author: MICHAEL E. KIRBY, Judge. BELSOME, J.

text:
    Raquel MUNOZ v. Mayfield NORDEN, The Sewerage & Water Board of New Orleans and National Union Fire Insurance Company.
    No. 2008-CA-1130.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 16, 2009.
    Stephen P. Bruno, Bruno & Bruno, New Orleans, LA, for Plaintiff/Appellant.

      Terrill W. Boykin, Kriste Taitón Utley, Boykin & Ehret, New Orleans, LA, for The Sewerage and Water Board of New Orleans and Norden Mayfield.
    Robert I. Siegel, Rachel G. Webre, Gieger, Laborde <& Laperouse, L.L.C., New Orleans, LA, for National Union Fire Insurance Company.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

11 This is a personal injury case arising from a vehicular accident. Plaintiff, Raquel Munoz, appeals the trial court judgment rendered in favor of defendants, Norden Mayfield; his employer, the Sewerage & Water Board of New Orleans (“S & WB”); and its insurer, National Union Fire Insurance Company of Louisiana. Upon review, we conclude the evidence clearly supports the trial court’s finding that Ms. Munoz was at fault, and, therefore, affirm the judgment.

The accident occurred at the intersection of Earhart Boulevard and Eagle Street during early morning rush hour traffic. Earhart, the favored street, is a two-way boulevard with a median separating the two eastbound lanes from the two westbound lanes. Eagle, a single lane, two-way street, runs north and south. The Earhart/Eagle Street intersection has no control signal light, but one block to the east, at the intersection of Earhart and Leonidas Street, there is one. At the time, Ms. Munoz was driving her car eastbound on Earhart when she struck a S & WB pick-up truck traveling south on Eagle driven by Mr. Mayfield.

|2Ms. Munoz alleged that Mr. Mayfield, while attempting to make a left turn onto Eagle from the westbound lane of Earhart, failed to yield the right-of-way to her vehicle. Defendants, on the other hand, claimed that Mr. Mayfield had already crossed safely through the intersection at Earhart when Ms. Munoz’s vehicle stuck the right passenger side bed of his work truck. They argued that Ms. Munoz was illegally traveling in the eastbound shoulder lane of Earhart and violated New Orleans Municipal Code Sec. 154-482, subsection b, by failing to yield to Mr. Mayfield, who had pre-empted the intersection.

In reasons for judgment, the trial court characterized the case as a “swearing contest.’ ” Notably, he gave no weight to the testimony of the accident investigator, Officer Mason Suell, who had admitted that the accident report contained numerous errors, e.g., he mislabeled the streets and vehicles and failed to indicate the shoulder lane on Earhart. The trial court found defendants’ account of the accident more consistent with the facts and physical evidence, particularly the location of the vehicles and place of impact. Contrary to Ms. Munoz’s claim, the trial court found no evidence that Mr. Mayfield was attempting to make a left turn from westbound Earhart. Rather, he found that Mr. Mayfield was traveling straight on Eagle and had already crossed both eastbound lanes of Earhart when the [ ^accident occurred. The trial court determined that Ms. Munoz had the duty to yield the right-of-way to Mr. Mayfield, citing New Orleans Municipal Code Sec. 154-182. (Emphasis added).

On appeal, Ms. Munoz argues that, as a matter of law, the trial court erroneously applied New Orleans Municipal Code Sec. 154-182, which has no legal effect, as it is currently an undesignated section reserved for a future-enacted municipal ordinance. Defendants concede that the trial court referenced Sec. 154-182 in its reasons for judgment; however, they contend it was merely a typographical error that should have read “Sec. 154-482.” We agree.

The record discloses that throughout the trial and post-trial the defense had argued that Sec. 154-482 was the applicable ordinance. In the reasons for judgment, the trial court stated, in pertinent part, “Mr. Mayfield had lawfully entered the intersection and, thus; plaintiff had the duty to yield the right-of-way to him.” We conclude from that statement that the trial court relied on Sec. 154-482 (see n. 1, infra) in finding Ms. Munoz at fault.

Ms. Munoz next argues that trial court erred by shifting the duty to yield from Mr. Mayfield to her, considering she was traveling on the favored street and the local ordinance requires that a motorist turn right from the area closest to the curb, in this case the shoulder lane, citing New Orleans Municipal Code Sec. 154-436(1) and Winfield v. Dih, 2001-1357, p. 1 (La.App. 4 Cir. 4/24/02), 816 So.2d 942. To the contrary, defendants contend that the evidence supports the conclusion that Ms. Munoz was neither turning nor attempting to turn right onto Eagle but rather was traveling illegally in the shoulder, a violation of La. R.S. 32:74(B).

Nothing in the reasons for judgment indicates the trial court found that Ms. Munoz was, in fact, attempting a right turn from the shoulder lane. Rather, the trial court found Mr. Mayfield was traveling straight on Eagle and had already crossed both eastbound lanes of Earhart when the accident occurred. The issue, therefore, is whether or not the trial court’s factual finding was reasonable and supported by evidence in the record. See Hanks v. Entergy Corp., 2006-0477, p. 22-23 (La.12/18/06); 944 So.2d 564, 580.

Mr. Mayfield testified that he was traveling south on Eagle, had crossed the westbound lanes of Earhart, and then stopped in the median to assess whether he could safely cross the eastbound lanes. Before proceeding from the stop, he looked left (east) to insure that the traffic light at Leonidas had turned red, and then looked right to insure that the traffic in eastbound lanes of Earhart had stopped to allow him to pass. When the intersection cleared, he slowly crossed eastbound Earhart. As he crossed, the two lines of vehicles that had backed up in the eastbound lanes were obstructing his view of Ms. Munoz’s oncoming vehicle. Mr. May-field corroborated Ms. Munoz’s testimony that she was traveling approximately 20-25 |sm.p.h. when her vehicle struck the right passenger side of the S & WB pickup truck. According to Mr. Mayfield, the collision happened too fast for him to take any evasive action.

Mr. Mayfield’s supervisors, Lester Caruso and David Gagliano, testified that they went immediately to the accident scene. According to them, Ms. Munoz’s vehicle was stopped in the shoulder area of the intersection, not near the curb, while the front end cab of the S & WB truck was stopped in the middle of Eagle well past the shoulder area of the intersection. They testified that the damage to the S & WB truck was on the right passenger side of the bed between the cab and rear tire. The photograph in evidence corroborates the defense witnesses’ testimony that Ms. Munoz’s vehicle hit the S & WB pick-up on the right passenger side of the bed.

After reviewing the entire record, we conclude that trial court’s findings that Mr. Mayfield had already safely crossed the two eastbound lanes of Earhart when the accident occurred and that Ms. Munoz was at fault for failing to yield the right-of-way to him were reasonable in view of the evidence. Although the trial court expressed no finding regarding whether Ms. Munoz was making a legal right turn from the shoulder lane, it is reasonable to conclude, based upon her own admission that she was traveling 20-25 m.p.h. when the accident occurred, that she was not making a right turn at that speed.

Accordingly, for the above reasons, we affirm the trial court judgment.

AFFIRMED.

