author: I iPEATROSS, J.

text:
    BYRNSIDE DRILLING COMPANY, INC., Plaintiff-Appellant, v. Cortez Burns ARMOUR, et al., Defendants-Appellees.
    No. 38,073-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 30, 2004.

      Thomas A. Grant, III, Theus, Grisham, Davis & Leigh, L.L.P., by: Edwin K. Theus, Jr., for Appellant, Byrnside Drilling Co., Inc., Intervenor/Appellant, Cisco Petroleum, Inc. & Juan A. Byrnside.
    Klotz, Simmons & Brainard, by: David Klotz and Paul E. Kitchens, for Appellees, Elaine Armour Clements, Larry C. Armour & Daniel A. Armour.
    Russell 0. Brabham, for Appellee, SH & J Drilling Corporation.
    Before WILLIAMS, CARAWAY & PEATROSS, JJ.
   I iPEATROSS, J.

This appeal arises out of the seizure and sale of a drilling rig to satisfy a judgment against an absentee defendant. The trial court, on cross motions for declaratory judgment filed before the conclusion of the trial, held that the sheriffs sale of the drilling rig was valid. This appeal ensued. For the reasons stated herein, we affirm.

FACTS

In 1989, Byrnside Drilling Company, Inc. (“Byrnside”) drilled a well in Webster Parish. After completion of the well, Byrnside decided to leave the drilling rig in Webster Parish until it was needed on another job. Byrnside “stacked” the rig on a piece of property it claims to have believed belonged to the Jaycees or Masons. The property, however, was owned by Cortez Armour, who was very displeased that a drilling rig had been parked on her property without permission. The rig remained on the property for more than a year when Mrs. Armour retained an attorney to find the owner of the rig and have it removed. A demand letter was sent to Byrnside at the address listed by the Secretary of State as its agent for service of process in Monroe, Ouachita Parish. The letter was returned unclaimed and marked “moved.”

Mrs. Armour then filed suit, seeking rental payments for the use of her land and damages for conversion and enforcement of her lessor’s lien. Attempts to serve Byrnside were unsuccessful and a curator ad hoc was appointed, who was also unable to contact Byrnside. The curator answered the petition with general denials and judgment was ultimately rendered in favor of Mrs. Armour, awarding her $11,125 in total damages, $2,000 in | ^attorney fees and $150 for expert fees. The drilling rig was subsequently seized under writ of fien facias and the property was advertised in the Minden Press. The rig was sold with benefit of appraisal on July 25, 1990. It appraised for $4,000 and was sold to SH & J Drilling Company, Inc. (“SH & J”) for $15,000.

In August 1990, Byrnside obtained a drilling contract and went to move the rig. Finding the rig gone, Byrnside reported it as a theft to the sheriffs office, at which time it learned of the judgment and sheriffs sale. Byrnside subsequently filed a petition for damages naming Mrs. Armour and SH & J as defendants, alleging an unconstitutional taking of property without due process of law. SH & J answered, filed a reconventional demand and a third party demand. In the event the sheriffs sale was found to be invalid, SH & J sought reimbursement for improvements and maintenance of the rig while in its possession and a refund of the purchase price from Mrs. Armour. Mrs. Armour answered and filed a reconventional demand against Byrnside reasserting her allegations in her original petition and her lessor’s lien.

On January 6, 1992, First National Bank of West Monroe (“FNB”) intervened in the suit as the holder of a chattel mortgage which secured indebtedness of Byrnside to FNB of approximately $200,000. FNB asserted that its chattel mortgage was secured by the same drilling rig that was seized and sold and that the chattel mortgage was properly filed in Ouachita Parish, the domicile of Byrnside. According to FNB, it held a superior lien on the drilling rig which had not been satisfied by the sale; and, therefore, FNB ^asserted that the sheriffs sale was invalid. FNB subsequently assigned its security interest to Cisco Petroleum, Inc. (“Cisco”), who was substituted as intervenor. Cisco filed a motion for summary judgment claiming that the sale was a nullity because the price offered by the highest bidder was not sufficient to discharge the cost of the sale and the security interest, mortgages, liens and privileges superior to that of the seizing creditor, i.e., its chattel mortgage. Mrs. Armour opposed the motion for summary judgment, which was subsequently denied.

The matter proceeded to trial and testimony was adduced on September 10, 11 and November 25, 1998. On March 24, 2000, Mrs. Armour died and her heirs were substituted as defendants (hereinafter “Armour successors”). As of June 17, 2002, the parties still had not concluded presenting evidence in the case; however, on this date, Cisco filed a Petition for Declaratory Judgment seeking to have the court declare that SH & J’s claim for reimbursement was without merit. On August 1, 2002, the Armour successors filed a similar petition. Both Petitions for Declaratory Judgment sought a determination as to the validity of the sheriffs sale, an issue all parties agreed required resolution in order to reach the issue of any amount of reimbursement due SH & J.

ACTION OF TRIAL COURT

After argument on the Petitions for Declaratory Judgment, the trial court held that the sheriffs sale was valid; therefore, the issue of SH & J’s entitlement to reimbursement was rendered moot. Specifically, the trial court found that, since the act of mortgage was entered prior to the adoption |4of Chapter 9 of the UCC, the old chattel mortgage controls. It further held that all of the necessary steps were taken to serve Byrnside in Mrs. Armour’s initial suit and Byrnside made no effort to make itself known by changing its registered address or leaving a forwarding address on file. The trial court opined that Byrn-side cannot now come back and complain about the sale.

Regarding FNB, the original mortgagee, the trial court recognized that the mortgagee is entitled to notice reasonably calculated to apprise him of the sheriffs sale if that mortgagee is reasonably identifiable. Ultimately, because the mortgage was only filed in Ouachita Parish, the trial court found that FNB did not take steps to make itself reasonably identifiable, i.e., to protect the collateral should it be moved to other parishes. The chattel mortgage showed only that the rig would be located in Ouachita Parish “on Smith Road.” The trial court held that FNB, knowing the mobile nature of the portable drilling rig, had a duty to take steps to have the mortgage filed in the parishes in which it was located in order to put third parties on notice. Since FNB did not take steps to record its mortgage in the parishes in which the rig was located, the court held that, as a mortgagee, FNB was not reasonably identifiable to third parties in other parishes, such as Mrs. Armour in Webster Parish. Accordingly, the court held that Mrs. Armour was under no duty to notify FNB of the impending sheriffs sale and, therefore, the sheriffs sale was valid. Byrnside and Cisco (as intervenor) now appeal.

| kTHE PARTIES’ CONTENTIONS

The sole issue on appeal is the validity of the sheriffs sale. There are essentially two arguments presented by Appellants urging that the sale was invalid and that the judgment of the trial court should be reversed. First, Appellants submit that it was reversible error for the trial court to hold that the mortgagee was required to follow the collateral around and record its mortgage in every parish in which the rig was moved or located. Second, Appellants point out that Mrs. Armour knew that Byrnside’s domicile was Ouachita Parish, but no search was done of the chattel mortgage records in that parish by her or the Webster Parish Sheriff. La. C.C.P. art. 2337 provides that, if the price offered by the highest bidder at the first or subsequent offering is not sufficient to discharge the costs of the sale and the security interests, mortgages, liens and privileges superior to that of the seizing creditor, the property shall not be sold. The failure to locate the chattel mortgage recorded in Ouachita Parish led to the sale of the rig for $15,000, much less than the mortgage FNB held on the chattel. Appellants assert that the sale was in violation of this article and is a nullity.

The Armour successors and SH & J first argue that the description of the rig and location where the rig was to be located as stated in the chattel mortgage are insufficient. In its brief, SH & J provides a comparison/contrast of the descriptions of the component parts of the rig contained in the chattel mortgage and the sheriffs proces verbal at the time of the sale. According to Appellees, the differences indicate that Byrnside mixed and matched the component parts to the extent that the rig seized was not the rig described in Rand covered by the chattel mortgage. Appellees further argue that the location stated as “Ouachita Parish, Louisiana, located at Smith Road” is insufficient because there is no address to designate where on Smith Road the rig would be located. Next, Appellees argue that the trial court’s finding is correct because a mortgagee must take action to protect the collateral. According to Appellees, in the case sub judice, FNB failed to protect its collateral by failing to adequately describe the drilling rig in the chattel mortgage; failing to amend the chattel mortgage as to location when the rig was moved; failing to file the chattel mortgage in the other parish(es) where the rig was moved; failing to return the rig to Smith Road, Ouachita Parish, once it knew the rig had been moved; and failing to segregate the rig from other similar rigs.

DISCUSSION

We begin our discussion with the first point made by the Armour successors and SH & J regarding the descriptions of the drilling rig and/or drilling equipment involved in this case. The two descriptions involved are as follows:

Proces Verbal description
A tandem float with rathole and kelly & swivel & kelly drive bushing
5-6" drill collars
110 joints 31/2" bottleneck drill pipe
1 mouse hole
1-3 axle low boy License No. D208836 La. Lie. With caterpillar D7 dozer-Serial No. # 48A13250
Chattel Mortgage description
No equivalent item
14-5 1/4" X 29' Drill collars
134 Joints 3&" 13.30 lb. W/2 7/8" IF Connections drill pipe
No equivalent item
No equivalent item
bl single axle float with dog house-Blow out Preventor with accumulator
Fuel tank GMC 271 powered generator
Assorted hand tools elevators etc
# 50-311 tripple (sic) axle float containing Spencer Harris drilling rig, Rotary Table, Wev Wilson pipe tongs, elevator links, 3/&" elevator and slips. 12}£" bit & 3'6" sub
Martin Decker Clipper weight indicator
V-8 detroit diesel engine
1-Oil dispersing tank
Set hand rails and steps
Rotary table
Shorty block and hook # 1803
7/8" drilling line
Spencer Harris telescoping derrick
Cameron 10# Series Blowout preventor, Serial No. 117012
Lombia generator, 1 cylinder, 7 KW
Miscellaneous tools and other miscellaneous equipment
1976 Nabors Three-Axle trailer, Model FBSD, SN 24-417-FBSD3; Not contained in Proces Verbal: Spencer Harris Model 3500 Drawworks, SN 3500; Brewster Model OB-12 Rotary Table; Hacker 12" Rotary Table; pipe tongs; elevator links, 3}£" elevator and slips; 12 1/4" bit and 3'6" sub
No equivalent item
General reference to GM deisel engine
No equivalent item
No equivalent item
Brewster Model OB-12 rotary table
McKissack 30" sheave traveling block; SH 114
No equivalent item
Spencer Harris 92' derrick, SH 32

In addition, there are several items not itemized in the above comparison that are described in the chattel mortgage, but not listed on the proces verbal.

