author: | THIBODEAUX, Chief Judge.

text:
    Vienna HURT v. William J. BARROIS.
    No. 2003-1179.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.

      Robert Leon Ellender, Richard D. Chappuis, Jr., Lamont Paul Domingue, Voorhies & Labbé, Lafayette, LA, for Defendant/Appellee, William J. Barrois.
    Anthony M. Fazzio, Janet Kay Culpep-per, Kevin Reeve Duck, Duck Law Firm, L.L.C., Lafayette, LA, for PlaintiffAppel-lant, Vienna Hurt.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., JOHN D. SAUNDERS, and ARTHUR J. PLANCHARD  Judges.

       Honorable Arthur J. Planchará, retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   | THIBODEAUX, Chief Judge.

In this dental malpractice case, Vienna Hurt (Ms. Hurt) appeals a trial court’s judgment dismissing her claim against Dr. J. William Barrois , D.D.S. (Dr. Barrois) arising from a dental implant procedure. The trial court concluded that Dr. Barrois did not violate the standards of preoperative and postoperative care for dental implants. We disagree with the trial court that Dr. Barrois did not violate the standard of preoperative care, and thus, we reverse, in part, its judgment.

I.

ISSUE

Was the trial court manifestly erroneous in finding that Dr. Barrois did not violate the standards of preoperative and postoperative care for dental implants?

II.

FACTS

On January 16, 1990, Ms. Hurt sought treatment from Dr. Barrois for the purpose of obtaining sub-periosteal implants. Ms. Hurt was a resident of West Virginia. However, she was visiting with her daughters and decided to have the surgery performed in Lafayette so that she could stay with family following the procedure. On March 23, 1990, Dr. Barrois performed oral surgery on Ms. Hurt. The surgery involved making an incision to the bone of the lower jawbone. Ms. Hurt’s jaw lacked attachable tissue that made the procedure more difficult than normal. Normally, the procedure takes approximately three to four hours to complete. Ms. Hurt’s procedure took longer because Dr. Barrois experienced difficulty in getting the ^tissue to close. Dr. Barrois did not administer or prescribe preoperative antibiotic medication to Ms. Hurt. He testified that he prescribed antibiotics after the procedure.

Dr. Barrois testified that on March 28, 1990, Ms. Hurt had lost some sutures in the anterior section where the tissue was breaking down. Additionally, the tissue in the front part of the jaw area had opened up slightly. On April 4,1990, she returned to him for follow up treatment. Dr. Bar-rois testified that the tissue was most likely still open because he still had her on antibiotics. There was no infection present. Ms. Hurt saw Dr. Barrois again on April 11, 1990. Dr. Barrois testified that he removed the remaining sutures, and there was some rubbing of the lower denture. Additionally, he testified that the site may have still been open, but the implant and the graft material were likely not exposed. Dr. Barrois testified that he did not prescribe Ms. Hurt anymore antibiotics on the April 11,1990 visit.

On May 3,1990, Ms. Hurt was examined again by Dr. Barrois. He stated in his deposition that the tissue underneath had closed, but there was still a slight opening in the superficial tissue that appeared to be aggravated. On May 23, 1990, Dr. Barrois discovered a fistula in the front lower part of Ms. Hurt’s jaw. Dr. Barrois testified that the fistula could have been a result of an infection or granulation tissue. He curetted the fistula, and advised Ms. Hurt that everything looked fine and that she could return home to West Virginia.

On or about June 19, 1990, Ms. Hurt saw Dr. William N. Wine, an oral surgeon in West Virginia. Dr. Wine testified that Ms. Hurt complained about a growth on her lower gum that had gradually developed since the time of the placement of the implant. Dr. Wine biopsied the site to confirm that the growth was non-cancerous and to determine the etiology of the growth. The pathology report | ¡¡from June 21, 1990 indicated that the growth was possibly a fistulous tract that may have occurred as a result of an infection. Dr. Wine advised Ms. Hurt that if the fistula reappeared that she would have to return to him. On July 19, 1990, Ms. Hurt returned to Dr. Wine because the growth had reappeared. Dr. Wine performed a second biopsy. The biopsy revealed a chronic infection that Dr. Wine later curet-ted. The diagnosis of the pathology report was abscess consistent with draining fistulous tract. The diagnosis was consistent with a chronic infection. Dr. Wine opined that the infection was coming from the framework of the dental implant. Dr. Wine instructed Ms. Hurt to return to Dr. Barrois.

On August 29, 1990, Ms. Hurt returned to Dr. Barrois for treatment. Ms. Hurt continued to see Dr. Barrois until late October when she saw Dr. H.A. McConnell, Jr. for the treatment of her infection. Dr. McConnell diagnosed Ms. Hurt with chronic infection of the anterior mandible around the sub-periosteal implant. He referred her to Dr. Heller who saw her on January 14, 1991. A panoramic x-ray of Ms. Hurt’s mouth revealed inflammation and infection. Dr. Heller performed surgery and removed an anterior screw and superior strut. The removal of the strut ended the infection. On January 29, 1991, Ms. Hurt returned to Dr. Wine to remove the sutures. Dr. Heller continued to treat Ms. Hurt through September 5,1991.

Ms. Hurt brought suit against Dr. Bar-rois alleging dental malpractice. On April 15, 2003, the trial court dismissed Ms. Hurt’s claim concluding that Dr. Barrois did not violate the standards of preoperative and postoperative care. Thereafter, this appeal was filed.

Jill.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside the factual findings of a trial court in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). “[W]here there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations are as reasonable.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, a reviewing court may reverse a fact finder’s determination if such factual findings are not reasonably supported by the record and are clearly wrong. Stobart, 617 So.2d 880. Although the trial court findings are accorded great deference, appellate courts have a duty to ascertain whether those findings are justified by the record. Mart v. Hill, 505 So.2d 1120 (La.1987). If an appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some evidence in the record supports the. finding does not require the court to affirm. Id.

Standard of Dental Care

Louisiana Revised Statutes 9:2794 provides for the plaintiffs burden of proving malpractice:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by | ^physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

The plaintiff must prove the dentist’s alleged negligence by a preponderance of the evidence. Injury alone does not raise a presumption that the dentist was negligent. La.R.S. 9:2794(C).

Preoperative Standard of Care

Our first inquiry is whether Ms. Hurt proved the degree of care ordinarily exercised by dentists licensed to practice in the state of Louisiana and actively practicing in a similar community or locale under similar circumstances.

Ms. Hurt argues that the preoperative standard of care for this dental implant procedure was to administer antibiotics. She argues that Dr. Barrois failed to administer or prescribe antibiotics before the procedure. Therefore, his actions fell below the standard of care.

The defense took the deposition of Dr. John M. Barksdale, Jr. (Dr. Barksdale). Dr. Barksdale practices general dentistry in Baton Rouge, Louisiana, and is a member of the medical review panel that reviewed this case. Dr. Barksdale testified that Baton Rouge and Lafayette have the same standards of care for general dentistry. He also testified that most implant procedures are performed by general dentists. Dr. Barksdale has performed several dental implant procedures and was tendered as an expert in the field of general dentistry.

As to the preoperative standard of care, Dr. Barksdale testified:

|bQ: As to the surgical — and if I say anything incorrectly, please feel free to correct me. Regarding the surgical placement of the sub-periosteal implant, explain to me what the standard is. A: Of the surgical placement?
Q: Correct.
A: It’s antibiotic coverage, you know, anesthesia for comfort, and then surgically, as he described how he did it, the surgical incision and reflection of tissue and then seating of the implant and then the suturing of the tissue.

Ms. Hurt offered the testimony of Dr. Emil Laga, M.D. (Dr. Laga), a board certified pathologist, whose office is located in New Iberia. Dr. Laga was admitted by the trial court as an expert in the fields of anatomical, clinical and forensic pathology. Dr. Laga previously acted as the Chairperson of the Infection and Disease Control Committee of the Centers for Disease Control (CDC).

Dr. Laga testified as to use of preoperative antibiotics to prevent infection in all lengthy surgical procedures as follows:

Q: Now the bacteria that’s in the mouth can be so resilient that this bacteria can even live and exist where there is no oxygen, correct?
A: In other words, supply an antibiotic intravenously prior to the surgical procedure. And that is the recommendation of the CDC; that prior to a procedure that is known to be aggressive and that will involve the periosteum, where you actually pull away that tissue that supplies oxygen and new blood to the bone, where you have a prolonged type of a surgery, more than one hour or more than two hours, there is the recommendation of giving intravenous, not oral, antibiotics prior to making the first eut[.]