BELSOME, J.

dissents with reasons.

| ,As the majority acknowledges, Plaintiff was traveling on Earhart Boulevard, the favored street. Defendant Norden May-field simply failed to yield to Ms. Munoz as he was crossing the favored street. Ms. Munoz reasonably assumed that Mr. May-field, traveling from the less favored street, would stop for the intersection and yield the right-of-way. See Rivers v. Alexander, 560 So.2d 999, 1002-03 (La.App. 4 Cir.1990)(citing Willis v. Everett, 359 So.2d 1080, 1085 (La.App. 3 Cir.), writ denied, 362 So.2d 800 (La.1978))(quoting Welch v. Welch, 169 So.2d 713 (La.App. 4 Cir.1964)). “A motorist on a right-of-way street is entitled to assume that motorists on the unfavored street approaching a stop sign will obey the traffic signal and will stop, look and yield the right of way to traffic proceeding on the favored street.” Edwards v. Pierre, 2008-0177, p. 7 (La.App. 4 Cir. 9/17/08), 994 So.2d 648, 655 (quoting Fernandez v. General Motors Corp., 491 So.2d 633, 636-37 (La.1986)). Furthermore, Ms. Munoz testified that she was making a legal right-hand turn from the shoulder of the road. See Winfield v. Dih, 2001-1357, p. 6 (La.App. 4 Cir. 4/24/02), 816 So.2d 942, 947. The trial court thus erred in shifting the duty to yield from Mr. Mayfield to Ms. Munoz, as a motorist is required by law to make a right turn from the area closest to the curb. See Winfield, 2001-1357, p. 6, 816 So.2d at 947; New Orleans Municipal Code Sec. 154-436(1). Notably, this Court recently recognized that “it is only in the exceptional case where the right of way motorist could have avoided the accident by the exercise of the very slightest degree of care that he will be considered guilty of negligence.” Edwards, 2008-0177, p. 8, 994 So.2d at 655 (holding that driver who crossed the favored street was 80% at fault for failing to see the approaching vehicle in oncoming traffic).

I cannot agree that the trial court’s factual findings were reasonable and supported by the record in this case. Nor can I agree that Ms. Munoz, rather than Mr. Mayfield, had the duty to yield under these facts and circumstances. Therefore, I respectfully dissent.

      . The original petition, answer and judgment refer to the defendant as "Mayfield Norden.” However, the trial transcript and other evidence indicate that the defendant's name is Norden Mayfield.

      . In her original petition, Ms. Munoz alleged only that she was traveling in the right eastbound lane of Earhart when the accident occurred. At trial, she testified that she was in the right eastbound lane of Earhart trying to turn right onto Eagle when the accident occurred. Yet, in her appeal brief, while never admitting to traveling in the shoulder lane, Ms. Munoz alludes to lawfully being there because the local ordinance requires a right-turning driver to turn as close as practicable to the right curb.

      . New Orleans Municipal Code Sec. 154-482 provides:
      Vehicles entitled to right-of-way on certain intersections streets.
      (a) Upon entering or crossing a boulevard from any street on which no traffic control sign or signal is erected, the driver or a vehicle or operator of a streetcar shall proceed cautiously, yielding to vehicles which are within the intersection or approaching so closely as to constitute an immediate hazard.
      (b) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.
      (c) When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
      (d) The right-of-way rules declared in subsections (b) and (c) of this section are modified at through streets and otherwise as stated in this chapter.

      . New Orleans Municipal Code Sec. 154-436 provides:
      Required position and method of turn at intersection.
      The driver of a vehicle intending to turn at any intersection shall proceed as follows:
      (1) Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or the edge of the roadway.

      . In Winfield, the collision occurred when two vehicles were simultaneously turning right onto the same street, one from the far right travel lane and one from the right shoulder lane. We concluded that the driver turning right from the shoulder lane closest to the curb did so legally under Sec. 154-436, but, nonetheless, both drivers were equally at fault for being inattentive. 2001-1357, at pp. 12-13, 816 So.2d at 950-951.

      .La. R.S. 32:74(B), provides:
      The driver of a vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main traveled portion of the highway.

      . Subsequent to the accident, Ms. Munoz received treatment for cervical and lumbar spine injuries, as well as shoulder pain, muscle spasm, cervical disc disease, left knee pain, and temporomandibular joint disorder ("TMJ”).


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    David R. KATNER v. SKR V. KATNER aka Srikala V. Katner.
    No. 2009-CA-0974.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 2009.

      Phyllis C. Coci, Metairie, LA, for Sri Katner.
    Leslie A. Bonin, New Orleans, LA, for David R. Katner.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge, EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11 This appeal arises from a community property partition suit between Ms. Sri Katner and Mr. David Katner. Ms. Kat-ner appeals the trial court’s judgment. For the reasons which follow, we affirm in part, and reverse in part, and render.

I

The Katners were married on June 30, 1991, in New Orleans and made their domicile in the city, establishing the community property regime which governs this cause. La. C.C. art. 2334. During the course of their marriage they acquired a home in the Carrollton section of the city as well as automobiles, furniture, and financial accounts. The community regime was terminated effective June 13, 2001. On the date of termination, the community consisted of assets, and there were no community liabilities.

Ms. Katner filed the initial petition for partition on January 6, 2004. See La. C.C. art. 2369.8 and La. R.S. 9:2801. During the pendency of the partition trial, the trial court, on the joint motion of the parties, authorized a partial partition by | ¡.consent of the home in Carrollton and of one of two automobiles. See, e.g., Westcott v. Westcott, 08-1339, p. 2-4 (La.App. 4 Cir. 4/17/09), 11 So.3d 45, 48-50. The judgment was rendered on April 30, 2004. The full ownership of the home was transferred to Mr. Katner, subject to an unspecified future “equalization,” and the automobile, a Nissan, was transferred to Ms. Katner.

The parties filed sworn descriptive lists, which were later supplemented and amended. See La. R.S. 9:2801. No traversals, identified as such, were ever filed. See La. R.S. 9:2801(A)(2). The partition trial centered on the proper valuation of the assets, the allocation of the assets, the parties’ respective claims for reimbursement, and Mr. Katner’s disputed claim for what he characterized as advances to Ms. Katner against her share of the community property. After a trial, the trial court entered a judgment April 30, 2009, and an amended judgment on May 6, 2009.

The judgment valued the assets at $377,595. Generally, the trial court in its judgment made findings concerning the valuation of assets and the reimbursement claims as well as Mr. Katner’s claim for advances in line with his contentions and rejected Ms. Katner’s arguments. The findings and the parties’ contentions and arguments will be explained in detail. In the end, the trial court concluded that Ms. Katner, as noted earlier, owed Mr. Katner the net sum of $1,024 and rendered judgment against her.

II

The value of the assets, not them classification as community, is at issue. The trial court valued the principal asset, the home, at $350,000 as of the date of its | .Transfer to Mr. Katner. Ms. Katner argues that the trial court erred in two respects: first, that the trial court committed legal error in not valuing the home as of the date of the partition trial on March 19, 2009, and, second and alternatively, that the trial court committed manifest error in not accepting the “appraisal” of its higher value as of 2004.

La. R.S. 9:2801 A(4)(a) provides that the court is to value community assets “at the time of the trial on the merits.” The statute, however, neither addresses partial partitions by consent nor, even more so, such partitions where the value of the asset is not particularly expressed in the partial partition. We, therefore, see the issue of the appropriate date of valuation as one not so much of a question of law, but a question of fact. As a question of fact, the intentions of the parties dominate.

The parties’ “Act and Consent Judgment of Partial Partition of Community Property” was read in open court on March 23, 2004, and signed on April 30, 2004. Louisiana law gives consent judgments the authority of law: “A consent judgment is a determination of the rights of the parties and acquires the authority of the thing adjudged.” Thibodeaux v. Thibodeaux, 511 So.2d 102, 104-105 (La.App. 3rd Cir.1987). Had the property been a community immovable, Ms. Katner’s concurrence in its alienation would have been required. La. C.C. art. 2347. As a co-owner in indivisión she was free to alienate her share. La. C.C. art. 805. Under the consent judgment entered into by these parties, the property ceased its classification as either community property or former community property and, therefore, Ms. Katner had no further obligations as an owner in community or a coj^owner in indivisión in connection with the home. See La. C.C. arts. 2338 and 2369.1.

