author: J^DOUCET, Chief Judge.

text:
    HAZELWOOD FARM, INC. v. LIBERTY OIL AND GAS CORPORATION, et al.
    No. 02-266.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.
    Rehearing Denied May 7, 2003.

      James Paul Doherty Jr., Andrus & Do-herty, Opelousas, LA, Harry T. Lemmon, Gladstone N. Jones, III, Peter N. Frie-berg, Jones, Verrs & Freiberg, Stuart H. Smith, Jack W. Harang, Smith & Harang, New Orleans, LA, for Plaintiff/Appel-lee/Cross Appellant: Hazelwood Farm, Inc.
    Stephen C. Carleton, Scott E. Mercer, Henry D.H. Olinde, Jr., Simoneaux, Carle-ton, Dunlap & Olinde, L.L.C., Baton Rouge, LA, for Defendant/Appellant: Chevron U.S.A., Inc.
    Court composed of NED E. DOUCET, Jr., Chief Judge, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   J^DOUCET, Chief Judge.

Defendant, Chevron U.S.A., Inc. (Chevron), appeals a judgment of the district court awarding Plaintiff, Hazelwood Farm, Inc. (Hazelwood), $2,000,000, for damages to Hazelwood’s property occasioned by Chevron’s breach of contract. Although the judgment was based on a jury verdict, all of Chevron’s assignments of error are addressed to rulings of the court. These rulings are said to be erroneous because they (1) allowed Hazelwood to recover for breach of contract, (2) awarded damages which occurred before Hazelwood acquired the land, (3) gave an award that was more than the property was worth, (4) rejected pleas of prescription, and (5) failed to find Hazelwood had judicially confessed adverse facts. Hazelwood cross-appeals alleging the trial court erred (1) in not letting its claim for punitive damages go to the jury, (2) in setting the expert witnesses’ fees too low, and (3) in denying a request by Hazelwood for some items of discovery, resulting in Hazelwood’s inability to meaningfully cross-examine some opposing witnesses thereby resulting in the award of inadequate restoration damages. After a recitation of the basic facts, we will address each of these eight assignments of error.

FACTS

Hazelwood, a corporation, owns a 686 acre tract of farmland near Port Barre in St. Landry Parish. It acquired title to the property in 1991, but the land has been in the Edmundson family (the owners of the corporation) since 1968. Ernest E. Ed-mundson, Jr., bought the property in 1968 from John E. Wells. John Wells reserved the minerals. Hazelwood has no mineral interest in the property.

On August 10, 1926, the 686 acres was leased by the then owner, Wilson & Cochran, to J.B. Ferguson for oil and gas exploration. The parties maintained the right to assign the lease and provided that the lease provisions would be binding on | ¿the parties’ successors and assigns. Mr. Ferguson assigned the lease three days later to Gulf Refining Company (Gulf).

The lease further provided: “The use of the surface of the land is granted only for the purpose hereof. Grantee [Ferguson and assigns] shall be responsible for all damages caused by his operations.”

The lessee’s rights under the 1926 lease were subsequently assigned, either wholly or partially, to others, including Chevron. Chevron became the successor to Gulf when they merged in 1985. Oil and gas operations under the lease began shortly after the 1926 lease date and were still going on at the time of trial.

Gulf conducted oil and gas operations on the property from 1926 until 1956. When it assigned the mineral lease to another in 1956, it retained ownership of 25% of the oil produced. Pursuant to two underground storage leases, Gulf had also constructed an underground natural gas storage cavern beneath the property. Gulf assigned the underground storage lease rights to Warren Petroleum Corporation (Warren) in 1958, but then acquired Warren in 1971, along with the underground storage lease rights. In 1972 it assigned these rights again.

No one has ever lived on the property. About two-thirds of it is in cultivation. During the seventeen years before the suit was filed while the Edmundson family owned it, either individually or through an estate or through a corporation, local tenant farmers raised rice and soybeans on the 400 and some-odd acres in cultivation. There is an irrigation well on the property.

In 1997 Hazelwood brought this lawsuit, asserting causes of action in both contract and tort and alleging that activities on the property by the mineral lessees caused environmental contamination to the surface and under the surface. The alleged activities included the construction of certain pits, including a 12-acre ^evaporation pond into which were dumped oil, grease, salt water, and other hazardous and/or toxic oil production wastes. As a result, Hazelwood claimed that the property had become contaminated with radioactive materials and that the water in the aquifers was polluted.

Hazelwood sued several entities along with Gulf and Chevron. Before trial Ha-zelwood settled its claims against all defendants except Gulf/Chevron and dismissed those defendants. As stated earlier, Chevron is the successor to Gulf. The real defendant is Chevron, but we will refer to it as Guli/Chevron, the designation used during the trial and in the briefs. The case went to trial against Gulf/Chevron alone.

The trial took three weeks. Of the twenty-five witnesses who testified sixteen were qualified as experts. Eight expert witnesses testified for Hazelwood and six experts testified for Guli/Chevron, then two additional experts testified for Hazel-wood in rebuttal. Hazelwood’s experts in its case in chief were two petroleum engineers, a health physicist, an agronomist, a hydrogeologist, an expert in radiation protection and remediation, a natural gas consultant, and a witness who had expertise in plugging and abandoning old wells. Gulf/Chevron’s defense experts were a real estate appraiser, a petroleum engineer, an agronomist, a soil scientist, a medical doctor, and a hydrogeologist. Hazelwood’s rebuttal experts were a toxicologist, and a witness who had expertise in chemistry, petroleum engineering, occupational safety and health.

|/There were nine fact witnesses. They included Robert D. Edmundson, whose family owned Hazelwood, two tenant farmers of the land, and Richard Brackin, a representative of the Louisiana Department of Environmental Quality (DEQ).

Some, but not all of the experts, went on the property and gathered eyewitness information and scientific test results which they used in their opinions. The parties engaged in considerable pretrial discovery; many experts who testified were armed with knowledge of the opinions of their counterparts on the other side, with the result that a number of experts spent a lot of time defending their own and challenging their opponent’s views. Of the thousands of pages of trial testimony, a substantial part dealt with radioactivity, and the rest focused on oil and gas operations and environmental pollution, especially water pollution. Except for a few pages that dealt with mundane subjects that a jury might find familiar, such as growing rice, farming soybeans, or drilling water wells, most of the trial took the jury into unfamiliar scientific territory. The case was thoroughly tried.

The jury rendered a verdict in the form of responses to eighteen written interrogatories. As to Hazelwood’s contract claim, the jury found that Gulf/Chevron breached the 1926 Oil & Gas Lease Contract and that this breach damaged Hazelwood’s property. Moreover, the jury found that the Defendant acted in bad faith and that $2,000,000 would fairly compensate Hazel-wood for the property damage due to the breach of contract.

Answering interrogatories having to do with the negligence/strict liability claim, the jury found that GulfiChevron was both negligent and strictly liable for its operations on the property, that its conduct caused damages to the property, that others were at fault as well, and that the proportionate fault between Gulf/Chevron |Kand “others” was 40/60. The jury then answered a question asking for the value of the Hazelwood Farm property by inserting the amount of $304,000.

Question Number 16 asked the jury to indicate whether, if it awarded restoration damages, it found there was a reason personal to Hazelwood Farms for restoring the property to its original condition or whether there was reason to believe Ha-zelwood Farm would, in fact, restore its property. To these two inquiries the jury checked “No”.

Finally, answering the last two questions on the verdict form, the jury awarded Hazelwood Farm $2,000,000 as fair compensation for restoring the property and $303,600 as fair compensation “[ejxclusive of any restoration costs, and not exceeding the value of the property....”

Before the case went to the jury, the trial judge had instructed counsel that although the jury would be queried regarding both the contract and tort actions, if Hazelwood got a favorable verdict for both, it would have to select one. Hazel-wood opted for the verdict for its contract claim. The trial judge accordingly rendered a judgment for $2,000,000, with interest from judicial demand, and costs. The costs included expert witness fees for ten of plaintiffs experts totalling $11,650.

For reasons which follow, we affirm the judgment in every respect. We will address each assignment of error, beginning with those of the First Appellant, Gulf/Chevron. As we do so, we will expand on the facts of the case, as revealed by the testimony and exhibits, where the context requires.

GULF/CHEVRON’S ASSIGNMENT OF ERROR NO. 1

By this assignment, the Defendant claims it was error to submit the breach of the original Wilson-Cochran Lease to the jury. The Defendant claims that it did not | fibreach this lease as a matter of law because it had no contractual liability to Ha-zelwood. For the following reasons, we find no merit to this assignment.

This case was before this court on an earlier appeal in 2001. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-0345 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, writ denied, 01-2115 (La.7/26/01); 794 So.2d 834. On that appeal we found that “the Wilson & Cochran Lease created a stipulation pour autrui in favor of Hazelwood, as surface owner,” and remanded the case for a trial on the merits. We said:

The Wilson & Cochran Lease provides that “Grantee shall be responsible for all damages caused by his operations.” Thus, we conclude that this language must be interpreted as providing a stipulation pour autrui in favor of Hazel-wood. The fact that Hazelwood was not specifically named as a third party beneficiary in the mineral lease is of no consequence. Our jurisprudence recognizes that stipulations may be made in favor of undetermined persons.... In addition, the law does not require express acceptance or consent on the part of the beneficiary nor does it require a particular form of acceptance or consent.... [W]e find that the Wilson & Cochran Lease created a stipulation pour autrui in favor of Hazelwood, as surface owner .... [citations omitted]

Id. at p. 12, 790 So.2d at 101.