In addition, Dr. Laga testified that the recommendation of administering antibiotics before prolonged surgery had been a part of the medical literature for several years before Ms. Hurt’s surgery in March of 1990.

[7Q; The text from which I just read carries a copyright date or a publication date of 1988. There has been some suggestion that medical science only recently understood that giving the antibiotics in advance of surgery in a form and in an amount sufficient enough be prophylactic is something that has only recently become understood and known. Do you agree with that?
A: This is not recent. I’ve looked at a number of other textbooks, even including oral surgery, from 1985 to '90, that carry the same kind of recommendation that you are giving us from the textbook you looked at.
Q: And in this particular case, a sub[-]periosteal implant, in view of the way that that procedure is done, qualifies for those CDC guidelines in terms of prophylactic presurgical antibiotics, correct?
A: Definitely, sure.

Dr. Barrois’ testimony is also significant in determining the standard of preoperative care. On cross-examination, Dr. Bar-rois testified as to the standard of preoperative care.

Q: Do you recall what medications, if any, you would have prescribed on March 23rd of '90, or prior to March 23rd of '90?
A: Prior to that? Probably antibiotics and pain medication, decadrone, cortisone. And then we would have given her a Valium or Seconal or a Demerol.
Q: And essentially, the standard requires that; is that correct? And when I say “the standard,” I mean physicians in your practice of general dentistry doing this type of implant, the standard essentially would require' that there be some anesthesia medication, some medication to address the pain, and antibiotics?
A: That’s correct. .

Dr. Barrois further testified as to his opinion as to whether prophylactic | ¡¡antibiotics should be have been administered to Ms. Hurt before surgery.

Q: Okay, so the standard would have been to require you to use a prophylactic antibiotic in this particular case; is that correct?
A: Sure. That’s correct.
Q: Okay. And would you agree that for the antibiotic to be maximally effective in preventing postoperative infection, the antibiotic must be given before the surgery begins?
A: Not necessarily. I don’t necessarily agree with that.
Q: You don’t agree with that statement?
A: Not necessarily. I’m not refuting that it’s in there, but I don’t necessarily think that’s true.
Q: Well, we talked about the benefit of prophylactic antibiotics, and you said in Ms. Hurt’s case, something that was — what was the word you used to describe her surgery?
A: The magnitude of it?
Q: The magnitude, relative to the magnitude of her surgery, that a prophylactic antibiotic was required, correct?
A: Well, what you also have to realize, too, is that when you’re going into a site where there is no sign of infection, okay, and there is not bacteria already in the tissue, it’s not an absolute — I mean I know for a fact that the oral surgeons, when they do implants today, they don’t start patients on antibiotics beforehand. I mean I know that for a fact.

In sum, Dr. Barksdale, Dr. Barrois’ witness, testified that antibiotic coverage is the standard of care. Dr. Laga, Ms. Hurt’s witness, testified that the CDC recommends administration of preoperative antibiotics in the type of procedure involved in this case. |9In addition, Dr. Laga testified that the CDC recommendation was part of the medical literature several years before the procedure in this case. Finally, Dr. Barrois, himself, testified that the standard required preoperative antibiotics even though this is not the practice of some oral surgeons.

After careful review of the record, we find that the trial court’s factual finding as to the preoperative standard of care was not reasonably supported by the record and is clearly wrong. The testimony of Dr. Barksdale, Dr. Laga and Dr. Barrois indicate that administrating or prescribing preoperative antibiotics was the standard of care. The record does not contain any evidence that negates this standard of care.

Breach of Standard of Care

Our second inquiry is whether Ms. Hurt proved, by a preponderance of the evidence, that Dr. Barrois’ treatment of her fell below the ordinary standard of care.

Because the standard of care was administration or prescription of preoperative antibiotics, Dr. Barrios breached the preoperative standard of care when he failed to administer or prescribe preoperative antibiotics. Dr. Barrois testified as to whether he provided preoperative antibiotics.

Q: Okay. You didn’t prescribe preoperative or prophylactic antibiotics—
A: Preoperative, no. I think today, if we did the procedure, we’d probably put her on antibiotics.

Causation

Ms. Hurt argues that the failure of Dr. Barrois to conform to the standard of care and administer or prescribe preoperative antibiotics allowed a bacterial invasion of her lower mandible. Ms. Hurt argues that the failure to administer preoperative antibiotics was the cause in fact of her infection. She further argues that |inher additional dental consultation was a result of the infection caused by failure to administer preoperative antibiotics.

Dr. Laga testified that the most significant event that lead to the infection was the surgery in March of 1990.

Q: All right. If we were going to go back in time to the most significant event that would account for the infection, the chronic infection that’s showing up in Exhibit 3-A, based upon the evidence you reviewed, have you been able to determine the most significant event that would account for the occurrence of that chronic infection?
A: The most significant event, going back in the time line of what happened to Ms. Hurt, was the surgery that was done back in March.

Dr. Barksdale testified that the source of the chronic infection possibly stemmed from the placement of the sub-periosteal implant:

Q: Dr. Barksdale, in your opinion, was a biopsy of that area warranted?
A: No.
Q: Why do you say that?
A: Well, she just had a sub-periosteal implant put in. She had a complication in the area, almost not immediately post-op, but it never completely cleared, according to her terms, and then she goes to see somebody. If you take a history and ask what’s been going on the last two months, you would know that the high likelihood is that is associated with an infection complication. With an implant, if you understand the implants and know them, that is the obvious conclusion at that point. And so doing a biopsy is purely something that he did because of lack of knowledge of the implant. I just don’t — you know, my opinion is, I just don’t see why anybody would do a biopsy at that point.

Dr. Dale J. Misiek (Dr. Misiek) is a dentist who specializes in oral and maxillo-facial surgery. Dr. Misiek practices in Charlotte, North Carolina, but maintains a license to practice in Louisiana and occasionally practices in New In Orleans. Dr. Misiek testified that the source of the infection was the prolonged procedure.

Q: Okay. So he spends the extra time trying to suture up the friable tissue to close, so that it will close over the implant. And you’re saying it never closed?
A: But by not accomplishing the closure at that time-saliva has bacteria in it. Once it gets underneath that metal substructure that’s on top of the bone, antibiotics is not going to cure it. You know, they set up these chronic infections. And many times it won’t blow up into a frank abscess because it will have a small fistula or little duct which the drainage can come out of.

In addition, Dr. Misiek testified that the later biopsies by Dr. Wine were not the source of the infection.

Q: Were there other measures that should have been taken in removing the strut?
A: Not knowing exactly what it looked like, I don’t know how aggressive he got with the curettage that he did. I don’t know — I know his plan was to do a [tunneling] procedure from the side to go ahead and place new HA underneath there. And that •would have been fine had he not had a fistula to begin with.
And his contention that Dr. Wein [sic], I guess it was, who did the two biopsies, just made the situation worse, I don’t think so, because all he was doing was treating th[is] chronically inflamed tissue that was being created by whatever was underneath the strut, etc.

Damages

Dr. Barrois failed to administer preoperative antibiotics to Ms. Hurt, which lead to an infection. Thereafter, Ms. Hurt saw several dentists to- relieve the discomfort that was caused by the infection. Normally, the surgical site should have healed within seven to ten days. However, the infection caused the healing process to be prolonged for over one year. Therefore, it follows that Dr. Barrois is liable to 11?,Ms. Hurt for the prolonged discomfort caused by the infection and the subsequent treatment that she sought to cure the infection.

Ms. Hurt suffered discomfort for over one year and incurred medical expenses as a result of the infection that was caused by Dr. Barrois’ failure to administer preoperative antibiotics. We award Ms. Hurt $25,000.00 in damages and $1,920.00 in medical expenses.

Postoperative Standard of Care

Ms. Hurt argues that as early as one month post-surgery, Dr. Barrois identified the site of infection and identified a problem with a strut on the implant. She argues that the standard of postoperative care required Dr. Barrois to remove the strut when he did not have control over the infection.