The record is clear that in 2004 Ms. Katner was desirous of alienating her undivided interest to her former spouse in return for the immediate payment by him of a substantial amount of cash. She was not, at that time, entitled to any spousal support. The record is also clear that the parties disagreed, but within a limited range of $350,000 to $399,000, about the value of the home. The parties invoked and expressly stipulated that their agreement was made pursuant to La. C.C. art. 3071, which provides:

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.

The parties, in open court in March 2004, were clear that they expected to resolve the issue of the proper valuation at a May 2004 hearing which was scheduled. They also agreed in the act of partial partition that, after the immediate payment of cash, “whatever additional monies are owed by David Katner to Sri Katner, if any, pursuant to the entirety of the community property partition, such monies shall be paid ten days upon the determination of the amount with no additional extension of time granted for him to pay same.”

Therefore, we determine that, first, Ms. Katner had the legal authority to alienate her interest in the former community property and, second, the trial judge was reasonable, and perhaps even compelled, in determining as a matter of fact that the parties intended and agreed to value their home as of the date of its transfer to Mr. Katner in March 2004 and not at “the time of the trial on the merits [of the partition proceedings].” We further conclude, in accord with the parties’ disagreement and the consent judgment, that any difference between the immediate payment made by Mr. Katner at the time of the alienation by Ms. Katner and the entitlement, if any, of Ms. Katner to an equalizing payment due at the time of the partition was correctly deferred until the time of the trial of the partition.

The second objection that Ms. Kat-ner expressed to the valuation of the home was that the trial judge accepted the appraisal offered by Mr. Katner and rejected the one offered by Ms. Katner. There was a difference in the two appraised values of nearly $50,000. A trial judge’s determination of value is a finding of fact, State Department of Highways v. Regent Development Corp., 344 So.2d 46, 50 (La.App. 4th Cir.1977), see also State Department of Highways v. Ragusa, 234 La. 51, 99 So.2d 20, 22-23 (1958), and under the manifest error rule, we will not reverse the finding of fact unless it is manifestly erroneous. Stobart v. State Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Rando v. Anco Insulations, Inc., 08-1163, p. 21 (La.5/22/09), 16 So.3d 1065, 1082. To discharge our review function, we consider the record as a whole to determine if the factual finding is a reasonable finding. Valley v. Specialty Restaurant Corp., 98-0438, p. 6 (La.App. 4 Cir. 1/19/99), 726 So.2d 1028, 1032.

On the one hand, Mr. Katner’s offer of a valuation for the home was prepared by a Louisiana licensed appraiser. See generally La. R.S. 37:3393-98. His appraisal was accepted without objection into evidence. La. C.E. art. 103. His appraisal constitutes expert opinion evidence which is designed to assist the fact finder in making a finding which requires some specialized knowledge, learning and experience. La. C.E. art. 702. See Burrell v. Schlesinger, 459 So.2d 1195, 1199 (La.App. 4th Cir.1984); Grusich v. Grusich, 447 So.2d 93, 96 (La.App. 4th Cir.1984). On the other hand, Ms. Katner’s offer of valuation, which the trial court refused to admit into evidence, was not prepared by a licensed appraiser, but rather by a real estate broker. See generally La. R.S. 37:1431-38. The trial court disqualified the “appraisal” prepared by a real estate broker who is not also a licensed real estate appraiser. We review that decision under the abuse of discretion standard. Cheairs v. State ex rel. DOTD, 03-680, p. 6 (La.12/3/03), 861 So.2d 536, 541; see also Radlein v. Holiday Inns, Inc., 07-0322, p. 7 (La.App. 4 Cir. 11/14/07), 971 So.2d 1200, 1205. The trial judge has much discretion in determining whether the qualifications of a learned person will assist the court in its fact finding function. Cheairs, supra, 03-0680 at p. 7, 861 So.2d at 540-41.

Estimating the fair market value of property is the specialized function of licensed appraisers. La. R.S. 37:3393. While experienced real estate brokers undoubtedly know a great deal about property values, the specialized scope of the realtors’ profession is not property appraising and may well be beyond the legal authorization afforded the profession. Id. The trial court did not abuse its much discretion in rejecting Ms. Katner’s “appraisal.” Therefore, the only evidence of value of the home in 2004 is the appraisal in the amount of $350,000, and the trial court’s finding of fact that such was the home’s value at the time of the consent judgment is not clearly wrong and is reasonable.

Ms. Katner makes a similar argument about the valuation of the Nissan automobile which was included in the partial partition consent judgment in 2004. |7 She argues that the court should have valued the Nissan at the time of the partition trial, a value of zero. Mr. Katner argues that the parties by consent established the car’s value as $7,000 at the time it was transferred to Ms. Katner. Ms. Katner offered no alternative value for the Nissan as of the time of its partitioning in 2004. The legal precepts applicable to the valuation of the home also apply to the valuation of the Nissan. The only evidence of its value in 2004 is the $7,000 value stipulated in the consent judgment. The trial court’s valuation is not manifestly wrong.

The parties disputed the valuation of a Honda automobile. The trial court utilized the Kelley blue book values without objection from the parties. See Kelley Blue Book Co., Inc., 1995-2009; Neloms v. Empire Fire & Marine Ins. Co., 859 So.2d 225, 232 (La.App. 2 Cir. 10/16/03) (observing that the Blue Book valuation is not excluded under the hearsay rule, La. C.E. art. 803(17), and introduction of such a book was “perfectly acceptable” and not reversible error). See also Clark v. McNabb, 04-0005, p. 4-5 (La.App. 3 Cir. 5/19/04), 878 So.2d 677, 680-81 (“Whether a NADA Guide or a Kelley Blue Book valuation is superior to another calculation is a question of fact that must be examined on a case-by-case basis.”) After hearing testimony from the parties about the car’s condition, the court selected the lesser one of $5,500 and rejected Ms. Katner’s contentions that the car’s condition justified a valuation about $700 higher. Again, we have reviewed the evidence and conclude that the fact finder did not commit manifest error in valuing the Honda automobile at $5,500.

|8The parties stipulated to the valuation of the remaining assets: $5,850 for furniture, $878 for the Gabelli Fund, $4,730 for the Jackson annuity, and $2,500 for an IRS refund check. The total valuation of the community’s assets is $376,458.

Ill

Ms. Katner assigns error to some of the claims for reimbursement allowed to Mr. Katner and to the denial of her own single reimbursement claim as well as her claim for the return of personal property. Mr. Katner made three different types of reimbursement claims. Whether a reimbursement claim is allowed is a finding of fact which is reviewable under the manifest error standard. Below we first consider Mr. Katner’s claims and then consider the merits of Ms. Katner’s claims.

A

Mr. Katner made two claims for reimbursement of his separate estate for funds used to acquire community assets. La. C.C. art. 2367 provides in pertinent part:

If separate property of a spouse has been used for the acquisition, use, improvement, or benefit of community property, that spouse upon termination of the community is entitled to one-half of the amount or value that the property had at the time it was used. The liability of the spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations....