After reviewing the above comparison, we find merit in the argument that the description of the drilling rig contained in the chattel mortgage and the description or inventory of various items of drilling equipment as recited lRin the proces verbal are vastly different and, in this court’s opinion, irreconcilable.

Chattel mortgage law, as opposed to the now effective UCC articles contained in Chapter 9, applies in this case and the former statute concerning the description of chattels, La. R.S. 9:5352(A), required that “a full description of the property to be mortgaged shall be set forth so that it may be identified and its location shall be stated.” The description must be sufficient to enable third persons, aided by such reasonable inquiries, to identify the property. Domengeaux v. Daniels, 401 So.2d 655 (La.App. 3d Cir.1981). In addition, the proces verbal should exactly describe the property for sale. Bonner v. Baker, 8 La. Ann 283, 1853 WL 4102 (La.1853).

In the case sub judice, the description contained in the chattel mortgage does include serial numbers on a number of items, but also includes several entries that are very generally described, such as “[m]iseellaneous tools and other miscellaneous equipment.” The description contained in the proces verbal is more troublesome. This description contains very few serial numbers and, as can be easily seen from a comparison of the two descriptions, describes equipment not found in the description in the chattel mortgage and no piece of equipment listed matches any of the items listed in the chattel mortgage description. The proces verbal description also contains vague, nonspecific descriptions such as “[assorted hand tools elevators etc” and “[s]et hand rails and steps,” among others. No reasonable person reading the description of drilling | flequipment contained in the proces verbal, as advertised in connection with the sheriffs sale, would conclude the equipment being auctioned was one and the same with the drilling rig and equipment as described in the chattel mortgage. In fact, the parties acknowledge that there are at least three component parts of the drilling rig that were seized and sold that were not included in the sale, but were located at a different location approximately a mile from Mrs. Armour’s property, i.e., the site where Byrnside “stacked” this rig and equipment.

After reviewing the contrasting descriptions in this case, each containing some specific and other very vague entries, none of which match, we find that the equipment seized and sold at the sheriffs sale was substantially different from that listed in the chattel mortgage. In order to enforce a lien against movable property, the identity of the property must be possible of establishment. If that identity is lost by uniting or commingling the movable with another movable, the lien is automatically destroyed. See In re Exclusive Industries Corporation, 41 B.R. 493 (Bankr.W.D.La.1984), citing Phillips v. Conley, 46 So.2d 650 (La.App. 2d Cir.1950)(“For the preservation of the lien and privilege, it must be possible for one, so to speak, to be able to put his hands on the specific object that was sold, and have the ability to separate it unimpaired from other objects or things with which it may be associated or to which it may be attached.”) We conclude, ^therefore, that the chattel mortgage in the present case cannot be enforced against the property sold.

Assuming, arguendo, that the drilling rig and equipment securing the note and the drilling rig and equipment seized and sold at sheriffs sale are one and the same and, assuming that all parties had been aware of FNB’s chattel mortgage, whether by filing of the chattel mortgage in Webster Parish or otherwise, our conclusion in this case is supported by a second and significant deficiency in the description contained in the chattel mortgage. The location of the chattel as specified in the chattel mortgage was to be “Smith Road” in Ouachita Parish. Not only is this specification vague and nonspecific, it is incorrect. A statement as to the location of mortgaged movables is one of the most important elements of the description thereof. Burglass v. Manfre, 168 So. 328 (La.App.Orleans 1936). Further, the erroneous location of the mortgaged movable property is equivalent to no location at all. Id. “The proper location of the property in the act of mortgage is essential to its validity.” Id., J. Westerfield, concurring. A defect in the specified location of the movable fails to put third parties on [nnotice that the property described as being located in one parish is actually located in another parish. In re Exclusive Industries Corporation, supra. Moreover, the court, in In re Exclusive Industries Corporation, held that an inaccurate specification of location in a mortgage document is not cured by recording the document in all 64 parishes of the state. The court emphasized that, in cases of inaccurate locations, it is the notice to third parties which is critical, as opposed to the parties’ understanding that the movable will be located in various parishes. When the location is inaccurately stated in the mortgage document, unsuspecting third parties are lulled into a sense of security that property covered by the mortgage is located only in the parish specified in the mortgage. Third parties are entitled to assume the recitals in the mortgage are correct; any ambiguity or omission must be construed against the existence of the mortgage and in favor of the third party. Id. We find, therefore, that the incorrect specification of “Smith Road” in Ouachita Parish is fatal to the efficacy of the chattel mortgage as it affects third parties. In light of our conclusions as stated, we find that the sale of the drilling rig and/or equipment to SH & J was valid. All other issues raised by the parties are pretermit-ted.

CONCLUSION

For the foregoing reasons, the judgment of the trial court declaring the sheriffs sale to be valid is affirmed. Costs are assessed to Defendant/Appellants Byrn-side Drilling Company, Inc. and Cisco Petroleum, Inc.

AFFIRMED.

      . We recognize that In re Exclusive Industries Corporation involved a lien on lumber which is a “mass or assemblage” and Phillips involved a lien on gas that was commingled with other gas not subject to the lien at issue in the case. While the case sub judice does not involve a "mass or assemblage” per se, we find that the principle espoused by these two cases requiring that the collateral be identifiable clearly applies to the many component parts of the drilling rig and related equipment involved herein.

      . Much argument is made in the present case around this court’s decision in Young v. Squeeze Tools, Inc., 350 So.2d 967 (La.App. 2d Cir.1977). In the portion of that decision dealing with the issue of the description in a chattel mortgage, this court found no error in the lower court's finding that, where the mortgagor owned only one drilling rig, the fact that the description failed to include the serial numbers of the drilling equipment did. not destroy the validity of the chattel mortgage. As noted in Young, what constitutes sufficiency of the description is a matter to be determined in light of the circumstances of each individual case. The circumstances of the case sub judice are distinguishable from those in Young in two respects. First, there is no indication in Young that there was any discrepancy between the description contained in the chattel mortgage and the one advertised in connection with the sale and used the proces verbal in that case. Second, in Young, the specification of the location of the chattel was Iberia Parish "when not in use.” This phraseology gives notice to third parties that the chattel is going to be moved to other parishes when in use. The chattel mortgage in the present case does not contain such qualifying language; rather, the chattel mortgage states only that the chattel will be located on “Smith Road” in Ouachita Parish. Based on these distinguishing aspects of Young, we do not find it controlling on the issue of the description of the chattel.


source: Caselaw Access Project

author: hMOORE, J.

license: Public Domain

text:
    In re Edgar McLARRIN and Charlotte McLarrin applying for Private Adoption of E.K.E. and O.L.G., Plaintiffs-Appellees.
    No. 38,616-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 4, 2004.

      Evelyn Denise Kelly, for Appellant.
    John Gates Spires, Mer Rouge, for Minor O.L.G.
    Scott L. McElroy, for Appellees.
    Before BROWN, GASKINS and MOORE, JJ.
   hMOORE, J.

Petitioners obtained legal custody of O.L.G. and subsequently petitioned to adopt the minor child. The unwed biological father of O.L.G. opposed the adoption and sought to establish his parental rights. Functioning in its capacity as a juvenile court, the district court found that the biological father had failed to show that he manifested a substantial commitment to his parental responsibilities. The court approved the adoption and terminated the father’s parental rights. He appeals. We affirm.

Facts and Procedural History

Proceedings in this matter began on February 22, 2002 when Edgar Tom McLarrin, age 64, and his wife, Charlotte McLarrin, age 51, filed an Application for Approval of Adoptive Placement of two minor children, E.K.E. and O.L.G. The application alleged, inter alia, that the children have lived with the applicants for approximately one year, and that the applicants have had legal custody of the children since July 13, 2001, pursuant to a court order. Attached to the application was a Voluntary Act of Surrender for Adoption (“Act of Surrender”) executed by the mother of both children, M.E. Although the application involved two children of M.E., the instant appeal concerns only O.L.G.

O.L.G. was born on November 29, 1999, and was nearly 4-years-old at the time of trial. In the Act of Surrender, M.E. deposed that she was married at the time of birth or conception of O.L.G., but that her husband, the legal father of the child, was not the biological father of the child. She further deposed that, to the best of her knowledge, the alleged (biological) ^father had not acknowledged paternity formally or informally, and she did not know the identity of the biological father of O.L.G.

On October 23, 2002, the McLarrins filed a petition to adopt O.L.G. Petitioners alleged that the biological father of O.L.G. was unknown, and that the whereabouts of O.L.G.’s legal father was unknown. They asked the court to appoint an attorney to represent M.E.’s husband, the legal father of O.L.G., and whose consent for the adoption is required by law. Petitioners asked the court to terminate the legal father’s parental rights.

