abused its discretion in awarding Mrs. Acker $1,000.00 in damages for past and future physical pain and suffering.
2) The jury abused its discretion in awarding Mrs. Acker $3,000.00 for past and future mental anguish and loss of enjoyment of life.
3) The jury abused its discretion in awarding Mr. Acker $3,000.00 in damages for past and future physical pain and suffering.
4) The jury abused its discretion in awarding Mr. Acker $3,000.00 in damages for past and future mental anguish and loss of enjoyment of life.
h5) The jury abused its discretion in failing to award Mr. and Mrs. Acker damages for future medical expenses.
6) The jury’s failure to award damages for loss of consortium to either of the Acker children, and in particular Alyssa, who was riding in the Acker vehicle at the time of the accident, was clear error and against the law and the evidence presented.
7) The trial court erred in denying plaintiffs’ motion for judgment notwithstanding the verdict, or in the alternative a new trial, or in the alternative additur.

ANALYSIS

ASSIGNMENTS OF ERROR NUMBERS ONE-FOUR

General damage awards to Mr. and Mrs. Acker

The Supreme Court has stated, in Youn v. Maritime Overseas Corp., 92-3017, 623 So.2d 1257, 1260 (La. 1993), that “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” The Youn court said that the discretion vested in the trier of fact is “vast,” so that an award of general damages should rarely be disturbed by an appellate court. Only when an abuse of discretion is found should the appellate court resort to consulting other damage awards for similar injuries. Id.

The record shows that the nature of the impact between plaintiffs’ vehicle and Mr. Lee’s dump truck was of the scraping type between two vehicles traveling in the same direction next to each other. Parts of the driver’s side of plaintiffs’ vehicle were damaged by the dump truck as it passed along the side of plaintiffs’ vehicle, including scraping of the side panels, loosening of the left rear wheel fender trim, scraping of the left rear tire, and dislodging of the driver’s side mirror. The record thus supports the jury’s apparent conclusion that the contact between the vehicles was not of significant forceful impact. The Ackers described the accident as a “shaking,” similar to being passed by a large truck, or like being in a “tornado,” and of short duration. The evidence is also clear that plaintiffs’ vehicle |7was still drivable after the accident, and that they were able to continue on with their planned activities that day in their vehicle after the accident.

Dr. Brien, Mr. Acker’s treating chiropractor, testified that after the initial examination on February 8, 2012, he released Mr. Acker without physical restrictions at work and without prescription pain medication. Mr. Acker worked in a job that required him to perform some physical labor and equipment operating, as he had in past jobs as well. Dr. Brien testified that over the next several months of conservative treatment, Mr. Acker never complained that his neck symptoms prevented him from working without restrictions, and Mr. Acker never sought a medical excuse with restrictions from Dr. Brien. Mr. Acker testified that he did not miss any work as a result of this accident and was not making a claim for lost income.

The evidence shows that Mr. Acker treated with Dr. Brien until around September or October of 2012, when he was referred to Dr. Miranne. Mr. Acker had several visits with Dr. Miranne, but did not treat further with Dr. Brien. Likewise, Mrs. Acker also treated with Dr. Brien until her referral to Dr. Miranne, whom she saw twice according to her testimony. She did not further treat with Dr. Brien after the referral to Dr. Miranne. She also testified that she did not miss any work due to this accident.

Mr. Acker also admitted to participating in martial arts, and after this accident, to hurting his groin while allegedly attempting to do a front or forward flip. The record shows that Mr. Acker had a history of back and neck injuries from accidents, some of which resulted in lawsuits. The jury also heard that plaintiffs’ minor daughter, who was also riding in the Ack-ers’ vehicle at the time of the accident, made no claim for personal injuries.

lRUpon review, we find that the evidence in the record clearly supports the jury’s conclusion that Mr. Acker was not seriously injured in this accident. The jury awarded Mr. Acker, in addition to his medical expenses, a total of $6,000.00: $3,000.00 in damages for past and future physical pain and suffering and $3,000.00 in damages for past and future mental anguish and loss of enjoyment of life. After reviewing all of the evidence in the record, we cannot say that the jury abused its vast discretion in its general damage awards to Mr. Acker.

Mrs. Acker also argues that the general damages awarded to her is abusively low. In addition to her medical expenses, the jury awarded Mrs. Acker $1,000.00 for past and future pain and suffering, and $3,000.00 for past and future mental anguish and loss of enjoyment of life. Again, considering all of the evidence in the record, we cannot say that the damage awards to Mrs. Acker, while low, are an abuse of the jury’s vast discretion in fashioning its general damage awards to Mrs. Acker.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Future medical expenses

In this assignment of error, plaintiffs argue that it was an abuse of discretion for the jury to decline to award them damages for future medical expenses. However, a review of the jury verdict form shows that plaintiffs did not request future medical expenses therein. Nor did plaintiffs object to the jury verdict form. By failing to make a specific objection to the jury interrogatories before they were presented to the jury, plaintiffs have waived their right to have this issue considered on appeal. Gonzalez v. Gov’t Emples. Ins. Co., 09-140 (La.App. 5 Cir. 2/09/10), 32 So.3d 919, 930. See, e.g., Perkins v. Guidry, 15-1177 (La.App. 3 Cir. 4/05/16), 191 So.3d 1182, 1189. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SIX

Loss of consortium damages to minor children

Next, plaintiffs argue that it was clear error for the jury to decline to award damages for loss of consortium to either of the Acker children, and in particular Alyssa, who was in the Ackers’ vehicle at the time of the subject accident.