The first claim relates to the expenditure of $9,500 of his separate funds for the community’s acquisition of the Nissan automobile. Mr. Katner testified that after the marriage he sold an automobile he owned prior to the marriage for $9,500 and used the sale proceeds as the down payment on a new car. He produced a|flcopy of the check from the purchaser as well as a copy of the bill of sale for the new car from the dealer. On appeal, Ms. Katner does not contest this claim. Mr. Katner is entitled to reimbursement on this claim in the amount of $4,750.

The second claim, which Ms. Kat-ner does forcefully oppose, is related to Mr. Katner’s evidence that he used his separate funds in the amount of $42,500 toward the down payment on the community’s acquisition of the home in Carroll-ton. Ms. Katner asserts the general, and codally established, principle concerning the presumption that property is community. La. C.C. art. 2340 states:

Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.

There is here, of course, no disagreement about the classification of the home as community. The burden of proof is on Mr. Katner to establish the use of separate property in the acquisition of community property. In Rogers v. Rogers, 94-541, p. 4 (La.App. 5 Cir. 12/9/94), 649 So.2d 7, 9, the fifth circuit helpfully explained:

The burden of proof is on the spouse claiming reimbursement of the separate funds which he contends were used for the benefit of the community. La. C.C. art. 2340 creates a presumption in favor of the community. Thus, the burden was on the [claiming spouse] to provide proof, rebutting the presumption in favor of the community and establishing that his separate funds were used for the acquisition of a community asset.

The evidence established that the home was purchased for $167,000, and that the Katners were obligated on a mortgage loan in the initial amount of $119,000. The couple, therefore, required at least cash funds in the amount of $48,000. Mr. Kat-ner claims that he used funds received from the sale of his separate property as well as separate funds in two financial accounts.

| inThere is no doubt that Mr. Katner sold separate property just before the couple acquired the Carrollton home. He submitted evidence that, after satisfaction of the mortgage, he netted nearly $25,000 from the sale. Ms. Katner concedes that she was aware that these funds were used for the down payment. She argues that Mr. Katner did not carry his burden of proof on the balance of the claimed down payment. Mr. Katner testified that he liquidated two financial accounts, which he identified, with his separate funds of $12,555 and $6,158 and expended the funds on the acquisition. Ms. Katner offered no evidence to contradict Mr. Katner’s testimony, which the trial judge accepted and which is not contrary to documentary evidence. La. C.E. arts. 304-306. As Justice Tate noted in West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979):

In evaluating the evidence, the trier of fact should accept as true the uncontra-dicted testimony of a witness, even though the witness is a party, at least in the absence of circumstances in the record casting suspicion on the reliability of this testimony, [citations omitted].

Although it was not her burden to prove that community funds were exclusively used in the acquisition of the home, it is noteworthy that Ms. Katner does not suggest that the community had sufficient funds on hand for the portion of the down payment in question. In Succession of Videau, 197 So.2d 655, 660 (La.App. 4th Cir.1967) this court stated

... the proof of benefit to the community need not be with absolute exactness. Such a requirement could rarely, if ever, be met and just claims would be defeated. Recovery has been allowed upon circumstantial evidence in situations where the court was convinced that the community had received the benefit.

See also Rogers, supra; Lane v. Lane, 375 So.2d 660, 675-676 (La.App. 4th Cir.1979), Succession of Blythe, 496 So.2d 1180, 1183 (La.App. 4th Cir.1986). Thus the trial court did not commit manifest error in its finding that Mr. Katner is entitled to reimbursement of one-half of the $42,500 of separate funds expended by him. The trial judge properly awarded him reimbursement on this item. The reimbursement due him on this claim is $21,250.

Mr. Katner made one claim for reimbursement of the community funds in the amount of $14,004 for the payment of the separate debt of Ms. Katner. La. C.C. art. 2364 provides:

If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.

Prior to her marriage, Ms. Katner obligated herself for student loans for her legal education. During the marriage, Mr. Kat-ner clearly testified from financial records and his personal knowledge that community funds were used to repay some of the outstanding principal and interest indebtedness. Ms. Katner agrees that the community paid more than $11,000, but quibbles about the difference. However, she did not offer any documentary evidence to contradict Mr. Katner’s offer. Again, the trial court did not commit manifest error in accepting the evidence offered by Mr. Katner and finding that community funds in the amount of $14,004 were used to pay Ms. Katner’s separate obligation. Therefore, Mr. Katner is entitled to be reimbursed on this claim in the amount of $7,002.

Mr. Katner’s final reimbursement claim, which is not opposed by Ms. Katner, is for the use of his separate property for the benefit of the former community property. La. C.C. art. 2369.1 provides:

After termination of the community property regime, the provisions governing co-ownership apply to former community property, unless otherwise provided by law or by juridical act.
When the community property regime terminates for a cause other than death or judgment of declaration of death of a spouse, the following Articles also apply to former community property until a partition, or the death or judgment of declaration of death of a spouse.

La. C.C. art. 806 is, therefore, applicable to these reimbursements. Article 806 provides:

A co-owner who on account of the thing held in indivisión has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.
If the co-owner who incurred the expenses had the enjoyment of the thing held in indivisión, his reimbursement shall be reduced in proportion to the value of the enjoyment.

Mr. Katner offered testimonial and documentary evidence to show that he paid, from his separate funds, taxes, insurance, and repairs for the former community home from the time of the termination of the community on June 13, 2001 until the partition and transfer of the home to him on April 30, 2004. The ad valorem or property taxes paid by him for the years 2002 and 2003 and for the first four months of 2004 total $3,566. The total insurance premiums paid during that period equal $1,976 and the total amount of repairs equal $5,880. The total expenditures of Mr. Katner’s separate funds on former community property equal $11,422. Mr. Katner is entitled to be reimbursed on this claim in the amount of $5,711.

| lsThe total amount due Mr. Katner on his reimbursement claims is $38,713.

B

Ms. Katner made a reimbursement claim for an alleged gift of $15,000 to her from her father which she claimed was expended in part for community obligations. A gift or donation to one spouse is that spouse’s separate property. La. C.C. art. 2341; see Noel v. Noel, 04-0105, pp. 7-12 (La.App. 4 Cir. 9/8/04), 884 So.2d 615, 619-22. There was no evidence of the gift from her father other than her own testimony. She did attempt to offer the affidavit of her father in support of her claim, but Mr. Katner objected to the admission of the affidavit as hearsay. See La. C.E. art. 803. The trial judge excluded the affidavit from evidence. Ms. Katner then proffered the affidavit. La. C.E. art. 103 A(2). The trial judge’s evidentiary ruling was correct. Even if the affidavit would have been admissible, it would only have corroborated that Ms. Katner received the gift from her father; it would not have supported her contention that the funds were actually expended for the benefit of the community, which is essential to a claim for reimbursement. The trial court’s rejection of this reimbursement claim is not manifestly erroneous.

Ms. Katner also argues that the trial court erred by failing to address in its judgment her claim for return of some items of her separate property. The trial court heard considerable testimony from the parties and from Mr. Katner’s friend and former attorney about the return of Ms. Katner’s property. Silence in the judgment on this claim constitutes rejection of the claim. Louisiana law has held that an absence of written adjudication of a litigated issue is construed to mean that there was no award under that claim, and it is rejected.

The Louisiana Supreme Court in Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758, 760 (La.1978), stated the “civilian res judicata” theory:

A demand may also be impliedly rejected by the silence of a judgment which fails to grant the demand, provided that the matter has been actually litigated and finally adjudged so that it became an “object of the judgment.”