We regard this ruling as the law of the case. The law of the case doctrine operates to avoid re-litigation of the same issue, promotes consistency of results in the same litigation, and fosters fairness by affording parties one single opportunity to argue the issue and have it decided. West v. G & H Seed Co., 01-1453 (La.App. 3 Cir. 8/28/02); 832 So.2d 274. The doctrine operates to prevent the appellate court from reconsidering its own rulings of law on a subsequent appeal in the same case. Bowie v. Young, 01-0715 (La.App. 3 Cir. 3/20/02); 813 So.2d 562, writ denied, 02-1079 (La.6/21/02); 819 So.2d 335. The doctrine is flexible, and we are allowed to deviate from it in cases where it would cause an obvious injustice or where the earlier appellate decision was clearly erroneous. Id.

_[£The evidence produced at trial on remand was the same, though in greater detail, as the summary judgment evidence on which we based our earlier ruling. Our earlier ruling was not clearly erroneous. Under these circumstances, invoking the law of the ease rule, we will not revisit our earlier decision. Hazelwood, as the beneficiary of a stipulation pour autrui, has the right to sue GulflChevron in contract. La. Civ.Code art.1981.

GULFiCHEVRON’S ASSIGNMENT OF ERROR NO. 2

Gulf/Chevron’s second assignment argues that, because Hazelwood did not acquire the property until 1991 and the damages it seeks to recover occurred before that time, Hazelwood was not the owner when the damages occurred and cannot recover. It relies on the rule that a purchaser of immovable property acquires no right to recover from the lessee for property damage sustained before the sale, in the absence of a specific assignment of that right. It cites Prados v. South Central Bell Telephone Co., 329 So.2d 744 (La.1975), and other cases for this rule. The Prados decision held that the right to damages conferred by a lease was a personal right, not a property right, and as a personal righVobligation, it did not pass to the new owners of the land because there was no specific conveyance of it in the instrument of sale.

In our present case, there was no specific conveyance of the right to damages in the 1991 instrument of exchange by which Hazelwood acquired the property subject to this old mineral lease. Therefore, Hazelwood did not acquire its right to claim damages by assignment in the act of conveyance. Hazelwood is nevertheless the owner of the right to claim damages in its capacity as a third party beneficiary.

We have already held that the law of this case is that the Wilson & Cochran Lease created a stipulation pour autrui in favor of Hazelwood as surface owner. We recognize that by definition a stipulation pour autrui establishes a benefit in favor of |Ra person and not an estate. La.Civ. Code art.1978. However, it is in the nature of a stipulation pour autrui that a third person, in this case Hazelwood, derives a benefit from a contract made by others. That benefit in this case is the right to claim against the mineral lessee damages to the property caused by the lessee’s operations. The jury found that Hazelwood, as the current owner, has suffered damages. The fact that Hazelwood was not named in the stipulation is of no moment. Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (La.1969). Hazelwood acquired its right to sue for damages not by its 1991 contract of exchange, whereby it acquired title to the property, but by virtue of its status as owner of the land and by virtue of the 1926 oil and gas lease contract. In other words, it acquired its right to sue for damages by virtue of a stipulation pour autrui which made it a third party beneficiary of a contract made by others.

Our disposition of this assignment is further supported by language found in Magnolia Coal Terminal v. Phillips Oil Co., 576 So.2d 475 (La.1991). In that case, the 1985 owner of property filed suit to recover damages for the mineral lessee’s continuing breach of its contractual obligations which began twenty-one years earlier when the property was owned by a different person. The Supreme Court said: “Magnolia’s right to recover damages is a property right arising out of the original lease and attached to the property.” In support of this observation the Supreme Court cited Andrepont, 255 La. 347, 231 So.2d 347. In Andrepont, after a farmer was granted a verbal lease to farm soybeans, the owners of the farm executed an oil and gas lease which provided that the oil and gas lessee was responsible for all damages caused by its operations. The Supreme Court held that that was a stipulation pour autrui in favor of the farmer and that the farmer could sue the oil and gas lessee for damage to his crops.

| ULF/CHEVRON’S ASSIGNMENT OF ERROR NO. 3

Gulf/Chevron’s third assignment of error is that the damage award was too high. It argues that the restoration award cannot exceed $304,000 because that was the jury’s determination of the value of the Hazelwood property.

In the light of the Louisiana Supreme Court’s recent opinion in Corbello v. Iowa Production, 02-C-0826 (La.02/25/03), 2003 WL 536727, — So.2d —, this assignment has no merit.

Gulf/Chevron’s argument begins with the jury’s specific findings of fact in its answers to interrogatories. First, it points out that the jury found that $2,000,000 would compensate Hazelwood for the property damage due to the breach of contract. The jury also found that the value of the property was $304,000. The jury found specifically that there was no reason personal to Hazelwood for restoring the property to its original condition and that there was no reason to believe Hazelwood Farm would, in fact, restore its property. Elsewhere, the jury stated that its $2,000,000 award was “for restoring the property.” Based on these jury findings of fact, Guli/Chevron contends that Hazelwood is getting over six times what the property is worth and will not use the money to restore the property. It argues that this is in violation of the rule of Roman Catholic Church v. Louisiana Gas Service Co. 618 So.2d 874 (La.1993), and its holding:

Accordingly, we conclude that, as a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm.

Id. at 879-80.

It concludes its argument by urging that although the Church case dealt with a tort-based claim for damages to land, the Church rule limiting recovery to the value of the property before and after the harm should apply to contract claims as well.

The recent Corbello decision puts this issue to rest. The supreme court announced that “damages to immovable property under a breach of contract claim should not be governed by the rule enunciated in Church.” Id. at -. Distinguishing tort-based damages from contract-based damages, the court said that it is “logical in tort cases to tether the amount of damages by balancing the amount to be paid by the negligent tortfea-sor against the goal to restore the plaintiff, as closely as possible, to the position that he would have occupied had the accident never occurred.” Id. at -. However, the damage award for a breach of a contractual obligation to reasonably restore property need not be tethered to the market value of the property. Id at -. This is because the measure of damages in a breach of contract case is governed by the contract. Corbello, — So.2d —. The terms of a contract, which convey the intentions of the parties, overrule any policy considerations behind the rule limiting damages in tort cases. Id. at-.

The Corbello court found that the contract language bound the Corbello defendant, Shell, upon termination of the lease to reasonably restore the premises as nearly as possible to their present condition. Id. at -. This contractual obligation, the court said, did not limit the obligor’s liability for reasonable restoration to the market value of the property. Id. at -.

Applying these precepts to our present facts, we note that the language of the stipulation pour autrui requires Gulf/Chevron to be “responsible for all damages caused by [its] operations.” In Magnolia Coal, 576 So.2d at 477, similar language, |r/‘Lessee shall pay for all damages caused by Lessee’s operations” was regarded as the cost of cleaning up the contaminated area caused by the pollution for which the defendant was responsible. That interpretation of the contractual obligation contained in the stipulation pour autrui is virtually conceded in our present case: Gulf/Chevron states in brief that “some environmental remediation was needed.” Therefore, we reject the argument that the restoration or remediation award cannot exceed the value of the property. Gulf/Chevron’s obligation was to clean up and restore the property. The jury calculated the cost of that clean-up and restoration to be $2,000,000.

GULF/CHEVRON’S ASSIGNMENT OF ERROR NO. 4

By this assignment, Gulf/Chevron complains that the trial judge erred in overruling its plea of prescription. It argues that the claim, regardless of whether it is delic-tual or contractual, prescribed before suit was filed.

Hazelwood acquired the property in 1991. It filed suit on February 13, 1997. The trial court found as a fact that it acquired notice of the potential for radiation damage in 1996, less than a year before suit was filed. The trial court, applying the principle of contra non valen-tón, overruled the exception of prescription.

Although contra non valentem is a legal principle, a determination of whether or not Hazelwood was indeed prevented from filing its claim is an issue of fact, and the trial court’s finding of fact as to this issue is subject to the manifest error, clearly wrong standard of review. Amoco Prod. Co. v. Texaco, Inc., 02-240 (La.App. 3 Cir. 01/29/03); 838 So.2d 821. We find no manifest error in this finding of fact. It was not until 1996 that Hazel-wood, through Mr. Edmundson, learned of the naturally occurring radioactive materials (NORM) presence and groundwater contamination through scientific testing. He testified that it was the discovery of the radiation | ^problem and groundwater contamination that motivated the suit. Mr. Edmundson did not have the ability to detect radioactivity and groundwater pollution on his own. The trial court observed “[t]he mere fact that there’s a presence of oil and gas operations does not automatically mean there is pollution and contamination.... ” It was in March 1996 that Mr. Edmundson inspected the property with an expert, took samples, and learned of the soil and groundwater contamination.

Damage is sustained, within the meaning of prescription, only when it has manifested itself with sufficient certainty to support the accrual of a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154 (La.1993). The damages suffered must at least be actual and appreciable in quality. Where a claimant has suffered some but not all damages, prescription runs from the day on which he suffered actual and appreciable damages even though he may thereafter realize more precise damages. Harvey v. Dixie Graphics, Inc., 593 So.2d 351 (La.1992). However, prescription will not commence at the earliest possible indication that plaintiff may have suffered some wrong. It will begin to run when plaintiff has a reasonable basis to pursue a claim against a specific defendant. Jordan v. Employee Transfer Corporation, 509 So.2d 420 (La.1987). Prescription should not be used to force a potential plaintiff who believes that he may have a cause of action to rush to the courthouse to file suit against all parties that may have caused the damage. Miley v. Consolidated Gravity Drainage District No. 1, 93-1321 (La.App. 1st Cir.9/12/94); 642 So.2d 693.