In the context of the parent-child relationship, an award for loss of consortium is properly made where there has been some measurable or compensable loss, such as loss of love and affection, society and companionship, right of performance of material services, right of support, aid and assistance, and felicity. Turner v. Lyons, 03-0186 (La.App. 4 Cir. 1/28/04), 867 So.2d 13, 22. A loss of consortium award is a fact-specific determination, to be decided on a case-by-case basis, and is to be disturbed only if there is a clear showing of an abuse of discretion. Id.

In this particular case, Mrs. Acker testified that she occasionally played basketball with her son and occasionally rode bikes on the levee with her daughter, but was no longer able to enjoy those activities with her children. There was, however, no testimony that the Acker children “missed out on a lot of fun and companionship they shared with their young parents before the accident,” as argued by plaintiffs on appeal. Likewise, there is a dearth of evidence that Mr. Acker’s neck symptoms have prevented him from being able to attend his children’s unspecified activities and events. The record as a whole fails to show that the Acker children were deprived of their parents’ love and affection, society | ]nand companionship, right of performance of material services, right of support, aid and assistance, and felicity as a result of this accident.

Considering the record as a whole, we find that under the facts of this case, the jury’s failure to award the Acker children loss of consortium damages was not an abuse of discretion. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER SEVEN

Denial of motion for judgment notwithstanding the verdict

Finally, plaintiffs argue that the trial court erred in denying their motion for judgment notwithstanding the verdict regarding the damage awards.

This Court, in Thistlethwaite v. Gonzalez, 12-130 (La.App. 5 Cir. 12/18/12), 106 So.3d 238, 251, summarized the law regarding the granting of a judgment notwithstanding the verdict, to-wit:

Louisiana Code of Civil Procedure article 1811 provides for and controls the use of a judgment notwithstanding the verdict. A trial court’s authority to grant a judgment notwithstanding the verdict under Article 1811 is limited by the jurisprudence to those cases where the jury’s verdict is absolutely unsupported by any competent evidence. Davis v. Lazarus, 04-0582 (La.App. 4 Cir. 3/8/06), 927 So.2d 456,461. The strict criteria for granting a judgment notwithstanding the verdict is grounded on the rule that when there is a jury, the jury is the trier of fact. Smith v. State, Dept. of Transp. & Development, 04-1317, 04-1594 (La. 3/11/05), 899 So.2d 516.
In ruling on a motion for a judgment notwithstanding the verdict, the trial court considers whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable persons could not arrive at a contrary verdict. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 10/30/00), 772 So.2d 94 (citing Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La. 1986)). The trial court must deny the motion if evidence opposing the motion “is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.” Id., at 99. In its consideration, the trial court is not to evaluate the credibility of the witnesses and it must resolve all reasonable inferences or factual questions in favor of the non-moving party. Id.

Previously in this opinion, this Court has found that the damage awards made by the jury in favor of Mr. and Mrs. Acker were amply supported by the 1n evidence in the record, including plaintiffs’ testimonies and the medical evidence admitted into evidence, and were not abusively low. It therefore follows at this juncture that we cannot say that the jury verdicts were “absolutely unsupported by any competent evidence.” Accordingly, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment rendered pursuant to the jury’s verdict is affirmed. Further, the trial court’s judgment that denied plaintiffs’ motion for judgment notwithstanding the verdict, or in the alternative for a new trial, or m the alternative for additur, is also affirmed.

AFFIRMED

      . Mr. and Mrs. Acker appeared in the petition for damages individually and as administrators of their minor children, Alyssa Acker and Devin J. Acker.

      . Plaintiffs also named "America States Insurance Company," the alleged liability insurer for Earl’s Plumbing, as a defendant in the petition for damages. The record reflects, however, that the liability insurance policy covering the dump truck in question was actually issued by "American States Insurance Company."

      .The record reflects that I—10 eastbound has three main lanes of travel at the location in question.

      . "C” stands for cervical spine.

      . "L” stands for lumbar spine.

      . Mrs. Acker testified that she works part time at Old Navy and is otherwise a homemaker.

      . Mrs. Acker testified, however, that Alyssa reported some back pain and headaches to her following the accident for which she may have seen her pediatrician and which were treated with ibuprofen.

      .In any event, we further find that the evidence in the record does not support an award for future medical expenses. Plaintiffs’ treating physician, Dr. Miranne, testified that surgeiy was not indicated for either plaintiff. The evidence also reflects that once plaintiffs were referred to Dr. Miranne for evaluation, they were not treated further by Dr. Brien.

      . Further, we feel compelled to point out that the fact that Alyssa Acker was in the subject accident herself is not an element of a claim for loss of consortium as a result of her parents’ injuries. Her presence in the vehicle would have been an element of a claim for her own personal injuries, but she did not make one.