In R.G. Claitor’s Realty v. Juban, 391 So.2d 394, 398 (La.1980), the Louisiana Supreme Court reiterated that principle:

Our jurisprudence has rested on a solid foundation the rule that all the issues presented by the pleadings, and on which evidence has been offered, will be considered as disposed of by a final judgment in the cause, and that demands passed over in silence must be considered as rejected in the absence of a special reservation, [citations omitted].

See also City of Eunice v. Credeur, 02-188, p. 3 (La.App. 3 Cir. 10/9/02), 828 So.2d 710, 712; Lowe v. Prejean, 540 So.2d 436, 438 n. 2 (La.App. 1 Cir.1989).

The trial court was in the best position to observe the witnesses and evaluate the credibility of each one on this issue. See Rosell, supra, 549 So.2d at 844. Ms. Katner admitted that there were several efforts over the years to return her belongings to her. Mr. Katner’s friend returned some of her belongings, and one of the Katners’ handymen returned some. We have reviewed the testimony on this issue and conclude that the trial court did not commit manifest error in its implicit finding that there was no further personal property to be returned to Ms. Katner.

Therefore, Ms. Katner is not entitled to any reimbursement.

IV

Ms. Katner’s one-half share of the community assets is $188,229. At the time of the partial partition in 2004 Ms. Katner received a cash payment from Mr. Katner in the amount of $117,950. At that same time she received the Nissan automobile valued at $7,000. The judgment also allocates to Ms. Katner the |15Jackson annuity ($4,730) and one-half of the Gabelli Fund ($439). The first net amount due her is $58,110. This is reduced by the reimbursements due by her to Mr. Katner totaling $38,713 plus an additional stipulated reimbursement of $3,693. Therefore, the revised net amount due her from Mr. Katner on the settlement of the community is $15,704.

Mr. Katner, however, argues, and the trial court agrees, that he already “advanced” from his separate property to Ms. Katner amounts totaling $26,162. Ms. Katner strenuously objects to the recognition of the advances. She has multiple objections. She contends that the $10,420 in direct payments to her by Mr. Katner were not advances to her on her share of the community but, rather, were voluntary support payments to her. The remaining advances of $15,742 were not direct payments to her, and the proof of payments to third parties is lacking, according to Ms. Katner.

Based upon our review of the testimony and documentary evidence, we conclude that there is merit to some of Ms. Katner’s contentions. Below we discuss our analysis and application of the legal principles which guide our conclusion.

A

A major point of disagreement between the parties is the meaning and effect of the dismissal with prejudice of all of Ms. Kat-ner’s claims for interim and final spousal support. Mr. Katner contends, and the trial court apparently agreed, that the dismissal means that he had no spousal support obligation whatsoever to Ms. Katner and that, as a consequence, all payments made by him to her or on her |1fibehalf after the date of termination of the community constitute advances on the community for which he is entitled to a credit. Ms. Katner, to the contrary, argues that the dismissal was on her consent, not by adjudication; and that by the time of the dismissal the issues were moot because Mr. Katner had made voluntary payments which satisfied his support obligations to her. Consequently, she contends, to permit him a credit for those payments would grant him a double benefit.

The petition for divorce was filed on June 13, 2001. During the following months, Mr. Katner wrote letters to Ms. Katner in which he unambiguously described the direct and indirect payments he was making to her as “voluntary support.” The letters make plain that Mr. Katner is, in making the payments, fully expecting them to be credited to any subsequent judicial determination of his interim spousal obligations. La. C.C. art. 113, as it read during the applicable period, provided:

Upon motion of a party or when a demand for final [final spousal] support is pending, the court may award a party an interim periodic [spousal] allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage. The obligation to pay interim periodic [spousal] support shall not extend beyond one hundred eighty days from the rendition of judgment of divorce, except for good cause shown.

Moreover, La. R.S. 9:321 D provided that

Spousal support of any kind, except that paid pursuant to an interim allowance award, provided by the debtor from the date of judicial demand to the date the support judgment is rendered, to or on behalf of the spouse for whom support is ordered, shall be credited to the debtor against the amount of the judgment.

Mr. Katner was seeking a no-fault divorce. La. C.C. art. 103(1). Ms. Katner was seeking interim spousal support at that time. The testimony and documentary evidence amply establish that during this period Ms. Katner was suffering considerable emotional difficulties and, despite her license to practice law, was unemployable. Mr. Katner under these facts, corroborated by his contemporaneous letters, surely believed he was making interim spousal support payments to Ms. Katner for which he would receive a credit against an expected judgment condemning him to pay support. The trial court’s factual determination to the contrary is clearly wrong and we so find. The Supreme Court in Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) noted that the ordinary rule of deference to the fact finder is qualified “where documents or objective evidence so contradict the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.” See also Shroyer v. Grush, 555 So.2d 534, 538 (La.App. 4th Cir.1989). We are reinforced in our view when we consider that Mr. Katner’s direct and indirect voluntary payments virtually ceased after the dismissal with prejudice of Ms. Kat-ner’s spousal support rules on January 16, 2003.

Therefore, we find from the record on our de novo review that the direct payments to Ms. Katner from the date of the filing of the petition for divorce until one hundred eighty days after the judgment of divorce (i.e., June 19, 2002) were intended by Mr. Katner and were in fact voluntary interim spousal support payments made by him to discharge his legal obligation of support to his wife and |1Rfor a limited time his former wife. Our conclusion is consonant with the codal rules on imputation of payments of debt. See La. C.C. arts. 1864 and 1868.

With regard to the indirect payments made by Mr. Katner on behalf of Ms. Katner, see La. R.S. 9:321 D, which include hospitalization insurance premiums, medical deductibles, and automobile insurance premiums, we apply the same finding, except that in the case of hospitalization and medical deductibles his spousal support obligation terminated by judgment dated December 21, 2001. That judgment relieved Mr. Katner of any obligation to make these payments after that date and such payments could not reasonably be construed as interim spousal support.

B

As to any direct or indirect payments made after the applicability of the period for interim spousal support, we conclude that the trial court’s factual findings are reasonable and not contradicted by documentary evidence, notwithstanding the remarkable coincidence that all such payments did not cease until the dismissal with prejudice of Ms. Katner’s rules for interim and final spousal support. In order to be eligible for final spousal support, it would have been necessary for Ms. Katner to establish that she was “free from fault” prior to the filing of the petition for divorce. La. C.C. arts. 111 and 112. There is ample evidence in the record without our elaborating upon it that supports a reasonable conclusion and surely a reasonable expectation by Mr. Katner that Ms. Katner could not establish her freedom from fault. Indeed, rather than attempt to prove |1sher freedom from fault, Ms. Katner voluntarily dismissed her claim for final spousal support.

Therefore, if Mr. Katner can establish payment of the contested items, Mr. Kat-ner is entitled to have credited to him the total of the direct and indirect payments made by him after June 19, 2002, which amount is $13,801.

C

Ms. Katner finally argues that Mr. Katner has not satisfactorily established that he actually paid some of her debts. We understand this argument to be limited to the payment of medical deductibles. The primary evidence of payment are check register records of payments made to a collection agency along with insurance company explanation of benefits records, which usually coincide with the record of payments. There are few payments directly to healthcare providers. Having disallowed credit for any payments made before December 21, 2002, we are concerned only with those payments made after that date and which we consider could be eligible for crediting Mr. Katner.