Labbe Serv. Garage, Inc. v. LBM Distrib., Inc., 94-1043, p. 11 (La.App. 3 Cir. 2/1/95); 650 So.2d 824, 829.

When a party has been damaged by the conduct of another arising out of a contractual relationship, the former may have two remedies; a suit in contract or an action in tort, and he may elect to recover his damages in either- of the two actions. Federal Ins. Co. v. Ins. Co. of North America, 262, La. 871, 262 La. 509, 263 So.2d 871 (1972). A third party beneficiary of a stipulation pour autrui claiming damages arising out of the breach of a contractual obligation in a lease states a cause of action in contract. United Gas Pipe Line Co. v. Cargill, Inc., 612 So.2d 783 (La.App. 1 Cir.1992). Beach of contract claims are subject to a liberative prescription period of ten years |^as provided by La.Civ.Code art. 3499. Amoco Prod. Co., 838 So.2d 821. There is no merit to this assignment of error.

GULFICHEVRON’S ASSIGNMENT OF ERROR NO. 5

By this assignment, Gulf/Chevron asks that we find the trial court erred when it allowed Hazelwood to make arguments and to seek relief contrary to facts which Hazelwood had alleged in its pleadings. It also argues that the trial judge erred in failing to properly instruct the jury as to the effect of these allegations.

Hazelwood named several defendants in its original and amending petitions. They included Gulf, Chevron, International Petroleum, and Liberty Oil and Gas. It alleged that all defendants constructed and used the 12-acre brine pit and the two production pits. Before trial it dismissed all defendants except Gulf/Chevron, and the evidence during the trial preponderated that only Gulf/Chevron constructed and used the three pits. Gulf/Chevron argues that Hazelwood’s pleaded allegations in its petition and amending petition, that others participated in the construction and use of the three pits, should be regarded as a judicial confession, thereby establishing as a fact judicially confessed that others besides Gulf/Chevron participated in the construction and use of the pits.

The trial court’s rulings were correct. The case of Jackson v. Gulf Ins. Co., 250 La. 819, 199 So.2d 886 (La.1967), gives the history of the judicial confession principle in Louisiana and tells us what it means. The Louisiana Civil Code Article then defining it was article 2291. Today the substance of that article is reproduced, without changing the law, in Article 1853. The article reads:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

In Jackson, 199 So.2d at 890-91, the court said: “[a]s a legal concept, the judicial confession is designed to dispense with evidence. It has the effect of withdrawing the subject matter of the confession from issue.” And, “it is of the nature of this kind of admission that it be, by intention, an act of waiver relating to the opponent’s proof and not merely an assertion made for some independent purpose....” Id. Finally, “[a] judicial confession under [the article] is a party’s admission, or concession, in a judicial proceeding of an adverse factual element, waiving evidence as to the subject of the admission.” Id. Hazel-wood’s unilateral pleadings in its petition and amending petition were not judicial confessions.

The above completes our disposition of the assignments of error raised by Gulf/Chevron as First Appellant. We turn now to the issues raised in the appeal of Hazelwood.

HAZELWOOD’S ASSIGNMENT OF ERROR NO. 1

During the time period between 1984 and 1996, Article 2315.3 of the Louisiana Civil Code gave the right to exemplary damages to plaintiffs whose injuries were caused by a defendant’s wanton or reckless disregard for public safety in the storage, handling or transportation of hazardous or toxic substances. The article does not apply to conduct that occurred before 1984. Anderson v. Avondale Ind., Inc., 00-2799 (La.10/16/01); 798 So.2d 93. It was repealed in 1996. Summary judgment is an appropriate procedural vehicle to determine liability for exemplary damages. Chustz v. J.B. Hunt Transp., Inc., 95-0356 (La.11/6/95); 662 So.2d 450.

In pretrial proceedings, the court granted Gulf/Chevron’s motion for partial summary judgment and dismissed Hazelwood’s exemplary damage claim. At the beginning of trial, it reconsidered its ruling and allowed Hazelwood to present evidence that GulfiChevron stored or handled hazardous materials between 1984 and |1K1996. At the conclusion of plaintiffs evidence at trial, the court reinstated its ruling dismissing the Article 2315.3 exemplary damage claim.

Hazelwood assigns error to this ruling. We review summary judgments de novo. Bonnette v. Conoco, Inc., 01-C-2767 (La.1/28/03); 837 So.2d 1219.

According to the recent decision in Bonnette, 837 So.2d 1219, if a defendant acts in compliance with DEQ regulations in effect during the events at issue, it cannot be said that its conduct was highly unreasonable or that it involved an extreme departure from ordinary care, and the defendant is not liable for punitive damages under Article 2315.3. In the present case, Richard Braekin of the DEQ testified that the DEQ did not regulate oilfield NORM until 1989. All of Gulf/Chevron’s activities and conduct occurred well before that date. The only event that happened after that date was when Gulf/Chevron plugged and abandoned a well in 1991 upon order from the State’s Department of Conservation. There was no evidence that that event involved the handling of hazardous materials. Applying the rule of Bonnette, 837 So.2d 1219, the trial judge’s summary judgment dismissing the exemplary damage claim was correct.

HAZELWOOD’S ASSIGNMENT OF ERROR NO. 2

By this assignment, Hazelwood claims that inadequate restoration damages were caused by the trial judge’s error in denying its request for discovery of amounts Chevron had spent for remediation at other sites. Hazelwood argues that discovery of these costs would have enabled it to better cross-examine Gulf/Chevron’s experts, which in turn would have demonstrated to the jury that the cost estimates of those experts were unrealistically low.' Hazelwood does not attack the award itself as being an abuse of the jury’s discretion. Instead, it blames an “unrealistically low” damage award on trial court error in limiting cross-examination of Gulf/Chevron’s experts. |1fiTo evaluate this assignment, it is appropriate that we look at what Hazel-wood was trying to prove.

The two elements of Hazelwood’s claim for damages were radiation contamination and groundwater contamination. Throughout the trial, the damage on which the evidence primarily focused was radiation contamination. Unlike the surface damage caused by abandoned physical objects, which were scattered out all over the 686 acres, the radiation contamination was very localized. In fact, the vast majority of the expert testimony concerning the radiation problem and its remediation requirements and costs centered on the 12-acre brine pit and two nearby production pits. The other damage element was groundwater contamination. This, too, according to the testimony, to the extent that groundwater contamination existed, was traceable to the brine pit and the two production pits.

Because of the nearly exclusive attention given by the testimony to the radiation and groundwater elements of damage, it does not appear that the cost of cleanup of the abandoned physical objects motivated this lawsuit. Indeed, as was revealed when we discussed Gulf/Chevron’s prescription assignment of error, Hazelwood’s Mr. Ed-mundson as much as conceded the point, because he testified that his reason for suing was the discovery of the radiation and groundwater problems. It was clear, therefore, that Hazelwood’s quest for damages was to be measured by the radiation and groundwater contamination.

The evidence revealed that the 12-acre brine pit was originally used as an evaporation storage pit for the operation of the wells, then later it was used as a settling pit during the excavation of the salt dome caverns. This activity was exclusively done by Gulf/Chevron. According to William Kimbrell, a petroleum engineer who testified for Hazelwood, the two production pits and especially the 117brine pit were the major sources of contamination. He testified it would cost $2,900,000 to remediate all the pits on the property, and $803,000 to remediate the production pits used by Gulf/Chevron. Stanley Waligora, a health physicist testifying for Hazelwood, believed that the radiation resulting from NORM in the brine pit was considerably above background and needed remediation. He testified it would cost $68,000,000 to clean up the brine pit. Another Hazel-wood witness, Edwin Cargill, an expert in radiation protection and remediation, agreed with Mr. Waligora’s estimate, and stated that 99.5% of the $68,000,000 price was made necessary because of the brine pit.

Gulf/Chevron’s experts, on the other hand, reached much lower estimates of the cost of NORM remediation. Carol Berger, a health physicist who owned and operated a radiation remediation business, said it could be done for $203,523.

The testimony regarding the necessity for remediation of groundwater contamination and its cost was similarly divergent. James E. Brinkman, a hydrogeologist for Hazelwood, using bore hole samples going to a depth of 23 feet in the brine pit, found elevated levels of chlorides, radium, lead, barium, and chromium. From this he concluded that the groundwater below the pits was contaminated, theorizing that the contaminated water was moving downward into both the Atchafalaya and the Chicot Aquifers. Because they were the sources of drinking water in St. Landry Parish, he recommended a $15,000,000 water remediation program for the benefit of the aquifers. He found “non-detects” of radium and heavy metals in the water sample from the irrigation well. Mr. Brinkman’s counterpart on the other side, hydrogeologist Dr. Brian Carter, testified that the brine pit samples were taken from a shallow 23 foot level, that in St. |1sLandry Parish there was a fifty or sixty foot layer of clay below that, and that the average depth of water wells in the parish was 140 feet — all meaning that there was no linkage between the brine pit residue and the aquifer system at the irrigation well level. He testified that the chlorides in the brine pit could not move through the clay layer and into the aquifers. Furthermore, according to Dr. Carter, the irrigation well on the Hazelwood property was 188 feet deep, and water quality data from all sources, including Hazelwood’s tests, showed no difference from other water wells around St. Landry Parish and no excesses in chlorides or other elements. In short, he testified that there was no water contamination, and that a relatively inexpensive monitoring plan was all that would be needed.

