author: JACHARLES R. JONES, Judge. I,ARMSTRONG, C.J.,

text:
    Paula PARKER, Pauline Reese Collins, Ahmad Parker v. The CHIMNEYWOOD HOMEOWNERS’ ASSOCIATION, INC.; Officers of the Board of Directors of Chimneywood Homeowners’ Association, Inc.; Lynette Bates, President (Individual and Official Capacities); et al.
    No. 2002-CA-2475.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.
    Rehearing Denied April 27, 2004.

      Kathy Moore, New Orleans, LA, for Plaintiff/Appellant, Robert C. Evans.
    Evans & Company, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge TERRI F. LOVE).
   JACHARLES R. JONES, Judge.

The Appellants, Paula Parker, Pauline Reese Collins, and Ahmad Parker, appeal the judgment of the district court denying their Motion for Preliminary Injunction, dissolving their Temporary Restraining Order, denying their Motion for Contempt, and imposing sanctions upon Ms. Parker in the amount of $5000. Additionally, Ms. Parker filed a writ application seeking a stay of the judgment rendered by the district court ordering her to pay the estimated costs of the instant appeal. We consolidated the writ application with this appeal. The Appellants have also filed in this Court a Motion for Return of All Amounts Paid Above $5000 Judgment Amount Ordered by the Civil District Court (sic), and Appellees responded with a Motion to Dismiss. We affirm the judgment on appeal, grant the writ application, and dismiss the Motion for Return of All Amounts Paid Above $5000 Judgment Amount Ordered by the Civil District Court (sic).

FACTS AND PROCEDURAL HISTORY

This matter commenced on January 19, 2001, when the Appellants, Paula Parker, et al., filed a Petition for Damages and Injunctive Relief. The Appellants filed the instant action in response to Chimneywood Homeowners’ Association’s (hereinafter “Chimneywood”) election to terminate the water supply leading to Ms. 1 ¡¡Parker's condominium. Chimneywood terminated Ms. Parker’s water supply for failure to pay assessments in excess of $500. Ms. Parker paid a portion of her $226 monthly assessment. Specifically, she paid $149 of the assessment which she indicated included the water services, and refused to pay $50 for a special assessment, and $27 for a recreational fee. On January 22, 2001, a Temporary Restraining Order was issued on behalf of the Appellants and against Chimneywood, “... restraining and enjoining the continuing deprivation of plaintiffs’ water services.... ” On January 29, 2001, the Appellants filed a Motion for Contempt for Chimneywood’s failure to observe the Temporary Restraining Order. On February 16, 2001, Chimneywood filed a Motion to Dissolve Temporary Restraining Order and For Sanctions. At the Preliminary Injunction hearing on March 13, 2001, the district court denied the Motion for Preliminary Injunction, denied the Motion for Contempt, dissolved the Temporary Restraining Order, and took the matter of sanctions under advisement. In a judgment signed April 6, 2001, the district court reduced to writing the oral disposition given at the hearing and further sanctioned Paula Parker $5,000. On April 3, 2001, prior to the signing of the judgment, the district court granted the Motion for Appeal. Following the April 6, 2001 judgment, a Notice of Appeal was signed on May 28, 2002. Ms. Parker now appeals the judgment of the district court.

Additionally, Ms. Parker filed a writ application seeking review of the district court’s judgment of April 29, 2003, determining Ms. Parker ineligible to proceed in forma pauperis. On June 14, 2002, Judge Madeleine Landrieu, apparently the duty judge, granted the “[In] Forma Pauperis” Application with the | ..¡additional handwritten language “for appeal costs” added to the title filed by Ms. Parker. On August 23, 2002, the Clerk of Court for the Civil District Court for the Parish of Orleans filed a Rule to Show Cause why Ms. Parker’s appeal should not be dismissed because of her failure to pay the appeal costs. Payment of the estimated costs of $4,166.10 was allegedly due on June 17, 2002. On October 25, 2002, the district court held a contradictory hearing on the Rule to Show Cause. Following the hearing, the district court requested supplemental briefs and took the matter under advisement. While the case was under advisement, the appeal record was lodged in this Court on December 10, 2002. The Appellant’s brief was filed on March 7, 2003, and the Appellee’s brief was filed on March 20, 2003. The case was scheduled for submission to a three-judge panel on June 4, 2003. However, on April 29, 2003, the district court issued a judgment reversing Ms. Parker’s status as a pauper for lack of jurisdiction. This judgment forms the basis of the writ application.

While this matter was under review by this Court, the Appellants have filed a Motion for Return of All Amounts Paid Above $5000 Judgment Amount Ordered by the Civil District Court (sic), alleging that wages are continuing to be garnished although the $5000 Judgment has been satisfied. The Appellants aver that when informed by Attorney Clare Jupiter’s office that they were not in possession of any records indicating the amount required to satisfy the judgment, Ms. Parker mailed a demand letter with the judgment attached, requesting a balance on the garnishment account or a release letter. Ms. Parker further avers that Dr. James Lloyd of the Orleans Parish Schools Payroll Department responded with a letter to Attorney Jacob Kansas incorrectly referring to the amount owed as $5000 plus costs of garnishment proceedings. Instead, Ms. Parker argues that the |4$5000 judgment included any fees and costs. The Appellees filed a Motion to Dismiss Appellant’s Motion for Return of All Amounts Above $5000 Judgment Amount Ordered by the Civil District Court alleging that the motion was in violation of Rule 2-7.2 of the Uniform Rules, Courts of Appeal, for failing to bear “a certificate showing that a legible copy thereof has been delivered or mailed to opposing counsel of record, and to each opposing party not represented by counsel, and showing the date of service thereof.” Absent the certificate, the motion “shall not be filed or docketed.” Further, the Appellees argue that the motion violates Rule 2-14.2 of the Uniform Rules, Courts of Appeal, for failing to demonstrate service “evidenced by a certificate listing all parties and all counsel, indicating the parties each represents, and showing how and when such service was accomplished.”

DISCUSSION

Before addressing the issues raised on appeal, we will discuss the writ application. The district court took the issue of costs of this appeal under advisement until after the appeal in this matter was lodged in this Court. Ms. Parker argues that she should have been allowed to proceed in forma pauperis in this case, allowing her to avoid paying the costs associated with this appeal. Ms. Parker further argues that the district court was not divested of jurisdiction until an appeal bond is paid, which she did not secure. The Appellees argue that the district court lacked the jurisdiction to rule on Ms. Parker’s status as a pauper.

La. C.C.P. art. 2088 divests the district court of jurisdiction over all matters in the case reviewable under the appeal, and the district court retains original jurisdiction to “set and tax costs” even after the appeal is lodged. The issue of Ms. Parker’s status as a pauper was not a part of the instant appeal, and it directly | ¿impacts her ability to pay costs. Accordingly, the district court was the proper forum for the resolution of whether Ms. Parker should proceed in forma pauperis. See Thomisee v. Pearson, 446 So.2d 568 (La.App. 3rd Cir.1984); Marcum v. Inter-Ocean Insurance Company, 402 So.2d 222 (La.App. 1st Cir.1981). Clearly, the legislature intends for the district court to serve as an administrator of costs, appeal costs included, even after the appeal is lodged in the appellate court. See La. C.C.P. art. 2126. Additionally, determining whether a person should proceed in forma pauperis is a fact determination.

Any issue raised by facts occurring after the appealed judgment is not reviewable on appeal because the determinative facts do not appear in the record. Such an issue must be raised by application to the trial court, which has original fact-finding jurisdiction. Once the issue is decided by the court of original jurisdiction, this court can review that decision under our appellate jurisdiction, perhaps by consolidation with the original appeal, or under our supervisory jurisdiction, if justification is shown in an application for supervisory writs.

Acosta v. Masters, 336 So.2d 948 (La.App. 4th Cir.1976) (J. Lemmon concurrence).

Accordingly, the district court retained jurisdiction to grant the in forma pauperis application on June 14, 2002, after the Motion and Order of Appeal was granted on May 28, 2002. The district court erred when it attempted to vacate the granting of the in forma pauperis application based on jurisdictional grounds. Thus, Judge Landrieu’s granting of an in forma pauper-is application stands, and Ms. Parker is not expected to pay the costs of this appeal.

The Appellants concede that this Court denied their second request for extension of time to file briefs in this matter, after their failure to timely file briefs. Although the Appellants request the opportunity to argue, pursuant to Rule 2-12.12 | fiUniforms Rules, Courts of Appeal, they have forfeited the right to oral argument by failing to timely file their brief.

As to the merits of this appeal, we have not addressed the issues as ordered by the Appellants in consideration of the chronology of the events and for ease of comprehension.

Firstly, the issue regarding the denial of the preliminary injunction lacks merit. The Appellants argue that the temporary restraining order was dissolved without sufficient opportunity to present a case to demonstrate the irreparable injury the Appellants sustained. The Appellees aver that the Appellants were allowed sufficient opportunity to present their case, but failed to do so. The Appellees further argue that appeals relating to temporary restraining orders are not allowed pursuant to La. C.C.P. art. 8612. This statute states in pertinent part:

(A) There shall be no appeal from an order relating to a temporary restraining order.
(B) An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.

We agree that appeals are not permitted in cases involving temporary restraining orders; however, this case also involved a Motion for Preliminary Injunction.