The consent judgment of December 21, 2001 included the following provision:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that David Katner shall furnish Sri Katner with copies of all bills concerning her hospitalization and treatment as they become available, and Sri Katner will handle the insurance aspects of assuring payment. Sri Katner shall keep David Katner informed at all times as said bills are paid or otherwise disposed of[.]” (emphasis supplied)

Mr. Katner’s testimony, corroborated by the documentation, such as it was, was accepted as truthful by the trial judge. Because the consent judgment expressly imposed upon Ms. Katner the obligation of “handling] the insurance aspects of assuring payment,” we find that establishing deficiencies in the evidence on this | appoint was under her control. She was in the best position to contradict Mr. Katner’s evidence by showing either payment by her or some other disposition. Accordingly, we find no merit to this contention.

Therefore, we conclude that Mr. Katner advanced the total amount of $13,801 to Ms. Katner for which he is entitled to claim a credit toward the outstanding balance owed to her in the amount of $15,704. “The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.” La. R.S. 9:2801 A(4)(b). In order to equalize the distribution of assets, Mr. Katner must pay Ms. Katner the full sum of $1,903.

DECREE

Accordingly, we reverse that part of the trial court judgment which found Mr. Kat-ner’s payments to Ms. Katner after the termination of the community constitute advances for which he is entitled to a credit, and we find that the direct and indirect payments made by Mr. Katner were voluntary interim spousal support payments. Judgment is rendered herein in favor of Sri Katner and against David Katner in the full amount of $1,903.

In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . This was the date on which the petition for divorce was filed. The divorce was granted on December 21, 2001. See La. C.C. arts. 159 and 2356, particularly Revision Comment c. Both the judgment and the amended judgments of the trial court state “June 19, 2001” as the date of the termination of the community.

      . Both the judgment and the amended judgment ordered Sri Katner to remit the sum of $1,024 to David Katner.

      . Ms. Katner proffered an appraisal close to the trial date valuing the home at that time at $415,000. See La. C.E. art. 103 A(2). This appraisal was rejected as irrelevant. See La. C.E. art. 402, which states in pertinent part: "Evidence which is not relevant is not admissible.”

      . This hearing was never conducted, and the valuation was made during the partition trial.

      . Even if the trial judge had erred in excluding the realtor’s appraisal from evidence, it would still have been within the trial judge's purview to reject the appraisal. "The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound.” Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693. See also Orrill v. Orrill, 08-0400, p. 7 (La.App. 4 Cir. 2/4/09), 5 So.3d 279, 284; and Beaucoudray v. Walsh, 07-0818, p. 13-14 (La.App. 4 Cir. 3/12/09), 9 So.3d 916, 924.

      . The trial court’s judgment set this amount at $377,595. However, the trial court erroneously included the value of the Bank One IRA in the amount of $1,137 as a community asset. Mr. Katner stipulated at trial that the account was the separate property of Ms. Katner and formed no part of the community.

      . The trial court's judgment made a typographical error and set the reimbursement amount at $4,250. See La. C.C.P. arts. 1951 and 2164.

      . Ms. Katner relies upon the first circuit decision in Lobert v. Lobert, 07-1527 (La.App. 1 Cir. 8/8/08), 2008 WL 3245560 **3-4 (unpubl.). That decision, however, is distinguishable because the trial judge, unlike in the case sub judice and even in Rogers, supra, totally rejected the husband’s unsubstantiated claim for reimbursement, which rejection was not manifestly erroneous.

      .The precise amount of reimbursement which Ms. Katner concedes is $5,668.

      . Ms. Katner did not file any pleading seeking relief under La. R.S. 9:374 C.

      .Ms. Katner also claimed in her testimony that the gift was used to pay her student loans.

      . With the prior consent of Ms. Katner, Mr. Katner paid $428 to store her belongings while she was incarcerated, and he paid $3,265 to satisfy her obligation to a child custody supervisor.

      . The categories of payments constituting the $15,742 are Ms. Katner’s post-termination medical bills ($10,050), post-termination health insurance premiums ($1,211), and post-termination car insurance payments ($4,481).

      .The article was amended in 2001. The 2001 amendments, shown in brackets, were minor. See Historical and Statutory Notes.

      . He made two further direct payments after that date.

      . The amount of direct payments during this period totals $7,808.

      . The amount of indirect payments during these periods which constitute voluntary spousal support total $4,761. This includes $2,250 of the amounts on Exhibit # 15, $285 of the amounts on Exhibit 16 (which were revised at trial to reduce Ms. Katner’s share to one-fourth of the totals), and one-half of the GEICO payments dated June 30, 2001 through April 18, 2002 on Exhibit #17 or $2,226.


author: DREW, J.

text:
    Joe DOUGHTY, Plaintiff-Respondent v. George W. CUMMINGS, III, Progressive State Bank and Progressive Bancorp, Inc., Defendants-Applicants.
    No. 44,812-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 30, 2009.

      McGlinchey Stafford, PLLC by: Byron Franklin Martin, III, Deirdre Claire McGlinchey, for Applicants.
    Donald L. Kneipp, for Respondent.
    Before WILLIAMS, STEWART and DREW, JJ.
   DREW, J.

11 George Cummings is the President, CEO, and Chairman of the Board of Progressive Bank and Progressive Bancorp. Progressive Bank is a subsidiary of Progressive Bancorp, together referred to as “the Bank.” Joe Doughty was employed by the bank as President of its Franklin Parish Division.

Doughty filed a lawsuit for defamation and malicious prosecution against Cummings and the Bank on June 13, 2008. In this lawsuit, Doughty alleged the following:

• In August or September of 2002, he learned that a bookkeeper for Abby Lines, a major customer of the Bank, had been fired and was under investigation for theft. He reported this to Cummings. When he learned in October that Abby Lines had over $200,000 in uncollected charge-back invoices, he reported this to Cummings.
• Cummings instructed the Bank to advance over $523,000 to purchase invoices from Abby Lines in order to cover overdrafts and give Abby Lines a positive balance in its checking account. When Cummings entered the invoices in the system on November 5, 2002, the Bank learned that most of the invoices were either unsupported or duplicated. Doughty was asked by Cummings to resign two days later.
• On November 27, 2002, Cummings received a preliminary analysis of the account which showed that Abby Lines had submitted duplicate and unsupported invoices in excess of $500,000 throughout the history of the relationship, in addition to the $523,000 advance that Cummings had authorized. Nothing in the analysis suggested that Doughty had diverted any money or received financial gain from the account.
• At the beginning of 2003, Cummings made a claim on the Bank’s D & O Liability Bond. The local agent told Cummings that the bond would not pay for the loss unless the Bank linked the loss to dishonesty by a bank employee. Cummings then told the agent that he could substantiate that task and implicated Doughty to be in collusion in a fraud scheme with Abby Lines. Cummings and the Bank also made federal authorities and bank regulators aware of their accusations of fraud and defalcation by Doughty.
12* On June 29, 2006, Doughty was indicted in federal court on charges of bank fraud. On April 1, 2008, these charges were dismissed.

Cummings and the Bank raised the exceptions of no cause of action and prescription. They contended inter alia that the claims for malicious prosecution and defamation which were premised upon statements allegedly made to federal authorities and bank regulators were barred by the safe harbor provision found in the An-nunzio-Wylie Anti-Money Laundering Act (“Act”), codified at 31 U.S.C. § 5318, and related federal regulations. They also contended that the defamation claims were prescribed on the face of the petition.

The trial court denied the exceptions. Cummings and the Bank sought supervisory relief with this court concerning the applicability of the safe harbor provision to claims of malicious prosecution and defamation and prescription of the defamation claims. This court granted their writ application and placed the matter on the appellate calendar.