Both in pretrial rulings and in rulings during trial, the trial court restricted discovery and testimony to the cost of remediation of the Hazelwood contamination. These rulings, even as to the regulation of pretrial discovery, were within the broad discretion of the trial court. A trial court has broad discretion in regulating pretrial discovery, including the scope of discovery. Moak v. Illinois Cent. R.R. Co., 93-0783 (La.1/14/94); 631 So.2d 401; Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir.1990). Hazelwood wanted to discover the cost of Chevron clean-ups at other sites in Louisiana and Mississippi. The trial judge would not allow it, reasoning that other sites involved entirely different facts, different property, different damages, and different remediation requirements. To the trial judge, it was a matter of relevance and an unnecessary consumption of time and confusion of the issues. We find no abuse of discretion in this ruling.

HAZELWOOD’S ASSIGNMENT OF ERROR NO. 3

|19Hazelwood’s final assignment of error is that the trial judge failed to follow the proper procedure in setting its expert witness costs and by setting those costs in abusively low amounts. The argument for this assignment does not particularize as to any expert witness or witnesses; it merely addresses in general the contention that the fees and costs of all experts were insufficient.

The trial judge did not conduct separate hearings, outside the presence of the jury, to determine the fees he fixed for each of the Plaintiffs experts and assessed as costs to be paid by Gulf/Chevron. However, most of them testified what hourly rate they charged and the extent of their work on the case before trial. The judge knew the duration of their testimony. The total of awards for the plaintiffs ten experts was $11,650, ranging from a low of $300 to a high of $1,500.

Interpreting La.R.S. 13:3666, the court of appeal in Allen v. Roadway Express, Inc., 31,628 (La.App. 2 Cir. 2/21/99); 728 So.2d 1015, stated that a trial court is authorized to set expert witness fees based on his direct hearing and observation of the experts at trial. That is what the trial judge did in this case. Our review of the record convinces us that the trial court was thoroughly acquainted with the contribution that each witness made to the case and was in a sound position to evaluate a reasonable fee to be taxed as costs. This was done after the jury had returned its verdict. The holding of a special rule to show cause hearing to fix fees, although a permissible alternative under La.R.S. 13:3666, was entirely unnecessary. Nearly every witness testified as to his or her hourly rate.

The trial court “may render judgment for costs ... as it may consider equitable.” La.Code Civ. P. art.1920. On review, an appellate court can modify a trial court’s assessment of costs only upon a showing of abuse of discretion. Smith v. Louisiana Farm Bureau Cas. Ins. Co., 603 So.2d 199 (La.App. 3 Cir.), writ denied, 605 So.2d 1115 (La.1992).

Hazelwood asks us to compare the award of $65,000 as expert fees in Corbel-lo, affirmed by this court at 806 So.2d 32. In that case the cost of restoration alone awarded by the jury was $83,000,000. In our present case the restoration award was $2,000,000. In terms of the ratio between the damage award and the total of witness fees in these two cases, the comparison is not an unfavorable one. Even so, in fixing expert witness fees, each case must turn on its own peculiar facts and circumstances. Viator v. Liverpool & London Steamship Protection & Indem. Assoc., 97-264 (La.App. 3 Cir. 10/8/97); 701 So.2d 487, writ denied, 98-0027 (La.3/13/98); 712 So.2d 880, cert. denied, 525 U.S. 821, 119 S.Ct. 63, 142 L.Ed.2d 49 (1998). We can find no abuse of discretion in the trial court’s award of expert witness fees.

For the forgoing reasons, the judgment of the trial court is affirmed.. Hazelwood Farm, Inc., is assessed all costs of this appeal.

AFFIRMED.

      . The evaporation pond is also referred to as the brine pit, the evaporation pit, and the brine evaporation pit. The witnesses, including Hazelwood's, disagreed as to its size, some thinking it was 12 acres, others that it was 21 acres. It was by all accounts an exceptionally large brine pit. Most of the witnesses believed it was 12 acres.

      . We glean from the experts that radiation is present nearly everywhere and its presence is measurable at a constant low level. That constant is called background.


source: Caselaw Access Project

author: 1GLENN B. GREMILLION, Judge. 1GREMILLION, Judge.

license: Public Domain

text:
    Debra JACKSON and James Jackson, et al. v. RUBICON, INC., et al.
    No. 02-1156.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2003.
    Opinion Granting Rehearing May 14, 2003.

      David O’Shee Walker, Neblett, Beard & Areeneaux, Alexandria, LA, for Plaintiff/Appellee, Debra Jackson, James Jackson.
    David Andrew Fraser, Lake ' Charles, LA, Steven J. Levine, Phelps, Dunbar, L.L.P., Patrick O’Hara, Phelps, Dunbar, L.L.P., Baton Rouge, LA, Pamela Joan LeBato, Fraser, Morris & Wheeler, Lake Charles, LA, for Defendant/Appellant, Rubicon, Inc.
    John Michael Grimley, Jr., Galloway, Johnson, Tompkins, Burr & Smith, Anthony Scott Maska, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendants/Appellants, Arthur Lee LaF-our, Allwaste Environmental Services.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   1GLENN B. GREMILLION, Judge.

In this case, one of the defendants, Rubicon, Inc., appeals the trial court’s judgment imposing in solido liability among the defendants, in favor of the plaintiffs, James and Debra Jackson. We affirm for reasons other than those given by the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1998, the Jacksons filed suit for damages arising out of a March 1997 chemical spill in Vinton, Louisiana, in which Debra was exposed to toxic chemicals. Debra was a passenger in a van that passed through the area shortly after two eighteen-wheelers had collided causing the chemicals to spill to the ground.

The matter was resolved at a mediation in May 2001, after which a settlement agreement was entered into. It stated:

MEMORANDUM OF SETTLEMENT

For and in consideration of the settlement, release and dismissal of any and all claiins with prejudice, plaintiffs Debra and’ James Jackson, individually, and Debra Jackson on behalf of her three children, agree to accept, and defendants agree to pay, the sum of TEN THOUSAND AND NO/100 ($10,000.00) DOLLARS, together with court costs and plaintiffs mediation fees. Defendants agree to fund settlement within two (2) weeks of this date, except that court approval will be needed regarding the minors’ settlements. Terms of settlement are confidential. Lake Charles, La this 24th day of May, 2001.

The settlement agreement was, thereafter, signed by the Jacksons, as well as by a representative of Rubicon and a representative for AlWaste, LaFour and Reliance.

IgOri October 3, 2001, the commonwealth court of Pennsylvania declared Reliance Insurance Company insolvent. The judgment was filed into the record by the Calcasieu Parish Clerk of Court on November 5, 2001.

Following a hearing on October 17, 2001, the trial court rendered two written judgments. The first judgment appears to have been signed October 28, 2001, although it was filed into the record on October 22, 2001, and states (emphasis added):

ORDERED, ADJUDGED AND DECREED that the written memorandum of settlement agreement is enforced pursuant to its written terms and that plaintiffs are awarded $10,000 against the defendants, RELIANCE NATIONAL INDEMNITY COMPANY, ALL-WASTE ENVIRONMENTAL SERVICES OF TEXAS, INC., ARTHUR LEE LAFOUR, and RUBICON, INC., in solido, together with all court costs; it is further
ORDERED, ADJUDGED and DECREED that plaintiffs are awarded penalties in the amount of $20,000, which is two times the amount of the damages, against RELIANCE NATIONAL INDEMNITY COMPANY, and ALL-WASTE ENVIRONMENTAL SERVICES OF TEXAS, INC., in solido.

The second judgment issued by the trial court was signed on October 23, 2001, and filed into the record on that same day. It reads:

ORDERED, ADJUDGED AND DECREED that the written memorandum of settlement agreement is enforced pursuant to its written terms and that plaintiffs are awarded $10,000 against the defendants, RELIANCE NATIONAL INDEMNITY COMPANY, ALL-WASTE ENVIRONMENTAL SERVICES OF TEXAS, INC., ARTHUR LEE LAFOUR, and RUBICON, INC., together with all court costs; it is further
ORDERED, ADJUDGED AND DECREED that plaintiffs are awarded penalties in the amount of $20,000, which is two times the | -¡amount of the damages, against RELIANCE NATIONAL INDEMNITY COMPANY, and ALL-WASTE ENVIRONMENTAL SERVICES OF TEXAS, Inc., in solido.

On November 13, 2001, Rubicon filed a Motion for Reconsideration of the judgment signed October 28, 2001, urging that, because there was no basis for in solido liability under the Memorandum of Settlement, the October 28, 2001 judgment should be set aside and the October 23, 2001 judgment should be enforced.