Dr. Barksdale testified that Dr. Barrois followed the appropriate standard of postoperative care. He testified that Dr. Bar-rois chose the most conservative course first and then moved on to more drastic measures when the conservative corrective measures failed. His testimony regarding the postoperative standard of care is as follows:

Q: My question is, is there a standard as far as a set time, maybe not necessarily a bright line, but a point where you say, this is the standard, as far as removing hardware, in connection with an infection?
A: No, there isn’t. It’s just, if you can’t clear it up, and in the absence of pain, you are afforded a little more time to try to get something to clear up, without eliminating struts. And it didn’t appear that— she was having discomfort and not pain. So he could you know, go in and curette and try to graft and try to do those things. You know, if somebody is just in severe pain, you wouldn’t wait as long to take a strut out. But what happened in the sequence and the timing would be exactly what I would follow in my own practice.

|13In addition, Dr. Barksdale testified that Dr. Barrois’ post operative treatment of Ms. Hurt did not fall below the accepted standard of dental care.

Q: But in your opinion, he didn’t breach the standard of care by the delaying of removal of the strut?
A: No. Because, again, in that period where he saw her was only a couple of months and so, to follow those first two lines of treatment or defense to try to eliminate the problem, it takes that long.

On the other hand, Dr. Dale Misiek opined that Dr. Barrois postoperative treatment fell below the standard of care. In Dr. Misiek’s deposition, he stated that Dr. Barrois should have acted more quickly in removing the strut.

Q: Do you recall, from reviewing Dr. Barrois’s [sic] records, that there was a curettage-
A: Curettage.
Q: Curettage?
A: Yes.
Q: -that he mentions doing in May or early June before she goes to Hawaii?
A: Yes.
Q: Was that appropriate at that point in time, or should he have done something more than that?
A: The fact that problems persisted probably indicates he should have done more. I wasn’t there, so I can’t tell whether that was adequate. But, see, that’s just a recurring problem that she has. I mean, it just never seems to clear up. So, obviously, whatever was done was just not enough, and she still maintained a problem underneath there.
Q: Okay. We’ve talked about some of your opinions. With respect to your opinion that there was a failure to act quickly enough when a complication was identified, are you saying that Dr. Barrrois’s [sic] treatment of Vienna Hurt in failing to act more quickly was below the required standard of care for a general dentist performing a sub[-]per-iosteal implant?
IhA: Yes.
Q: Okay. Are there any other areas that you feel his treatment after the surgery was below the required standard of care?
A: No.

The court was presented with two differing opinions as what the post operative standard of care was and whether Dr. Barrois breached this standard of care. “When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court’s conclusions on this issue will be granted great deference.” Charpentier v. Lammico Ins. Co., 606 So.2d 83 (La.App. 3 Cir.1992). After reviewing the record, we cannot say that the trial court was manifestly erroneous in finding that Dr. Barrois was not negligent in providing postoperative care to Ms. Hurt. Ms. Hurt failed to prove that Dr. Barrois failed to take proper measures to eliminate the infection. We can not say that the trial court was manifestly erroneous in choosing to believe the testimony of Dr. Barrois’ witnesses as opposed to the witness presented by Ms. Hurt.

IV.

CONCLUSION

Although we conclude that the trial court was not manifestly erroneous in finding that Dr. Barrois did not breach the postoperative standard of care, we do find that it was manifestly erroneous in deciding that Dr. Barrois did not breach the standard of preoperative care. Therefore, Dr. Barrois is liable to Ms. Hurt for damages and medical expenses. Accordingly, the judgment of the trial court is reversed in part. Judgment is rendered in favor of Ms. Hurt in the sum of $26,920.00, consisting of $1,920.00 for medical expenses, and $25,000.00 in general damages.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Also referred to as William J. Barrios, J. William Barrois, and J. William Barrios in plaintiff's and defendant’s briefs.


source: Caselaw Access Project

author: J^MICHAEL E. KIRBY, Judge. 11 ARMSTRONG, C.

license: Public Domain

text:
    John TREITLER v. Margaret I. Brownlow, Wife of John TREITLER.
    No. 2003-CA-1931.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.

      Richard A. Chopin, Chopin, Wagar, Cole, Richard, Reboul & Kutcher, LLP, Metairie, LA, for Plaintiff/Appellee.
    Patricia M. Franz, Pat M. Franz & Associates, L.L.C., Metairie, LA, for Defendant/Appellant:
    (Court composed of Chief Judge. JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   J^MICHAEL E. KIRBY, Judge.

This appeal arises out of a domestic action wherein a judgment was rendered by the trial court denying a Rule for Contempt for her ex-husband’s alleged failure to pay extraordinary medical expenses for their minor child filed on behalf of the appellant/ex-wife. For the reasons assigned, we affirm in part, reverse in part, and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

Margaret I. Brownlow Stretzinger (appellant) filed a Rule for Contempt against her ex-husband, John Treitler (appellee), for his alleged failure to pay extraordinary medical expenses for the minor child, John Treitler, Jr. (BJ). Appellant’s rule asserted that appellee’s obligation to pay the medical expenses stems from a Consent Judgment entered into by the parties on February 16, 2001. The Consent Judgment states:

IT IS ORDERED, ADJUDGED AND DECREED that effective October 1, 2000, John Treitler shall pay to Margaret B. Treitler the sum of $458.00 in basic child support, which includes his pro-rata portion of health, dental and vision insurance premiums. The first payment shall be due on February 28, 2001. Each subsequent payment shall be due on the last day of each month. He shall also pay fifty-seven (57%) percent of all school ^tuition, registration fees, books activity fees and any other mandatory school-related expenses, which are to be paid within thirty (30) days of written demand and supporting documentation being furnished to him. These school related expenses are to be provided to John Treitler as they occur and the required payments from John Treitler are to be paid on a monthly basis but only for one (1) month’s ex-penséis) at a time. In the event these expense(s) are submitted to John Treit-ler for a period of more than one (1) month he is only required to pay or reimburse said expense(s) for one (1) month at a time, and not the accumulated total.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that John Treitler shall also pay fifty-seven (57%) percent of all extraordinary medical expenses, which are defined by La. R.S. 9:315(3) as being uninsured expenses over one hundred dollars for a single illness or condition. It includes but is not limited to reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, uninsured chronic health problems and professional counseling or psychiatric therapy for diagnosed mental disorders.” Payment shall be made within thirty (30) days of receipt of written demand and supporting documentation. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the increased amount of child support, attributable to this judgment which has accrued since the filing of the pending Rule is stipulated to be the total sum of $872.00, and is to be liquidated by the payment of an additional $25.00 per month, starting February 1, 2001, until paid in full, without interest.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that each party will bear their own attorneys fees and costs associated with the filing and resolution of this Rule and this Judgment.

Specifically, appellant sought reimbursement of 57% of all office visit co-pay amounts, prescriptions co-pay amounts and for the cost of an “ionic air purifier” which appellant claimed was necessary for BJ’s allergies. Appellee opposed the Rule for Contempt, contending that the claimed medical expenses did |3not constitute “extraordinary medical expenses” for which he was obligated under the Consent Judgment and as defined by La. R.S. 9:315 C(3).

On September 5, 2003, the trial court conducted a hearing and took the matter under advisement. On September 10, 2003, judgment was rendered with written Reasons, denying the Rule for Contempt, and finding that the expenses at issue were not extraordinary medical expenses and that the medical treatment rendered was not the result of a single illness or an ongoing condition, as required by the Consent Judgment and La. R.S. 9:315. This timely devolutive appeal followed.

ARGUMENT:

Appellant argues that the trial court erred in finding that the expenses in question were not extraordinary medical expenses. The medical expenses claimed by appellant in her Rule for Contempt were incurred between May 2001 and December 2002, as follows:

1). Sunrise Pediatric Associates (primary care physicians):
Five office visit co-pay amounts, totaling $105.00
Eight prescription co-pay amounts, totaling $200.00
2). Dr Schneider (allergy specialist):
Four office visit co-pay amounts, totaling $120.00
Eight prescription co-pay amounts, totaling $182.84
Ionic air purifier $543.70
3). Dr. Pool (mental health professional):
Six office visit co-pay amounts, totaling $165.00
Eleven prescription co-pay amounts, totaling $235.94
4). Dr. Osberg and Dr. Applewhite (dermatology):
Six office visit co-pay amounts, totaling $160.00
Eleven prescription co-pay amounts, totaling $195.00

Appellant maintains that BJ has three unusual and ongoing medical conditions: respiratory difficulties (asthma, allergy and sinusitis), dermatological |4problems, and mental health problems. Appellant further argues that these are not conditions that are usually expected for the average child, and they should therefore be considered extraordinary. Moreover, appellant contends that if the out-of-pocket medical expenses exceed the aggregate sum of $100.00 per condition (as they are in this case), the expenses are extraordinary medical expenses and should be treated as such. Finally, appellant maintains that there is no logic or law to justify forcing the custodial parent to bear all out-of-pocket expenses caused by a child’s unusual medical conditions.