DISCUSSION

Exception of no cause of action

A peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Birdsong v. Hirsch Memorial Coliseum, 42,316 (La.App.2d Cir.8/22/07), 963 So.2d 1095. The exception is triable on the face of the petition, and the facts pled are to be accepted as true. Industrial Companies, Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207. In reviewing a trial court’s ruling sustaining an exception of no cause of action, this court should subject the case to de novo review because the exception raises a question ofjjlaw, and the lower court’s decision is based only on the sufficiency of the petition. Cleco Corp. v. Johnson, 2001-0175 (La.9/18/01), 795 So.2d 302.

Cummings and the Bank contend that the safe harbor provision of the Act bars Doughty’s defamation and malicious prosecution claims that are based upon the allegation that they “made federal authorities and bank regulators aware of their accusations of fraud and defalcation.”

The safe harbor provision of the Act is found in 31 U.S.C. § 5318(g)(3)(A), which reads:

(g) Reporting of suspicious transactions.—
(3) Liability for disclosures. — •
(A) In general. — Any financial institution that makes a voluntary disclosure of any possible violation of law or regulation to a government agency or makes a disclosure pursuant to this subsection or any other authority, and any director, officer, employee, or agent of such institution who makes, or requires another to make any such disclosure, shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, or under any contract or other legally enforceable agreement (including any arbitration agreement), for such disclosure or for any failure to provide notice of such disclosure to the person who is the subject of such disclosure or any other person identified in the disclosure.

Cummings and the Bank also note the corresponding federal regulation, 12 C.F.R. § 353.3(h), which states:

The safe harbor provisions of 31 U.S.C. § 5318(g), which exempts any bank that makes a disclosure of any possible violation of law or regulation from liability under any law or regulation of the United States, or any constitution, law or regulation of any state or political subdivision, cover all reports of suspected or known criminal violations and suspicious activities to law enforcement and financial institution supervisory authorities, including supporting documentation, regardless of whether such reports are filed pursuant to this part or are filed on a voluntary basis.

|4We recognize that there is a split among the federal circuits as to whether the safe harbor provision has a “good faith” requirement. In Lopez v. First Union National Bank of Florida, 129 F.3d 1186 (11th Cir.1997), the court took the position that the safe harbor provision protects a bank when it has a good faith suspicion that a law or regulation may have been violated. This position was rejected in Lee v. Bankers Trust Company, 166 F.3d 540 (2nd Cir.1999), where the court concluded that the protection of the safe harbor provision is not limited to disclosures based on a good faith belief that a violation had occurred. See also Stoutt v. Banco Popular de Puerto Rico, 320 F.3d 26 (1st Cir.2003), where the court stated that careless or malicious reporting is possible under the safe harbor provision.

Doughty argues that the safe harbor provision does not provide immunity in this instance because any disclosures were not made in good faith as there was never a “possible” violation of law to report. In support of his argument, Doughty cites an Arkansas Supreme Court case, Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003). Although the court in Evans did not specifically state that the safe harbor provision required “good faith,” for all practical purposes that was what it did as it held that the safe harbor provision did not protect the bank when its conduct was malicious and based on information that the bank knew was false. The Arkansas court reasoned that because the Act requires a “possible” violation of law before a financial institution can claim protection of its safe harbor | r,provisions, the safe harbor provision did not apply when the bank knew there was no possible violation of the law but had acted maliciously and willfully to have a bank customer arrested and brought to trial on charges it knew were false.

Doughty alleges that Cummings implicated him when he learned that the bond would not be paid unless the loss was linked to employee dishonesty. This was done despite there being nothing in the preliminary analysis that suggested that Doughty diverted any money or received financial gain. As such, Cummings and the Bank were not reporting a possible violation, but were merely seeking financial benefit. The trial court did not err in denying the exception of no cause of action.

Prescription

Applicants contend that the trial court erred in denying the exception of prescription as to the claims of defamation. Claims for defamation are delictual in nature and are subject to La. C.C. art. 3492’s one-year prescriptive period, which commences to run from the day injury or damage is sustained. Clark v. Wilcox, 2004-2254 (La.App. 1st Cir.12/22/05), 928 So.2d 104, writ denied, 2006-0185 (La.6/2/06), 929 So.2d 1252.

The defamation claim is prescribed on the face of the petition. The statement to the insurance agent was made in 2003, and although the petition does not announce precisely when applicants made federal authorities and bank regulators aware of their accusations of fraud and defalcation by Doughty, presumably this occurred well prior to the 2006 indictment.

| f,Doughty contends that prescription on the defamation claims was interrupted during the pendency of the federal criminal proceedings. An action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. Waguespack v. Judge, 04-137 (La.App. 5th Cir. 6/29/04), 877 So.2d 1090; Nolan v. Jefferson Parish Hospital Service District No. 2, 01-175 (La.App. 5th Cir. 6/27/01), 790 So.2d 725. However, that principle is not applicable in this matter as the statements were not made in a judicial proceeding, but prior to any proceeding.

The trial court found that the indictment had the effect of republishing the defamatory statements. Even if we accept this premise, we note that the suit was filed more than one year after the indictment was handed down. Accordingly, Doughty’s defamation claims have prescribed, and the trial court erred in concluding otherwise.

CONCLUSION

We grant the writ in part and reverse the trial court’s denial of the exception of prescription as to the defamation claims. In all other respects, the writ is denied.

WRIT GRANTED IN PART AND DENIED IN PART.

      . In Lee, the court noted that a review of the Act’s legislative history showed that an earlier draft of the safe harbor provision included an explicit good faith requirement for statements made in a suspicious activity report, but this requirement was dropped in later versions of the bill and was not included in the bill ultimately enacted by Congress.


author: RANDOLPH, Justice,

text:
    Maurice PRUITT v. STATE of Mississippi.
    No. 2008-KA-01405-SCT.
    Supreme Court of Mississippi.
    Jan. 28, 2010.
    Benjamin Allen Súber, Leslie S. Lee, Jackson, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.
   RANDOLPH, Justice,

for the Court.

¶ 1. Maurice Pruitt was indicted for both the murder of David McMillian and the aggravated assault of Keitho Plummer. Following his jury trial in the Circuit Court of Jones County, Mississippi, Second Judicial District, Pruitt was found guilty of manslaughter and was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (“MDOC”). Following denial of Pruitt’s motion for a new trial, or in the alternative, judgment notwithstanding the verdict (“JNOV”), he filed timely notice of appeal.

FACTS

¶ 2. It is undisputed that on July 2, 2007, Pruitt shot and killed McMillian with a nine (.9) millimeter pistol outside of the American Legion Hut in Laurel, Mississippi. Conflicting testimony was presented at trial, not only regarding whether McMillian had his right hand hidden behind his thigh, but also whether he was in possession of a gun as he approached Pruitt. Melvin Sanders, a security guard at the American Legion Hut, and Plum-mer claimed that McMillian’s right hand was not concealed and they did not see a gun. Furthermore, Melvin Mack, the Mayor of Laurel, testified that Pruitt had admitted to him that McMillian had no gun. Conversely, Tyrone Pearson and Pruitt testified that McMillian appeared to be holding an object in his concealed right hand.

¶ 3. Sanders testified that he heard arguing in the parking lot around 12:00 a.m. and proceeded outside. According to Sanders, he saw Pruitt holding a gun and warned Plummer, with whom Pruitt was arguing at the time. Sanders then attempted to prevent McMillian from approaching Pruitt, but McMillian got past him. Sanders witnessed the shooting first-hand and testified that in no way did it appear that McMillian had a gun. After McMillian was shot, Sanders testified that Pruitt turned the gun toward Plummer, who was unarmed, and began firing. According to Sanders, Pruitt then jumped into a black Chevy Tahoe and fled the scene. Plummer’s testimony was consistent with the testimony of Sanders, although his credibility was later brought into question based upon his prior altercations with Pruitt. See footnote 2, supra.