■ “An injunction shall issue in cases where irreparable ■ injury, loss, or damage may otherwise result to the applicant ...” La. C.C.P. art. 8601. The Appellants failed to prove irreparable harm. Ms. Parker agreed to the provisions found in- the Chimneywood By-laws. Because Ms. Parker breached the agreement between she | vaiid Chimneywood, we cannot conclude that she suffered irreparable injury. The district court stated in footnote 1 in a per curiam issued on April 7, 2003 that:

A significant portion of the dispute between the parties stemmed from Ms. Parker’s refusal to pay the $50.00 special assessment fee and a $27 recreational facility fee and the Board of Chimney-wood’s efforts to collect alleged fees due in excess of $500.00. In accordance with Article XII of the Chimneywood Bylaws, the Homeowner’s Association is empowered to terminate, inter alia, water supplied to a condo unit where “the unit owner is delinquent in payment of any dues, fees, special assessment or other obligation, including late fees and other charges in excess of five hundred dollars ($500.00) alleged due by the Association” and where notice and an opportunity for a hearing áre provided to the condo unit owner by certified mail.

Further, as stated by the district court at the March 13, 2001 hearing:

... The Court is of the view that the main argument for irreparable harm in this matter for either a TRO or a preliminary injunction issue was one of due process.
The documents clearly demonstrate that a certified mail was sent to Ms. Parker, properly addressed, to Unit 1408, that a regular mail was sent and that a final notice was hand delivered.
The law does not compel an individual to claim their certified mail, but in her capacity, Ms. Parker’s capacity as president of the association, she was also very well aware of the rules in terms of the interruption or the possible interruption of the water service, in fact, she admitted saying in her deposition.
There is no evidence — I’m not saying that the letter that Ms. Parker indicated she sent existed or it doesn’t exist, but this is a court of record and we induce evidence. There is no evidence that the writing, which is required for a hearing to take place before the board to argue the interruption of water service, there is no evidence that this letter was ever transmitted.
Again, Ms. Parker, by virtue of the fact that she served as president of this association, was well aware of that particular provision.
When the Court is compelled to balance the two, on one hand having written notice three times delivered to the proper unit, properly addressed to Ms. Paula Parker, when you have that as exhibits to demonstrate notice, and on the other side you have Ms. Parker saying,never received any of that. And, oh yeah, by the way, I also sent a letter to request a hearing,” and there is no evidence of the letter, when you balance the two, the former has to prevail. The documentary evidence has to trump the self serving testimony, and that’s how the Court finds.

The reasoning of the district court is sound in supporting the denial of the preliminary injunction. Ms. Parker agreed to pay the assessments as required by the Chimneywood By-laws. Additionally, the Appellants failed to meet their burden by not providing sufficient documentation to support their position. Further, Ms. Parker similarly failed to prove that the board that voted to interrupt her water services was illegally constituted.

Secondly, the issue regarding whether the $5,000 sanctions were properly imposed on Ms. Parker also lacks merit. Ms. Parker argues that sanctions would not have been imposed had she been allowed to present pertinent evidence. Further, Appellant avers that the district court erred by imposing sanctions after the judgment was rendered. The Appel-lees argue that the district court did not abuse its discretion imposing the sanctions post judgment. They aver that the word “wrongful” in La. C.C.P. art. 3608 means “incorrect” or as the result of mistake, not as a result of malice or bad faith.

Pursuant to La. C.C.P. art. 3608,

The court may allow damages for the wrongful issuance of a temporary restraining order of preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.

lain a per curiam issued by the district court on February 7, 2003, the district court provided reasons as to the questions of sanctions. The district court stated in footnote 2:

In determining the question of sanctions, this court considered whether it was reasonable for Ms. Parker to exercise the extraordinary procedure of a TRO when she was clearly aware of the documentary evidence that was counter to her position. Regardless of her past position as President of the Chimney-wood Homeowner’s Association and her knowledge of its rules and By-laws, the court determined that the defendants had complied with the notice requirements of Article XII by notifying Ms. Parker by certified mail of the termination of her water supply, which certified mail was returned to the Association marked “refused.” The defendants followed up with a hand delivered notification to Ms. Parker.

Predicated on the reasons provided by the district court, we do not find that the district court erred in sanctioning Ms. Parker. The Appellants argue, alternatively, that if sanctions were proper in this matter, that the sanctions should have been assessed against counsel for the Appellants and not Ms. Parker directly. By inference, Ms. Parker was the proper party to be sanctioned pursuant to La. C.C.P. art. 2164. This article states in pertinent part:

... The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

The assessment of attorney’s fees against Ms. Parker for filing the Temporary Restraining Order without the requisite evidence to support her claim, and for employing an extraordinary procedure to do so is justifiable. Thus, the district court did not err.

Thirdly, we consider whether the district court was impartial in this matter. The Appellants argue that the district court judge was not impartial since the | mcommencement of this suit and as a result seeks redress by this Court. The Appellees argue that the proper vehicle to seek redress regarding the impartiality of a judge is by filing a motion and order seeking recusal of that judge. We agree.

Pursuant to La. C.C.P. art. 151(B)(5),

[а] judge of any court, trial or appellate, may be recused when he: ... (5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.

Therefore, this Court lacks the jurisdiction to address this issue. The Appellants must first raise this issue before the district court, which they failed to do. Filing a Motion to Recuse would have sufficiently noticed their objection to the district court’s alleged lack of impartiality, and would have preserved this issue for appeal. Additionally, this Court is appalled that counsel for the Appellants has elected to berate the character of a sitting district court judge. Such action by counsel is inexcusable, and will not be tolerated. Any further inappropriate actions by counsel will subject her to the imposition of sanctions.

Lastly, we discuss the Motion for Return of All Amounts Paid Above $5000 Judgment Amount Ordered by the Civil District Court (sic). La. C.C.P. art. 2088 states that “[t]he jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of appeal ...” [Emphasis Added]. Currently this Court is reviewing the validity of the judgment, however whether the judgment is being overpaid because of a faulty garnishment procedure is a new and separate issue, which should be raised originally before the district court. We lack the requisite jurisdiction to address this issue. Thus, the motion is dismissed.

InDECREE

For the foregoing reasons, the appeal filed by the Appellants, Paula Parker, Pauline Reese Collins, and Ahmad Parker is hereby affirmed. The Application for Supervisory Writ is granted. Further, Attorney Kathy Moore, Bar # 11442 has failed to show cause why she should not be removed as counsel of record in the matter sub judice for failure to remain in good standing with the bar, and is therefore no longer counsel of record in this case. Counsel is, however, ordered to show cause by brief only, within five days of the rendering of this judgment, why she should not be held in contempt for allegations improperly made in brief against Judge Michael Bagneris. Additionally, the Motion for Return of All Amounts Above $5000 Judgment Amount Ordered by the Civil District Court (sic) is dismissed.

AFFIRMED; WRIT DENIED; MOTION DISMISSED

ARMSTRONG, C.J., concurs in part and dissents in part.

I,ARMSTRONG, C.J.,

CONCURS IN PART AND DISSENTS IN PART.

Because I feel that this Court is able to rule without the necessity of a show cause briefing, I respectfully dissent from only that portion of the majority opinion ordering Attorney Kathy Moore to show cause by brief only why she should not be held in contempt for allegations contained in her brief in contravention of Uniform Rules— Courts of Appeal, Rule 2-12.4. I subscribe to the view of the importance of civility and professional conduct expressed by this Court in Galle v. Orleans Parish School Bd., 623 So.2d 692 (La.App. 4 Cir.1993) and find that the brief written by Ms. Moore falls far short of the standards set forth in Galle. However, under the circumstances, consistent with the ruling in Galle, and well as similar rulings in Savoie-Moore v. Moore, 98-0235 (La.App. 4 Cir. 9/16/98), 719 So.2d 551, Drury v. Fawer, 590 So.2d 808 (La.App. 4 Cir.1991), and Turner v. Conagra Poultry Co., 02-1424 (La.App. 3 Cir. 4/2/03), 842 So.2d 1184, I believe that the appropriate sanction in this case is an admonishment at present to be followed by monetary sanctions in the future should a recurrence be called to the attention of this Court.

hFor the foregoing reasons, I respectfully dissent from only that portion of the majority opinion pertaining to remarks made in the brief written by Ms. Kathy Moore. I concur in the results reached by the balance of the majority opinion.

      . Counsel insisted that she was entitled to oral argument, and in support of this contention submitted a Memorandum in Lieu of Oral Argument. However, this case was submitted on briefs, because no timely request for oral argument was made. Thus, the supplemental brief is not accepted, and is not considered in this opinion.


source: Caselaw Access Project

author: JjEDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Glenn Leo WILLIAMS.
    No. 2003-KA-0091.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2004.

      Eddie J. Jordan, Jr., District Attorney, Claire Adriana White, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   ON REHEARING GRANTED

JjEDWIN A. LOMBARD, Judge.

We granted rehearing to consider the defendant’s argument that the trial court erred in denying his second motion to quash the indictment, filed on May 17, 2002, wherein he challenged the constitutionality of the grand jury selection in Orleans Parish at the time of his indictment. After consideration of the pertinent facts in light of the applicable caselaw and supplemental briefs filed by the parties, we affirm the defendant’s conviction and sentence.