Petitioners alleged that they had made diligent efforts to determine the identity of the unknown biological father of O.L.G., and that the mother, M.E., does not know the identity of the father of the child. Attached to the petition were the following documents: (1) O.L.G.’s birth certificate, (2) a certificate from the Rapides Parish Clerk of Court’s office certifying that the records contained no acknowledgment or legitimation by authentic act and no judgment of filiation relative to O.L.G., (3) a certificate from the Ouachita Parish Clerk of Court verifying that no formal acts of acknowledgment, legitimation or judgments of filiation had been filed, and (4) a document from the State Registrar certifying that no requests or applications for listing in a Putative Father Registry, relative to the birth of O.L.G., had been received to date.

On November 4, 2002, J.M., the alleged biological father of the child, (hereinafter “appellant” or opposed the adoption by filing in the above proceeding a Rule for Custody, in which he alleged that he is the natural father of O.L.G. and requested that the court award him legal | acustody of the child. Appellant denied the allegations in the McLarrin petition to adopt that alleged that the biological father was unknown. On the contrary, appellant alleged that M.E. previously attested under oath that appellant was the father. [M.E. and appellant executed an affidavit acknowledging appellant’s paternity on June 13, 2001.] We also note that J.M. is the grandson of Edgar McLarrin, the prospective adoptive father in the petition to adopt.

A hearing on the petitioners’ request for an interlocutory decree of adoption was held on December 4, 2002. The hearing resulted in an order for paternity testing to determine if the appellant could be excluded as the biological father of O.L.G. Some time in early 2003, the test results confirmed that appellant was the biological father of O.L.G.

Subsequently, on February 24, 2003, petitioners filed an Amended Petition to adopt O.L.G., now alleging that a valid acknowledgment of paternity executed by the appellant existed, and that genetic testing might not exclude the appellant as the biological father of O.L.G. Nevertheless, the petitioners alleged that the appellant had failed to visit, communicate, or attempt to communicate with O.L.G. in more than six months. Accordingly, petitioners alleged that appellant’s consent to the adoption was not necessary. Additionally, petitioners alleged that the appellant did not have anything to do with the child for the first one and one-half years after her birth, and that he had little or no contact with O.L.G. after he acknowledged his paternity. In the alternative, the petitioners moved to terminate the appellant’s parental rights under La. Ch. C. art. 1245, and asked the court to Rappoint their counsel as special assistant to the district attorney in the matter of the termination of parental rights.

The Amended Petition was met with dilatory exceptions of improper use of summary procedure and improper cumulation of actions. Apparently concluding that they were faced with the probable success of the exceptions, on May 27, 2003, the petitioners filed an amended petition alleging that the appellant’s parental rights should be terminated under La. Ch. C. art. 1138 (instead of Art. 1245), and asked the court to appoint an attorney to represent O.L.G. in the matter if the court deemed that the appellant’s consent for the adoption is required.

The court appointed an attorney to represent O.L.G. The attorney answered the petition for adoption, denying all allegations for lack of sufficient information.

The appellant answered the amended petition, affirming the allegations that he had acknowledged paternity and further alleging that the paternity tests did not rule him out as the father of O.L.G. Appellant denied the allegations regarding his lack of contact with the child and pled his opposition to the adoption. Appellant alleged that he had maintained contact with the child on a regular and frequent basis since he learned that the child might be his in June of 2001. He claimed that he regularly and frequently contributed to the support and well-being of the child from September of 2001 to September of 2002 and that he saw the child on a regular and consistent basis after January of 2003, after obtaining a court order allowing his visits. He further alleged that it was in the best interest |ñof the child that O.L.G. be placed in his custody.

Trial was set for October 8, 2003. On that day, the matter was taken up and tried and the evidence adduced. Ruling from the bench, the court concluded that the appellant did not carry his burden of proof under La. Ch. C. art. 1138. Specifi-eally, the court found that the appellant had ample opportunity during M.E.’s pregnancy and after the birth of the child to demonstrate his support for the mother or the child, and he had failed to do so. Likewise, the court noted that appellant had failed to demonstrate his commitment through frequent and regular contact with the child until only recently. The court also found that J.M. did not establish that he was thwarted in any efforts to contact the child or to provide financial support. Finally, the court concluded that the appellant, who lived with his grandmother while working at Kentucky Fried Chicken for $5.40 per hour, was not willing and able to assume legal and physical care of the child,

On October 29, the court signed a judgment denying the opposition to the adop-^ion by appellant and terminating his parental rights. Appellant filed this appeal,

Law

The interest of an unwed father in the children he has sired and raised is protected under the Due Process Clause. In re Adoption of B.G.S., 556 So.2d 545 (La.1990) (citations omitted). In cases where the father has not lived continuously with the child, his paternal interests are protected when he develops and maintains a substantial relationship with his child by accepting responsibility for the child’s future. Id. (Citations omitted). This ^^constitutional protection extends to unwed biological fathers of newborns: “[A] fully committed unwed father of a newborn child has a constitutionally protected interest in his opportunity to develop a mutually beneficial emotional or psychological bond with his child.” Id. at 550, citing, Lehr v. Robertson, 463 U.S. [248] at 259-61, 103 S.Ct. [2985] at 2992-93, 77 L.Ed.2d [614] at 625-26 [ (1983) ]. (Citations omitted). The Lehr'court characterized that commitment as follows:

When an unwed father demonstrates a full commitment to the responsibilities of parenthood by “coming forward to participate in the rearing of his child,” • • • his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he ‘act[s] as a father toward his children.’....
The significance of the biological eonnection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development.

Lehr v. Robertson, 463 U.S. at 261-62, 103 S.Ct. at 2993, 77 L.Ed.2d at 626-27, quoting Caban v. Mohammed, 441 U.S. at 392, 389 n. 7, 99 S.Ct. at 1768, 1766 n. 7, 60 L.Ed.2d at 307, 305 n. 7 (emphasis added). “This interest does not come into existence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood.” In re Adoption of B.G.S., supra at 550. “[H]e must show that he has taken concrete actions to grasp his opportunity to be a father and that there is a potential for him to make a valuable contribution to the child’s development.” Id. Simply showing a biological relationship and fitness is not enough to sustain the father’s interest. Id.

|7These precepts are now codified in Louisiana law and expressly stated in La. Children’s Code Article 1138 governing hearings on opposition to a proposed adoption and the establishment of parental rights. Article 1138 delineates the showing that must be made to oppose an adoption and establish parental rights:

Art. 1138. Hearing of opposition to adoption; establishment of parental rights
A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father’s substantial commitment to his parental responsibilities requires a showing, in accordance with his means and knowledge of the mother’s pregnancy or the child’s birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C. The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
D. If the court finds that the alleged or adjudicated father has failed to establish his parental rights, -it shall decree that his rights are terminated.
IrE. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent. The court may also order the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.

Hence, the burden of proof is upon the claimant father to demonstrate that his parental rights should be recognized. This burden is three-fold, requiring that the claimant father (1) acknowledge paternity in open court, (2) prove his efforts to seize his parental “opportunity” interest, and (3) prove his present fitness for custody. In re Adoption of B.G.S., supra. The burden of proof is on the father to prove these three elements by a preponderance of the evidence. Matter of RE. 94-2657, 94-2663 (La.11/9/94), 645 So.2d 205; In Re Adoption of S.C.D., 99-455 (La.App. 5 Cir. 9/28/99),742 So.2d 1058, writ denied, 1999-3082 (La.11/3/99) 748 So.2d 1144.

The standard of appellate review of judgments in these cases is the “manifest error” standard. In the Matter of H.M.M., 33,766 (La.App. 2 Cir. 3/7/00), 754 So.2d 425.

It is well-settled that a court of appeal may not set aside a trial court’s findings of fact in the absence of “manifest error,” which in its simplest terms means “clearly wrong.” Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Nevertheless, when an appellate court finds that a reversible error of law or manifest error of material fact has been made in the trial court, the reviewing court is required to redetermine the facts de novo from the entire record and render a judgment 19on the merits. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). In Interest of E.C.B., 691 So.2d 687 at 690, 29,725 [ (La.App. 2 Cir. 1/29/97) ].

Analysis

Appellant alleges in his first assignment of error that the trial court erred in failing to dismiss the petition of adoption of O.L.G. because it contained inconsistent statements, false swearing and fraud perpetrated on behalf of the petitioners. Specifically, appellant urges that the petitioners falsely swore that the biological father of O.L.G. was unknown, when, in fact, both M.E. and the petitioners knew that the appellant was the biological father of the child.

We observe that there are conflicting statements and testimony in the record regarding M.E.’s and the petitioners’ knowledge of the biological father. Some of these statements are also inconsistent with allegations in the original petition. However, we also note that the petitioners subsequently amended their petition regarding their lack of knowledge of the biological father of the child and alleged the existence of a valid acknowledgment of paternity executed by the appellant. Regarding the petitioners’ allegation in the petition that the biological father of O.L.G. is unknown, there were in fact conflicting and inconsistent statements by M.E. in this regard. Although the petitioners might have strongly suspected that the appellant was the father of O.L.G. when they filed their petition alleging that the biological father of O.L.G. was unknown, M.E.’s admission that she had been with multiple sex partners around the time of conception rendered anyone’s claim of paternity uncertain absent DNA testing.

|inWe find no merit in the appellant’s claim that the trial court should have dismissed the petition based upon these inconsistencies. Since the purpose of a trial is to prove the truth of the allegations of a petition, the trial court committed no error.

Appellant’s second and third assignments of error allege that the trial court erred in terminating the parental rights of the appellant and in finding that the appellant did not establish that he is willing and able to maintain his parental responsibilities to the minor child.

In its oral reasons for judgment, the court found that M.E. and J.M. had a consensual, non-marital [sexual] relationship in which M.E. became pregnant. She told the appellant that he was the father of the child. The court noted that J.M. told his family: “I’m going to have a baby.” The court found that J.M. took no actions to prove or disprove that he was the father of the child. He did not show that he provided financial support during the pregnancy, or contributed to the medical expenses of the pregnancy before or after the birth of the child, or that he frequently and consistently visited the child after birth and that he was now willing to assume legal and physical care of the child. The court observed that if J.M. was, in fact, unsure that he was the father of O.L.G., then he could have easily taken measures to determine if he was or was not the father of the child.