¶4. Pruitt testified that he thought McMillian had a gun and shot him out of necessary self-defense. According to Pruitt, McMillian was directing profanities toward him, then McMillian and Plummer walked over to a car together. Shortly thereafter, McMillian proceeded toward him “fast,” with his right hand hidden behind his thigh. Before McMillian could reach him, however, Pruitt claimed that Pearson unsuccessfully attempted to stop McMillian. After McMillian pushed Pearson out of the way with his “left hand,” Pruitt testified that he began firing his .9 millimeter pistol at McMillian. Pruitt then left the scene and went to Mayor Mack’s home, where he turned himself over to authorities. Mayor Mack testified that Pruitt had admitted to him, immediately after the incident, that the man he shot did not have a gun.

¶ 5. Pearson corroborated Pruitt’s testimony regarding McMillian’s use of profanity, aggressive approach, and concealed right hand. Pearson testified that McMil-lian went to a car, then walked quickly toward Pruitt while hiding his right hand behind his body. When Pearson attempted to stop McMillian, he testified that he was pushed out of the way by McMillian’s “shoulder.”

¶ 6. Pruitt was indicted on counts of murder and aggravated assault. At trial, Pruitt moved for a directed verdict following the State’s case-in-chief, which was denied. Ultimately, the jury found Pruitt guilty of the lesser-included offense of manslaughter. Pruitt subsequently moved for a new trial, or in the alternative, JNOV, which was denied. Pruitt now appeals.

ISSUES

¶ 7. On appeal, Pruitt raises the following two issues:

I. Whether the evidence was insufficient to support the verdict, as the State failed to prove beyond a reasonable doubt that Pruitt did not act in necessary self-defense.
II. Whether the verdict was against the overwhelming weight of the evidence, which establishes that Pruitt acted in necessary self-defense.

ANALYSIS

I. Whether the evidence was insufficient to support the verdict.

¶ 8. Pruitt made a post-trial motion for JNOV, which was denied by the circuit court. “A motion for J.N.O.V. challenges the legal sufficiency of the evidence.” Ivy v. State, 949 So.2d 748, 751 (Miss.2007) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). In Bush v. State, 895 So.2d 836 (Miss.2005), this Court set out the standard of review for legal sufficiency, stating:

whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” [Carr v. State, 208 So.2d 886, 889 (Miss.1968)]. However, this inquiry does not require a court to[:]
“ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.” Instead, the relevant question 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 beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)).... However, if a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70....

Bush, 895 So.2d at 843.

¶ 9. In Mississippi, manslaughter is defined as “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.” Miss.Code. Ann. § 97-3-35 (Rev.2006). The only element in dispute in the case sub judice is whether Pruitt shot and killed McMillian while acting in necessary self-defense. Pruitt asserted that he was acting in necessary self-defense because he “thought [McMillian] had a gun.”

¶ 10. Interpreting the evidence in a “light most favorable” to the State, Pruitt’s first assignment of error fails. Bush, 895 So.2d at 843 (quoting Jackson, 443 U.S. at 315, 99 S.Ct. 2781). This Court has stated that:

[i]n order to justify the appellant’s contention of self defense ..., the record must disclose ... that the appellant had a reasonable apprehension of a design or plan on the part of the deceased to kill him or to do great bodily harm, and furthermore that there was imminent danger of such design being accomplished. The mere apprehension that some minor battery might have been committed upon the appellant is not sufficient to establish self-defense.

Stennis v. State, 234 So.2d 611, 614 (Miss.1970) (internal citations omitted). Pruitt admitted that he never actually saw McMillian with a gun, and Mayor Mack testified that Pruitt told him shortly after the shooting that McMillian did not have a gun. No witness testified to seeing McMillian with a gun. Both Sanders and Plummer, witnesses to the shooting, testified that it did not appear as though McMillian had a gun. Pruitt admitted firing at McMillian before the victim could raise the allegedly hidden right hand. Pruitt exercised deadly force in the absence of deadly force being used against him. Whether the jury accepted the testimony of Sanders and Plummer or the testimony of Pruitt, the outcome does not change. “[R]easonable fair-minded men in the exercise of impartial judgment[,]” Bush, 895 So.2d at 843 (quoting Edwards, 469 So.2d at 70), could have taken either version into consideration and reasonably found that Pruitt’s use of deadly force was either unnecessary or premature and was not exercised in necessary self-defense. Accordingly, this issue is without merit.

II. Whether the verdict was against the overwhelming weight of the evidence.

¶ 11. Pruitt made a post-trial motion for new trial, which was denied by the circuit court. “A motion for new trial challenges the weight of the evidence. A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial.” Ivy, 949 So.2d at 753 (citation omitted). In Bush, this Court set out the standard of review for weight of the evidence, stating:

[w]hen reviewing a denial of a motion for á new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial:
the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000).... [T]he evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957.

Bush, 895 So.2d at 844.

¶ 12. Viewing the evidence “in the light most favorable to the verdict,” this Court cannot conclude that the circuit court’s affirmance of the jury verdict “sanction[ed] an unconscionable injustice.” Id. The testimony of Sanders and Plum-mer was that McMillian did not appear to have a gun. Post-shooting, it was determined the victim did not have a gun. Relying on the absence of a gun or other evidence of deadly force, the jury reasonably could have determined that Pruitt did not act in necessary self-defense. As Pruitt’s testimony differed from that of Pearson regarding McMillian’s actions directly before the shooting, the jury also reasonably could have questioned the credibility of their testimony based upon these inconsistencies. In sum, weighing the evidence “in the light most favorable to the verdict[,]” the jury could reasonably have found against Pruitt. Id. As this Court cannot disagree with the jury’s conclusion, it finds that this issue is without merit.

CONCLUSION

¶ 13. Based upon the aforementioned analysis, this Court affirms the Circuit Court of Jones County, Mississippi, Second Judicial District, as to Pruitt’s manslaughter conviction and accompanying sentence.

¶ 14. COUNT I: CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.

WALLER, C.J., CARLSON, P.J., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. GRAVES, P.J., CONCURS IN RESULT ONLY.

      . The jury acquitted Pruitt on the murder charge, but found him guilty of the lesser-included offense of manslaughter. As to the aggravated assault charge, the jury acquitted Pruitt.

      . This Court notes that Plummer had an unpleasant history with Pruitt. Specifically, Plummer shot Pruitt with a pistol at the American Legion Hut on July 21, 1996. Pruitt further claimed that Plummer attempted to shoot him again on December 31, 2006, also at the American Legion Hut.

      . The indictment stated that Pruitt:
      on or about the 2nd day of July, 2007, A.D. did willfully, unlawfully and feloniously, with deliberate design to effect the death of [McMillian], did kill and murder [McMilli-an], a human being, without authority of law and not in necessary self defense, by shooting [McMillian] with a gun.

      .The indictment provided that Pruitt:

        as part of a common plan or scheme or as part of the same transaction or occurrence in said County, District and State, on or about the 2nd day of July, 2007 A.D., did purposely, knowingly or feloniously attempt to cause bodily injury to another, [Plum-mer], with a gun, a deadly weapon, by attempting to shoot [Plummer].

      . "A killing of a human being is justifiable ... [wjhen committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” Miss.Code Ann. § 97—3—15(f) (Rev.2006).