Following a May 16, 2002 hearing, the trial court rendered the following judgment:

ORDERED, ADJUDGED AND DECREED that Defendant’s Motion for Reconsideration and Motion for New Trial are granted vacating the Judgments dated October 23, 2001 and October 28, 2001; it is further
ORDERED, ADJUDGED AND DECREED that the written Memorandum of Settlement Agreement is enforced pursuant to its written terms and that plaintiffs are awarded the sum of $10,000.00 against the defendants, RELIANCE NATIONAL INDEMNITY CO., ALLWASTE ENVIRONMENTAL SERVICES OF TEXAS, INC., ARTHUR LEE LAFOUR, and RUBICON, INC., in solido, together with all court costs and the plaintiffs mediation fee; it is further
ORDERED, ADJUDGED AND DECREED that plaintiffs are awarded penalties in the amount of $20,000.00 against RELIANCE NATIONAL INDEMNITY Co.

Rubicon timely appealed to this court and assigns as error the trial court’s failure to determine the intent of the parties and in holding the defendants solidarily liable for the settlement amount.

I ¿DISCUSSION

The question of whether the defendants intended to be bound solidarily is a mixed question of law and fact. Thus, we review the trial court’s findings using the manifest error standard of review.

“Solidarity of obligation shall not be presumed. A solidary obligation arises from a clear expression of the parties’ intent or from the law.” La.Civ.Code art. 1796. In solido liability arises from the law when a tortfeasor “conspires with another person to commit an intentional or willful act.” La.Civ.Code art. 2324. If liability is not solidary pursuant to a conspiracy to commit an intentional act, “then liability for damages caused by two or more persons shall .be a joint and divisible obligation.” Id.

At the hearing on the Motion for Reconsideration and New Trial, the following colloquy occurred:

MR. WALKER [counsel for plaintiffs]:
That’s what we asked the Court. And, Your Honor, since you ruled, there has been a case come out of the Supreme Court, Burleighay (sp), which stands for the proposition where all four defendants signed the mediation agreement or agreement to settle and they don’t state that they’re only supposed to fund their prorata share, then all of them were responsible for the full amount; and that’s what we’re asking the Court to rule that all of these people that signed this mediation agreement saying that these plaintiffs would have their $10,000 in two weeks are responsible.
THE COURT:
I don’t have any problem with the fact that you may go against any one of these defendants for the entire amount.
MR. WALKER:
All right. That’s all we need then, Your Honor.
|bTHE COURT:
Let them fight their own battles among them.

Counsel for Rubicon then went on to argue that the two judgments that were signed contained a substantial difference with the Memorandum of Settlement — the imposition of in solido liability — that was not agreed upon by the defendants. Finally, the court concluded:

THE COURT:
Costs assessed against the defendants in solido. All right. Thank y’all.

Based on our review of the record, we find that no reasonable person could have concluded that the defendants clearly intended to be bound solidarily. The Louisiana Supreme Court recently addressed the same issue in similar circumstances in Berlier v. A.P. Green Industries, Inc., 01-1530 (La.4/30/02), 815 So.2d 39, a case cited by both the Jacksons and Rubicon. In Berlier, the supreme court addressed the issue of whether four settling defendants in an asbestos-related personal injury suit intended to be bound solidarily. The supreme court concluded that they did not and found that the settlement was a joint and indivisible obligation. The supreme court stated:

The court of appeal found that a solidary obligation arose in this case from the law, relying on Cole v. Celotex,[ 599 So.2d 1058 (La.1992) ] supra, in which “the Louisiana Supreme Court held that various asbestos defendants are solidarily liable for damages suffered by plaintiffs.” 787 So.2d at 1060. However, the court of appeal erred in relying on Cole, a delictual action wherein certain defendants were found liable after a two-week trial for failing to provide a safe workplace, and the liability of the manufacturers of asbestos containing products, who settled before trial, was stipulated at trial. In this case, there was no trial on plaintiffs’ tort claim as the parties settled before trial, and, the release expressly states that “nothing contained in this agreement shall be construed or deemed | fian admission of wrongdoing or of liability by any party.... ” Except for the settlement, there would be no liability at all, since this case has not been tried. Whether the defendants in this case would have been solidarity liable in tort has not been, and may never be, determined. Therefore, Cole is inapplicable to the instant case.
Thus, as solidary liability does not arise in this case from law, the only remaining issue is whether it arises from a “clear expression of the parties’ intent.” A solidary obligation may arise even though the words “solidarity” or “in solido ” are not used, as long as the parties’ intent to be solidarity liable is clearly expressed. La. C.C. art. 1796, Official Comment (b). In resolving this issue in a case involving the joint or solidary liability of six makers of a promissory note, this Court explained:
When several persons join in the same contract to do the same thing, it produces a joint obligation on the part of the obligors. However, where several persons obligate themselves to the ob-ligee by the terms In solido or use any other expressions that clearly show that they intend that each one shall be separately bound to perform the whole of the obligation, it is called an obligation in Solido on the part of the obligors. An obligation In solido is not presumed; it must be expressly stipulated.
It is well settled that, absent additional promissory language, the words ‘(w)e promise to pay’ in a not signed by co-makers are insufficient to constitute the express stipulation of liability In solido required by law.

Id. at 45.

Similarly, the present case settled pretrial before a determination of liability, if any, had been made. There is no question that solidarity did not arise by operation of law in this case. Thus, the trial court had to find that the parties clearly intended to be solidarity bound. We have reviewed the record and there is no evidence in the record to that effect. The Memorandum of Settlement mentions no such arrangement or intention to be bound solidarity. In fact, it is clear from our review of the hearing transcript that the trial court presumed solidarity amongst the | defendants, without regard to their intentions. Because we have found that it was manifest error for the trial court to so find we will conduct a de novo review of the record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In their brief, the Jacksons urge that, pursuant to Berlier, “it is respectfully requested that this Court find that there exists a joint and indivisible obligation which binds each of the defendants for the full amount of the settlement.” We find that such an obligation exists for the reasons stated below.

The obligation of the defendants to the Jacksons for payment of $10,000 is one in which different obligors owe together just one performance, since the defendants, in the same act (the settlement agreement), promised to give one sum of money to the Jacksons. Berlier, 815 So.2d 39. The fact that this is a joint obligation is further supported by the fact that there was no statement in the settlement agreement listing individual amounts that each defendant would be responsible for. Id.

Joint obligations are either divisible or indivisible. In a divisible joint obligation, each joint obligor is bound to perform only his portion. La.Civ.Code art. 1789. In an indivisible joint obligation, joint obligors are subject to the rules governing solidary obligors. Id. Although money is easily divisible, it can be the subject of an indivisible obligation because of the intent of the parties. Berlier, 815 So.2d 39; La.Civ.Code art. 1815.

Similarly, in Berlier, the supreme court rejected the notion that the defendants were liable in solido, but subsequently held that there existed a joint and | indivisible obligation. Our review of the settlement agreement and the record leads us to conclude that the defendants in the instant case intended that the obligation be executed as if it were indivisible for many of the same reasons given by the supreme court in Berlier. For example: the Jack-sons agreed to settle for a lump-sum payment of $10,000; they were unaware of how that settlement would be apportioned among the defendants; the defendants expressed, in the memorandum of settlement, that they would pay the plaintiffs a lump-sum of $10,000; there was no mention of pro-rata portions that would be attributed to each defendant; and finally, the memorandum of settlement released all the defendants in exchange for the lump-sum settlement regardless of the nature of the defendant’s particular contribution. After reviewing these facts and the record, we find that Rubicon intended that its obligation be indivisible with that of the other defendants. Therefore, the obligation must be performed in whole by payment of the $10,000 by all or any one of the defendants, including Rubicon.

JUDICIAL INTEREST

The Jacksons urge they are entitled to judicial interest on all amounts from the date of judicial demand until paid. Pursuant to La.Code Civ.P. art. 2133 we will not address this issue as the Jacksons failed to answer the appeal.

CONCLUSION

The judgment in favor of the plaintiffs/appellees, Debra and James Jackson, finding that the defendant/appellant, Rubicon, Inc., is obligated to them for the entire $10,000, is affirmed. Costs of this appeal are assessed against Rubicon, Inc.

AFFIRMED.

ON REHEARING

1GREMILLION, Judge.

The plaintiffs-appellees, Debra and James Jackson, have applied for rehearing on the issue of judicial interest. We grant rehearing to address that issue. In our original opinion in this matter, Jackson v. Rubicon, 02-1156 (La.App. 3 Cir. 4/2/03), 844 So.2d 394, we declined to address the issue of judicial interest pursuant to La. Code Civ.P. art. 2133, because the Jack-sons failed to file an answer to Rubicon’s appeal.

On rehearing, the Jacksons urge that they timely filed an answer and are entitled to judicial interest. In our previous examination of this issue, the record was devoid of any answer by the Jacksons. However, the record has now been supplemented with the Jacksons’ timely filed answer of July 26, 2002. Therefore, we find that legal interest from the date of judicial demand is properly due the Jacksons pursuant to La.Civ.Code art. 2000, La.Code Civ.P. art. 1921, and La.R.S. 13:4203.

REHEARING GRANTED, JUDGMENT RENDERED.

      . The other defendants, who have not appealed, are AllWaste Environmental Services of Texas, Inc, its employee, Arthur Lee LaFour, and its insurance company, Reliance National Indemnity Company.

      . This motion is not in the record, however the parties entered into a joint agreement to supplement the record with a copy of it.


author: 2GUIDRY, J.

text:
    LOUISIANA EGGS, INC. (in Liquidation) v. GUNTER FARMS, INC., et al.
    No. 2001 CA 0932.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Robert G. Nida, Alexandria, Counsel for Plaintiff/Appellee Louisiana Eggs, Inc.
    Loma M. Brasseaux, Baton Rouge, Counsel for Defendant/Appellant Gunter Farms, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   2GUIDRY, J.