Relevant Facts

In State v. Dilosa, 2002-2222 (La.6/27/03), 848 So.2d 546, the Louisiana Supreme Court struck down as unconstitutional La.Code Crim. Proc. art. 412 and La.Rev.Stat. 15:114 in their entirety, the introductory phrases of La.Code Crim. Proc. arts. 413(B) and 414(B) (“In parishes other than Orleans,”), and La.Code Crim. Proc. arts. 413(C) and 414(C) in their entirety. The offending provisions together provided procedures, applicable only in Orleans Parish, for the selection of the grand jury venire, the impaneling of the grand jury, selection of the grand jury foreman, the time for impaneling grand juries and the period of service, and | ¡>the rotation of judges who select and control the grand jury. The court found that the provisions were “local laws” concerning “criminal actions” which regulated the “practice” of Orleans Parish criminal courts in violation of La. Const, art. Ill, § 12(A)(3). Subsequently, La.Code Crim. Proc. arts. 412(A) and 413(B) were amended to remove the offending provisions, and art. 413(C) was repealed in its entirety by Acts 2001, No. 281, §§ 1 and 2, respectively.

In this case, the grand jury that indicted defendant on July 9,1995, and the foreman of that grand jury, were selected while the applicable procedures declared unconstitutional in Dilosa, supra were all in effect. The defendant’s second motion to quash his indictment, filed in May 2002, challenged the constitutionality of the grand jury selection process. The defendant’s conviction and sentence were under direct appeal to this court at the time of the Dilosa decision.

Discussion

Article 921 of the Louisiana Code of Criminal Procedure provides that “[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

The statute and codal provisions pertinent to this case were declared unconstitutional in Dilosa solely because they were local laws in violation of La. | ¡¡Const, art. Ill, § 12(A). However, the constitutional prohibition against local laws which underlies the Dilosa decision simply reflects a policy decision that legislative resources and attention should be concentrated upon matters of general interest and that purely local matters should be left to local governing authorities. Morial v. Smith & Wesson Corp., 2000-1132, p. 22 (La.App. 4 Cir. 4/3/01), 785 So.2d 1, 17; Kimball v. Allstate Ins., Co., 97-2885, p. 4 (La.4/14/98), 712 So.2d 46, 50. As such, the substantial rights of a criminal defendant are not affected per se solely because he is indicted by a grand jury selected pursuant to local laws passed by the Louisiana State legislature. Thus, although the trial court erred in denying defendant’s motion to quash his grand jury indictment based on the unconstitutionality of the local laws at issue, there is no showing that the error affected his substantial rights. Accordingly, the error does not require reversal of defendant’s conviction, sentence and indictment. Therefore, on rehearing, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The defendants in Dilosa filed motions to quash their October 1999 indictments on March 16, 2001, arguing that La.Code Crim. Proc. arts. 412, 413 and 414, and La.Rev.Stat. 15:114 were local laws prohibited under the state constitution.

      . Pursuant to Article 413(C), the court selected the grand jury, and grand jury foreman from among the members of that grand jury, whereas in other parishes, pursuant to former Article 413(B), the sheriff select the grand jury "indiscriminately and by lot,” and thereafter the court causes the random selection of a foreperson from that grand jury.

      . La. Const. Art. Ill state in pertinent part:
      Section 12.(A) Prohibitions. Except as otherwise provided in this constitution, the legislative shall not pass a local or special law:

      (3) Concerning any civil or criminal actions, including changing the venue in civil or criminal cases, or regulating the practice or jurisdiction of any court....

      . In Orleans Parish, prior to Dilosa, pursuant to former La.Code Crim. Proc. art. 413(C) the court selected the grand jury in Orleans Parish and the grand jury foreperson was selected from among members of that grand jury. In other parishes, pursuant to La.Code Crim. Proc. art 413(B), the sheriff selects the grand jury "indiscriminately and by lot,” and thereafter the court causes the random selection of a foreperson from that grand jury.

      . See Rideau v. Whitley, 237 F.3d 472 (5th Cir.2000), cert. denied, 533 U.S. 924, 121 S.Ct. 2539, 150 L.Ed.2d 708 (2001), reversing the defendant's conviction based on racial discrimination in the selection of the grand jury that indicted him. As in the instant case, the defendant filed a pre-trial motion to quash his indictment. He alleged that there had been a systematic exclusion of black jurors from the Calcasieu Parish grand jury that returned his indictment for first degree murder. The motion to quash was denied, and the Louisiana Supreme Court affirmed that ruling in 1973. In 1994, the defendant filed a petition for federal habeas corpus, ultimately leading the federal court of appeals to reverse his conviction on the ground that his indictment by a grand juiy from which black citizens were systematically excluded because of their race violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The court followed a rule of mandatory reversal of the conviction and indictment in such cases, and did not require a showing of prejudice, because the intentional discrimination in the selection of the grand jury was a "grave constitutional trespass possible only under color of state authority wholly within the power of the State to prevent,” because of the need to eliminate that systematic flaw, and because of the difficulty of assessing the prejudicial effect on any given defendant. Rideau, 237 F.3d at 489, quoting Vasquez v. Hillery, 474 U.S. 254, 262 & 264, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). In this case, however, the defendant does not make a showing that his indictment approached the "grave constitutional trespass" found in Ri-deau which led that court to automatically reverse defendant Rideau's conviction and indictment without a finding of prejudice.


author: JjLEON A. CANNIZZARO, JR., Judge.

text:
    Tracy SANBORN v. METHODIST BEHAVIORAL RESOURCES PARTNERSHIP, Behavioral Services, Inc., Jules S. Deutsch, M.D., Estate of Stanley Roskind, M.D. and Karl Lnu.
    No. 2003-CA-0627.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2004.

      Harry J. Boyer, Jr., New Orleans, LA, for Plaintiff/Appellant, Tracy Sanborn.
    Albert H. Hanemann, Jr., Lemle & Kelleher, L.L.P. New Orleans, LA, for Defendants/Appellees, Methodist Behavioral Resources Partnership, Behavioral Services, Inc., Jules S. Deutseh, M.D.
    (Court composed of chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO, JR., MOON LANDRIEU, judge pro tempore).
   JjLEON A. CANNIZZARO, JR., Judge.

This case involves a suit by Tracy San-born against Carl Chaisson, Methodist Behavioral Resources Partnership (the “Methodist Partnership”), Behavioral Services, Inc., Jules S. Deutseh, M.D., and the Estate of Stanley Roskind, M.D. Ms. San-born alleged that Mr. Chaisson, a counsel- or who conducted substance abuse classes at the Methodist Counseling Center (the “Center”), sexually assaulted her. The trial court rendered judgment against Mr. Chaisson but dismissed the case against the Methodist Partnership. Ms. Sanborn is appealing the dismissal of the case against this defendant.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Ms. Sanborn was a client of the Center. The Methodist Partnership owned and operated the Center, which provided substance abuse counseling, treatment, and drug testing for persons convicted of federal crimes involving illegal drugs. The counseling was provided in connection with a federal government program. \9i All of the clients at the Center had been referred to the Center by the federal probation office for the United States District Court for the Eastern District of Louisiana, and all of the clients were either on probation or were under pre-trial supervision by the federal court system.

Mr. Chaisson was a substance and alcohol abuse counselor, who had a contract to provide substance abuse counseling in a classroom setting at the Center. Mr. Chaisson also assisted at the Center with meetings of Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”), self-help programs for recovering alcoholics and addicts.

As a condition of her probation in connection with a federal drug conviction, Ms. Sanborn was required to attend counseling at the Center. She was required to attend daily classes for substance abusers, and these classes were taught by Mr. Chaisson. Ms. Sanborn was also required to attend individual counseling sessions with Judy Baker, a social worker, who was employed by the Center. Additionally, Ms. Sanborn voluntarily attended AA and NA meetings that were held at the Center.

In the instant suit, Ms. Sanborn alleged that while acting in the course and scope of his employment at the Center, Mr. Chaisson sexually assaulted her, causing a relapse in her recovery from drug addiction. Ms. Sanborn further alleged that Mr. Chaisson was hable for the damages that resulted from the relapse. She also claimed that the Methodist Partnership, as Mr. Chaisson’s employer, was vicariously liable for these same damages. Additionally, Ms. Sanborn alleged that because it should have known of Mr. Chaisson’s propensity to behave inappropriately with female clients, Methodist Partnership was negligent in hiring and supervising him. Therefore, she claimed that Methodist Partnership was also |3directly liable for the damages she suffered from having been sexually assaulted by Mr. Chaisson.

Ms. Sanborn alleged that at the conclusion of an evening meeting of the NA group, Mr. Chaisson asked her if she wanted to go out onto a balcony at the Center and smoke a cigarette. At the trial Ms. Sanborn testified that it was common for both counselors and clients to smoke cigarettes on the balcony during their breaks. According to Ms. Sanborn’s testimony, she spent two or three minutes smoking a cigarette on the balcony on the evening of the incident. As she was walking back into the Center from the balcony, Mr. Chaisson grabbed her and kissed her forcefully. When she tried to walk away, Mr. Chaisson grabbed Ms. Sanborn again and “reached and grabbed” between her legs.