In response to this appeal, appellee submits that there is no jurisprudential authority to support the position that insurance co-payments, each less than $100.00, and related to the sporadic treatment of sinusitis, acne, allergies and psychiatric counseling, constitute extraordinary medical expenses under La. R.S. 9:315. Accordingly, appellee maintains that the trial court correctly determined that the expenses at issue were not extraordinary medical expenses and that the medical treatment rendered was not the result of a single illness or an ongoing condition as required by the Consent Judgment of February 16, 2001 and La. R.S. 9:315.

LAW AND ANALYSIS: STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, Through Department of Development and Transportation, 617 So.2d 880 (La.1993). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the Louisiana Supreme Court announced a two-part test for the reversal of a fact finder’s determinations: 1). The appellate court must find from the record |Rthat a reasonable factual basis does not exist for the finding of the trial court, and 2). The appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

CHILD SUPPORT

Our brethren in the Third Circuit analyzed correctly the history and framework for child support guidelines, La. R.S. 9:315 et seq., and we reiterate:

Prior to the enactment of the support guidelines, awards of support rested wholly within the discretion of the trial court. The standard of review in support cases was a showing of “abuse of discretion” by the trial court judge. Dickinson v. Dickinson, 461 So.2d 1184 (La.App. 3 Cir.1984). The support guidelines were enacted to offer the trial court a general foundation on which it could build an award suitable to the individual needs and capabilities of the parties. Thus, the trial court must still retain some discretion so that it may properly apply the support laws to the various factual circumstances that arise from case to ease.

Smith v. Smith, 597 So.2d 1216, 1217 (La. App. 3 Cir.1992).

La. R.S. 9:315.5 provides, “[b]y agreement of the parties or order of the court, extraordinary medical expenses incurred on behalf of the child shall be added to the basic child support obligation. “Extraordinary medical expenses” are statutorily defined in La. R.S. 9:315 C(3) as “uninsured expenses over one hundred dollars for a single illness or condition. It includes but is not limited to reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, uninsured chronic health problems, and professional counseling or psychiatric therapy for diagnosed mental disorders.”

According to the statutory language, it is clear that the legislature intended for the parents to be responsible for the “reasonable and necessary” costs of those medical illnesses or conditions of their children which were not covered by insurance and which total more than $100 for a single illness or condition.

| ^However, the child support statutes do not specifically address non-covered medical expenses, for example, deductibles and percentages of charges borne by the patient. Neither does R.S. 9:315 C(3) deal with the accounting problem of cumulation. Nevertheless, when viewing the child support framework as a whole, a continuing co-payment, e.g. due to a chronic illness, is more properly reflected in the monthly child support payments, rather than under “extraordinary medical expenses.” For, if a series of co-payments can be cumulated over the period of greater than a month, then the statute dealing with such extraordinary medical expenses has no meaning because we can envision few expenses when cumulated over a year that would not exceed one hundred dollars.

In the present case, the parties entered into a Consent Judgment to establish their respective liabilities concerning the support of their child. On the issue of medical expenses, they chose to follow the exact language of La. R.S. 9:315 C(3). The Consent Judgment could have specifically provided for appellee to assume his 57% share of those expenses not covered by insurance, but the parties chose not to do so. The Consent Judgment therefore limits appellee’s responsibility to only extraordinary medical expenses as defined by the statute.

We have found no legal authority to support appellant’s position that co-pay amounts and deductibles, once accumulated over $100.00, are to be considered extraordinary medical expenses pursuant to R.S. 9:315. The judgment of the trial court is consistent with this position, and we find no error in that ruling. Moreover, the Consent Judgment, when read in its entirety specifically mentions in the preceding paragraph that health insurance premiums and school-related expenses are to be paid on a monthly basis and that he “is only required to pay or reimburse said expense(s) for one (1) month at a time, and not the accumulated |7total.” Had Ms. Treitler intended to alter this agreement in the following paragraph to allow for cumulation she could have negotiated for it.

As to the issue of the ah- purifier, we do find error on the part of the trial court. The evidence presented clearly demonstrated that this device was reasonable and necessary in the treatment of BJ’s condition. BJ was diagnosed with asthma and significant dust allergies. Dr. Schneider prescribed an air purifier; and appellant testified that she purchased the type that Dr. Schneider recommended and that she purchased this particular air puri-fíer because she thought it was the best one for BJ’s condition. The record reveals that appellant sought reimbursement from appellee by certified mail and through her attorney. Accordingly, appellee is hereby required to reimburse appellant for 57% of the cost of the air filter. We remand to the trial court to determine whether or not appellee’s failure to pay his share of the air filter was in contempt of the Consent Judgment. If the trial court deems contempt exist, then an assessment of costs against appellee should be made.

CONCLUSION:

For the foregoing reasons, we affirm the trial court’s ruling that the co-pay amounts sought by appellant were not extraordinary medical expense for which appellee could be held responsible. We reverse the. trial court’s ruling that the air purifier was not an extraordinary medical expense; and, remand to the trial court for a determination of whether or not appellee was in contempt for not contributing to that expense. Accordingly, this matter is remanded to the trial court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

ARMSTRONG, C.J., respectfully concurs in the result.

11 ARMSTRONG, C.

J., respectfully concurs in the result.

I respectfully concur in the result reached by the majority because under the manifest error standard of review I cannot say that the trial judge was clearly wrong in finding as a matter of fact that “the medical expenses ... incurred were not the result of an on going condition nor the result of a single illness, as required by the Consent Judgment of February 16, 2001 and LSA R.S. 9:315.”

However, I believe that under LSA R.S. 9:315 co-pay amounts and deductibles of less than one hundred dollars may, as a matter of law, be cumulated in order to reach the one hundred dollar threshold set forth in the definition of extraordinary medical expenses under the statute. This matter appears to be res nova.

I would analyze this by first considering the definition of “extraordinary medical expenses” as defined by the consent judgment which incorporates by reference the definition found in La. R.S. 9:315 C(3):

“Extraordinary medical expenses” means uninsured expenses over one hundred dollars for a single illness or condition. It includes but is not limited to reasonable and necessary costs for orthodontia, dental treatment, asthma treatment, physical therapy, uninsured chronic health problems, and professional counseling or psychiatric therapy for diagnosed mental disorders.”

lijThe underlying question raised by this appeal is whether one may cumulate expenses incurred over a period of time in order to reach the one hundred dollar threshold set by La. R.S. 9:315 C(3). If the answer to this question were “no”, one would have expected the legislature to have written a much simpler one sentence statute. For example, there would have been no need to mention chronic health problems.

By including chronic health problems this definition clearly includes ongoing health problems. Many other items on the list of specifically included physical and mental health related concerns are commonly associated with multiple treatments, visits, consultations, or therapy sessions, many of which might not ordinarily exceed one hundred dollars per treatment, visit, consultation or therapy session, but which could quickly mount up to a significant amount over a period of time.

From this I infer the intention of the legislature to permit the cumulation of expenses arising out of chronic or ongoing conditions which would include co-pay-amounts, as such amounts by definition are uninsured.

This is consistent with the fact that the term “extraordinary” as used in the statute does not have the meaning normally ascribed to it, but is instead a term of art defined by the legislature. In this era of high medical costs one would not normally consider a medical expense of a mere one hundred dollars to be extraordinary.

Moreover, the broad reference to all “chronic health problems” in general invokes an image of conditions, many of which would not be spoken of as extraordinary in common parlance. The same is true of the sweeping reference without any limiting language to “dental treatment.” Indeed, the definition of the legislature is so broad and the dollar threshold amount is so small as to imply an [¡¡intention of extremely broad coverage, including the cumulation of uninsured amounts in order to reach the one hundred dollar threshold.

However, I would read into the statute a standard of reasonableness. I would limit cumulated to a reasonable period of time.