Debtor company contests the amount calculated by the trial court as the sum due on an outstanding debt owed to a corporation in liquidation. For the following reasons, we find merit in the appellant’s contention and modify the trial court’s judgment accordingly.

FACTS AND PROCEDURAL HISTORY

In 1995, Louisiana Eggs, Inc. (Louisiana Eggs) was formed to engage in the business of buying and processing “nest run eggs” and reselling those (shell) eggs to distributors and retail establishments, such as restaurants and grocery stores. The stockholders of Louisiana Eggs were Herbert Holman, George Holman and Joseph Gunter, each owning an equally divided number of shares in the company. Herbert Holman also acted as president of the company. Louisiana Eggs’ principal place of business was in Calcasieu, Louisiana, in a facility leased from Gunter Food Products, a corporation in reorganization (bankruptcy) and owned by Margaret and Ken Gunter, Joseph Gunter’s parents. Herbert Holman resided in Hartwell, Georgia, and thus, Margaret and Ken Gunter conducted the day-to-day operations of Louisiana Eggs.

As previously stated, Louisiana Eggs supplied shell eggs to distributors and retail customers, such as Gunter Farms, Inc., a company that primarily engages in the selling of boiled and peeled (hard cooked) eggs. Gunter Farms’ principal place of business is in Baton Rouge, Louisiana, and its sole shareholder is Charles McCoy. Joseph Gunter, who holds no ownership interest in Gunter Farms, acts as the company’s president, and Charles McCoy is the company’s chief executive officer.

IsAround September of 1996, Herbert Holman became concerned when he discovered that Louisiana Eggs’ accounts receivable had grown to a considerable sum, thereby reducing the operating capital of the company. Fearing that the high balance of the company’s accounts receivable would adversely affect the likelihood of Louisiana Eggs’ fine of credit being renewed, Herbert Holman met with the officers of Louisiana Eggs’ largest debtor, Gunter Farms.

As a result of the meeting, Joseph Gun-ter and Charles McCoy agreed to grant Louisiana Eggs a security interest in the following collateral: A 1993 Sanova SB SC & SP800 Model 841 Egg Machine; a 1984 Volvo Truck; and deposit accounts. Herbert Holman was told that Louisiana Eggs was being granted a first lien against the collateral. Charles McCoy and Joseph Gunter executed a commercial security agreement (UCC 17-1124229) granting Louisiana Eggs a security interest in the aforementioned collateral on September 6, 1996, and filed the agreement with the East Baton Rouge Parish Clerk of Court on September 26,1996.

In November 1996, Herbert Holman learned that Louisiana Eggs’ line of credit would not be renewed, and finding that it was no longer feasible to operate the business, he decided to declare bankruptcy on behalf of Louisiana Eggs. While in liquidation, Louisiana Eggs, through its court-appointed liquidators, Herbert Holman and George Holman, attempted to collect $92,521.75 from Gunter Farms as the balance due on its account. When Gunter Farms contested the amount owed, Louisiana Eggs attempted to execute against the collateral in which it had been granted a security interest. At that time, Louisiana Eggs learned that Joseph Gunter and Charles McCoy had canceled the September 6, 1996 security agreement on November 13, 1996. Louisiana Eggs also learned that the September 6, 1996 security agreement was not the first lien against the collateral pledged by 14Gunter Farms, but a previous security interest in the collateral had been granted in favor of Charles McCoy on February 24, 1993 (UCC 17-1084154).

Louisiana Eggs, through Herbert Holman and George Holman, filed suit against Gunter Farms, Charles McCoy and Joseph Gunter, in their individual capacities, on August 22,1997. In its petition, Louisiana Eggs asserted that Gunter Farms was indebted to Louisiana Eggs in the amount of $92,521.75, and requested that the security interest granted Louisiana Eggs by Gun-ter Farms on September 6, 1996, be reinstated and ranked above any other lien encumbering the collateral. As a final prayer, Louisiana Eggs requested that a writ of seizure and sale be issued for the sale of the collateral listed in the September 6, 1996 security agreement. By an’ amended petition filed February 4, 1998, Louisiana Eggs asserted that Charles McCoy and Joseph Gunter were individually hable for any damages suffered by Louisiana Eggs based on their fraudulent misrepresentation that the September 6, 1996 security agreement was the first encumbrance of the collateral listed therein.

A bench trial was held on September 1, 2000, at the conclusion of which the trial court rendered judgment in favor of Louisiana Eggs, finding Gunter Farms liable to Louisiana Eggs for the sum of $92,521.75. The trial court ordered the reinstatement of the September 6, 1996 security agreement, as having been improperly canceled, and further ordered that the security agreement maintain the ranking privilege it had acquired when first filed. The trial court also ordered the issuance of a writ of seizure and sale of the collateral listed in the September 6, 1996 security agreement. Finally, the trial court dismissed all claims against Charles McCoy and Joseph Gunter individually.

Gunter Farms suspensively appealed the judgment of the trial court, and Louisiana Eggs, through its liquidators, answered the appeal.

^ASSIGNMENTS OF ERROR

In lodging this appeal, Gunter Farms basically contests the trial court’s determination that it owed the full amount of $92,521.75 based on the evidence presented. In answer to the appeal, Louisiana Eggs asserts that the trial court erred in fading to award attorney fees pursuant to provisions of the September 6, 1996 security agreement.

DISCUSSION

In proving an open account, plaintiff first must prove the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Once a prima facie case has been established by a plaintiff-creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Heritage Worldwide, Inc. v. Jimmy Swaggart Ministries, 95-0484, p. 5 (La.App 1st Cir. 11/16/95), 665 So.2d 523, 527, writ denied, 96-0415 (La.3/29/96), 670 So.2d 1233. The parties do not dispute that Gunter Farms had an account with Louisiana Eggs, whereby Gunter Farms was supplied with shell eggs on credit, rather the dispute is to the amount due.

At the trial of this matter, only two witnesses were called to testify, Herbert Holman and Joseph Gunter. To prove the amount owed, Herbert Holman produced an itemized listing of the invoices issued to Gunter Farms to substantiate the amount claimed by Louisiana Eggs to be due on Gunter Farms’ account. Louisiana Eggs also submitted, as exhibit P-1, copies of the actual invoices from which Herbert Holman compiled P-2, the itemized listing.

Gunter Farms, in an attempt to disprove the accuracy of the record submitted by Louisiana Eggs, pointed out some discrepancies between the total amounts shown on certain dates as listed on exhibit P-2, and those shown to be owing on two other financial documents compiled by Herbert Holman on behalf of Louisiana | fiEggs. The first document, an aging accounts receivable list marked as exhibit D-2, gives a monthly listing of all accounts receivable held by Louisiana Eggs. At trial, Gunter Farms questioned Herbert Holman regarding the last three pages of the document in which it was shown that in the months ending July 31, 1996 and October 31, 1996, no outstanding balance over 30 days was shown for Gunter Farms. However, on the last page of the document for the month ending November 20, 1996, the amount of $83,167.15 appears in the column for balances over thirty days.

Herbert Holman explained the discrepancy by stating that at the time he compiled the aging accounts receivable list, he did not have the individual invoices in his possession. And indeed, the first page of the aging accounts receivable list contains the following statement: “All lists were prepared from data submitted by Margaret Gunter, therefore if any formal list exist (sic) for other months the copys (sic) should be in the Calcasieu office.”

The second document by which Gunter Farms sought to impeach the itemized listing submitted by Louisiana Eggs was exhibit D-3, Louisiana Eggs’ financial statement for the month ending July 31, 1996. As of July 31, 1996, Louisiana Eggs’ financial statement indicated that the total accounts receivable (incorrectly labeled notes receivable) for Gunter Farms was $90,680.31, which amount differed for the amount listed on both documents D-2 and P-2 for approximately the same date. Herbert Holman’s explanation for the discrepancy in that document was to again note that he drafted the document based on information supplied to him by Margaret and Ken Gunter. He testified, “[t]he only thing I did not get specifically individually were sales invoices and, obviously, not detailed subsidiary ledgers on sales.” Herbert Holman further testified that sometime after November 1996, he asked Margaret Gunter to box up all of the company’s paperwork left in the Calcasieu office and send it to him in Georgia, which is when 17he received the invoices from which he compiled the itemized listing marked as exhibit P-2.

Gunter Farms further questioned the accuracy of the individual sales invoices submitted by Louisiana Eggs in exhibit P-1. Both Herbert Holman and Joseph Gun-ter testified that prior to May 1996, Gunter Farms sold both shell and hard cooked eggs. However, after that date, Louisiana Eggs took over the distribution of shell eggs, while Gunter Farms focused primarily on supplying hard cooked eggs. Furthermore, both men testified that sometime during or after May 1996, Louisiana Eggs began paying Gunter Farms to deliver shell eggs to its Baton Rouge customers.

However, in regard to whether this change affected the billing practices of Louisiana Eggs, Joseph Gunter testified that after May 1996, a portion of the billing invoices issued to it listed shell eggs that were given to Gunter Farms for delivery to Louisiana Eggs’ retail customers in Baton Rouge. He explained that by examining the individual invoices, orders of eggs that were listed on the invoices based on size or listed in quantities other than by the pallet, cart or dolly, were for Louisiana Eggs’ retail customers in Baton Rouge. Joseph Gunter, therefore, stated that portions of the amounts billed on some of the invoices were improperly credited to Gun-ter Farms when actually attributable to Louisiana Eggs’ Baton Rouge retail customers.

