Prejean v. Gelco Corp ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-31424
(Summary Calendar)
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SANDRA PREJEAN,
Plaintiff-Appellant,
versus
GELCO CORP., ET AL.,
Defendants;
NATIONAL UNION FIRE INSURANCE COMPANY
OF LOUISIANA; SPERRY SUN DIVISION OF
DRESSER INDUSTRIES INC.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
(98-CV-2097)
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June 14, 2000
Before POLITZ, WIENER, and DENNIS, Circuit Judges:
PER CURIAM*
This is a Louisiana tort suit. Jurisdiction in the district
court was based on diversity of citizenship. 28 U.S.C. § 1332.
Plaintiff-Appellant Sandra Prejean was involved in a car crash with
an employee of Defendant-Appellee Dresser Industries, Inc. After
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
a bench trial, the district court determined that Prejean failed to
establish negligence on the part of the defendant’s employee, and
therefore held in favor of the defendants. The district court
based its determination on the credibility of the witnesses.
Specifically, the court found Prejean’s account of the accident to
be without credibility and the defendant’s employee’s testimony to
be forthright and credible.
“Findings of fact . . . shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the
trial court to judge of the credibility of the witnesses.” Fed. R.
Civ. P. 52(a). As we have repeatedly held, “the burden of showing
that the findings of a district court are clearly erroneous is
heavier if credibility of witnesses is a factor in the district
court's determination. . . . A trial court's decision to credit
the testimony of one, two, or more witnesses, each of whom has told
a coherent, facially-plausible story that is not contradicted by
extrinsic evidence, and can virtually never be clear error.”
Theriot v. Parrish of Jefferson, 185 F.3d 477, 490 (5th Cir. 1999)
(internal citation omitted). Prejean’s argument on appeal fails to
surmount this high threshold. Moreover, the trial court not only
found one party believable and the other not, it noted that the
unbelievable party’s testimony was contradicted by the extrinsic
evidence and the believable party’s testimony was supported by such
evidence. These circumstances, coupled with the constant
jurisprudence of this Court on the appellate review of a trial
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court’s credibility calls, make this appeal frivolous and thus
subject to dismissal.
DISMISSED AS FRIVOLOUS.
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