Finally, I note that when the reference in the Consent Judgment to the “accumulated total” is placed in the context of the pertinent part of that judgment, it becomes obvious that it refers solely to school expenses and not to both health insurance premiums and school expenses:

These school related expenses are to be provided to John Treitler as they occur and the required payments from John Treitler as they occur and the required payments from John Treitler are to be paid on a monthly basis but only for one (1) month’s expense(s) at a time. In the event these expense(s) are submitted to John Treitler for a period of more than one (1) month he is only required to pay or reimburse said expenses(s) for one (1) month at a time, and not the accumulated total. [Emphasis added.]

For the foregoing reasons, I respectfully concur in the result reached by the majority.


author: hTERRI F. LOVE, Judge. hPER CURIAM.

text:
    Angelina S. Dufrene, Wife of/and Whitney P. DUFRENE and Dale D. Thompson, Wife of/and Howel J. Thompson v. HBOS MANUFACTURING, LP d/b/a Schult and Royer Homes of Mississippi, Inc.
    No. 2003-CA-2201.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.
    Order on Rehearing May 28, 2004.

      Jack E. Morris, Metairie, LA, for Plain-tifRAppellee.
    Lee M. Peacocke, Morgan J. Wells, Jr., Larzelere Picou Wells Simpson Lonero, LLC, Metairie, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   hTERRI F. LOVE, Judge.

Plaintiffs filed suit against the retailer and manufacturer of a manufactured home in redhibition for alleged defects and vices. The retailer filed a Motion to Stay Proceedings Pending Arbitration. The trial court denied the retailer’s Motion to Stay. For the following reasons, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On September 24, 2001, plaintiffs/appel-lees, Angelina S. Dufrene and Whitney P. Dufrene (the Dufrenes), purchased a mobile home from defendant/appellant, Royer Homes of Mississippi, Inc. (Royer). In connection with the sale, the Dufrenes signed a “Bill of Sale & Purchase Agreement” and a separate document entitled “Arbitration Agreement Addendum.” Royer, however, did not sign the Arbitration Agreement Addendum. This document is the subject of the instant appeal. It states in pertinent parts:

This Arbitration Agreement (“Agreement”) is executed contemporaneously with, and becomes part of the Retail Installment or Sales Contract (“Contract”) for the purchase of a manufactured home (“Home”) as described in the Contract by the purchaser (“Purchaser”) from the selling retailer (“Retailer”).
The parties agree that all claims, disputes and controversies arising out of or relating in any way to the sale, purchase, or occupancy of the home including, but not limited to, any negotiations between the parties, the design, construction, performance, delivery, condition, | ^installation, financing, repair or servicing of the home and any warranties, either express or implied, pertaining to the home and including any claims for equitable relief or claims based on contract, tort, statute, common law or any alleged breach, default, or misrepresentation, will be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules.

As a result of alleged vices and defects in the home, the Dufrenes filed a petition for redhibition on September 10, 2002 against the manufacturer, HBOS Manufacturing and the retailer, Royer. Subsequently, on November 15, 2002, HBOS Manufacturing filed Chapter 11 bankruptcy petitions in the United States Bankruptcy Court for the District of Delaware, which requires that all legal actions against HBOS Manufacturing be stayed, pursuant to 11 U.S.C. Section 362. On June 5, 2003, the Du-frenes filed a Motion to Compel Discovery. On July 18, 2003, Royer filed a Motion to Stay Proceedings Pending Arbitration. The trial court heard both motions on September 4, 2003. On September 18, 2003, the trial court rendered judgment, granting the Dufrenes’ Motion to Compel Discovery and denying Royer’s Motion to Stay Pending Arbitration. The trial court did not provide written or oral reasons for the denial of Royer’s Motion to Stay. This appeal concerns only the Motion to Stay.

Standard of Review

The determination as to whether to stay or compel arbitration is a question of law. Billieson v. City of New Orleans, 02-1993, p. 3 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 560, citing Hennecke v. Canepa, 96-0772 (La.App. 4 Cir. 5/21/97), 700 So.2d 521. Appellate review of questions of law is simply to determine whether the trial court was legally correct or incorrect. Cangelosi v. Allstate Ins. Co., 96 0159, p. 3 (La.App. 1 Cir. 9/27/96), 680 So.2d 1358, 1360. If lathe trial court’s decision was based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court. Conagra Poultry Co. v. Collingsworth, 30,155, p. 2 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280, 1281-1282.

In the instant case, the trial court did not provide reasons, therefore we do not know the basis for its decision to deny the Motion to Stay. Considering the above stated standard of appellate review, however, we need only determine, from a review of the record, whether the trial court was legally correct or incorrect in denying the Motion to Stay.

ANALYSIS

The Louisiana Arbitration Law is set forth in LSA-R.S. 9:4201 through 4217. Louisiana courts look to federal law in interpreting the Louisiana Arbitration Law because it is virtually identical to the United States Arbitration Act, 9 U.S.C. §§ Ilk. Lakeland Anesthesia, Inc. v. CIGNA Healthcare of LA Inc., 2001-1059, p. 3 (La.App. 4 Cir. 2/6/02), 812 So.2d 695, 698. Firmin v. Garber, 353 So.2d 975, 977 (La.1977).

La. R.S. 9:4201 provides:
A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The FAA provides in 9 U.S.C. 2 that:

A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a ^controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole of any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA), which was specifically adopted by the Arbitration Agreement Addendum at issue, establishes that as a matter of preemptive federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the issue at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). Whether a claim is brought in state court or federal court, and whether a claim is based on state or federal law, courts must enforce arbitration agreements in contracts covered by the FAA, notwithstanding any state statutory or jurisprudential rules to the contrary. Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). See also, Collins v. Prudential Ins. Co. of America, 99-1423 (La.1/19/00), 752 So.2d 825, 827.

Louisiana courts have also recognized the heavy weight of this presumption, noting that as to issues of arbitrability, “even if some legitimate doubt could be hypothesized the Supreme Court requires resolution of the doubt in favor of arbitration.” Rauscher Pierce Refsnes, Inc. v. Flatt, 93-1672, p. 4 (La.App. 4 Cir. 2/11/94); 632 So.2d 807, 810; Grote v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 96-551 (La. App. 3 Cir. 11/6/96) 682 So.2d 926; Freeman v. Minolta Business Systems, Inc., 29,655, p. 8 (La.App. 2 Cir.9/24/97), 699 So.2d 1182, 1187.

| r,FIRST ASSIGNMENT OF ERROR

Royer asserts the trial court erred by failing to enforce the Arbitration Agreement because it was contained in a separate document from Bill of Sale and Agreement to Purchase. The Dufrenes maintain that the Arbitration Agreement Addendum is invalid because it was not contained in the Bill of Sale and Agreement to Purchase, nor did the Bill of Sale and Agreement to Purchase refer to or incorporate an arbitration agreement.

It is well established that there is no requirement under La. R.S. 9:4201 or the FAA that an arbitration agreement be contained in a single document in order to be considered part of the contract. Personal Sec. & Safety Systems, Inc. v. Moto rola, Inc., 297 F.3d 388, 393 (5th Cir.2002); Bartley, Inc. v. Jefferson Parish School Bd., 302 So.2d 280 (La.1974). The incorporation of an arbitration clause by reference to another written contract is a suitable method of evidencing the parties’ intent to arbitrate as long as the arbitration clause in the contract that is referred to has a “reasonably clear and ascertainable meaning.” Woodson Const. Co. v. R.L. Abshire Const. Co., 459 So.2d 566, 569 (La.App. 3rd Cir.1984); Russellville Steel Co., Inc. v. A & R Excavating, Inc. 624 So.2d 11, 13 (La.App. 5th Cir.1993).

In the instant case, the Arbitration Agreement and its Addendum specifically incorporate by reference the Bill of Sale and Purchase Agreement. The Bill of Sale and Purchase Agreement does not reference the Arbitration Agreement or its Addendum. We can find no requirement that the Bill of Sale must reference the Arbitration Agreement. The jurisprudence established by our brethren in the Third and Fifth Circuit allow an arbitration agreement to apply if “an arbitration clause is 1 fiincorporated by reference to another written contract.” Woodson Const. Co., 459 So.2d at 569., Russellville Steel Co., Inc., 624 So.2d at 13. The Arbitration Agreement and its addendum state, “This Arbitration Agreement is executed contemporaneously with, and becomes part of the Retail Installment or Sales Contract..” The Arbitration Agreement and its Addendum are signed by the Dufrenes establishing their knowledge of its existence. It is therefore clear, as a matter of law, that a valid arbitration agreement existed between Royer and the Dufrenes. This assignment of error has merit.