Herbert Holman, on the other hand, insisted that it was Louisiana Eggs’ practice to bill customers for all eggs delivered to them. Thus, Herbert Holman testified that exhibit P-2, an itemized listing he compiled based on the individual sales invoices issued to Gunter Farms, accurately reflected the balance due. The evidence in the record reveals that each invoice was written by either Ken or Margaret Gunter and itemized eaeh egg order according to either size or packaging with one grand total listed at the bottom of each invoice. Although separate totals | sare indicated on the invoice for quantity (marked “loose” for those eggs Joseph Gunter alleges were for Louisiana Eggs’ customers and “etn” for those eggs Joseph Gunter insisted were for Gunter Farms), there is no separate total given for cost.

The amount of an account is a question of fact that may not be disturbed absent manifest error. Heritage Worldwide, Inc., 95-0484 at 5, 665 So.2d at 527. The trial court, in considering the aforementioned evidence, found Gunter Farms was indebted to Louisiana Eggs in the amount of $92,521.75, as indicated on exhibit P-2. We find no error in the trial court’s decision to credit the evidence and testimony of Louisiana Eggs over that presented by Gunter Farms in finding that a prima facie case was established. However, we do find that the trial court erred in not allowing Gunter Farms a credit to the extent proven by it since there is nothing in the record to disprove Gunter Farms’ entitlement to the credits.

At trial, Herbert Holman testified that to the best of his knowledge, any credit given to, or payments made by, Gunter Farms was reflected on exhibit P-2. On reviewing exhibits P-2, P-1 and P-7, we note that none of the credit invoices, introduced by Gunter Farms as exhibit D-6, is reflected on exhibit P-2. Thus, although we agree with the trial court that the introduction of exhibits P-1, P-2 and P-7, along with Herbert Holman’s supporting testimony, was sufficient to establish Louisiana Eggs’ prima facie claim, we find that the trial court erred in not finding that Gunter Farms was entitled to certain credits against the amount owed based on the evidence submitted by it as exhibit D-6. We thus conclude that Louisiana Eggs’ recovery should be reduced by the amount of credits proven by Gunter 19Farms.

As for Louisiana Eggs’ answer to the appeal, we also find merit in its contention that the trial court erred in not awarding it attorney fees pursuant to the September 6, 1996 security agreement. We find that Louisiana Eggs is entitled to attorney fees under Section 10, subparts (B) and (D) of that document. Section 10(B) states that in the event of a default, the Secured Party has a right to accelerate payment of all amounts owed by the Debt- or, and thereby foreclose on the collateral. In the event of such foreclosure, Section 10(B) states that the Secured Party is entitled to, among other costs and expenses, attorney fees. Section 10(D) states the “Debtor shall be liable for and agrees to pay on demand the reasonable expenses incurred by Secured Party in enforcing its right and remedies, in retaking, holding, ... of the Collateral, or like expenses, including without limitation, attorney’s fees and legal expenses incurred by Secured Party.”

Although the main focus of the trial in this matter was to prove the amount owed by Gunter Farms on its accounts receivable, Louisiana Eggs additionally demanded and was granted relief regarding the collateral pledged in the September 6, 1996 security agreement. Therefore, based on the relief requested by Louisiana Eggs and granted by the trial court in regard to the collateral listed in the September 6, 1996 security agreement, we find that Louisiana Eggs is entitled to reasonable attorney fees pursuant to the agreement. However, because the record lacks evidence regarding the value and the extent of the services provided by counsel for Louisiana Eggs, we must remand this matter to the trial court for an evidentiary hearing to determine reasonable attorney fees. See City of New Orleans v. Condon, 600 So.2d 78, 81 (La.App. 4th Cir.), writ denied, 605 So.2d 1130 (La.1992).

^CONCLUSION

Having found that the trial court erred in failing to reduce the sum owed to Louisiana Eggs based on the credits proven by Gunter Farms, we amend the judgment to award Louisiana Eggs the sum of $83,033.50, reflecting a credit in favor of Gunter Farms in the amount of $9,488.25. We also reverse that portion of the trial court’s judgment denying Louisiana Eggs’ request for attorney fees and hereby remand this matter to the trial court for a determination of a reasonable amount of attorney fees to award. All costs of this appeal are to be equally divided among the parties to this appeal.

AMENDED IN PART, REVERSED IN PART AND REMANDED.

      . A "nest run egg” is described as eggs that come straight from the hens, unwashed and unmeasured. Louisiana Eggs, Inc. owned a grading machine that would wash, weigh and separate the eggs into various sizes for subsequent distribution as shell eggs.

      . We observe that exhibit P-7 contains several invoices dated before May 1996, with attached payment receipts, that were not included on the itemized listing, P-2. However, neither party questioned the failure to include these additional invoices and payments on P-2. Except for invoice number 12301 in the amount of $5,197.48, dated March 26, 1996, we note that the invoices and payments listed in P-2 largely correspond to the invoices found in exhibits P-1 and P-7, excluding the invoices previously mentioned. We further note that the amount of invoice number 12301 is canceled out by a credit in favor of Gunter Farms for $5,197.48 on August 20, 1996, as shown on P-2.


author: 2GAIDRY, J.

text:
    Arthur Douglas BOX v. CITY OF BATON ROUGE, Parish of East Baton Rouge Risk Management.
    No. 2002 CA 0198.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      Phil E. Miley, Baton Rouge, Counsel for PlaintiffiAppellee Arthur Douglas Box.
    Eugene Booth, Baton Rouge, Counsel for DefendanVAppellant City of Baton Rouge, Parish of East Baton Rouge Risk Management.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   ON APPLICATION FOR REHEARING

2GAIDRY, J.

The City of Baton Rouge (the City) appealed the decision of the Office of Workers’ Compensation (OWC) finding that plaintiff Arthur Box’s claim for benefits had not prescribed and awarding Box medical benefits. Box answered the appeal and asserted that the workers’ compensation judge (WCJ) erred in failing to award penalties and attorney fees under La. R.S. 23:1201(F).

This court found that there was no exception of prescription filed in the record, and therefore the issue of prescription was not properly before us. In addition, we concluded that since the plaintiff failed to raise the issues of penalties and attorney’s fees in the OWC proceeding, they were not properly before us. In a written opinion by this court dated January 15, 2003, we vacated the portions of the OWC judgment denying the defendant’s exception of prescription and denying plaintiff disability benefits, and affirmed the award of medical benefits.

In its application for rehearing, the City of Baton Rouge pointed out that a -written exception of prescription had in fact been filed with the OWC, but had inadvertently been omitted from the appellate record. Following supplementation of the record with the omitted pleading, we grant rehearing on the issue of prescription and affirm the decision of the OWC denying the City’s exception of prescription.

| .DISCUSSION

The relevant factual and procedural history have already been set forth in a prior opinion and are not repeated herein. See Box v. City of Baton Rouge, 02-0198 pp. 2-3, 846 So.2d 13, 14, 2003 WL 122584 (La.App. 1st Cir.2003). The WCJ found that Mr. Box’s claim was not prescribed under La. R.S. 23:1031.1 because he was not yet disabled as of the time of the trial. The OWC committed legal error in applying La. R.S. 23:1031.1 to Mr. Box’s claim for medical benefits. Appellate review of a question of law is simply a decision as to whether the lower court’s decision is legally correct or incorrect. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709, 712 (La.App. 4 Cir.1992). If the trial court’s decision was based upon its erroneous application of law, rather than on a valid exercise of discretion, the trial court’s decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1071-1072 (La.1983). In fact, when an appellate court finds that a reversible error of law or manifest error of material fact was made in the lower court, it must redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Louisiana Revised Statutes 23:1031.1(E) provides the prescriptive period for “all claims for disability arising from an occupational disease.” (Emphasis added). Therefore, the prescriptive period set forth in La. R.S. 23:1031.1 applies only to claims for disablement; an employee who is not disabled, although he knows he has contracted an occupational disease, is not required under a proper interpretation of La. R.S. 23:1031.1 to file his claim within the period set forth therein because, unless he is disabled, he has no cause of action for recovery under that statute. LaCoste v. J. Ray McDermott & Co., 250 La. 43, 193 So.2d 779, 782-83 (1967). An award of medical [ ¿benefits under La. R.S. 23:1203 is separate and distinct from an award of disability benefits and does not require proof of disability. An injured employee’s entitlement to benefits for medical expenses exists even if he returns to work, provided he requires medical treatment for the work-related injury; however, an injured employee’s entitlement to disability benefits is triggered only upon a showing of disability. Jacquet v. Southern Structures, Inc., 97-1696, p. 8 (La.App. 3 Cir. 5/20/98), 713 So.2d 723, 728. Since Mr. Box filed only a claim for medical benefits, and not for disability benefits, the prescriptive period provided by La. R.S. 23:1031.1(E) for “all claims for disability” is not applicable to his claim, and the OWC committed legal error by applying it.

The appropriate prescriptive period to apply to Mr. Box’s claim for medical benefits is contained in La. R.S. 23:1209(C):

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.
(Emphasis added).

Under this statute, a longer prescriptive period applies when medical benefits have already been paid for the injury or occupational disease at issue. Whether or not such medical payments were made in this case was disputed at trial. Laurie Owens, a claims adjustor for the City of Baton Rouge, testified at the trial of this matter that the only bills paid by the City for Mr. Box were a bill for medical records and another bill for an office visit that she understood at the time to be a bill for medical records. Frank McStravick, the Workers’ Compensation supervisor for the City of Baton LRouge, testified that the bill for the office visit was submitted on the proper health insurance claim form indicating an office visit and that the Louisiana Workers’ Compensation Corporation reviewed the bill and recommended payment; however, he testified that this payment was made inadvertently. Shirley Walton, a representative of Louisiana Cardiology Associates, testified at trial that the bill paid by the City was in fact a bill for an office visit and that the office never charges for medical records on Workers’ Compensation claims. Ms. Owens, Mr. McStravick, and Ms. Walton all testified that the City does a large amount of business with Louisiana Cardiology Associates involving firemen making workers’ compensation claims under the Heart and Lung Act. The OWC did not address the issue of whether the City had made medical payments for purposes of extending the prescriptive period under La. R.S. 23:1209(C). Because there is sufficient evidence in the record for this court to make a determination, we will address this issue de novo.

Regardless of whether or not the City intended to make a payment for medical benefits related to Mr. Box’s heart condition, such a payment was in fact made on February 6,1998. A letter was introduced at trial from Kathy Giovingo, a prior claims adjustor handling Mr. Box’s case, to Louisiana Cardiology Associates advising them that the coverage once provided to Mr. Box had expired. The only explanation offered for why this letter was sent when Mr. Box was never afforded coverage by workers’ compensation was Mr. McStravick’s testimony that Ms. Giovingo was ill and did not follow instructions. No evidence was presented at trial to prove that the City was led to believe that the bill was one for medical records, aside from the self-serving testimony of the defendant’s employees. Furthermore, the City has dealt with Louisiana Cardiology Associates on many occasions and would [¿not be unfamiliar with its billing practices. Therefore, we find that the record supports the conclusion that the City made a payment for medical benefits relating to Mr. Box’s heart condition. As such, under La. R.S. 23:1209(C), Mr. Box had three years from February 6, 1998, the date that the last payment for medical benefits was made, to file a formal claim. Therefore, Mr. Box’s claim filed December 5, 2000 was timely. Although the WCJ applied an incorrect prescriptive statute, we find under an application of the correct statute on de novo review that the OWC was correct in denying the City’s exception of prescription.

DECREE

For the above 'and foregoing reasons, on rehearing we reinstate that portion of the OWC ruling denying defendant’s exception of prescription and affirm. Costs of this appeal are assessed against the defendant.

REHEARING GRANTED IN PART; ORIGINAL OWC RULING REINSTATED IN PART AND AFFIRMED.

KUHN, J., concurs.

      . The WCJ found that plaintiff was not entitled to disability benefits. We vacated this portion of the judgment because Mr. Box neither pleaded nor requested an award of disability benefits. Since not procedurally raised by the parties, the issue of plaintiff’s entitlement to disability benefits was not before the OWC. Thus, the express denial of disability benefits was error.


text:
    Lee H. CLARK v. AMERICAN BUILDING MAINTENANCE.
    No. 2002 CA 1609.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      Lee Clark, Baton Rouge, In Proper Person.
    Norbert C. Rayford, Baton Rouge, Counsel for Appellant Administrator, Louisiana Department of Labor, Office of Employment Security.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   2GUIDRY, J.

The Louisiana Department of Labor, Office of Employment Security (OES) seeks review of the district court’s reinstatement of unemployment benefits to an employee. For the following reasons, the judgment of the district court is reversed.

FACTS AND PROCEDURAL HISTORY

Lee H. Clark began working for American Building Maintenance as a janitor on October 9, 2000. Clark earned $6.00 per hour, and was scheduled to work from 3:00 p.m. to 7:00 p.m., Monday through Friday.

In early October 2001, Clark asked her supervisor, Larry Turner, for a vacation. According to Turner, he told Clark that he would have to get someone to replace her because her assignment was in the Investigative Division of the Department of Justice, which required anyone working in that area to have a security clearance. Turner told Clark he would work on getting a replacement. Approximately one week later, Clark went on vacation without any further notice to Turner that she was not reporting to work.

According to Turner, he was not aware of when Clark was going to take off for her vacation, and at no time was he ever informed of the dates of her intended vacation. Turner worked Clark’s assignment for three days until he was able to fill Clark’s position. When Clark attempted to return to work on October 19, 2001, she was told that she had been discharged because she had not shown up for three consecutive days.

Clark applied for unemployment compensation benefits. The OES determined that Clark was discharged under non-disqualifying conditions; that her discharge was not for misconduct connected with her employment, and no disqualification was assessed. Clark was eligible to receive unemployment insurance benefits.

IsAmerican Building Maintenance appealed the initial decision of OES. The appeal involved a hearing before an administrative law judge where Turner appeared and testified. Clark did not attend the hearing. Following the hearing, the administrative law judge determined that Clark had been discharged for misconduct connected with her employment. The administrative law judge ordered that Clark be disqualified from receiving unemployment insurance benefits.

Clark appealed the administrative law judge’s decision with the Louisiana Board of Review. The board of review adopted the administrative law judge’s findings as its own and ordered the decision be affirmed. Clark sought judicial review of the decision of the board of review. The district court reversed the board of review’s decision to deny unemployment insurance benefits. OES appeals the judgment on the basis that the district court applied the wrong standard of review when it reversed the decision of the board of review.

DISCUSSION

Louisiana Revised Statute 23:1634(B) provides, in pertinent part:

In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.

Judicial review of the findings of fact by the agency does not permit the weighing or re-evaluation of evidence, drawing of inferences, or the substitution of the views of the reviewing court for that of the agency. Billman v. Sumrall, 464 So.2d 382, 385 (La.App. 1st Cir.1985). It is not the court’s role to determine credibility. Sensley v. Administrator, Office of Employment Security, 552 So.2d 787, 789 (La.App. 1st Cir.1989).

14Misconduct that would disqualify a claimant from eligibility for employment benefits is defined in La. R.S. 23:1601(2)(a) as “mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others.” The issue of whether an employee’s discharge resulted from disqualifying misconduct is primarily a factual one to be determined by the administrative law judge and the board of review in an unemployment compensation proceeding. Banks v. Administrator, Department of Employment Security of the State of Louisiana, 393 So.2d 696, 699 (La.1981).

During the hearing before the administrative law judge, two conflicting statements made by Clark were introduced into the record. The first statement was made to OES on November 6, 2001, wherein Clark acknowledged, “I did take a vacation not knowing if I had been given official permission.” The second statement made by Clark indicated that she had given her supervisor three weeks’ notice prior to going on vacation, and that she had obtained her supervisor’s approval for her vacation. Clark did not attend the hearing before the administrative law judge.

Turner testified at the hearing before the administrative law judge. According to Turner, Clark asked for a vacation, but did not indicate when she would be absent. Turner discovered Clark had gone on vacation when one of her coworkers told him she had left for vacation. While Clark was on vacation, Turner was able to secure a replacement.

Clark missed a week of work. Upon Clark’s return on October 19, 2001, Turner informed her she was being discharged for being absent from work for |fithree consecutive days without notifying him. According to the company’s handbook, such conduct is considered a voluntary resignation.

Following the hearing, the administrative law judge determined Clark’s conduct met the definition of misconduct under La. R.S. 23:1601(2)(a) in that Clark did not inform her employer of when she would be taking vacation and left without notification to her employer. Under these circumstances, Clark’s discharge was for misconduct connected to her employment. A majority of the board of review found no justification for reversing or modifying the decision of the administrative law judge and adopted those findings as its own.

When Clark sought judicial review of her disqualification from unemployment benefits, she was allowed to testify before the district court. Clark testified that her supervisor had given her permission to take a vacation. Following the taking of Clark’s testimony and review of the administrative record, the district court found the record did not support the decision of the board of review and reinstated Clark’s benefits.

At best, Clark’s testimony before the district court created an issue of credibility regarding whether Clark had ever been given permission to take a vacation. However, the administrative law judge had already resolved the credibility issue regarding Clark. Although the district court improperly accepted new evidence in the form of Clark’s testimony, the district court is limited to reviewing whether the facts as found by the board of review are supported by sufficient evidence and to considering questions of law. After reviewing the record, we conclude that there was sufficient evidence to support the findings of fact used to disqualify Clark for receiving unemployment compensation. Clearly, | fithe district court erred in substituting its view of which evidence was more credible. Accordingly, the decision of the district court is reversed and the decision of the board of review is reinstated.

CONCLUSION

The' judgment of the district court is reversed, and the decision of the board of review finding that Lee Clark is disqualified from receiving unemployment compensation benefits is reinstated. According to La. R.S. 23:1692 and La. R.S. 23:1548, costs may not be assessed against the employee, Clark, or the Office of Employment Security. Nor would it be equitable under the circumstances to assess the costs against the employer, American Building Maintenance. Thus, the Clerk of this court and the Clerk of the trial court must absorb the costs. See Sensley, 552 So.2d at 790 n. 1.

REVERSED.

      . Louisiana Revised Statutes 23:1634(B) states that the district court shall not receive any additional evidence. The taking of additional evidence by the district court is error. Landry v. Shell Oil Company, 597 So.2d 521, 525 (La.App. 1st Cir.1992).