Immediately after.the alleged incident, Ms. Sanborn left the Center and went home. After she got home, Mr. Chaisson telephoned her. Ms. Sanborn testified that “Carl called me to say, you know, I hope what had happened to night [sic] didn’t affect your recovery and I hope that you continue to come- to the meetings and in the next breath says so, how was it, and I hung up the phone.” Ms. Sanborn testified that she “took the phone off the hook so he wouldn’t call me back, because if he had the nerve to call me the first time, he was going to call me back.”

Ms. Sanborn alleged that because of the incident, she stopped attending all but the mandatory sessions at the Center, and she arranged her counseling schedule to minimize her contacts with Mr. Chaisson. She did not report the incident to anyone at the Center, because she was afraid that her account of the incident “was going to be turned around and they were going to put me in jail.” According to Ms. San-born’s testimony, the only reason the Center became aware of the incident wasl4that she was forced to divulge what happened to Ms.-Baker, the social worker who conducted Ms. Sanborn’s required individual counseling sessions.

Ms. Sanborn testified that Ms. Baker called her at work one day and told, her that she needed to come to the Center for a meeting. When she arrived for the meeting, Ms. Sanborn was confronted by Ms. Baker, another social worker at the Center, and a third person. Ms. Sanborn was told that there had been a major change in her personality, that she had stopped attending the NA and AA meetings, and that she was no longer responding to the recovery process. Ms. Sanborn stated that she was also told that “we are going to sit here and discuss what is going on and you’re not going to leave this office until you spit it out.” After approximately one half of an hour of interrogation, Ms. Sanborn finally told the people at1 the meeting about the sexual assault by Mr. Chaisson.

After the meeting, Mr. Chaisson was asked to meet with Ms. Baker regarding the alleged incident. Mr. Chaisson’s version of the incident was completely different from Ms. Sanborn’s version. According to Mr. Chaisson, on the evening of the incident, Ms. Sanborn had come to the AA and NA meetings wearing inappropriate attire that was very distracting to the other people at the meetings. Mr. Chaisson testified at trial that Ms. Sanborn had come out onto the balcony at the Center where he was smoking a cigarette and had given him a hug, a common and innocent occurrence among recovering addicts and their counselors. He then took that opportunity to mention to Ms. Sanborn that she needed to wear appropriate attire to the Center, and this angered Ms. Sanborn. Mr. Chaisson testified that he telephoned her at home that night to make certain that she was not unduly upset by his advice regarding her attire. Mr. Chaisson vehemently denied kissing, grabbing, or otherwise inappropriately touching Ms. Sanborn.

IsAfter Ms. Baker learned of the alleged incident from Ms. Sanborn, she discussed it with her supervisor at the Center, and Mr. Chaisson was ultimately fired from his job. At trial Ms. Baker testified that although Mr. Chaisson was fired, he was not fired for a sexual assault, which Ms. Baker did not believe occurred. Instead, he was fired for showing poor judgment in the manner in which he advised Ms. Sanborn about her attire.

Ms. Sanborn testified at trial that although she ultimately completed her counseling at another treatment facility and that she completed her probation for her drug conviction, she began using drugs again after the alleged incident. After she tested positive for drugs, her probation officer was notified, her probation was extended, and she was required to serve six months of house arrest. She claims that the alleged incident hindered her recovery process and caused her damages.

Ms. Sanborn also claimed that the Methodist Partnership was liable for the damages she suffered, because it had reason to know of Mr. Chaisson’s propensity for exhibiting inappropriate behavior with female clients. She claimed that when Mr. Chaisson was hired to work at the Center, the Methodist Partnership was aware of an incident at West Jefferson Medical Center (“West Jefferson”), a hospital where Mr. Chaisson was formerly employed, that led to his firing at that facility. At trial Mr. Chaisson testified that he was not fired from his job at West Jefferson. Instead, Mr. Chaisson stated that he resigned. Mr. Chaisson testified that a former client, who was a female, was having problems and that he had invited her to have lunch with him to discuss her problems. When he learned that it was against the hospital’s policy for a counselor to meet with a former client outside of the treatment setting, he no longer wanted to work for the hospital, and he resigned from his position.

1 fiThere was no evidence at the trial that anything inappropriate occurred at the lunch with the former client. Further, there was no evidence of any kind that Mr. Chaisson had ever been accused of any sexual improprieties with any of his clients other than Ms. Sanborn. In fact, the testimony showed that Mr. Chaisson was very dedicated to his work and that he had enjoyed a reputation as an excellent counselor.

After the trial, which was conducted without a jury, the trial court judge found that Mr. Chaisson had, in fact, sexually assaulted Ms. Sanborn, and she rendered a judgment against him, individually, in the amount of $15,000. The trial court judge did not, however, find any vicarious liability or other fault on the part of the Methodist Partnership, and she dismissed the case against it. Ms. Sanborn is now appealing that dismissal.

DISCUSSION

Standard of Review

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court stated that it is well settled that an appellate court may set aside a factual finding of a trial court or a jury only where the finding was based on a “manifest error” or was “clearly wrong”. Id. at 844. Further, where there is conflict in the testimony, a trial court’s or a jury’s reasonable evaluations of credibility and reasonable inference of fact should not be disturbed on appeal, even though the appellate court may feel that its own evaluations and inferences are as reasonable as those of the trial court or jury. Id. Finally, where there are two permissible views of the evidence, the trial court’s or jury’s choice between them cannot be manifestly |7erroneous or clearly wrong. Id. See also Harvey v. Cole, 2000-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771.

In Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, the Louisiana Supreme Court expressly stated that “we note that the district court’s determination that a particular act is within the course and scope of employment for purposes of vicarious liability is a factual finding governed by the manifest error rule.” 95-2270, p. 7, 673 So.2d at 998. In the instant case, if the record reflects a reasonable factual basis for the trial court’s determination and does not establish that the trial court’s finding is clearly wrong or manifestly erroneous, this Court must defer to the trial court’s finding that Mr. Chaisson was not acting within the course and scope of his employment when he sexually assaulted Ms. Sanborn.

Vicarious Liability

La. Civil Code art. 2320 provides that “employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Article 2320 further provides that “responsibility only attaches, when the ... employers ... might have prevented the act which caused the damages, and have not done it.”

Ms. Sanborn has argued that Mr. Chais-son was acting within the course and scope of his employment when he assaulted her and that it was reversible error for the trial court to have held otherwise. If Mr. Chaisson were acting within the course and scope of his employment, then his employer might be liable for his actions under La. Civil Code art. 2320. Ms. San-born relies on the holding in Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1st Cir.1979), to support her argument.

lain the Applewhite case, the plaintiff was walking with two friends when the group was stopped by a City of Baton Rouge police officer, who was in uniform, on duty, and traveling in a police K-9 unit. The police officer told the group that they were going to be arrested for vagrancy if they remained on the street. The three companions began hurrying to their destination, a friend’s house several blocks away. After they had walked a few more blocks, they were again stopped by the police officer, who ordered the plaintiff to get into his police vehicle, after he had flipped a coin to determine whom he would arrest. After the plaintiff entered the police vehicle, the police officer drove her to a stadium where he raped and sexually assaulted her.

The court in Applewhite found that the police officer was acting within the scope and course of his employment when he assaulted the plaintiff. The court reasoned that “where it is found that a law enforcement officer has abused the ‘apparent authority’ given such persons to act in the public interest, their employers have been required to respond in damages.” 380 So.2d at 122. The court further stated that “[t]his is particularly true where, as here, the officer is on duty.” Id.

We do not find the Applewhite case to be controlling in the instant case, however. Instead, we find the Louisiana Supreme Court’s decision in Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, to be more relevant to the instant situation. In Baumeister the Supreme Court granted writs “to determine whether the court of appeal correctly held a hospital vicariously liable for the sexual battery committed by one of its supervisors upon a co-employee during working hours on the hospital’s premises.” 95-2270, p. 1, 673 So.2d at 995.

In discussing the law applicable to an employer’s vicarious liability for the torts of employees, the Supreme Court stated:

|9The law in this area is clear that an employer is liable for a tort committed by his employee if, at the time, the employee was acting within the course and scope of his employment. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226. The course of employment test refers to time and place. Benoit v. Capitol Manufacturing Co., 617 So.2d 477, 479 (La.1993). The scope of employment test examines the employment-related risk of injury. Id.

95-2270, p. 3, 673 So.2d at 996.

In Baumeister the Supreme Court stated that “an employer is not vicariously liable merely because his employee commits an intentional tort on the employer’s premises during working hours.” 95-2270, p. 4, 673 So.2d at 997. In determining whether an employee was acting within the course and scope of the employee’s employment, the particular facts of each case must be analyzed. Id.

In Baumeister the plaintiff, a clinical technician, and the defendant, the night nursing supervisor, worked the 3 p.m. to 11 p.m. shift at a hospital. The plaintiff was on her break when she went to the basement of the hospital to get a soda. She then went to the nurse’s lounge on the second floor of the hospital building, sat down, and began reading a magazine. The defendant then entered the lounge, turned off the light, jumped on top of the plaintiff, and sexually assaulted her.

The Supreme Court analyzed the facts in Baumeister using the following four factors, set out in LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974), to determine if the hospital were vicariously liable for the actions of the nursing supervisor:

(1) whether the tortious act was primarily employment rooted;
(2) whether the violence was reasonably incidental to the performance of the employee’s duties;
(3) whether the act occurred on the employer’s premises; and
(4) whether it occurred during the hours of employment.

| in95~2270, p. 8, 673 So.2d at 999.

The Supreme Court in Baumeister found that the last two factors were present but that the first two factors were not. The Supreme Court found that the likelihood that a nursing supervisor would find an employee alone in the nurses’ lounge and sexually assault the employee was not a risk attributable to the supervisor’s duties, because a nursing supervisor’s responsibilities do not include “sexually oriented physical contact with a co-employee.” 95-2270, p. 9, 673 So.2d at 999. Additionally, the Supreme Court did not find that the nursing supervisor’s actions were employment rooted. The Supreme Court found that unlike the cases where a supervisor’s duties, such as disciplining or threatening to discipline a subordinate employee, may lead to an intentional tort, the sexual assault in Bau-meister was entirely extraneous to the employer’s interests. Given the facts in Baumeister, the Supreme Court found that “as a matter of law the uncontro-verted facts do not support a finding of vicarious liability.” 95-2270, p. 10, 673 So.2d at 1000.

Applying the four factors used in the Baumeister analysis to the instant case, it is clear that the same two factors present in the Baumeister case, i.e., that the sexual assault occurred during the defendant’s hours of employment and that the assault occurred on the employer’s premises, are present in the instant case. Similarly, the other two factors are absent as they were in Baumeister. We do not find that Mr. Chaisson’s alleged actions were primarily employment rooted. Clearly, not only were they completely extraneous to Mr. Chaisson’s counseling duties at the Center, they were also an egregious violation of the ethical standards applicable to a substance abuse counselor. Finally, Mr. Chaisson’s alleged actions |nwere in no way incidental to the performance of his duties as a counselor at the Center. His duties certainly did not include sexually assaulting a client.

Based on the foregoing analysis, we hold that the trial court’s finding that the alleged sexual assault by Mr. Chaisson was not within the course and scope of his employment was neither manifestly erroneous nor clearly wrong. Therefore, we find that as a matter of law the facts in the instant case fail to establish any vicarious liability on the part of the Center.

For the foregoing analysis, we have assumed that Mr. Chaisson was an employee of the Methodist Partnership. Methodist Partnership, however, has argued that Mr. Chaisson was an independent contractor rather than an employee and that, therefore, it could not be vicariously liable for his actions. It is not necessary for us to determine whether Mr. Chaisson was a direct employee of the Center or an independent contractor working at the Center. Because Mr. Chaisson’s actions could never be deemed to be within the purview of his duties as a counselor, it is not necessary for us to determine whether Mr. Chaisson was an employee of the Methodist Partnership or an independent contractor. Methodist Partnership would not be liable for Mr. Chaisson’s actions in either case.

Negligent Hiring and Supervision

Ms. Sanborn has also argued that even if Mr. Chaisson were not acting within the course and scope of his employment, the Methodist Partnership was negligent in hiring, retaining, and supervising Mr. Chaisson and, therefore, liable for the damages he caused her to suffer. This argument is based on the fact that he was allegedly terminated from his employment at West Jefferson, because he violated the hospital’s policy regarding contact between counselors and former clients by having lunch with a former client, who was a female. Ms. Sanborn has |12asserted that because of this, Methodist Partnership should have known that Mr. Chaisson had a propensity for improper behavior toward female clients.

Mr. Chaisson testified that he had resigned from his employment at West Jefferson, after he had invited a former client, who was a female, to have lunch with him to discuss some problems she was having. He testified that he later learned that it was the hospital’s policy to discourage counselors from interacting with former clients outside of the counseling setting. Mr. Chaisson testified that because he disagreed with this policy, he resigned from his job at West Jefferson.

There is absolutely nothing in the record to suggest that anything untoward occurred at the luncheon meeting between Mr. Chaisson and his former client. We find that Ms. Sanborn has completely failed to meet her burden of proof on this issue. We affirm the trial court’s judgment that there was no evidence to support Ms. Sanborn’s claim that the Methodist Partnership negligently hired, retained, or supervised Mr. Chaisson.

CONCLUSION

Based on the foregoing discussion, we affirm the judgment of the trial court.

AFFIRMED.

      . Originally, Mr. Chaisson was identified as "Karl LNU” to indicate that Mr. Chaisson's last name was unknown at the time suit was filed.

      . There is nothing in the record to indicate the disposition of the case against Behavioral Services, Inc., Dr. Deutseh, or Dr. Roskind’s estate. Presumably, these parties were partners of the Methodist Partnership.

      . Mr. Chaisson has not appealed the judgment against him.


author: 11 DAVID S. GORBATY, Judge.

text:
    Milezone WILLIAMS, Individually and on Behalf of Her Minor Children, Yessanessa Juliette Williams and Frank Macklin Williams v. LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY and Johnny L. Gibson, M.D., In Solido.
    No. 2003-CA-1081.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2004.

      J. Paul Demarest, Seth H. Schaumburg, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Plaintiff/Appellee.

      Harvey J. Godofsky, Mang, Batiza, Gau-din, Godofsky & Penzato, Metairie, LA, for Defendant/Appellant.
    George E. Cain, Jr., Gary L. Hanes, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Intervenor/Ap-pellant.
    (Comb composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   11 DAVID S. GORBATY, Judge.

In this appeal, defendants urge that the trial judge erred in awarding damages to plaintiff and in denying their exception of prescription. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

This medical malpractice case, which was filed on February 3,1997, arises out of the performance of a cholecystectomy by Dr. Gibson, a board-certified general surgeon, on Milezone Williams at United Medical Center on February 9, 1993. Two days later, Ms. Williams underwent a second remedial surgery to repair a complication in the nature of a Roux-en-y anasto-mosis. In September of 1994, Ms. Williams underwent a third procedure to repair a stricture that formed in the anas-tomosis performed by Dr. Gibson on February 11, 1993. Plaintiff filed suit, alleging that, during the performance of the initial laparoscopic cholecystectomy, Dr. Gibson erroneously identified the proximal duct of the stomach with the cystic duct, and mistakenly clipped and divided it, causing the need for a second procedure to repair the unintended damage.

Defendants filed an exception of prescription, arguing that Ms. Williams had signed a consent form on February 10, 1993 specifically noting that she was | ¡¿having surgery to “repair” and “fix” her bile duct, and that she knew something had gone wrong in the first surgery. However, she did not file a complaint with the Louisiana Patient’s Compensation Fund (“PCF”) until August 24, 1995, more than two and one-half years after the first repair surgery. The exception was denied, and the trial judge noted that “defendants ... are barred from raising the issue of prescription at trial.” In response to this ruling, defendants filed an appeal and a writ application. This court denied the writ, stating that defendants would have an adequate remedy on appeal and could proffer any information.

After a bench trial, matters relating to prescription were proffered. The trial judge initially entered judgment on October 31, 2002 in the amount of $770,000.00. Motions for new trial were filed by both parties, and as a result, the trial judge amended the original judgment, reducing the award to the Medical Malpractice Act $500,000.00 mandated cap. Defendants Louisiana Medical Mutual Insurance Company and Johnny L. Gibson, M.D. subsequently filed this appeal. The Louisiana PCF intervened for appeal purposes.

ASSIGNMENTS OF ERROR URGED BY LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY AND JOHNNY L. GIBSON, M.D.

1. The trial court erred in finding that defendants had breached the standard of care in general surgery.

A court of appeal may not set aside a trial court’s or a jury’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). In Mart v. Hill, 505 So.2d 1120 (La.1987), the Louisiana Supreme Court posited a two-part test for the reversal of a factfinder’s determinations:

|31) The appellate court must find from the record that 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 (manifestly erroneous). Id. at 1127 (quoting Arceneaux v. Domingue, 365 So.2d at 1333 (La.1978)),

This test dictates that the appellate court must do more than simply review the record for some evidence that supports or controverts the trial court’s finding. Id. The appellate court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973, 976 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than those of the factfinder, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the' court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973, 976 (La.1991), (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Courts have recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be maniféstly erroneous or clearly wrong. Id.

In a medical malpractice action, the plaintiff has the burden of proving by a preponderance of the evidence the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians. practicing within its medical specialty; that the defendant either lacks 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 and 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 occurred. La. R.S. 9:2794.

Other experts practicing within the defendant’s medical specialty determine the standard of care. At trial, both Dr. Philip Boudreaux and Dr. Samuel Esterk-yn testified about the standard of care in performing laparoscopic gallbladder surgery. Dr. Boudreaux testified that while performing the surgery, the doctor must identify the cystic duct, clip and cut it, and then remove the gallbladder. The surgeon must be certain about the identity of the cystic duct before he divides it. The surgeon must also be certain about its origin or certain of its termination by either identifying the junction of the gallbladder and the cystic duct or identifying the | ¿junction of the cystic duct and the common bile duct. If the surgeon is still having difficulty visualizing the cystic duct, then the standard of care is to perform a cholangio-gram (an x-ray using dye). If the doctor is still not sure after performing the cho-langiogram, then the procedure should be converted to an open procedure.

Dr. Esterkyn testified that during the surgery, if a surgeon is having doubts about the anatomy, it is a deviation from the standard of care not to do a cholangio-gram. If the anatomy still cannot be perfectly identified, the gallbladder should be removed via an open procedure. The doctor must be completely sure that he is addressing the correct duct before dividing it.

Dr. Esterkyn opined that Dr. Gibson deviated from the standard of care while performing the surgery on Ms. Williams. Based on his review of the medical records, he felt that Dr. Gibson was having difficulty visualizing the cystic duct during the surgery. He should have located the junction of the gallbladder and the cystic duct, the junction of the cystic and common bile duct, performed a cholangiogram and/or converted to an open procedure before he clipped and divided the wrong duct. He had an opportunity to avoid the injury, Dr. Esterkyn felt, but did not.

Defendants argue that injury to the common bile duct is an inherent risk of the laparoscopic gallbladder surgery. At trial, all of the experts agreed that an injury to the common bile duct is an inherent risk of the procedure. However, Dr. Boudreaux and Dr. Esterkyn made a distinction with this case. They testified that as a result of not following the proper safeguards for the procedure, Dr. Gibson identified, clipped, and operated on the wrong bile duct. As such, under these specific facts, Dr. Gibson deviated from the standard of care.

| ^Defendants further allege that Dr. Gibson did locate the junction of the gallbladder and the cystic duct. However, Dr. Gibson did not mention this fact in his previous deposition. Further, in deposition (although he later changed his testimony), Dr. Steven Jones testified that he and Dr. Gibson were both observing the operation on the same video screen, and Dr. Gibson did not locate the junction of the gallbladder and the cystic duct. The evidence does not support defendants’ assertion, nor does it support their contention that Dr. Gibson was not having difficulty visualizing the cystic duct during surgery.

Defendants also argue that a short cystic duct resulted in a more difficult operation. However, neither Dr. Gibson nor Dr. Jones mentioned a short duct in their prior depositions. This theory is also inconsistent with Dr. Gibson’s previous statement that there was nothing unusual or abnormal about the biliary ducts and that everything was anatomically correct.

We find that the trial judge was not manifestly erroneous in relying upon the testimony of Dr. Boudreaux and Dr. Est-erkyn, and discounting the possibly self-serving testimony of Dr. Gibson and Dr. Jones, his friend of twenty years. There was adequate evidence establishing that Dr. Gibson deviated from the standard of care when he performed the surgery on plaintiff.

2. The amount of the award to plaintiff Milezone Williams was excessive. The evidence did not support the conclusion that any breach of the standard of care caused damages that would not have otherwise occurred; and

3. There was no evidence to support the amount of the award to Milezone Williams or her children.

These two assignments of error will be addressed together.

17The assessment of quantum or the appropriate amount of damages by a trial judge is a determination of fact that is entitled to great deference on review^ As such, the role of an appellate court in reviewing general damages is not to decide what it considers an appropriate award, but rather to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70. Moreover, before a court can disturb an award made by the factfinder, the record must clearly reveal that the trier of fact abused its discretion in making an award. Id.

As a result of Dr. Gibson deviating from the standard of care, Ms. Williams suffered many complications resulting in a subsequent reconstructive surgery; multiple hospital stays; nausea; severe vomiting; cirrhosis of the liver; a life-threatening infection; large scars from two corrective surgeries; and a host of other ailments and medical problems. Considering the life-threatening injuries suffered by Ms. Williams, we find that the damages awarded were reasonable, as were the damages awarded to her children. These two assignments of error lack merit.

4. The trial court erred in denying defendants’ exception of prescription. The evidence showed that plaintiffs did not timely file their complaint with the Louisiana Patient’s Compensation Fund. Ms. Williams did not file a complaint to institute a Medical Review Panel until August 24, 1995.

As a general rule, the party raising an exception bears the burden of proving its viability. But when a petition reveals on its face that prescription has run, the burden shifts to the plaintiff to show why the claim has not prescribed. Affordable Housing Developers, Inc. v. Kahn, 2000-0611, p. 4 (La.App. 4 Cir. 4/25/01), 785 So.2d 251, 254; Aetna Casualty and Surety Company v. Stewart Construction Company, Inc., 2000-1332, p. 5 (La.App. 5 Cir. 2/28/01), 780 So.2d. 1253, 1257.

Plaintiffs’ allegations of negligence are based upon medical malpractice. As a result, they are governed by the special prescriptive provision of La. R.S. 9:5628(A), which provides in pertinent part:

No action for damages for injury or death against any physician ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Under this statute, if the tolling of prescription began on the date of the alleged act of malpractice, which was no later than April 8, 1993, the date of Dr. Gibson’s last treatment of Ms. Williams, then this matter is prescribed. The only way Ms. Williams’ claim can survive this conclusion is if she did not discover Dr. Gibson’s alleged malpractice until sometime within a year of the filing of her complaint with the PCF, thereby invoking the “discovery” exception set forth in La. R.S. 9:5628.

Application of the discovery rule turns on the nature and timing of the plaintiffs knowledge of the factual basis for the claim. This knowledge can be either actual or constructive and is judged on a reasonable person standard. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for injury. Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, Through E.A. Conway Memorial Hosp., 478 So.2d 570 (La.App. 2 Cir.1985). A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts thatl9would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Campo v. Correa, M.D., 2001-2707 (La.6/21/02), 828 So.2d 502. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Ledet v. Miller, 459 So.2d 202 (La.App. 3 Cir.1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051 (La.App. 2 Cir.1977); Opelousas General Hospital v. Guillory, 429 So.2d 550 (La.App. 3 Cir.1983). Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Campo, 828 So.2d at 511, citing Gunter v. Plauche, 439 So.2d 437, 439 (La.1983). Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. Campo, 828 So.2d at 511 citing Griffin v. Kinberger, 507 So.2d 821 (La.1987) (emphasis in original). The ultimate issue is the reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. Campo, 828 So.2d at 511 citing Griffin, 507 So.2d at 821 (emphasis in original).

In the instant case, Dr. Gibson admitted that after the surgery he did not tell Ms. Williams that he had done anything wrong. Furthermore, he did not inform her of any symptoms to be aware of should a postoperative stricture occur. |in Following the corrective surgery, she had no complications, and it was not until a year and a half later that Ms. Williams began suffering from hepatitis-like symptoms. She saw her family physician, who diagnosed her with hepatitis, and referred her to the ER. At the ER, she was again diagnosed with hepatitis, and after being admitted to the hospital, was also diagnosed with hepatitis by Dr. Angelica. Dr. Angelica testified that there was no indication from Ms. Williams that she thought her symptoms were in any way related to her prior gallbladder surgery. Ms. Williams also told Dr. McCaffery that she had no problem with the prior surgery.

Initially, all of the doctors who examined Ms. Williams believed she had hepatitis. It was not until an ultrasound was performed on August 28, 1994 that there was any indication that Ms. Williams may have been suffering from a post-operative stricture of the common duct. Many more tests were performed, and by August 30, 1994, the doctors finally concluded that Ms. Williams’ medical problems were caused by the prior gallbladder surgery.

Defendants argue that Ms. Williams knew she had a biliary duct injury following the February 9, 1993 surgery because she consented the next day to a “repair” of the injury. However, the consent form signed by Ms. Williams reveals no indication that Dr. Gibson negligently cut the common bile duct. It only stated that an “exploratory laparotomy with repair of biliary ductal system” would be performed. It did not indicate that the purpose of the surgery was to correct a negligent action. The form merely stated that the purpose of the procedure was to “find an area of leakage in the bile duct system and fix it.” It does not reveal that the reason for the leakage was that the wrong bile duct was cut.

|nThe overwhelming evidence and testimony supports Ms. Williams’ testimony that she was not aware that Dr. Gibson had operated on the wrong bile duct. The evidence also supports her contention that she did not become aware of the malpractice until she became acutely ill a year and a half after surgery. As such, we find that Ms. Williams filed suit within a year of discovering the alleged malpractice. This assignment of error lacks merit.

5. The trial court prejudged the case to the detriment of defendants. The trial judge prejudiced Dr. Gibson by concluding before the introduction of any defense evidence that the standard of care was breached.

Counsel for Dr. Gibson alleges that he overheard Judge King tell his law clerk before the conclusion of evidence that “this was a case of malpractice. Work it up this way.” Counsel avers that this affected the mindset of the law clerk, who was charged with taking notes and preparing the reasons for judgment. However, counsel made no objection related to this alleged incident during the trial. Facts referred to solely in arguments of counsel, in brief or otherwise, are not considered record evidence. Green v. Neese, 99-3224 (La.App. 4 Cir. 9/20/00), 769 So.2d 694. We find that there is no support for this assignment of error anywhere in the record and deem it to be without merit.

ASSIGNMENTS OF ERROR URGED BY LOUISIANA PCF

1. The trial judge erred in failing to maintain Dr. Gibson’s exception of prescription.

2. The trial judge erred in awarding excessive damages to the plaintiffs.

We find that these assignments of error are without merit, for the reasons discussed above.

Ji¡MOTION TO SUPPLEMENT

Plaintiffs have filed a Motion to Supplement the trial record, which has not been opposed. It is ordered that this Motion to Supplement be granted.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED; MOTION GRANTED


text:
    Dennis POINTS v. Willie FORBES, ABC Insurance Company, and State Farm Mutual Automobile Insurance Company.
    No. 2003-CA-1243.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2004.

      Wayne M. Babovich, Christopher J. Couch, Bradley J. Chauvin, The Law Offices of Babovich, Spedale & Chauvin, P.L.C., Metairie, LA, for Plaintiff/Appellant.
    William Ryan Acomb, James R. Nieset, Jr., Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendants/Appel-lees.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, Jr.).
   11 DAVID S. GORBATY, Judge.

Dennis Points seeks review of a trial court judgment granting State Farm Mutual Automobile Insurance Company’s Motion to Amend Responses to Requests for Admission of Fact. For the following reasons, we convert the appeal to an application for supervisory writ, deny the writ, and remand this matter for further proceedings in accordance with this disposition.

FACTS AND PROCEDURAL HISTORY:

At the time of the accident giving rise to this lawsuit, Dennis Points was a motorcycle police officer for the New Orleans Police Department. He was severely injured when an automobile being driven by Willie Forbes struck him. According to Mr. Points, because of the potentially dangerous nature of his job, he carried $100,000 in uninsured/underinsured motorist coverage, and a $1,000,000 umbrella policy. Both of these policies were purchased from State Farm through its agent, Donald Bel-som.

Mr. Points filed suit against Mr. Forbes, his insurer, and State Farm Mutual Automobile Insurance Company (hereinafter “State Farm Mutual”) in January ofl21995. On August 12, 1998, counsel for Mr. Points propounded the following Requests for Admissions to counsel for State Farm Mutual:

REQUEST FOR ADMISSIONS NO. 1:

Do you admit or deny that Dennis Points had a policy of insurance for primary liability in the amount of $100,000 in force and effect with State Farm Mutual Automobile Company on February 14,1994.
REQUEST FOR ADMISSIONS NO. 2:
If Request for Admissions No. 1 is admitted, do you admit or deny that such insurance included uninsured motorist coverage in an equal amount.
REQUEST FOR ADMISSIONS NO. 3:
Do you admit or deny that Dennis Points had a policy of insurance for excess liability (umbrella) in the amount of $1,000,000 in force and effect with State Farm Mutual Automobile Company on February 14,1994.
REQUEST FOR ADMISSIONS NO. 4:
If Request for Admissions No. 1 is admitted, do you admit or deny that such insurance included uninsured motorist coverage in an equal amount.

State Farm Mutual admitted all four requests for admissions. On September 2, 1998, counsel for Mr. Points propounded the following Requests for Admissions to State Farm Mutual:

REQUEST FOR ADMISSIONS NO. 1:
Do you admit or deny that Dennis Points had a policy of insurance for excess liability (umbrella) in the amount of $1,000,000 in force and effect with State Farm Mutual Automobile Company on February 14,1994.
REQUEST FOR ADMISSIONS NO. 2:
If Request for Admissions No. 1 is admitted, do you admit or deny that such insurance included uninsured motorist coverage in an equal amount.

|3State Farm Mutual admitted the first request, but denied the second.

The plaintiff settled his claim against Mr. Forbes and his insurer, and on March 9, 2000, the trial court signed a Judgment of Partial Dismissal.

According to plaintiff, on June 4, 2002, through either telephone or written communications, State Farm Mutual denied that it had issued to plaintiff the $1,000,000 umbrella policy. Instead, State Farm Mutual claimed to have discovered that State Farm Fire and Casualty (hereinafter State Farm Fire) had actually issued the policy in question. On June 25, 2002, State Farm Mutual filed a Motion in Limine requesting that the trial court not allow plaintiff to introduce at trial evidence of the umbrella policy and/or a UM waiver allegedly executed by plaintiff because State Farm Fire was not a party to the lawsuit. On July 24, 2002, plaintiff amended his original petition to add State Farm Fire as an additional defendant, alleging State Farm Fire to be an undisclosed principal and reinsurer of State Farm Mutual.

State Farm Fire thereafter filed a Peremptory Exception of Prescription on October 18, 2002, arguing that prescription had run pursuant to La.Rev.Stat. 9:5629 because State Farm Fire was not solidarily liable with any other defendants, more than eight years had elapsed since the date of the accident, and more than two years had elapsed since the original tort-feasor and his insurer were dismissed from the suit. State Farm Fire argued that it was a distinct legal entity from State Farm Mutual.

hOn March 10, 2003, the trial court granted State Farm Fire’s Exception holding that La.Rev.Stat. 9:5629 was controlling, and, therefore, plaintiffs suit against State Farm Fire had prescribed.

On November 7, 2002, State Farm Mutual filed a motion asking the trial court to allow it to amend its previous responses to plaintiffs Request for Admissions. Specifically, State Farm wanted now to deny that it had issued a $1,000,000 umbrella policy to Mr. Points. On May 2, 2008, the trial court granted State Farm Mutual’s motion. Mr. Points appealed that judgment as well as the judgment maintaining State Farm Fire’s Exception of Prescription.

Following oral argument, counsel for State Farm Fire filed with this Court a Motion to Dismiss Exception of Prescription and Motion to Dismiss Appeal of the March 10, 2003 Judgment Granting the Exception of Prescription Filed on Behalf of State Farm Fire and Casualty Company. The motion indicated that plaintiff had no objection to vacating the judgment maintaining the Exception of Prescription, and to dismissing the appeal of that judgment. In a separate order, this Court granted the motions.

Originally, this Court was prepared to entertain the appeal of the judgment granting State Farm Mutual’s request to amend its responses to Requests for Admissions even though that judgment was interlocutory in nature, because the issue was inextricably intertwined with the appeal of the judgment maintaining the Exception of Prescription. However, the dismissal of the appeal of the judgment maintaining the Exception of Prescription has created a procedural quandary. The judgment granting the request to amend the responses to Request for Admissions standing alone is an interlocutory judgment, and is thus not appealable. However, |fiin the interest of judicial economy, we have converted the appeal to an application for supervisory writ, and will address the merits.

DISCUSSION:

Mr. Points seeks review of a May 2, 2008 judgment wherein the trial court granted State Farm Mutual’s Motion to Amend Responses to Requests for Admissions of Fact.

Louisiana Code Civil Procedure art. 1468 provides in part:

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of Article 1551 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action with [sic] be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

The trial court stated in Reasons for Judgment that it was cognizant of the fact that the previously maintained Exception of Prescription dismissed State Farm Fire from the action, and that allowing State Farm Mutual to amend would leave plaintiff with no entity to pursue for umbrella coverage. Notwithstanding this statement, the trial court found that Mr. Points failed to satisfy the court that amendment to the responses would prejudice him in maintaining his action. We disagree with this finding. Clearly, dismissing State Farm Fire from the suit and allowing State Farm Mutual to deny that it issued an umbrella policy to Mr. Points would prejudice him.

Despite our disagreement with that portion of the trial court’s finding, we agree with the trial court’s conclusion that not allowing State Farm Mutual to amend its responses would require it to defend an aspect of a case for which it was 1 finot the proper party defendant, and could ultimately result in State Farm Mutual having to honor the terms of a policy it did not issue. To that end, we find no error in the trial court granting State Farm Mutual’s motion to amend. Additionally, because the judgment maintaining the exception of prescription filed on behalf of State Farm Fire has been vacated, allowing State Farm Mutual to amend its responses no longer prejudices Mr. Points.

Accordingly, plaintiffs writ is denied.

WRIT DENIED.

      . There is an underlying question of whether plaintiff signed a waiver of underin-sured/uninsured motorist coverage for the umbrella policy. That issue is not, however, before this Court.


author: |,TERRI F. LOVE, Judge.

text:
    Quincy BROADEN and Kermit Henry v. DEPARTMENT OF POLICE.
    No. 2003-CA-1427.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2004.
    Patrick R. Bossetta, Assistant City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Sherry S. Landry, Acting-City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   |,TERRI F. LOVE, Judge.

The Department of Police appeals the judgment rendered by the Civil Service Commission ordering the Department to pay Officers Broaden and Henry all back pay and emoluments of employment to which they are entitled. For the following reasons, we reverse the decision of the Civil Service Commission.

FACTS AND PROCEDURAL HISTORY

Officers Quincy Broaden and Kermit Henry are officers with the New Orleans Police Department with permanent status. Each officer received a fifteen-day suspension for violation of Departmental Rule 4, section 4, subsection (4)(c), Performance of Duty, Neglect of Duty, and Departmental Rule 2, section 3, Moral Conduct, Truthfulness , arising out of their contact with a female in a domestic disturbance call on February 15, 2002. In addition, the officers were found in [2vioIation of Rule IX, Section 1, paragraph 1.1 of the Rules of the Civil Service Commission regarding maintaining the standards of service.

The hearing officer found that the disciplinary action for neglect of duty was warranted but the disciplinary action for untruthfulness was not proven, as such was based only on hearsay evidence. The officers appealed to the Civil Service Commission, which upheld their appeal based on the Department’s failure to provide any evidence for the disciplinary action. The Department appeals the Commission’s decision.

Sergeant Rudolph Thomas conducted an administrative investigation after the female subject of the domestic disturbance call was found dead in the same area two days later. The administrative investigation revealed that a witness placed the domestic disturbance call upon hearing the couple fighting and observing bruises on the female. When they arrived in the area, the witness directed the officers to a parked van, where they found a female asleep. The female stated that she had an argument with her boyfriend and that he left with the key to the van, | .¡leaving her stranded. The officers determined that the situation required no action on their part and that a written report was not needed.

On July 10, 2002, a hearing was held before Captain Edwin C. Hosli, the Commander of the Second Police District. The disciplinary letter sent to each officer states that the officers offered nothing at the hearing to mitigate, justify, or explain their behavior. On August 12, 2002, the officers received their disciplinary letters, which reflected the findings of the Departmental investigation: the officers violated Departmental Rule 4 when they failed to make a report of the domestic disturbance, and the officers violated Rule 2 when they were untruthful about the victim not showing any signs of injury at the time of the disturbance in light of statements by two witnesses to the contrary.

Officer Broaden appealed the suspension on August 22, 2002, and Officer Henry appealed the suspension on September 12, 2002. The appeals were consolidated because the facts, circumstances, witnesses, and disciplinary action taken was the same in each.

On November 26, 2002, February 3, 2003, and March 10, 2003, hearings were held before the hearing officer. The officers testified that the female alleged no physical contact with her boyfriend during their argument and that she evidenced no signs of physical abuse. Furthermore, the officers stated that the female indicated she did not want to file a complaint. Under the circumstances, the officers concluded, no report was necessary and none was prepared.

Captain Eddie Hosli testified that the Department’s rules do not require a written report to be prepared in a domestic disturbance call when there are no allegations or signs of physical injury.

Sergeant Thomas testified that Garrett Smith, the lay witness who called the police to report the domestic disturbance, observed the female arguing with her 1 ¿boyfriend and observed bruises or scratches on the female’s face or neck at the time he called police.

The hearing officer noted the reliance of the Department on the statement of the witness who reported the domestic disturbance. Although he indicated he was willing to testify, Smith was not able to appear at any of the hearings. The hearing officer allowed hearsay evidence at the hearings in anticipation of the witness testifying. When Smith did not testify, the hearing officer struck the hearsay testimony from the record. The hearing officer noted that although hearsay is admissible at administrative hearings, it is not admissible when it is highly prejudicial, as in the instant case. The officers would not be able to cross-examine the main witness against them.

The hearing officer found that the officers failed to write a report, which he found to be required in all domestic disturbance calls. The hearing officer found, however, that the charge of untruthfulness was not proved because Smith did not testify, and the hearsay testimony of Sergeant Thomas was stricken from the record.

On July 22, 2003, the Civil Service Commission for the City of New Orleans issued its opinion. The Commission found that the hearing officer correctly struck the hearsay testimony of Sergeant Thomas when Smith failed to testify. Based on the testimony of Captain Eddie Holsi, the Commission also found that the Department’s Rules do not require officers to prepare a written report when there are no allegations or signs of physical violence. The officers’ appeal was granted, and the Commission ordered the Department to pay the officers all back pay and emoluments of employment to which they are entitled. It is from this judgment that the Department of Police appeals.

ILEGAL ANALYSIS

In Smothers v. Department of Police, 2000-1518 (La.App. 4 Cir. 5/16/01), 787 So.2d 1110, this Court reviewed the standard of review in civil service disciplinary cases:

An employee who has gained permanent status in the classified city civil service cannot be subjected to disciplinary action except for cause expressed in writing, and he may appeal disciplinary action taken against him to the Civil Service Commission. La. Const, art. X, § 8(A). On appeal, the Civil Service Commission has a duty to decide if the appointing authority had good or lawful cause for taking the disciplinary action, and, if so, whether the punishment is commensurate with the offense. Walters v. Department of Police of City of New Orleans, 454 So.2d 106 (La.1984). The appointing authority has the burden of proving by a preponderance of the evidence not only that the complained-of conduct occurred but that it impaired the efficient operation of the governmental entity. Macelli v. Department of Police, 98-0258 (La.App. 4 Cir. 9/9/98), 718 So.2d 1021, 1023. The Commission’s decision is subject to review by the court of appeal on questions of law or fact. Walters, 454 So.2d at 113; Barquet v. Department of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir.1993).
Therefore, to modify the disciplinary action of the appointing authority, the Commission must find that there was insufficient legal cause for the disciplinary action taken. Legal cause exists if the facts found by the Commission disr close that the conduct of the employee impaired the efficiency of the public service. Palmer v. Department of Police, 97-1593 (La.App. 4 Cir. 1/28/98), 706 So.2d 658, 659. A reviewing court should not reverse a Commission’s conclusion on whether the disciplinary action is based on legal cause, unless the conclusion is arbitrary, capricious, or an abuse of discretion. Walters, 454 So.2d at 114. When reviewing the Commission’s findings of fact, however, a reviewing court should not reverse or modify a finding unless it is manifestly erroneous. Id. at 113.

Smothers, 2000-1518, p. 4-5, 787 So.2d at 1112-1113.

The Department argues that the Commission erred in upholding the appeal of the officers because hearsay is admissible in administrative hearings. The | ^Department relies on this Court’s decision in Taylor v. New Orleans Police Dept., 2000-1992 (La.App. 4 Cir. 12/12/01), 804 So.2d 769.

Hearsay may be admitted in administrative hearings, and this practice does not violate the constitution. Taylor, 2000-1992, pp. 4, 6, 804 So.2d at 772, 773. However, the findings of the Commission must be based upon competent evidence. Taylor, p. 5, 804 So.2d at 773 citing Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). The appellate court will disregard incompetent evidence. Therefore, the question becomes whether the hearsay evidence was “competent evidence.” Taylor, p. 5, 804 So.2d at 773.

In Taylor, the hearsay evidence at issue was an officer’s sworn statement regarding his observations of the physical and emotional state of a woman, whose husband was a fellow officer accused of choking her with a dog chain. The officer’s testimony qualified as competent evidence because it had a degree of reliability and trustworthiness and was of the type that a reasonable person would rely upon. Taylor, p. 6-7, 804 So.2d at 774. Thus, this Court found that the Commission erred in disallowing the hearsay testimony of the officers when the wife could not testify before the Commission. Taylor, pp. 6-7, 804 So.2d at 774.

Additionally, in Stevens v. Department of Police, 2000-1682, p. 8 (La.App. 4 Cir. 5/9/01), 789 So.2d 622, 627, this Court held:

The public puts its trust in the police department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Newman [v. Dept. of Fire, 425 So.2d 753 (La.1983)] ... Indeed the [Civil Service] Commission should give heightened regard to the appointing authorities that serve as special guardians of the public’s safety and operate as quasi-military institutions where strict discipline is imperative.

In the instant case, the issue is not whether hearsay evidence is admissible in administrative hearings. Clearly, such evidence may be admissible if it is 17competent evidence. Thus the question becomes whether Sergeant Thomas’ testimony regarding Smith’s observations was competent evidence. Sergeant Thomas interviewed Smith during the course of an administrative investigation of the officers’ actions during the domestic disturbance call. Sergeant Thomas had the opportunity to evaluate Smith’s credibility and his truthfulness during the interview. Smith maintained his contention that the female was visibly bruised or scratched at the time Smith made the call to the police. Sergeant Thomas’ testimony was based on his investigative interview with an eyewitness to the domestic disturbance; as such, his testimony qualified as competent evidence because it had a degree of reliability and trustworthiness and was of the type that a reasonable person would rely upon. See Taylor, pp. 6-7, 804 So.2d at 774.

The Commission erred in disallowing the hearsay testimony of Sergeant Thomas when the lay witness failed to testify before the Commission. Based on the testimony of Sergeant Thomas and Captain Hosli, there was evidence to support the Department’s disciplinary action against the officers on both the neglect of duty and the untruthfulness charges.

CONCLUSION

Accordingly, the decision of the Civil Service Commission is reversed; and the fifteen-day suspensions imposed by the appointing authority upon Officer Quincy Broaden and Officer Kermit Henry are reinstated.

REVERSED AND RENDERED.

      . Rule 4, § 4, Performance of Duty, Neglect of Duty, states:
      Each member, because of his grade and assignment, is required to perform certain duties and assume certain responsibilities. A member's failure to properly function in either or both of these areas constitutes a neglect of duty.
      (4c) Enumerated Acts/ Omissions
      1. Failing to take appropriate and necessary police action.
      2. Failing to make a written report when such is indicated.

      . Rule 2, § 3, Moral Conduct, Truthfulness, states:
      Upon the order of the Superintendent of Police, the Superintendent's designee or a superior officer, employees shall truthfully answer all questions specifically directed and narrowly related to the scope of employment and operations of the Department, which may be asked of them.

      . Rule DC, § 1, paragraph 1.1 states:
      When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, or has committed any act to the prejudice of the service, or has omitted to perform any act it was his/her duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service.
      The action may include one or more of the following:
      (1) removal from the service.
      (2) involuntary retirement.
      (3) reduction in pay within the salary range for the employee’s classification, subject to the provisions of Rule IV, Section 8.
      (4) demotion to any position of a lower classification that the employee is deemed by the appointing authority and the Director to be competent to fill, accompanied by a reduction in pay, which is within the salary range for the lower classification, subject to the provisions of Rule IV, Section 8.
      (5) suspension without pay not exceeding one hundred twenty (120) calendar days.
      (6) fine.