SECOND ASSIGNMENT OF ERROR

Royer argues the trial court erred in holding that the Arbitration Agreement was unenforceable because Royer’s delay in filing its Motion to Stay Proceedings until after the Dufrenes filed a Motion to Compel Discovery constituted a waiver. The Dufrenes dispute that the trial court ruled on the issue of waiver, asserting that they did not make that argument to the court. Because it is not clear from the record whether the trial court ruled on waiver, we will address that issue out of an abundance of caution.

Waiver of arbitration is not a favored finding, and there is a presumption against it. Rauscher, 93-1672, p. 4, 632 So.2d at 810. Yet, this court has found that Louisiana courts have determined, in spite of La. R.S. 9:4201’s provision that an arbitration clause is irrevocable, a party’s conduct can effect a waiver of its right to demand arbitration. Simpson v. Pep Boys-Manny Moe & Jack, Inc., 2003-0358 (La. 4 App. 4/10/03), 847 So.2d 617. See e.g. Thomas v. Desire Community Housing Corp., 98-2097, p. 7 (La.App. 4 Cir. 8/10/00), 773 So.2d 755, 759.

Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party. Rauscher; 93-1672, p. 4, 632 So.2d at 810. The waiver of a party’s right to require arbitration by instituting court action will depend on the circumstances of each case and whether the party indeed abandoned his right to insist upon arbitration by resorting to court procedure. Simpson, 2003-0358, p. 7, 847 So.2d at 623. A party asserting waiver bears a heavy burden of proof to show that the opponent has waived a contractual right to arbitrate. Lorusso v. Landrieu Enterprises, Inc., 2002-2346, p. 6 (La.App. 4 Cir. 5/21/03) 848 So.2d 656, 659. The burden of proof to establish waiver of arbitration is heavy, and the party seeking to establish waiver must show that it has been prejudiced by the actions of the party requesting arbitration. Rauscher, 93-1672, p. 4, 632 So.2d at 810. Neither the answering of a judicial demand nor a delay in filing a demand for arbitration alone necessarily constitutes a waiver of the right to demand arbitration, especially in the absence of prejudice to the opposing party. Lorusso, 2002-2346, p. 6, 848 So.2d at 659.

In Thomas, this court again recognized that there is a strong public policy in Louisiana favoring the enforcement of arbitration clauses and also recognized that arbitration is a substitute for litigation and that its purpose is to settle disputes in a fast, inexpensive manner before a tribunal chosen by the parties. Thomas, 98-2097, p. 7, 773 So.2d at 759. This Court went on to apply the following test from Ritzel Communications, Inc. v. Mid-American Cellular Telephone Co., 989 F.2d 966, 968-969 (8th Cir.1993), to find waiver of the right to arbitration where the party claiming the right to arbitrate: (1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts. Thomas, 98-2097, p. 8, 773 So.2d 760-761.

Applying the Thomas test to the facts of the instant case, we do not find that Royer waived arbitration. First, Royer knew of an existing right to arbitrate |sbecause they drafted the Bill of Purchase and the Arbitration Agreement Addendum. Second, Royer acted consistently with that right by filing the Motion to Stay pending the outcome of arbitration. They did not participate in the litigation process at length before asserting their right to arbitration. In Simpson, we found Pep Boys acted inconsistently by participating in litigation for two years, actively participating in discovery, prior to enforcing that right. Simpson, 2003-0358, p. 9, 847 So.2d at 624. And finally, the opposing party was not prejudiced because Royer did not act inconsistently. The Dufrenes have only propounded interrogatories at the beginning of the discovery process. Royer had not answered the interrogatories causing the Dufrenes to file their Motion to Compel. There is nothing in the record to show that Royer’s delay in seeking arbitration was unreasonable or that it prejudiced the Du-frenes. This assignment of error has .merit.

CONCLUSION

In accordance with La. C.C.P. art. 2133, although the appellee raised issues in their original brief, we pretermit discussion of these issues because the appellee failed to file an answer to the appeal.

In light of the strong federal and state presumption in favor of arbitration, and applying the law to the facts of this case, we find that a valid arbitration agreement did exist between the parties. We hold that the trial court was legally incorrect in denying the stay order pending arbitration. Accordingly, we reverse the judgment of the trial court and grant the Motion to Stay Pending Arbitration in favor of Royer.

REVERSED.

hPER CURIAM.

We grant the application for re-hearing to address issues omitted from the original opinion dated April 7, 2004. By mischar-acterizing the appellee’s “Response” as a “failure to answer”, we incorrectly applied La. C.C.P. art. 2133. We issue this per curiam to discuss those issues.

The appellees raise three points to support the premise that the arbitration Addendum should not be enforced in the aforementioned case. The Dufrenes argue the arbitration agreement addendum is invalid because (1) it fails to comply with a requirement it be dated and signed by all parties, (2) the contract is adhesionary, and (3) the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. precludes enforcement. In its application for rehearing, the Dufrenes voluntarily discard the third contention, therefore we will not address the issue.

The Dufrenes have argued that the Arbitration Agreement Addendum is invalid because it was not signed by Royer. This court has held that La. R.S. 9:4201 does not require that the written agreement to arbitrate be signed by the parties. Hurley v. Fox, 520 So.2d 467 (La. App. 4 Cir. 1988), on remand, 559 So.2d 887 (La. App. 4 Cir. 1990). Absent a signature or a signing of an agreement, lathe effect or validity of the agreement may be shown by the actions and conduct by the parties. Cook v. AAA Worldwide Travel Agency, 352 So.2d 243 (La. App. 4 Cir. 1977), reversed on other grounds, 360 So.2d 839 (La.1978). The Dufrenes do not deny that they signed both the Bill of Sale and the Arbitration Agreement Addendum, thereby agreeing to its terms including the provision for arbitration. Royer filed a Motion to Stay Proceedings Pending Arbitration to indicate his intention to arbitrate. Therefore we find that Royer’s failure to sign did not invalidate the agreement and Royer’s action show the effect or validity of the agreement. The Dufrenes also argue the Arbitration Agreement itself requires all parties to sign the agreement. After a thorough reading of the Arbitration Agreement and its Addendum, we do not find such explicit requirement. This assignment of error lacks merit.

The Dufrenes further contend that the Arbitration Agreement Addendum was adhesionary. The Louisiana Supreme Court defined a contract of adhesion as a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms. Golz v. Children’s Bureau of New Orleans, Inc., 326 So.2d 865, 869 (La.1976); Posadas v. The Pool Depot, 02-1819 (La. App. 1 Cir. 6/27/03), 858 So.2d 611. The mere fact that a contract contains an arbitration provision does not render it adhesionary. Sutton’s Steel & Supply, Inc. v. Bellsouth Mobility, Inc., 00-511 (La. App. 3 Cir. 12/13/00), 776 So.2d 589, 596.

In fact, it is well settled that a party who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that she did not read it, that she did not understand it, or that the party failed to | o,explain it to her. Tweedel v. Brasseaux, 433 So.2d 133 (La.1983); Stadtlander v. Ryan’s Family Steakhouses, Inc. 34,834 (La. App. 2 Cir. 4/4/01), 794 So.2d 881.

As distinguished from the cases cited by the Dufrenes, we find that the language of the Arbitration Agreement Addendum is clear, that the print is not unreasonably small, and that the provisions of the arbitration are not unreasonably burdensome. Further, there has been no showing that the Dufrenes were placed in an unequal bargaining position, that they did not understand the agreement, or that they would have refused to purchase the mobile home had they been aware of the import of its terms. Clearly, the arbitration agreement in question does not meet the criteria of an adhesionary contract as set forth in the above jurisprudence.

We find the arguments are unpersuasive and maintain our reversal of the trial court’s decision to deny Royer’s motion to stay pending arbitration.

      . Both parties refer to a transcript, but no transcript is provided for in the record.

      . Both parties address only the Arbitration Agreement Addendum. The arbitration agreement which is signed by all parties is in the record.


author: hDENNIS R. BAGNERIS SR., Judge.

text:
    In re HARVEY TERM LITIGATION.
    No. 2004-C-0005.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.

      T. Allen Usry, Usry, Weeks & Matthews, New Orleans, LA, and Henry T. Dart, Covington, LA, for Plaintiffs-Respondents.
    Peter N. Freiberg, Jones, Verras & Freiberg, L.L.C., New Orleans, LA, for Joseph Grefer, Camile Grefer, Rose Marie Grefer, Hasse and Henry Grefer.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   hDENNIS R. BAGNERIS SR., Judge.