The court concluded that J.M. did not prove a “substantial commitment” to the child as required by law, finding that the evidence offered by J.M. did not rise to the level necessary to carry his burden of Inproof. J.M. did not provide support for M.E. or the child during the pregnancy or after the child was born up to the time of trial, and he did not see the child until after the first one and one-half years of the child’s life, although at the time of the hearing J.M. was now seeing the child on a regular basis. J.M. admitted that he has never volunteered to do anything for the child.

The court also found that J.M. did not show that he had been thwarted in his efforts by the mother or her agents to manifest a parental commitment to O.L.G. Finally, the court noted that the appellant has not established that he could independently support the child and carry out the role of a parent based upon his present status.

As noted above, to successfully oppose the adoption in this case, Article 1138(A) requires that the appellant must first establish his parental rights by (1) acknowledging that he is the father of the child and (2) by proving that he has manifested a substantial commitment to his parental responsibilities and (3) that he is a fit parent of his child. The trial court concluded that the appellant did not meet elements (2) and (3) in this instance.

There is no question that the appellant executed an acknowledgment of paternity on June 13, 2001. Accordingly, the first element of Article 1138(A) was met.

|12Paragraph B of Article 1138 establishes what showing constitutes proof that the appellant manifested a substantial commitment to his parental responsibilities. Paragraph B(l) requires that the alleged father demonstrate that he has provided financial support to the mother or child and has established personal contact with the child. This responsibility attaches before birth for prenatal costs and the expenses of delivery if the father has knowledge of the mother’s pregnancy. La. Ch. C. art. 1138 B; Malek v. Yekani-Fard, 422 So.2d 1151 (La.1982).

Our review of the record supports the trial court’s finding that the appellant did not demonstrate that he provided financial support to the mother or child during the pregnancy and after the child was born. Appellant attempted to justify his lack of support during this time by claiming that he did not know if he was the father of the child. Appellant later admitted, however, that M.E. told him when she was pregnant that he was the father of the child. Appellant’s mother testified that the appellant was happy when M.E. was pregnant and said, “I am going to have a baby.” She also testified that J.M. accepted that O.L.G. was his child and was proud of it. As the trial court noted, even if M.E. had cast some doubt in the appellant’s mind as to his paternity, appellant could have taken some steps to determine the truth but failed to do so.

After the child was born, appellant still failed to offer financial support for the child, nor did he make any effort whatsoever to establish parental contact with the child, let alone frequent and regular contact. Appellant testified that he did not know where the child lived for the first |1syear and one-half of her life. In fact, the child lived with the appellant’s aunt, Sherry Smith, from age 4 months until 1/6 years. Smith testified that appellant knew the child was living with her, but he told her he did not want to see the child because he did not think she was his child. Smith also testified that the appellant never provided any kind of support. Appellant did not rebut this testimony, but testified that he did not recall being told that O.L.G. lived with his aunt.

Even after June 13, 2001 when he signed the acknowledgment of paternity, and the child, now 1/6 years old, was in the legal custody of the McLarrins, appellant made no effort for a period of several months to see the child. Appellant claimed that this continued lack of commitment was because he was still not sure that the child was his own. He stated that it was not until the results of the blood/ DNA tests in early 2003 confirming his paternity that he felt a commitment to his parental responsibility. By this time, O.L.G. was nearly 4 years old.

The trial transcript reveals that appellant’s memory was extremely poor regarding the facts necessary to establish his commitment to the child. Appellant could not remember giving any monetary support to M.E., his aunt or the McLarrins to support the child. He claimed that he bought her things she needed, “diapers here and there,” but he could not remember other things or when or how old the child was when he bought her things. By contrast, M.E. testified that the appellant never provided any support and never bought diapers or anything for her or the child. Appellant admitted that he has never offered to assist M.E. or the adoptive parents in supporting 114O.L.G.

Paragraph B(2) recognizes that a willing father might be blocked in his efforts to establish a parental relationship. In this instance, however, appellant could recall only one instance in which he was thwarted in an effort to see the child. On this occasion, the child had to go to the doctor.

Based on this record, we conclude that the trial court’s findings that the appellant failed to meet his burden of showing a substantial commitment to O.L.G. through financial support during and after M.E.’s pregnancy, and by establishing frequent and consistent contact with the child, are reasonably supported by the record and ai'e therefore not manifestly erroneous. The appellant failed to grasp the opportunities to assume the responsibilities of parenthood as they were presented to him. In re Adoption of B.G.S., supra.

The trial court also found that the appellant was not able to assume legal and physical care of the child based upon his minimum wage income of $5.40 per hour and the fact that he lives with his grandmother. Inasmuch as we have concluded that the record supports the trial court’s finding that appellant failed to carry his burden of showing that he seized his parental opportunity interest, we need not reach the question of his present fitness for custody.

Finally, appellant argues that the trial court erred in failing to declare the voluntary act of surrender for adoption invalid because it contains false statements regarding knowledge of the biological father. This alleged error constitutes a collateral attack on the veracity of statements contained in a |1sdocument in the record, and was not raised at trial. Since it does not constitute a part of the judgment appealed from, nor was this issue raised at trial, this assignment will not be considered by the court.

Conclusion

We conclude that the trial court was not manifestly erroneous in concluding that the appellant failed to establish his parental rights and decreeing that appellant’s parental rights are terminated. La. Ch. C. art. 1138(D). The judgment denying appellant’s opposition to the adoption and terminating his parental rights is therefore affirmed.

AFFIRMED.

      . The court stated in its oral reasons that it applied the standard of “clear and convincing evidence.” The court's remarks taken as a whole, however, indicate that the court was simply saying that it would require “clear and convincing evidence” before it would determine that the father had not met his burden and terminate his parental rights.


author: | .BROWN, C.J.

text:
    STATE of Louisiana, Appellee, v. Mario WEST, Appellant.
    No. 38,231-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 4, 2004.

      Joseph M. Clark, Sr., Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    John Schuyler Marvin, District Attorney, Robert Lane Pittard, C. Sherburn Sentell, III, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART, and LOLLEY, JJ.
   | .BROWN, C.J.

The state initially charged defendant, Mario West, with one count of first degree murder, one count of distribution of cocaine, and one count of conspiracy to distribute cocaine arising out of the February 2000 homicide of Tina Meadows. The state and defendant, however, entered into a plea bargain, the terms of which were as follows. The state agreed to dismiss the murder and distribution charges in exchange for defendant’s agreement to testify truthfully against his co-defendants if needed. The agreement also provided for a sentence range of five to fifteen years, with the first five years to be served without benefit. The court sentenced defendant to 15 years at hard labor. Following the denial of a timely pro se motion for reconsideration, defendant argues that his 15-year sentence is excessive. Finding no error, however, we affirm.

Discussion

On February 14, 2000, Correando Thompson, Darriek Tubbs and Tina Meadows drove from Bernice, Louisiana, to the Minden residence of A1 Cooper to sell him a large quantity of cocaine. Defendant was in Cooper’s home at the time. Thompson and Cooper argued over the quality of the cocaine. According to one witness, defendant pulled a gun, and Cooper stabbed Tina Meadows. Tina staggered into the street and ultimately bled to death from a cut jugular vein. Tubbs, A1 Cooper, Brian Cooper, and defendant surrendered to police two days later.

| .Where a specific sentence or cap has been agreed to as a consequence of a plea bargain, a sentence imposed within the agreed upon range cannot be appealed as excessive. La. C. Cr. P. art. 881.2(A)(2); State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Jefferson, 36,562 (La.App.2d Cir.01/29/03), 837 So.2d 733, writ denied, 03-0933 (La.11/07/03), 857 So.2d 516; State v. Henton, 35,363 (La.App.2d Cir.12/19/01), 803 So.2d 405. Therefore, defendant may not appeal his sentence, which was within the range agreed upon by the defense, state and trial court.

Should we review the sentence for constitutional excessiveness, however, we would find no error. In fashioning defendant’s sentence, the trial court considered the dispositions of his co-defendants. The court noted the gravity of defendant’s participation in the drug transaction. The sentence is not grossly out of proportion to the seriousness of the offense, nor is it a purposeless and needless infliction of pain and suffering. Furthermore, when viewed in light of the harm done to society, it does not shock the sense of justice. This sentence is not excessive by constitutional standards.

We note, however, that the trial court failed to state at sentencing that the first five years were to be served without benefit. However, this error will be corrected automatically by operation of La. R.S. 15:301.1. See State v. Klasek, 37,114 (La.App.2d Cir.04/11/03), 843 So.2d 646, writ denied, 03-1359 (La.12/12/03), 860 So.2d 1149.

AFFIRMED.

      . The record shows that plea agreements were entered into with each co-defendant.


author: hBROWN, C.J.

text:
    Peter V. DRISCOLL, M.D., Plaintiff-Appellee, v. Fred J. STUCKER, M.D., et al., Defendants-Appellants.
    No. 38,133-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 4, 2004.

      Taylor, Porter, Brooks & Phillips by Thomas R. Peak, Baton Rouge, for Appellants.
    Tutt, Stroud & Bordelon, L.L.C. by A.M. Stroud, Shreveport, Kent Masterson Brown, Christopher J. Shaughnessy, for Appellee.
    Before BROWN, C.J., and GASKINS and CARAWAY, JJ.
   hBROWN, C.J.

Defendants are The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (Louisiana State University Health Sciences Center referred to hereinafter as “LSUHSC”) and Dr. Fred Stacker, the director of the residency program in oto-laryngology at LSUHSC. Plaintiff is Dr. Peter V. Driscoll, a graduate of the residency program, who was denied the required recommendation that would permit him to take the examination for board certification in otolaryngology. Finding a breach of contract and denial of due process, the trial court awarded plaintiff $780,000 for lost income and $75,000 in general damages, together with legal interest and costs. Defendants appealed. We amend and as amended, affirm.

Factual Background

In 1994, Dr. Peter Driscoll entered the six-year accredited residency program in otolaryngology at LSUHSC. In June 2000, Dr. Driscoll successfully completed the program. Graduation from such an accredited residency program and a recommendation from its program director are prerequisites for eligibility to take an examination to become board certified in otolaryngology.

On June 22, 2000, Dr. Stacker, who was the director of the LSUHSC’s otolaryngol-ogy program, issued a final evaluation (exit letter) with a recommendation that plaintiff was worthy to take the examination for board certification. On June 30, 2000, plaintiff graduated from the program Lwhich, by the terms of his contract, ended his employment with LSUHSC. Plaintiff joined the staff at Minden Medical Center and was considering an offer from them for a job that paid $360,000 annually.

On August 22, 2000, plaintiff was notified by the American Board of Otolaryn-gology that he would not be permitted to sit for the board certification examination because, “we no longer have the required recommendation from your Program Director .... ” This was the first knowledge plaintiff had that the June 22 recommendation from Dr. Stacker had been rescinded.

Dr. Stacker had written a letter dated August 9, 2000, to the board withdrawing his previous recommendation. Gordon Rountree, plaintiffs attorney, requested, without success, copies of this letter several times from Dr. Stacker and Mickey Prestridge, the in-house attorney for LSUHSC. On October 3, 2000, Rountree met with Dr. Stacker in his office seeking a copy of the letter. At this meeting, Dr. Stacker told Rountree that plaintiff “would not be well served by pursuing this any further” and threatened that Dr. Driscoll would lose his license to practice medicine in Louisiana if he filed a lawsuit challenging Dr. Stucker’s decision.

Only after plaintiff instituted this lawsuit and filed a motion for a preliminary injunction did Dr. Stacker and LSUHSC produce the August 9 letter. This occurred on March 26, 2002. An excerpt of the letter reads as follows:

This morning I was informed that Dr. Driscoll engaged in a Private Practice while in training. He used the institution’s facilities and employed a V.A. scrub tech in a University facility on weekends to perform cosmetic surgical procedures. _JjNo departmental or hospital individuals were aware of this (to my knowledge). This is absolutely forbidden by the state and University. There is no question that Dr. Driscoll knew he was violating University rules. (Emphasis added).

Staff privileges and the job offer at Min-den Medical Center required board eligibility. Because of Dr. Stacker’s action, plaintiff was not “board eligible.” Plaintiff accepted a one-year fellowship in cosmetic surgery in California where he earned $15,000 the year beginning November 2000 and ending November 2001.

Procedural Background

On March 26, 2002, Dr. Driscoll filed suit against Dr. Stacker in both his official and individual capacities and against LSUHSC for denial of due process and breach of contract.

On November 22, 2002, plaintiff filed a motion for partial summary judgment which was granted on January 6, 2003. The trial court concluded that defendants denied Dr. Driscoll procedural and substantive due process of law and breached their contact with him.

Trial on the remaining issues was concluded on May 12, 2003. Thereafter, on May 30, 2003, the parties agreed to a consent judgment which resulted in Dr. Stacker issuing the necessary recommendation for plaintiff to be “board eligible” and thus cut off further damages. The trial court found that Dr. Stacker, in his official and individual capacity, and LSUHSC were liable and awarded plaintiff $780,000 in lost wages and $75,000 in general damages, together with legal interest and all taxable costs.

| ^Discussion

Defendants claim immunity under La. R.S. 13:3715.3. They contend that the decision made with respect to Dr. Driscoll was a “peer review committee” function.

La. R.S. 13:3715.3(0) provides as follows:

No member of any such committee designated in Subsection A of this Section or any sponsoring entity, organization, or association on whose behalf the committee is conducting its review shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him. (Emphasis added).

The first step in addressing any claim of immunity under La. R.S. 13:3715.3 is for the court to determine whether the defendants are peer review committee members whose actions on which liability is premised were undertaken as part of the peer review process. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.07/05/94), 639 So.2d 730, rehearing denied, 96-1837 (La.11/08/96), 683 So.2d 258. If the defendants were peer review committee members engaged in the peer review process, it next must be determined whether there was an abuse of the peer review process, which is a fact question. Smith, supra. ‘Peer review’ is the process by which physicians, hospitals and other health care providers review the performance of other physicians and, when warranted, discipline the reviewed physician for incompetence or unprofessional conduct. Smith, 639 So.2d 730 at 735, n. 2. Essentially, peer review deals with the question of the granting and delineation of medical staff privileges at a hospital or other |Bhealth care facility which is conducted pursuant to and in accordance with the facility’s medical staff bylaws, rules, and regulations.

The trial court found that the instant case was not a peer review situation. We agree. Dr. Driscoll had received the necessary recommendation for board eligibility, completed the residency program, and ended his employment at LSUHSC, when Dr. Stucker summarily and secretly revoked that recommendation. Dr. Dris-coll did not possess, nor was he seeking, medical staff privileges at LSUHSC at the time of Dr. Stucker’s actions. In fact, defendants go to great lengths to point out that Dr. Driscoll had graduated from the residency program and was no longer a resident or practicing physician at LSUHSC at the time of Dr. Stucker’s August 9 letter.

Although LSUHSC’s House Staff Manual provided for due process when adverse action is taken against a resident, which includes notice and the right to respond, Dr. Driscoll was neither notified nor provided any process with reference to Dr. Stucker’s letter of August 9, 2000. Dr. Stucker and LSUHSC refused to even provide a copy of the August 9 letter for over two years, and then only produced the letter on the eve of a preliminary injunction hearing. Under these circumstances, Dr. Stucker’s actions were not “peer review” within the meaning of La. R.S. 13:3715.3. Therefore, Dr. Stucker and LSUHSC are not entitled to La. R.S. 13:3715.3 immunity from liability for damages sustained by Dr. Driscoll.

| (¡Defendants next contend that Dr. Dris-coll did not possess a constitutional, statutory or contractually protected property or liberty interest in receiving a recommendation to the American Board of Otolaryn-gology. More specifically, they contend that a recommendation (that a candidate be permitted to sit for examination for board certification) is not a license, nor does the withholding (or rescission) of such recommendation by the board at defendants’ request deny Dr. Driscoll the ability to practice medicine generally, or even to practice in his chosen specialty. Defendants claim that at most, the recommendation (which was withdrawn) represented a potential prospective enhancement to Dr. Driscoll’s resumé.

The Fourteenth Amendment to the United States Constitution provides, in part, “nor shall any State deprive any person of life, liberty or property, without due process of law....” Similarly, Article I, § 2 of the Louisiana Constitution provides that no person shall be deprived of life, liberty, or property, except by due process of law. To assert the protections of due process, a claimant must show the existence of some property or liberty interest which has been adversely affected by state action. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980); American Intern. Gaming Ass’n, Inc. v. Louisiana Riverboat Gaming Com’n, 00-2864 (La.App. 1st Cir.09/11/02), 838 So.2d 5; Johnson v. Southern University, 00-2615 (La.App. 1st Cir.12/28/01), 803 So.2d 1140. When protected interests are implicated, the right to some kind of prior hearing is paramount. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Where a person’s good name, reputation, honor, or integrity is at stake because of what the government or state is doing to him, notice and an opportunity to be heard are essential. Roth, supra. Being deprived not only of present employment but of future opportunity is certainly no small injury. Id.

A number of courts have concluded that medical students and residents possessed “property” and/or “liberty” interests in their positions. In Ewing v. Bd. of Regents of Univ. of Mich., 742 F.2d 913 (6th Cir.1984), reversed on other grounds, 474 U.S. 214, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985), the United States Court of Appeals for the Sixth Circuit concluded that a contractual relationship existed between a medical student and his university and proceeded to hold that an implied understanding that a student shall not be arbitrarily dismissed from his university is a property interest, resting in the contractual relationship between the parties, which can give rise to constitutional protections. Similarly, in Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775 (2nd Cir.1991), cert. denied, 502 U.S. 1013, 112 S.Ct. 657, 116 L.Ed.2d 749 (1991), a physician brought an action against a public hospital alleging that her due process rights were violated when she was denied her status as chief resident. One of the issues presented was whether the plaintiff possessed a “property” interest in obtaining the position of chief resident so as to trigger the due process protections of the Fourteenth Amendment to the United States Constitution. The United States Court of Appeals for the Second Circuit concluded that the plaintiff did indeed possess a protectable “property” interest in obtaining |sthe chief resident position based upon the defendant’s policies and practices, the defendant’s informational materials regarding the residency program, and the plaintiffs reasonable reliance upon these understandings and representations. Ezekwo, supra. Other cases are in accord with the sound principles of Ewing and Ezekwo applying the holding of the United States Supreme Court in Roth. See, e.g., Ong v. Tovey, 552 F.2d 305 (9th Cir.1977) (finding a property interest in surgical residency subject to due process protections); Navato v. Sletten, 560 F.2d 340 (8th Cir.1977) (holding that a physician who was to receive three years of training required for certification in specialty of psychiatry and was then to render two years of service in state mental hospitals possessed property interest in position cognizable under the Fourteenth Amendment); Waliga v. Board of Trustees of Kent State Univ., 22 Ohio St.3d 55, 488 N.E.2d 850 (1986) (a degree holder possesses a property interest in a degree that cannot be taken away except pursuant to constitutionally adequate procedures).

The overwhelming weight of case law illustrates that Dr. Driscoll possessed a property and liberty interest subject to due process protections. In the materials advertising its otolaryngology residency program, LSUHSC noted its accreditation and that graduation would lead to board eligibility. Because Dr. Driscoll had a property right in the recommendation that would permit him to sit for examination for board certification, he was entitled to a hearing so that he would have an opportunity to refute the derogatory allegations.

19Defendants next contend that the trial court erred in holding that there was no credible evidence of wrongdoing on the part of Dr. Driscoll.

Dr. Stucker’s August 9 letter states, “This morning I was informed ...” (Emphasis added). Obviously, he wrote the August 9 letter the same day that he was “informed” of Dr. Driscoll’s alleged misconduct. Kay Carter, a nurse at the V.A. Hospital, told Dr. Stacker that Kevin Williams, a scrub tech at the V.A. Hospital, told her that Dr. Driscoll, with Williams’ assistance, had been performing cosmetic surgical procedures at LSUHSC’s clinic (while plaintiff was a resident at LSUHSC). Ms. Carter further told Dr. Stacker that after weekends she noticed missing supplies and dirty LSUHSC equipment trays at the V.A. Hospital. She also told Dr. Stacker that Dr. Driscoll and Williams had requested preoperative narcotics from her.

Dr. Driscoll testified that he performed a closed nasal reduction and removed a lesion over a patient’s eye using local anesthetic. He knew of similar procedures being done on weekends in the clinic and was not aware of any rule against it. He did not charge the patient for the services and filled out a clinic sheet documenting the services he had performed. Dr. David Hilton, a part-time attending physician at LSUHSC, testified that performing minor procedures in the clinic over the weekend was acceptable, not unusual, and that he would not find such conduct to be an issue. Additionally, there was no written university rule which forbade what plaintiff had done.

Kay Carter simply repeated the statements and allegations allegedly made by Kevin Williams. Dr. Stacker testified that he never spoke to Kevin | inWilliams. The defendants possessed no direct evidence of any wrongdoing on Dr. Driscoll’s part. Further, Dr. Hilton’s testimony that Dr. Driscoll did not violate any rules in performing simple procedures on one patient on one weekend together with the lack of any written policy demonstrates that Dr. Stucker’s statement in the August 9 letter that such was “absolutely forbidden” was a hyperbole. Defendants failed to produce credible evidence of Dr. Driscoll’s wrongdoing.

Defendants further assert that, although hearsay, what Kevin Williams told Kay Carter should nevertheless have been permitted because it could have been admitted in a hypothetical due process hearing. Defendants cannot blatantly violate Dr. Driscoll’s procedural due process rights for over two years, and then be heard to insist on utilizing the hearsay statement of a witness (Kevin Williams) whose unavailability was due to their delay in order to justify their actions.

Additionally, defendants’ contention that the trial court erred in refusing to admit the proffered testimony of Sgt. Johnson, a V.A. security officer, is likewise without merit. Johnson, like Kay Carter, possessed no firsthand knowledge regarding Dr. Driscoll’s conduct and simply repeated what he had allegedly heard from Kevin Williams. Further, Sgt. Johnson’s statement to Dr. Stacker occurred more than a year after Dr. Stucker’s letter of August 9 rescinding his previous recommendation of Dr. Driscoll’s worthiness and played no part in that decision.

Defendants also contend that they did not have to prove that Dr. Driscoll engaged in wrongdoing, only that they would have reached the lósame decision (to send the August 9 letter to the certification board) had a due process hearing been held. Additionally, defendants claim that in that hearing, they would have been free to consider hearsay evidence.

In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the United States Supreme Court recognized that plaintiffs would not be entitled to damages if the defendants could prove that, if procedural due process had been afforded, plaintiffs would have been suspended anyway. In other words, if the defendants could demonstrate a substantive basis for the suspensions, then the plaintiffs would only be entitled to nominal damages for the procedural due process violations. Id. Multiple courts following Carey have held that once a plaintiff has established a procedural due process violation, the burden shifts to the defendants to demonstrate the substantive basis for their actions, i.e., that the plaintiff would have suffered the same consequences even if proper procedures had been observed. See, McClure v. Independent School Dist. No. 16, 228 F.3d 1205 (10th Cir.2000); Miner v. City of Glens Falls, 999 F.2d 655 (2nd Cir.1993); Patterson v. Coughlin, 905 F.2d 564 (2nd Cir.1990); Quartararo v. Hoy, 113 F.Supp.2d 405 (E.D.N.Y.2000).

Given defendants’ blatant violation of Dr. Driscoll’s due process rights, and given the fact that defendants refused to provide Dr. Driscoll with a copy of the letter revoking the previous recommendation for over two years, resulting in the loss of witnesses, the trial court acted well within the scope of established due process jurisprudence in shifting the burden to defendants to prove substantive wrongdoing on the part of Dr. Driscoll. As Instated, defendants have failed to show any substantive wrongdoing by Dr. Driscoll.

Defendants contend that the trial court’s award of damages against Dr. Stacker in his individual capacity, for which he would be personally liable, was fundamentally unfair. Defendants claim that Dr. Stacker never took any action with respect to Dr. Driscoll without having it first approved by the faculty of the department, and by his superiors (Dr. Clay and Dr. McDonald) and/or without consulting LSUHSC’s in-house counsel, Mickey Prestridge, for legal advice and guidance.

Personal or individual capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law causing the deprivation of a constitutional right. A state official is individually liable for violating the constitutional rights of his victim. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); see also, Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). That the State of Louisiana has extended indemnification to its officials accused of violating a plaintiffs’ constitutional rights does not alter the individual’s primary liability. Anderson v. Phelps, 655 F.Supp. 560 (M.D.La.1985); Muhammed v. Bd. of Sup’rs of Southern University, 715 F.Supp. 732 (M.D.La.1989), affirmed, 9 F.3d 104 (5th Cir.1993).

As stated, Dr. Driscoll had a property, liberty, and contractual interest in receiving board eligibility status which was clearly protected by due process principles. The trial court found that Dr. Stacker listened to a 113carrier of tales; that he embraced and embellished those tales. Dr. Stacker’s assertions that his actions were first cleared by legal counsel were rejected by the trial court. The LSUHSC’s in-house attorney was not called to testify.

The evidence presented before the trial court clearly revealed that Dr. Stacker blatantly violated Dr. Driscoll’s rights and was acting outside the scope of his constitutional and contractual obligations to Dr. Driscoll. Under these circumstances, Dr. Stacker is stripped of any official capacity he enjoyed and was properly found liable in his individual capacity for the damages he intentionally inflicted upon Dr. Driscoll.

Defendants finally object to the trial court’s award of $780,000 in lost wages.

The trial court is accorded broad discretion in assessing awards for lost earnings, but there must be a factual basis in the record for the award. Quinn v. Wal-Mart Stores, Inc., 34,280 (La.App.2d Cir.12/06/00), 774 So.2d 1093. A plaintiff bears the burden of proving his claim for lost earnings. Collins v. Shelter Mutual Ins. Co., 36,528 (La.App.2d Cir.12/11/02), 833 So.2d 1166, writ denied, 03-0124 (La.03/24/03), 840 So.2d 539. For purposes of determining damages, the amount of lost earnings need not be proved with mathematical certainty, but by such proof as reasonably establishes the claim, and such proof may consist only of the plaintiffs own testimony. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151, (La.1971); Bruce v. State Farm Ins. Co., 37,704 (La.App.2d Cir 10/29/03), 859 So.2d 296; Clark v. Ark-La-Tex Auction, Inc., 593 So.2d 870 (La.App. 2d Cir.1992). Reasonable certainty is the standard. Finley v. Bass, 478 So.2d 608 (La.App. 2d Cir.1985).

In this case, Dr. Driscoll testified that he had received an offer of $360,000 per year as an ENT in Minden, and that because of Dr. Stacker’s action he could not take the offer and elected instead to take a one year fellowship in cosmetic surgery. The value of that California fellowship was not just the $15,000 he actually received; it was as much or more than what he might have received as an ENT in Minden, Louisiana. The fellowship, along with ENT certification, is a crucial step in becoming certified as a plastic surgeon, which was Dr. Driscoll’s intent even before beginning his residency at LSU. We believe the time he spent between November 2000 and November 2001 when the fellowship ended mitigated all of his damages for lost wages during that time period. However, for 18 months, from December 2001 (when Dr. Driscoll’s fellowship ended) until May 30, 2003 (after which Dr. Driscoll was board eligible for ENT certification), he should be entitled to $30,000 per month or $540,000, less the amount of money he actually made (or could have made) here in Shreveport. Because of start-up business expenses, Dr. Driscoll actually earned and was projected to earn a negative net income for the period between December 2001 and June 2003. Therefore, the trial court’s award of $780,000 lost earnings to Dr. Driscoll is reduced to $540,000. The general damage award of $75,000 is affirmed.

11BConclusion

For the foregoing reason, we amend to reduce the total award to $615,000 together with legal interest and cost.

AFFIRMED as AMENDED.

      . Otolaryngology is the branch of medicine that deals with diagnosis and treatment of diseases of the ear, nose, and throat.

      . Furthermore, we note that the trial court found that Dr. Stucker acted willfully, flagrantly, and maliciously. Such a factual finding would negate any immunity afforded by La. R.S. 13:3715.3; however, because we have found that this was not a peer review process, we do not reach the question of malice.


author: pLOLLEY, J.

text:
    John SPENCER, Jr., Plaintiff-Appellant, v. RED RIVER LODGING d/b/a Ramada Inn, et al., Defendants-Appellees.
    No. 37,930-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 5, 2004.

      John Spencer, Jr., in Proper Person.
    J. Michael Hart, Monroe, for Plaintiff-Appellant.
    Nelson, Zentner, Sartor & Snellings by George M. Snellings, IV, Monroe, for Defendant-Appellee, Red River Lodging, Inc.
    Lunn, Irion, Johnson, Salley & Carlisle by Ronald E. Raney, Shreveport, for Defendant, Industrial Roofing & Sheet Metal Works, Inc.
    Phelps, Dunbar, L.L.P. by David Lee Crawford, Baton Rouge, for Defendant, Union Pacific Railroad Company.
    Spyridon, Koch & Palermo by Paul Palermo, Metairie, for Defendant, CIGNA Insurance Company.
    Gold, Weems, Bruser, Sues, & Rundell by Edward E. Rundell, Lawrence Shepard Searcy, Alexandria, for Defendant, Corporate Lodging Consultants, Inc.
    Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for Defendant, Union Pacific Railroad Company.
    Duplass, Zwain, Bourgeois & Morton by Kevin R. Derham, for Defendant, Valley Forge Insurance Company & Transportation Insurance Agency, Inc.
    Before STEWART, GASKINS and LOLLEY, JJ.
   pLOLLEY, J.

John Spencer, Jr. (“Spencer”) appeals the Judgment rendered by the Twenty-Sixth Judicial District Court, Bossier Parish, in favor of Red River Lodging, d/b/a Ramada Inn (“Ramada Inn”), American Central Insurance Company, Industrial Roofing & Supply Company, Union Pacific Railroad Company, CNA Insurance Company, CIGNA Insurance Company, Corporate Lodging Consultants, Inc., Valley Forge Insurance Company and Transportation Insurance Company (collectively, “appellees”). For the following reasons, we affirm.

Facts

Spencer was a railroad engineer employed by Union Pacific Railroad Company (“Union Pacific”). At the time the incident in question occurred, however, he was working for Southern Pacific Transportation Company (“Southern Pacific”) as a “borrowed employee.”

Union Pacific contracted with Corporate Lodging Consultants, Inc. to obtain lodging for the Union Pacific crews which traveled in connection with their employment. Spencer claims that normally such lodging for Southern Pacific employees would be at a Holiday Inn, but on the night before the alleged incident, May 11, 1997, he was directed to a Ramada Inn instead.

The Ramada Inn where Spencer checked in was undergoing renovations and roof repairs, which work was being done by Industrial Roofing and Sheet Metal Works (“Industrial Roofing”). Spencer checked in late on the evening of May 11. His room was in the vicinity of the roofing | awork that was being done, although there was no work being done when he checked in since it was late Sunday evening. Spencer went to bed shortly after checking in. Spencer claims that he awoke between 10:30 and 11:30 a.m. on May 12, and that his room was full of fumes and smoke. Notably, neither the smoke detector nor fire alarm sounded. When he went outside for fresh air, he claims to have noticed the tar pot in the parking lot under his second floor room and that fumes from the tar pot were wafting into his room via the am conditioning. Industrial Roofing claims that the tar pot was fifty feet from Spencer’s room door. A roofing tarp was hanging from the roof, blocking the front of the room door. Spencer complained to the hotel management and requested a room change. Later that morning when his “symptoms” did not clear, the hotel brought him to a physician. According to Spencer, he complained of an exposure to fumes, dizziness, nausea, shortness of breath and headaches, for which he was treated. Ramada Inn paid for this visit. Subsequently, Spencer saw his family physician, who Spencer states noted inflamed mucosa.

Spencer continued to work over the subsequent months; however, he claimed that his condition did not improve and he was sensitive to any form of respiratory irritant, including the diesel fumes that were part of his workplace environment. Spencer’s treating physician referred to his condition as Reactive Airways Disease (“RADs”) and referred him to various specialists. This diagnosis was confirmed by a pulmonologist, and Spencer returned to work. At work, Spencer was exposed to diesel fumes, which he states caused a “flare-up” that developed into bronchitis. His [ .^pulmonologist took him off work commencing on January 21, 1998, and Spencer never returned.

Spencer filed suit against Ramada Inn, American Central Insurance Company, Industrial Roofing, Union Pacific, CNA Insurance Company, CIGNA Insurance Company (“CIGNA”), Corporate Lodging-Consultants, Inc., Valley Forge Insurance Company and Transportation Insurance Company. After an eight-day jury trial, a verdict was returned against Spencer and in favor of the appellees, and Judgment was entered dismissing Spencer’s claims. This appeal by Spencer ensued. The ap-pellees have answered Spencer’s appeal, arguing that the trial court erred in assessing the costs of litigation equally between Spencer and the appellees, in light of the jury’s verdict against Spencer. Additionally, CIGNA, Ramada Inn’s excess insurer, has answered the appeal, arguing that the trial court erred in denying its earlier Exception of Res Judicata.

Discussion

On appeal, Spencer raises five assignments of error, four of which are related to the jury’s ultimate determination that none of the appellees were liable for Spencer’s alleged injury. For the following reasons, we conclude that those assignments of error are without merit.

Standard of Review

As this court recently stated in Woods v. State ex rel. Department of Transp. and Development, 37,185 (La.App.2d Cir.08/14/03), 852 So.2d 1109, 1119-20, writ denied, 2003-2584 (La.11/26/03), 860 So.2d 1140:

In Cormier v. Comeaux, 1998-2378 (La.07/07/99), 748 So.2d 1123, the supreme court explained the standard of review for appellate courts examining the jury’s .findings of fact. Absent manifest error or clear wrong, the court of appeal may not set aside the jury’s finding of fact. To reverse a jury’s factual determinations, the appellate court must find (1) that a reasonable factual basis does not exist in the record for the jury’s finding; and (2) that the record establishes that the finding is clearly wrong (manifestly erroneous). The reviewing court must do more than review the record for some evidence which supports or controverts the jury’s finding. Instead, the appellate court must review the entire record to determine whether the jury’s finding was clearly wrong or manifestly erroneous. The issue is not whether the jury was right or wrong, but whether the jury’s conclusion was reasonable. Even if an appellate court concludes its own evaluations and inferences are more reasonable ■ than the jury’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where testimony conflicts.

Thus, our review of the record is to determine the reasonableness of the jury’s final conclusion, and whether that conclusion was clearly wrong or manifestly erroneous. For the following reasons, we determine that it was not.

Negligence of Industrial Roofing

Spencer argues that the jury erred in not finding Industrial Roofing negligent and the legal cause of his alleged injury. He claims that Industrial Roofing was negligent in failing to inform Ramada Inn of the danger of bitumen fumes and/or for failing to coordinate its work schedule so as not to risk exposing Ramada Inn’s guests to the fumes. We disagree.

Negligence is examined under a duty/risk analysis. The duty/risk analysis consists of four parts: (1) eause-in-fact, (2) existence of a duty, (3) breach of duty, and (4) whether the risk, and harm caused, was within the scope of protection afforded by the duty breached. Roberts v. Benoit, 605 So.2d 1032, 1043 (La.1991). The existence of a duty is a question of law. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993); Roberts, supra. All persons have a general duty to act in a reasonable fashion so as to avoid harming others. La. C.C. art. 2316. Therefore, negligence generally is found to exist when a tortfeasor knows or should have known that his behavior has created an unreasonable risk, which is reasonably foreseeable to damage another, yet the tortfeasor does not alter his behavior to avoid the harm.

At the trial, the jury heard Spencer’s account of the incident. Spencer described checking into the hotel on Sunday night at approximately 9:30 p.m. He testified that he saw a sign in the lobby of the hotel regarding the ongoing remodeling. Spencer stated that he went to his room, and that he noticed a tarp in front of his room. He described the tarp as hanging in front of his room and extending between the rooms on either side of his. He testified that he fell asleep and was awakened early in the morning by noise outside of his room, but that he went back to sleep. Then, according to Spencer, he again awoke, this time around 10:30 a.m., and his room was “full of smoke, fumes.... ” He described his condition as “disoriented, nauseous, severe headache, I couldn’t breathe.... ” Spencer testified that he left the room immediately, but he did not let anyone on the roofing crew working below his room know about the smoke, nor did he complete an incident report or ask someone from the hotel to examine his room and observe the situation. Furthermore, at trial, Spencer acknowledged that in his previous deposition he could not remember whether the walkway behind | ¡¡the tarp was smoky; however, at trial (some four years after his deposition), he was able to testify that the walkway behind the tarp was full of smoke.

Lynn Polk (“Polk”), who had worked for Industrial Roofing for more than thirty years, also testified. Polk was the roofing supervisor in charge of the job at the Ramada Inn, which he characterized as a major roofing job. Polk explained that the tarp was draped in front of the rooms in order to keep dust and debris off the building, and further stated that there was no concern that dust particles would enter the guest rooms via the air-conditioning vents. Polk also stated that the only concern he had for occupants of the rooms would have been due to the noise made during the roofing process. Polk testified that Yung Juhn (“Juhn”), Ramada Inn’s owner, never said he would not place guests in the rooms where the construction was occurring and Polk never suggested or explicitly told Juhn that guests should not be housed in the rooms adjacent to the work area. Polk only told Juhn that the work would be noisy and would disturb its guests in that matter. Thus, the work was characterized as more of a nuisance than a hazard.

Polk also discussed a materials safety data sheet for the roofing asphalt used on the job. He acknowledged that the report noted that “inhalation of vapors or fumes may cause irritation to the respiratory system.” We note, significantly, that this warning is contained under the heading, “Health & Employee Information.” Polk went on to testify that he [7never had a worker suffer from irritation to their respiratory system as a result of inhaling bitumen vapors or fumes. Additionally, he noted that his workers had worked in confined areas enclosed in buildings and had not had any problems with the bitumen fumes or vapors. Polk stated that “we had no earthly idea that there could even possibly be a hazard.... ” Polk had roofed that same Ramada Inn three times, and this was the only incident ever complained of. Polk testified that he had worked on other hotels before, and none had ever closed off a portion of the hotel while the roofing work was performed, nor had Industrial Roofing suggested that it should be done in this instance. In fact, at trial, Polk testified that he has even performed the same type of work on schools while they were occupied with children.

In this case, the evidence shows that Industrial Roofing acted reasonably while repairing the Ramada Inn roof. It conducted its operations in its customary manner. There was no evidence of complaints, and there was no evidence of prior incidents of a similar nature. Clearly, Industrial Roofing was not acting unreasonably in the performance of its work at Ramada Inn, and the jury reasonably determined that Industrial Roofing was not negligent in regards to the alleged exposure by Spencer.

Negligence of Ramada Inn

Spencer further maintains that Ramada Inn acted negligently and was the legal cause of his alleged injuries. Specifically, Spencer argues that Ramada Inn owed each of its guests a duty to provide a safe, comfortable, |squiet room in which to stay. Ramada argues that it exercised ordinary and reasonable care to its guests during the remodeling project. We agree.

A hotel owes a duty to its patron to exercise reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition. Jones v. Hyatt Corp. of Delaware, 94-2194 (La.App. 4th Cir.07/26/95), 681 So.2d 381, citations omitted. Although the keepers of inns, lodging houses, or restaurants are not the insurers of the safety of their guests, they are under an obligation to exercise, at least, ordinary or reasonable care to keep them from injury. Edwards v. Great Am. Ins. Co., 146 So.2d 260, 262 (La.App. 2d Cir.1962), citing 43 C.J.S. Innkeepers 22, p. 1173. Accordingly, Ramada Inn’s duty was to exercise reasonable and ordinary care to maintain its property in a reasonably safe and suitable condition.

Juhn, the owner of this particular Ramada Inn franchise, also testified at trial. He explained that when it was time to have the roof on the building repaired, he contacted Industrial Roofing, which had previously repaired the roof. He noted that in May 1997 the occupancy rate of his hotel was eighty to ninety percent. Significantly, Juhn also testified that he was never advised by Industrial Roofing to close off or block off any areas of the hotel where construction was occurring, which testimony is consistent with Polk’s. In fact, he stated that because of the high occupancy at the time, most likely almost all of the rooms in the wing where Spencer stayed were ^occupied that same night. Juhn stated that the desk clerks were instructed to inform guests that construction was being done on the building and to let them know if there was a problem. Furthermore, he noted that there were signs placed in the hotel to inform the guests of the construction. Juhn also testified that it was his policy that the individual room air conditioners would have closed air vents and be set on the re-circulation phase, although he did not know for sure that Spencer’s room air conditioner was so set. According to Juhn, during the phase of construction by Industrial Roofing, he never had any other guest or an employee complain of tar fumes or smoke during the entirety of the roofing project.

Harold Jackson’s (“Jackson”) deposition was read into evidence at the trial. In May 1997, Jackson was a manager trainee at Ramada Inn, where he had been employed for approximately one month. Jackson testified that Ramada Inn had a policy to maintain a reasonably safe and comfortable room for its guests, including freedom from hazards to their personal health. He also stated that no other guest complained during the period of time that the roofing job occurred. Jackson agreed that signs were placed in the lobby informing guests of the construction.

Here, the jury, after hearing the evidence presented, determined that Ramada Inn was not negligent with respect to Spencer’s alleged exposure to |inthe tar fumes. On appeal, we must determine whether that conclusion was reasonable, and our inquiry, based on the claims made by Spencer, is whether Ramada Inn exercised “reasonable care” to keep Spencer from injury. The jury heard evidence that signs had been placed in the hotel informing guests of the remodeling underway. Such warning in other types of eases has been deemed sufficient. For instance, in Woods, supra, this court determined that DOTD’s duty was to exercise reasonable care to warn motorists of any dangerous conditions in a construction zone, and that reasonable care required that DOTD erect barricades, signs, and adequate warnings to alert the public.

Informing the hotel guests that remodeling was occurring on the premises was reasonable. Roof repairs on any building are commonplace, and it does not seem unreasonable that Ramada Inn did not question the possibility of exposure of hazardous fumes to its guests in light of the information it obtained from Industrial Roofing. Significantly, as discussed herein, Industrial Roofing did not warn Ramada Inn that its guests could be exposed to hazardous conditions during its work on the hotel. Juhn was only told that the work would be noisy. Moreover, certainly there could have existed a possibility of a guest’s exposure to fumes from the construction; however, it is unreasonable for Ramada Inn to keep their guests safe from a mere remote possibility. Ramada Inn had a duty to exercise reasonable care by ensuring the safety of their guests. This duty cannot be extended to those events that are remote possibilities. The jury Inwas not clearly wrong in its conclusion that Ramada Inn acted reasonably toward Spencer under the facts at hand.

Additionally, Spencer’s testimony at trial on whether the walkway behind the tarp contained smoke was inconsistent from his earlier deposition testimony. The jury could have reasonably questioned his credibility.

Furthermore, the determination that Ramada Inn was not negligent makes moot Spencer’s claim that Union Pacific was vicariously liable for the negligence of Ramada Inn. Thus, that assignment of error is also without merit. Cigna’s answer to appeal regarding the denial of its Exception of Res Judicata is also made moot by the conclusion herein.

Preclusion of Industry Publications

Spencer also argues that the trial court erred in not allowing his expert, Dr. Marto Frampton (“Dr. Frampton”), refer to certain articles that Spencer claims were important references in support of Dr. Frampton’s opinion. Specifically, at issue were two articles entitled “The Facts about Asphalt Fumes and Health” and “The Health Effects of Occupational Exposure to Asphalt Fumes.”

At trial, Dr. Frampton testified that the articles were provided to him by Spencer’s attorney. Dr. Frampton did not contact the sources of the articles, i.e., the coalition group, nor did he take steps to verify the accuracy of the articles. Dr. Frampton stated he did not know the authors of the articles or even know who the authors were, and, accordingly, was not 11?aware of their expertise on the topic. Dr. Framp-ton did not know the date of the articles. Finally, Dr. Frampton was not affiliated with the coalition group that authored the articles.

Louisiana C.E. art. 803, states as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
s¡? * * *
(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or, in a civil case, relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, such a statement may be read into evidence and received as an exhibit but may not be taken into the jury room. (Emphasis added).

We find that the trial court did not err in refusing to allow Dr. Frampton’s testimony regarding the contents and opinion of the articles at issue. Clearly, Dr. Frampton’s testimony falls short of the requirement to establish the articles as reliable authorities on the hazard of exposure to bitumen fumes. His reference to those articles would have been prejudicial for various reasons. For instance, he did not know the date of the articles, which would certainly be relevant to determine whether the opinions stated therein were so held in the industry at the time of Spencer’s alleged exposure. Additionally, he had no knowledge of the authors of the article or their credentials. When such treatises have been allowed, this court has acknowledged the “recognized authority” of such to except it from the hearsay rule. See, Warren v. Everist, 30,187 (La.App.2d Cir.01/21/98), 706 So.2d 593, writ denied, 1998-0477 (La.04/03/98), 717 So.2d 1132. Here, Dr. Frampton failed to establish that the articles at issue were a “reliable authority” upon which he based his opinion. Thus, any reference to such was properly excluded by the trial court. This assignment of error is without merit.

Assessment of Costs

The appellees have answered Spencer’s appeal, arguing that the trial court erred in assessing equally the costs between the parties. On this point, we determine, again, that the trial court did not err.

The allocation of court costs among the parties is a matter which is subject to the discretion of the trial court. Spillers v. ABH Trucking Co., Inc., 30,332 (La.App.2d Cir.04/13/98), 713 So.2d 505, writ denied, 1998-1313 (La.06/26/98), 719 So.2d 1063 and writ denied, 1998-1327 (La.06/26/98), 719 So.2d 1287, citing McConathy v. McConathy, 25,542 (La.App.2d Cir.02/23/94), 632 So.2d 1200, writ denied, 94-0750 (La.05/06/94), 637 So.2d 1052. While it is a general rule that the party cast in judgment shall be taxed with costs, the trial court may assess costs of a suit in any equitable manner. Upon review, a trial court’s assessment of costs can be reversed only upon a showing of an abuse of discretion. Jackson v. Lare, 34,124 (La.App.2d Cir.11/01/00), 779 So.2d 808, citing Grocery Supply Co. v. Winterton Food Stores, 31,114 (La.App.2d Cir.12/09/98), 722 So.2d 94.

| i/The issue of costs was argued by the parties before the trial court and subsequent to the rendering of the jury’s verdict. During that hearing, the trial court considered the costs incurred by all parties and heard extensive argument in that regard. In fact, at that hearing, counsel for Union Pacific conceded that he did “... not expect the court to award all of [the costs], but I hope that the court would see within its discretion to award some small measure of costs against Mr. Spencer....” Later, he argued that “... it is appropriate under the circumstances for the court to assess some costs. I don’t expect and really couldn’t ask the court to assess all these costs.... ” After concluding arguments on the issue, the trial court assessed costs equally between Spencer and the appellees and set certain costs as reflected in the Judgment. We cannot say that the trial court abused its great discretion in assessing the costs equally. This argument by appellees is without merit.

ConClusion

For the stated reasons, the Judgment in favor of appellees and against John Spencer, Jr. is hereby affirmed, with costs of the appeal to be paid by Spencer.

AFFIRMED.

      . Polk's testimony at trial was both read into the record from his previous deposition as well as taken live.

      . Although there was testimony that the Ramada Inn had not been housing guests in the vicinity of the construction — testimony in contradiction to Juhn's — the jury was within its province in believing either version of events. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard accords great deference to the trier of fact's findings, for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what was said. Where a fact finder’s conclusion is based on its decision to credit the testimony of one of two or more witnesses, that determination can virtually never be manifestly erroneous or clearly wrong. Pope v. Prunty, 37,395 (La.App.2d Cir.08/20/03), 852 So.2d 1213, 1218, writ denied, 2003-2496 (La.11/26/03), 860 So.2d 1137, citations omitted.

      . The articles were published by Asphalt Roofing Industry Science and Medical Group, a coalitional organization of the Asphalt Roofing Manufacturers Association, the National Roofing Contractors Association, the Asphalt Institute, and the Roofing Coatings Manufacturing Association (the “coalition group”).