Applicants, Joseph Grefer, Camile Gre-fer, Rose Marie Grefer Haase and Henry Grefer (the “Grefers”) seek review from the overruling of their exception of no cause of action as to the plaintiffs’ claim for punitive damages.

FACTS

The Grefers own a tract of a property located in Harvey, Louisiana that is in part the subject of this putative class action proceeding. The petition, as amended, alleges that the named plaintiffs and the members of the putative class action suffered damages as a result of oilfield pipe cleaning operations conducted on property owned by the Grefers and leased to entities who performed the cleaning operations. The Grefers property became contaminated by naturally occurring radioactive materials as a result of the pipe cleaning operations. The Grefers previously sued entities responsible for the contamination of their property and were awarded a substantial judgment.

The Grefers filed a series of exceptions to the Master Supplemental and Amending Class Action Petition. The Special Master recommended that the Grefers’ exception of no cause of action as to the punitive damage claim be denied. The Grefer’s timely filed an exception to the Special Masters recommendation. | ¡/The district court subsequently adopted the report and recommendation, overruling the Grefers’ exception.

DISCUSSION

Exemplary, or punitive damages, were authorized by the legislature in 1984 for injuries that were caused by “the defendant’s wanton or reckless disregard for public safety in the storage, handling, or transportation of hazardous or toxic substances.” La. C.C. art. 2315.3. The article was repealed by Acts 1996, 1st Ex. Sess., No. 2, § 1, effective April 16, 1996. The repeal was given prospective application only.

Because Article 2315.3 is an exception to the general public policy in Louisiana against punitive damages, it is to be strictly construed. Dumas v. Angus Chemical Co., 728 So.2d 434, 440 (La.App. 2 Cir. 12/9/98); Galjour v. General American Tank Car Corp., 769 F.Supp. 953, (E.D.La.1991). Accordingly, the “storage, handling, or transportation” language in article 2315.3 is to be narrowly interpreted. Dumas v. Angus Chemical Co, 728 So.2d at 440. In Prestenbach v. Louisiana Power and Light Co. Inc., 592 So.2d 499 (La.App. 5 Cir. 12/30/91), writ granted and judgment amended on other grounds, 594 So.2d 882 (La.1992), the court found that storage refers to the safe keeping of goods in a depository, handling means to deal with, act on, or dispose of, and transportation means to transfer or convey from one place to another.

The allegations contained in the petition relative to punitive damages are as follows:

II.
Defendants are liable, jointly, severally, and in solido, to plaintiffs and the class they represent, for the full amount of damages suffered by them, including exemplary damages, with legal interest from the date of judicial demand until paid and all costs of these proceedings, for the following: ...
_kX.
From at least 1997, when the Grefer’s [sic] filed a lawsuit against ITCO, ALPHA, TUBULAR, and the Oil Companies, the Grefer’s [sic], ITCO, and ALPHA knew of the foregoing phenomenon and knew that components of pipe scale posed a serious health risk to humans, but did not inform the public in general, and the plaintiffs in particular, of this hazard.
. XVI.
During the period of the effective dates of Civil Code Article 2315.8, Defendants were guilty of willful, wanton and reckless disregard for public safety in the storage, handling and transportation of toxic, hazardous, and/or radioactive substances, entitling plaintiffs to recover exemplary damages in addition to their compensatory damages.

The Grefers allege that the plaintiffs have failed to plead facts which if proven could establish a cause of action under now repealed article 2315.3. The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). The court must accept the well-pleaded allegations of fact as true, and the issue at trial is whether, on the face of the petition, the petitioner is legally entitled to the relief sought. Id. The cause of action, as used in the peremptory exception, means the operative facts which give rise to the plaintiffs right judicially to assert the action against the defendant. Everything on Wheels Subaru, Inc., 616 So.2d at 1238. In developing this definition, the Supreme Court relied on Hope v. Madison, 192 La. 593, 188 So. 711, 715 (1939):

A cause of action is an act on the part of a defendant which gives rise to a plaintiffs cause of complaint; “the existence of those facts which give a party a right to judicial interference in his behalf’; “the situation or state of facts which entitles a party to sustain an action.” “When used with reference to the pleadings by which the cause of action is alleged, the phrase signifies the facts upon which the 14plaintiff s right to sue is based, and upon which the defendant’s duty has arisen, coupled with the facts which constitute the latter’s wrong.” Quotations from 2 Words and Phrases, First Series, Cause of Action, p. 1017.

Everything on Wheels Subaru, Inc., 616 So.2d at 1242, n. 4 (Emphasis in original omitted).

Because Louisiana uses fact pleading, to withstand this exception, the petition must set forth the material facts upon which the cause of action is based. It is insufficient for a petition to simply state legal or factual conclusions without setting forth the facts which support the conclusions. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94); 637 So.2d 127, 131.

The Grefers contend that the allegations of the petition are so lacking in specificity and so conclusory and vague that they fail to state a cause of action under former article 2315.3 against the Grefers. Indeed, the petition makes no factual allegations as to how the Grefers handled, stored and transported the toxic, hazardous, and/or radioactive substances. The petition simply tracks the language of the statute and fails to suggest any facts relative to the actions of the Grefers which could give rise to the application of the statute.

In plaintiffs’ brief in opposition to the Grefers’ application, they suggest that the allegation that the Grefers owned land which was contaminated and which they knew was contaminated is sufficient to allege a cause of action under former article 2315.3. In support, plaintiffs loosely reference this court’s decisions in the Gentilly tank car case. Specifically, plaintiffs offer the disposition of CSX Transportation’s motion for summary judgment and its eventual liability for punitive damages as on point. In this regard, plaintiffs assert that CSX’s liability stemmed from the fact that CSX was the owner of the tracks and property on which the burning tank car sat. In point of fact, this court never intimated that CSX’s status as owner was relevant to a determination of the punitive damages issue. Although CSX owned Isthe tracks, the facts of the case established that CSX was actually engaged in the handling and transportation of the toxic substances at issue. Relative to the denial of CSX’s motion for summary judgment, this court wrote:

CSX: NOTC transported the tank car to the CSX interchange in New Orleans East at approximately 7:25 p.m. on September 8, 1987. The car was sitting at that interchange, which is located in a heavily-populated area, when the explosion and fire occurred. Nevertheless, CSX claims that it cannot be hable for exemplary damages under La.C.C. art. 2315.3 because it had not inspected or accepted the tank car prior to the incident and because it was not involved in the storage, handling, or transportation of the butadiene at the time of the explosion. On the other hand, NOTC claims that the bills of lading had been placed in CSX’s waybox when the tank car was delivered to the CSX exchange approximately seven hours prior to the explosion and fire which caused the damages in the instant case. That action, NOTC indicates, transferred custody of the tank car to CSX.
As noted above in the discussions concerning Illinois Central and NOTC, La. C.C. art. 2315.3 does not require that the defendant be actively involved in the storage, handling, or transportation of the substance at the time of the incident. CSX, like Illinois Central and NOTC, was involved in the series of events related to the transportation of this particular load of butadiene, and therefore could be held liable under for La.C.C. art. 2315.3 exemplary damages, if the plaintiffs can prove that it performed its duties in a wanton and reckless manner. Accordingly, the trial court judgment denying the motion for summary judgment on the issue of exemplary damages in favor of CSX is correct; it is hereby affirmed.

In re New Orleans Train Car Leakage Fire Litigation, 95-2710 (La.App. 4 Cir. 3/20/96), 671 So.2d 540, 549-550.

From the foregoing, it is clear that CSX’s motion for summary judgment was not denied on the basis that CSX owned the tracks in question. CSX’s argument was that it had not inspected or accepted the tank car prior to the incident; however, the facts demonstrated that CSX was nevertheless actively involved in the transportation of the Butadiene contained in the tank car.

On direct appeal of the verdict, CSX never alleged that it was not engaged in the storage, handling, or transportation of the hazardous Butedeine, and there is no discussion in any of this court’s opinions relative to CSX’s status as the | dandowner. The plaintiffs’ argument with respect to the Grefers being similarly situated to CSX is misplaced.

At best, the facts as alleged by the plaintiffs indicate a tangential connection between the Grefers and the toxic NORM in question. As this court’s discussion in In re New Orleans Train Car Leakage Fire Litigation, 95-2710 (La. App. 4 Cir. 3/20/96), 671 So.2d 540, concerning GATX, the owner of the tank car in question, illuminates, mere ownership alone is insufficient without demonstrating that the party had any dealings with the substance itself. Federal jurisprudence also establishes that in order to come within the purview of the statute a defendant must be “ 'engaged in’ ” the storage, handling, or transportation of hazardous substances. Galjour v. General American Tank Car Corporation, 769 F.Supp. 953, 956 (E.D.La.1991); Wiltz v. Mobil Oil Exploration and Producing, North America Inc., 702 F.Supp. 607, 608 (W.D.La.1989) (“Implicit in storing, handling or transporting is the requirement that the hazardous substance be in the possession or control of a person who then handles or otherwise deals with that substance.”); Strauch v. Gates Rubber Co., 879 F.2d 1282 (5th Cir.1989) (manufacturer of synthetic gage hose used by others to transport a hazardous substance was not engaged in storage, handling, or transportation of a hazardous substance).

|7The petition fails to allege facts which suggest that relator stored, handled or transported hazardous or toxic substances. Therefore, the plaintiffs failed as a matter of law to state a cause of action against the relator for punitive or exemplary damages. The district court erred in denying the exception of no cause of action. Accordingly, this writ application is granted and the case remanded for the purpose of allowing the plaintiffs to amend the petition to assert a cause of action for punitive damages if possible.

WRIT GRANTED; JUDGMENT REVERSED; REMANDED.

      . On appeal, this court further summarized the facts regarding CSX's involvement as follows:
      On September 5, 1987, Illinois Central, at GAIX’s Good Hope terminal, put GATX 55996 [the tank car in question] into a train with other butadiene tank cars and transported it to an Illinois Central train yard. Illinois Central then moved GATX 55996 to interchange tracks where Illinois Central and AGS exchange railroad cars. (An "interchange” is an area of track where one railroad leaves rail cars for another railroad.) AGS then moved GATX 55996 to CSX's interchange tracks in GentíIIy. AGS delivered GATX 55996 and some other rail cars to CSX, and notified CSX’s employees to pick up GATX 55996 and the other rail cars, at about 7:25 p.m. on September 8, 1987. ¡ GATX 55996 remained on CSX's interchange tracks for over six-and-a-half hours until the fire broke out.

        In re New Orleans Train Car Leakage Fire Litigation, 2000-0479, (La.App. 4 Cir. 6/27/01) 795 So.2d 364, 371-372.


author: It EDWIN A. LOMBARD, Judge.

text:
    Geraldine DAVIS v. REGIONAL TRANSIT AUTHORITY and John Doe.
    No. 2003-CA-1847.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.

      Ernest F. Charbonnet, New Orleans, LA, for Plaintiff/Appellant.
    Ranord J. Darensburg, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU).
   It EDWIN A. LOMBARD, Judge.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On April 16, 1996, Geraldine Davis (plaintiff) filed suit against the Regional Transit Authority (RTA) and John Doe, the unknown bus driver, for injuries allegedly sustained aboard an RTA bus. On May 14, 2002, plaintiff filed a supplemental and amending petition, naming Samuel B. Fairley (Fairley) as the defendant bus driver and, naming for the first time, Transit Management of Southeast Louisiana (TIMSEL), as an additional defendant.

On May 8, 2002, the RTA filed a Motion for Summary Judgment, seeking to be dismissed on grounds that the RTA is only the owner of the bus. On September 10, 2002, TIMSEL and Fairley filed and Exception of Prescription, arguing that the amended petition did not relate back to the filing of the original petition so as to interrupt prescription.

The matters were presented to the trial court on January 24, 2003. On February 3, 2003, the trial court granted the RTA’s Motion for Summary Judgment, dismissing the RTA from action. The trial court further denied TIMSEL and Fairley’s Exception of Prescription.

|2On March 28, 2003, plaintiff filed a motion for Devolutive Appeal of the granting of summary judgment in favor of RTA. On April 10, 2003, TIMSEL and Fairley filed a suspensive appeal of the denial of their Exception of Prescription.

JURISDICTIONAL ISSUES

ISSUE NO. 1

Summary judgment was granted in favor of RTA, with two defendants, namely TIMSEL and Samuel Fairley, remaining in the lawsuit. The action was filed in 1996 before the effective date of the 1999 amendment to La. C.C.P. art. 1915. In 1996, La. C.C.P. art. 1915 B(l) read:

When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, or parties, whether in an original demand, recon-ventional demand, cross claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless specifically agreed to by the parties or unless it is designated as a final judgment by the court after an express determination that there is no reason for delay.

The judgment was a partial judgment and under La. C.C.P. art. 1915 required certification as final in order to be immediately appealable. There is no evidence of certification in the record and, accordingly, the appeal of the summary judgment is dismissed.

ISSUE NO. 2

TIMSEL and Fairley’s appeal the denial of their Exception of Prescription. “Generally, the denial of an Exception of Prescription is an interlocutory judgment that is not subject to appeal.” Dean v. United Medical Center, 01-1414 (La.App. 4 Cir. 4/17/02), 816 So.2d 926, 929.

Considering the above noted jurisdictional issues, both appeals are dismissed.

DISMISSED.


author: | JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    STATE of Louisiana v. Michael MOSLEY.
    No. 2003-KA-1947.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 14, 2004.
    Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY and Judge DAVID S. GORBATY).
   | JOAN BERNARD ARMSTRONG, Chief Judge.

The defendant, Michael Mosley, was charged by bill of information on September 9, 2002, with armed robbery in violation of La. R.S. 14:64. At his arraignment on September 16, 2002, he entered a plea of not guilty. After a hearing on November 13, 2002, the trial court found probable cause to bind the defendant over for trial and denied the motion to suppress the identification. A trial begun on August 18, 2003, was declared a mistrial on August 20, 2003. A twelve-person jury found the defendant guilty as charged after a two-day trial on August 21 and 22, 2003.

On September 3, 2003, the defendant was sentenced to serve ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence. The State then filed a multiple bill charging the defendant as a second felony offender. A hearing was held that same day, and a fingerprint expert testified that the fingerprints taken from the defendant in court that day matched those on the arrest register from his simple robbery guilty plea in 1999. After the testimony, the defense attorney argued that there was no point in resentencing the defendant as a second offender because his sentence was already the maximum term of ninety-nine years without benefits. The judge agreed and decided to put off consideration | gof the multiple bill for a week. The defense attorney then filed a motion to reconsider the sentence which the judge agreed to consider at the next hearing. On September 10, 2003, the defendant was found to be a multiple offender, his earlier sentence was vacated, and he was sentenced to serve ninety-nine years at hard labor without benefits of parole, probation, or suspension of sentence. The defense attorney did not object to the sentence and did not bring up the motion for reconsideration of sentence.

The facts are not at issue in this appeal.

The defendant contends his sentence is excessive; he also complains that the trial court did not rule on the motion for reconsideration of sentence. He asks that the case be remanded for such a ruling. However, the record indicates that the motion was made on September 3, 2003, after the judge imposed the first ninety-nine year term. That sentence was vacated on September 10, 2003, and a sentence under the multiple offender law was imposed. The defense attorney did not object or file a motion for reconsideration of the sentence imposed on September 10, 2003.

Thus, the first question is whether the lack of a ruling on the motion for reconsideration is properly before this court. La. C.Cr.P. art. 881.1 provides in pertinent part:

A. (1) Within thirty days following the imposition of sentence or within a longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence. [Emphasis added.]
B. The motion shall be oral at the time of sentencing or in writing thereafter and shall set forth the specific grounds on which the motion is based.
* * *
13E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

In the case at bar, a motion for reconsideration of the multiple offender sentence was never filed. The failure to file a motion to reconsider within the time delays required prevents the trial court from considering the motion. State v. Williams, 96-1587 (La.App. 4 Cir. 4/16/97), 693 So.2d 249, 255; State v. Neville, 95-0547 (La.App. 4th Cir.5/16/95), 655 So.2d 785, 787-788; State v. Tillman, 94-1093 (La.App. 4th Cir.6/8/94), 638 So.2d 475, 476. This motion was not filed as to the existing sentence, and the defendant is therefore precluded from raising an objection to the sentence on appeal. Accordingly, appellate review of this issue is precluded, and this assignment of error is without merit.

Accordingly, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED