author: 1MAX N. TOBIAS, JR., Judge.

text:
    Perry DAILEY and Shirley Dailey v. THE HOME FURNISHINGS STORE d/b/a Halpern’s Furniture Store.
    No. 2002-CA-1225.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      Roy M. Bowes, Mark A. Moeller, Roy M. Bowes & Assoc., Gretna, LA, for Plaintiffs/Appellees.
    Richard B. Levin, Francis X. deBlanc, III, New Orleans, LA, for DefendanVAp-pellant.
    (Court Composed of Judge MICHAEL E. KIRBY, Judge, MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   1MAX N. TOBIAS, JR., Judge.

The Home Furnishing Store, Inc. appeals a judgment of the First City Court of New Orleans awarding the plaintiffs damages in redhibition for the purchase of defective furniture and attorneys’ fees and costs.

On or about 24 January 1998, Perry and Shirley Dailey (hereinafter, collectively, “the Daileys”) purchased a sofa, two chairs, and an ottoman from The Home Furnishings Store, Inc. d/b/a Halpern’s Furnishing Store (hereinafter, “Hal-pern’s”) for the price of $1,623.32. The furniture was to be manufactured in North Carolina and each piece covered in the same run of selected fabric; a Teflon coating was to be applied to the fabric. Mr. Dailey testified that Ms. Halpern assisted him and his wife with the sale and that she advised them to purchase the Teflon coating so that the furniture would be easier to clean. The Daileys were not provided with any written cleaning instructions for the Teflon coated furniture, but were told that the furniture could be easily cleaned.

The furniture was delivered to the Dai-leys on 28 March 1998. The Daileys were apparently out of town when the furniture was delivered, but a friend stayed | ¡>at their house and accepted its delivery. The Dai-leys arrived home and used the furniture for the next few weeks, until 1 May 1998, when Mr. Dailey discovered a nail protruding from the side of the couch upon which he scratched his arm. Around that same time, Mrs. Dailey noticed that a spring in the sofa was broken or loose. Mr. Dailey testified that on 4 May 1998, he went to Halpern’s and expressed his concerns about the sofa. Halpern’s agreed to pick up the furniture to assess its condition. When Halpern’s picked up the furniture, they left the pillows and the legs of the furniture with the Daileys.

After several days, the furniture was redelivered to the Daileys. Mr. Dailey testified that when the furniture arrived, it was covered with dirt and dust. Apparently, Mrs. Dailey called Halpern’s to complain about the condition of the furniture, and Mrs. Dailey’s testimony was that the deliveryman was instructed by a Halpern’s representative to wipe off the furniture with a wet rag. When the furniture was so wiped, color from the fabric came off onto the rag, leading the Daileys to suspect that the Teflon coating had not been applied. The Daileys refused to accept delivery of the furniture.

Mr. Dailey spoke with Ms. Halpern about the furniture and agreed to accept a new set of furniture as replacement for the original set. The set Ms. Halpern wished to substitute for the original set was, however, in a different style from the furniture originally purchased, and the Daileys refused to accept the replacement selected. Ms. Halpern suggested re-ordering the original style of furniture, but advised the Daileys that it would be six weeks before they would receive the furniture. The Daileys would not agree to this arrangement because they had guests coming for the Fourth of July and needed living room furniture sooner than could be promised by Halpern’s. Mr. Dailey testified that he asked for a refund, and that Ms. Halpern told him that if the furniture were in good condition, a refund |,-¡would be forthcoming. Halpern’s picked up the furniture, but the Daileys did not receive a refund.

After several weeks, the Daileys went to the Halpern’s warehouse to meet with Mr. Halpern to discuss the furniture and to point out the problems with it. The Dai-leys observed that the fabric on the furniture was faded and that the furniture was dusty and dirty. Mr. Halpern apparently disagreed with their assessment of the condition of the furniture and became angry. The Daileys left without a refund.

Frustrated in their attempts to obtain a refund, the Daileys sought legal advice and sent a demand letter to Halpern’s by registered mail, which was refused by Hal-pern’s. Apparently, Halpern’s subsequently asked the Daileys to inspect the furniture at the Halpern’s warehouse a second time to see if they would accept it. The Daileys returned to the Halpern’s warehouse on 31 December 1998 and met with Jack Scheurmann, a representative of Halpern’s. The Daileys asked Mark Miles, a friend of the family, to accompany them to the meeting and brought along a camera and a white rag to document the problems they had with the furniture. They were not allowed to see the two chairs. Photographs of the furniture were taken, which purportedly show the fading of the fabric.

The Daileys, having failed to receive a refund, consulted legal counsel, who prepared a petition for redhibition on their behalf and for their signatures. On 27 April 1999, the Daileys filed the petition in proper person in First City Court. Hal-pern’s filed exceptions of vagueness, prescription, no right of action, and no |4cause of action, and the Daileys responded with a legal memorandum in opposition, again filed in proper person. Following a ruling by the trial court sustaining the exception of vagueness, counsel for the Daileys formally enrolled and filed a supplemental and amending petition praying for relief, including attorneys’ fees associated with litigation of the matter.

Only the Daileys, Mark Miles, and Jack Scheurmann testified at trial of 2 February 2001. On the morning of trial, Hal-pern’s filed a motion in limine, seeking to exclude from evidence any bills from the Daileys’ counsel dated after 22 February 2000, as counsel for the Daileys had never supplemented their discovery responses and failed to provide any bills beyond that date. Just before trial, counsel for the Daileys delivered to counsel for Halpern’s the remainder of the billing statements forming the basis of the Daileys’ claim for attorneys’ fees. Counsel for Halpern’s objected and urged the motion in limine; alternatively, Halpern’s moved for a continuance of the trial. Both the motion and continuance were denied. The statements for legal services provided to counsel for Halpern’s on the morning of trial totaled approximately three pages, and accounted for approximately $1,767.00 of the $4,983.10 ultimately awarded in attorneys’ fees and costs by the Daileys. The trial court allowed counsel for Halpern’s a brief amount of time to examine the statements and prepare for trial. On 2 February 2001, the trial court issued judgment in favor of the Daileys, awarding $6,606.42; $1,632.32 was awarded as reimbursement for the cost of the furniture and $4,983.10 was awarded for attorneys’ fees and costs. Reasons for judgment and a notice of judgment were issued on 8 February 2001.

|BHalpern’s timely filed a motion for sus-pensive appeal on 20 February 2001, which was granted on 1 March 2001. La. C.C.P. art. 5002; La. R.S. 1:55. An appeal bond was posted on 6 March 2001. More than three months later (on 7 June 2001), the trial court, on its own motion, amended the judgment to include an award of legal interest from the date of judicial demand. Following the entry of the amended judgment, Halpern’s filed a motion for new trial, asserting that both the judgment entered on 8 February 2001 and the amended judgment entered on 7 June 2001 were contrary to the evidence presented at trial. The trial court denied the motion following a hearing, but further amended its judgment to reduce the award of attorneys’ fees by $944.25, representing the amount of attorneys’ fees incurred by the Daileys’ counsel prior to their enrollment as counsel of record.

Once an order for a suspensive appeal is entered and the appeal bond posted, the trial court is divested of jurisdiction over the matter, except for ten limited situations, none of which are applicable to this case. La. C.C.P. art.2088. Thus, every action taken and the judgments rendered by the trial court subsequent to the granting of Halpern’s motion for suspen-sive appeal on 20 February 2001 and the posting of the appeal bond on 6 March 2001 is a nullity, as jurisdiction over the matter lay at that time exclusively with the court of appeal. As a consequence, the original judgment of 2 February 2001 is the only valid judgment currently in effect and the only judgment we may and do examine on appeal.

Halpern’s appeal was lodged in this court on 20 June 2002; on 10 July 2002 the Daileys filed an answer to the appeal, pursuant to La. C.C.P. art. 2133. In their answer, the Daileys moved for (a) an affirmation of the judgments of the trial court, (b) an additional $2,500.00 in attorneys’ fees associated with responding to | fiHalpern’s appeal, (c) vacating of the judgment entered by the trial court on the motion for new trial, and (d) reinstatement of the original award, plus legal interest. Article 2133 provides that an appellee may answer an appeal if he “desires to have the judgment modified, reversed in part or unless he demands damages against the appellant.... In such cases he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record, whichever is later.” La. C.C.P. art. 2133(A) (emphasis added). In the present ease, the return date for the appeal was originally set for 23 May 2002. The record was lodged with this court on 20 June 2002. The last date on which an answer to the appeal could have been timely filed by the Daileys was 8 July 2002. Accordingly, the answer to the appeal is untimely. We do not, therefore, address the issues raised or the relief sought by the Daileys in that answer.

Halpern’s appeals the original judgment of the trial court, asserting that the trial court erred in finding in favor of the plaintiffs because the record is devoid of evidence to substantiate the ruling. Specifically, Halpern’s argues that the action in redhibition is insupportable because (1) the protruding nail and the fading color were insufficient to establish an action for redhi-bition and (2) the complained-of defects did not exist at the time of delivery of the furniture, as required by Civil Code article 2530. Halpern’s further asserts that the attorneys’ fees are unreasonable and excessive in light of the amount of the principal judgment. Halpern’s also argues that the trial court erred in denying its motion in limine, thereby improperly considering additional billing statements not provided prior to trial as required by the rules of discovery, thereby dramatically increasing the [7amount of the award. Finally, Hal-pern’s argues that the trial court erred in issuing an amended judgment awarding legal interest from the date of judicial demand after an order for a suspensive appeal had been granted and the appeal bond posted.

Under Louisiana law, a seller warrants a buyer against any redhibitory defect in the thing sold. A defect is redhibi-tory'when “it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of the defect gives a buyer the right to obtain rescission of the sale.” La. C.C. art. 2520. Further, a defect is redhibitory if “without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.” La. C.C. art. 2520. The defect must have existed at the time of sale; however, the existence of the defect within three days of sale creates a presumption that the defect existed at the time of the sale. La. C.C. art. 2530.

Halpern’s argues that neither the protruding nail nor the damaged spring were sufficient to constitute redhibitory defects that would justify rescinding the sale. Halpern’s further argues that the first discovery of any defect was six weeks after delivery of the furniture and that no evidence was presented to create the presumption that the defect existed at the time of the sale. It additionally argues that once notified of the defect, it attempted to cure the defect and offered an entire replacement set of furniture that was refused by the Daileys.

| ^Whether any complained-of defect of a thing that is the subject of a sale is redhi-bitory is a question of fact. A finding of fact by the trier of fact may not be overturned on appeal absent manifest error or a finding that the trial court was clearly wrong. Gaston v. Bobby Johnson Equipment Co., Inc., 34,028 (La.App. 2 Cir.11/3/00), 771 So.2d 848, 852; Rhodes v. All Star Ford, Inc., 599 So.2d 812, 814 (La.App. 1 Cir.1992); Lewis v. State, Through DOTD, 94-2370 (La.4/21/95), 654 So.2d 311.

The trial court found that the nail and the loose spring were sufficient to constitute redhibitory defects, but did not elaborate. Although the defects would seem minor, when taken into consideration with the fading color and non-colorfastness of the fabric covering, we do not find the trial court was clearly wrong or manifestly erroneous in finding them redhibitory. The Daileys testified that they had just moved into their house and needed the living room suite in time for the Fourth of July holiday, when they were expecting guests, indicating that such was one of the motivations behind purchasing the furniture. They further testified that they would not have purchased the furniture with the protruding nail and the loose spring, and that the fading fabric also rendered the furniture wholly undesirable for its intended use. The trial court specifically found that the Daileys were credible in their testimony. Halperris, to discredit the Daileys, offered no evidence or testimony. We find, therefore, that the ruling of the trial court that the furniture contained redhibi-tory defects was not clearly wrong.

Further, Halperris argues that the defects complained-of did not manifest themselves until six weeks after delivery of the furniture and that insufficient evidence was presented to infer that the defects existed at the time of the sale. A buyer may create a reasonable inference that a later-discovered defect existed at the time of the sale through circumstantial evidence. Rey v. Cuccia, 298 So.2d 840, 843 (La.1974). Redhibitory defects are presumed to have pre-existed the sale if they appeared within three days of the sale. La. C.C. art. 2530. “Later-appearing defects do not enjoy that status as a matter of law, but in the absence of other explanation, defects which do not usually result from ordinary use for the time passed may be inferred to have pre-existed the sale.” Perrin v. Read Imports, Inc., 359 So.2d 738, 741 (La.App. 4 Cir.1978), citing, Moreno’s, Inc. v. Lake Charles Catholic H.S., Inc., 315 So.2d 660 (La.1975) (air conditioning compressor which failed after 2.5 years held defective at time of sale). Although no evidence was presented as to the exact cause of the protruding nail or the loose spring, or of the problems with the fabric covering the furniture, we note that Halpern’s offered no evidence to suggest that these defects did not exist or that any conduct of the Daileys might have caused the defects. In light of the Daileys’ uncontroverted testimony regarding then-use of the furniture and the nature of the defects, we do not find that the trial court was manifestly erroneous or clearly wrong in finding (if only by implication) that the redhibitory defects existed at the time the Daileys received the furniture.

Halpern’s further argues that, even if the furniture is found to have had any redhibitory defect(s), Halpern’s is due a credit for the amount of use the Daileys enjoyed from the furniture prior to returning it. In a redhibition action, “the grant of a credit for the buyer’s use is discretionary with the trial court.” Guillory v. Jim Tatman’s Mobile Homes, Inc., 490 So.2d 1185, 1189 (La.App. 3 Cir.1986), citing, DeBlieux v. Arkla Industries, Inc., 390 So.2d 233 (La.App. 3 Cir.1980). In Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978), the Supreme Court held that “credit for a purchaser’s use of a product may be proper in certain instances” but that “[compensation for the buyers use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.” As the Daileys testified that they were both out of town for at least a portion of the six weeks that they possessed the furniture, and as they testified that they did not have small children in the house during those six weeks, it appears that the furniture was not used extensively before the defects were noticed. As Halpern’s was unable to deliver the furniture in a satisfactory condition despite having weeks to cure the defects and as to this day the Daileys have use of neither the furniture nor the funds used to purchase the furniture, we do not find that the trial court was manifestly erroneous in refusing to grant a credit to Halpern’s for the use of the furniture.

Halpern’s further takes issue with the award of attorneys’ fees to the Daileys, which essentially totals three times the amount of the principal judgment. Hal-pern’s asserts that the fees are unreasonable in light of (1) the relatively simple subject matter of the case; (2) the fact that counsel for the Daileys did not enroll until the supplemental and amending petition was filed; and (3) the fact that the Daileys never supplemented their discovery responses as required by the Code of Civil Procedure.

Contrariwise, the Daileys argue that the trial court did not abuse its discretion in its award of attorneys’ fees. They note that the billing statements document the work performed and billed by their counsel. They assert that the bills reflect that counsel billed the Daileys for 26.05 hours of legal work on this Inmatter between 21 April 1999 and 1 February 2001 at a rate of either $115.00 or $125.00 per hour. They further assert that during the entire course of the litigation, their counsel performed such work as conferring with them, drafting the petition in redhibition, responding to exceptions filed by Halpern’s, responding to -written discovery propounded by Halpern’s, preparation for trial, and correspondence with opposing counsel. The Daileys maintain that in order to be made whole, it only follows that they should be awarded the money expended by them in this litigation to recover the amount owed them by Halpern’s. See, Verbick v. R.G.C. Investments, Inc., 477 So.2d 858 (La.App. 5 Cir.1985).

In a redhibition action, a successful plaintiff may recover reasonable attorneys’ fees expended in bringing the action if the seller knew or should have known of the defect in the object or thing that is the subject of the sale. La. C.C. art. 2545. When awarding attorneys’ fees, a trial court should take into consideration the following factors: (1) the responsibility incurred; (2) the extent and nature of the work performed; and (3) the legal know-how and skill of counsel. Anselmo v. Chrysler Corp., 414 So.2d 872, 875 (La.App. 4 Cir.1982), citing Dunn v. Redman Homes, Inc., 411 So.2d 722 (La.App. 3 Cir.1982). In Anselmo, the court in awarding $2,500.00 in attorneys’ fees also took into account the amount recovered by the plaintiff on the main demand, which was $7,651.50. Id. at 876. In Reilly v. Gene Ducote Volkswagen, Inc., 549 So.2d 428, 434 (La.App. 5 Cir.1989), the trial court awarded $5,000.00 in attorneys’ fees on a redhibition action in which $7,650.86 was ultimately recovered as reimbursement for the sale price. The court of appeal, using the factors discussed above, determined that 11?,given the relatively simple nature of the case and the amount at stake between the litigants, $5,000.00 was an unreasonably high award for attorneys’ fees and reduced the award to $2,500.00.

In J.T. Wheat v. Boutte Auto Sales, 355 So.2d 611 (La.App. 4 Cir.1978), the court reduced an award of $2,000.00 in attorneys’ fees arising from a redhibition claim involving the sale of an automobile for $3,000.00. The award for attorneys’ fees was reduced to $1,000.00; the court noted in its opinion that the small amount of money involved in the case coupled with the relatively simple subject matter of the case did not warrant an award of $2,000.00.

In addition to pointing to the disparate amounts awarded for redhibition and attorneys’ fees in this case, Halpern’s argues that the Daileys should not recoup attorneys’ fees for the period of time during which they appeared in proper person. We can find no legal authority to support such a stance. We find no statutory or ethical impediment to awarding attorneys’ fees for the period of time expended by an attorney prior to his or her enrolling as counsel of record for a party. Further, counsel’s billing statements, which are in part provided in the record, reflect bills sent to the Daileys for work done on this matter which are dated as early as 9 April 1999 and which reflect that the Daileys paid a retainer on 2 April 1999. These statements, when taken into consideration with the testimony of the Daileys that their attorney assisted them with the initial pleadings and advised them prior to enrolling in the suit, leave us no other choice but to accept the amounts billed as evidence of attorneys’ fees incurred in this suit by the Daileys.

| ^Although it might seem incongruous to award attorneys’ fees for a period of time during which the Daileys were, for whatever reason, ostensibly representing themselves in the litigation, the fact remains that the Daileys have put forth sufficient evidence to support an award of attorneys’ fees for that time because their counsel was advising them and preparing pleadings and a memorandum of law.

A trial court has great discretion in awarding attorneys’ fees in a redhibition case. Philippe v. Browning Arms Company, 395 So.2d 310, 317 (La.1980). We note that there is no documentation in the record to substantiate the 26.05 billable hours claimed by counsel for the Daileys in the appellate brief. However, we infer from the record on appeal and the transcripts of the proceedings that the trial court accepted this figure, and further awarded additional attorneys’ fees for time billed for trial preparation and the trial. Given the Daileys’ counsel’s billable rate and given the uncontroverted amount of billable amount of time claimed, the ultimate amount of attorneys’ fees and costs awarded does not seem unreasonable. We note that Halpern’s has not asserted that the attorneys’ fees awarded are arbitrary or unsupported by legal documentation; simply that they are unreasonable in light of the amount of the principal demand. As there is no contention by Halpern’s that the amount of attorneys’ fees and costs awarded are unsupported by either the record or evidence presented at trial by the Daileys, there seems to be no dispute as to the verifiability of the amount of attorneys’ fees awarded by the court. Thus, although this case is a relatively simple one, and although the attorneys’ fees awarded seem exorbitant at first blush, we note that this case was litigated for almost two years prior to trial and that there is no contention that the actual amount [uof time billed to the case by counsel for the Daileys is unreasonable or that counsel’s hourly rate was unreasonable.

Halpern’s argues that the trial court committed error when it denied its motion in limine filed on the morning of trial regarding billing statements not produced timely during discovery. The trial court entertained oral argument, denied the motion, and allowed introduction into evidence of the late-produced billing statements. Although it is troubling that counsel for the Daileys could not produce all of the billing statements for this litigation in a timely fashion such that counsel for Halpern’s could have them to prepare for trial and to be placed on notice of the amount ultimately claimed in attorneys’ fees, we note that a trial court has vast discretion in ruling on discovery matters. Jones v. Peyton Place, Inc., 95-0574 (La.App. 4 Cir. 5/22/96), 675 So.2d 754. Although we do not approve of “trial by ambush,” we find it difficult to believe that counsel for Halpern’s could not have anticipated that the attorneys’ fees sought in this case would exceed those documented in the Daileys discovery responses. A substantial portion of time had elapsed and further litigation events had taken place since the date of the last statement provided to Halpern’s that would naturally give rise to billable hours for the Daileys’ attorneys. Thus, although we take a dim view of the withholding of discovery responses, we do not find that the trial court abused its discretion in allowing the disputed billing statements to be admitted.

Both the Daileys and Halpern’s point to Louisiana case law that illustrates awards of attorneys’ fees both larger and smaller than the main demand in redhibition and we are cognizant that this determination is fact sensitive. It is due to the great discretion vested in the trial court in these matters, as well as the very lisfact intensive nature of the inquiry, that we are unable to find that the trial court abused its discretion in its award for attorneys’ fees. The fees and costs that substantiate the award were documented, submitted to the court, and evaluated by the trial judge.

Although the Daileys seek from this court an additional $2,500.00 in attorneys’ fees associated with this appeal and an award of judicial interest from the date of judicial demand, because they have neither appealed themselves or timely answered the appeal, we cannot address them. Reilly v. Gene Ducote Volkswagen, Inc., 549 So.2d at 434, citing, La. C.C.P. art. 2133 and Anderson v. Visa, Ltd., 478 So.2d 1346 (La.App. 5 Cir.1985).

After careful consideration, we find that the trial court did not commit manifest error in finding that the defects in the furniture constituted redhibitory defects. The trial court did, however, err in amending its judgment and entertaining a motion for new trial following the granting of a suspensive appeal. To that effect, we vacate the amended judgment of the trial court dated 7 June 2001, as well as the judgment adjudicating the motion for new trial and amending the judgment yet again on 20 August 2001. We affirm the trial court’s judgment of 2 February 2001. We decline to award additional attorneys’ fees for the legal work performed post-trial, and further decline to award legal interest from the date of judicial demand.

AFFIRMED IN PART; VACATED IN PART.

      . Although Ms. Halpern is not identified more specifically in Mr. Dailey’s trial testimony, we note that the sales receipt identifies Theone M. Halpern as the sales associate who assisted the Daileys with the purchase of the furniture.

      . Mr. Dailey does not give Mr. Halpern’s first name at trial and there is nothing in the record to indicate Mr. Halpem’s full name.

      . The trial transcript identifies this witness as "Jack Scheurmann,” the judge in her reasons fer judgment identifies him as Jack Schul-man. Although there is no other indication in the record as to the true surname of this witness, we refer to him as Jack Scheurmann.

      . The billing statements in question representing legal work done from 22 February 2000 up to the day of trial are not a part of the record on appeal. The amount of attorneys' fees represented by these contested statements is taken from the transcript for the hearing of the motion in limine

      . The Daileys answer to the appeal was postmarked 10 July 2002 and received by this court on 12 July 2002.

      . We note that Friday, 5 July 2002, the date that the answer would ordinarily be due, was a holiday and this court was closed.

      .Halpern’s further argues that the Daileys' answer to appeal was not timely filed and should not be considered. That issue is mooted by our discussion above.

      . The trial court does not specifically make a finding regarding the existence of the defects at the time the furniture was delivered to the Daileys. Rather the court finds that although Halpern’s had "moved for a dismissal after the plaintiffs presented their case, on the grounds that the nail and spring did not amount to redhibitory defects and that plaintiffs’ case had prescribed, being filed more than one year after the purchase date. Plaintiffs correctly argued to the contrary, that prescription begins to run upon plaintiffs discovery of the defect and cited La. C.C. art. 2534.”

      . The Daileys note in their brief that plaintiffs’ counsel’s hourly rate increased sometime after 1 June 1999.

      . "While courts are not bound by such private contracts and may award such amount as the court feels is just and proper under the circumstances of each case, the award should still be a meaningful reimbursement to plaintiff for the legal expenses that he has been forced to incur because of the actions of the defendant. Verbick, 477 So.2d at 862.

      . We note that had counsel for the Daileys never enrolled after advising them, preparing the petition for damages, and preparing the response to the exceptions, counsel would have been entitled to intervene in the litigation to recover fees for work done on the case. La. R.S. 37:218.

      . In fact, we note that the trial court explicitly gave counsel for Halpern’s the opportunity to call counsel for the Daileys as a witness at trial to cross-examine him on the contents of the billing statements, but counsel for Hal-pern's did not elect to do so.


source: Caselaw Access Project

author: 1JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Gregory BOYD, Jr. v. Tracey Eady MORAN and the Fire & Casualty Insurance Company of Connecticut.
    No. 2003-CA-0361.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      H. Edward Sherman, Travis J. Causey, Jr., James E. Cazalot, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Edward J. Lassus, Jr., David J. Schex-naydre, Wade D. Rankin, Pajares & Sehexnaydre, L.L.C., Covington, LA, for Defendant/Appellee, The Fire & Casualty Insurance Company of Connecticut.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge DAVID S. GORBATY).
   1JAMES F. McKAY III, Judge.

The plaintiff, Gregory Boyd, seeks a review of the trial court’s judgment granting a partial summary judgment in favor of the defendant, The Fire & Casualty Insurance Company of Connecticut (F & CICC), and decreeing that any uninsured motorist (UM) coverage, whether statutory or contractual under the F & CICC policy, does not attach until the exhaustion of the self-insured retention (SIR) level of $100,000. The court further held that F & CICC is entitled to a credit against its UM coverage for workers’ compensation benefits paid to the plaintiff by the New Orleans Sewerage and Water Board (S & WB).

On November 11, 1998, the plaintiff was a passenger in a S & WB vehicle, which was struck from the rear by a vehicle driven by Tracy Eady Moran. Ms. Moran was uninsured. As a result of the injuries Mr. Boyd sustained in the scope and course of his employment with the S & WB, he collected workers’ compensation benefits and his medical expenses were l2paid. In a subsequent lawsuit, the plaintiff sued Ms. Moran as the tortfeasor and F & CICC as the UM provider for the S & WB in Policy No. ASR001199.

The issue before this court is whether the SIR endorsement applies to a compensation claimant seeking UM benefits. Hence, only questions of law are before this Court as the facts germane to the motion for summary judgment are not in dispute. Therefore, this Court will review this matter de novo.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C. P. art. 966.

The interpretation of a statute is a question of law, which may be decided by summary judgment. Levy v. Vincent, 01-0277, (La.App. 3rd Cir.7/18/01), 796 So.2d 34, 36. In reviewing questions of law, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355, (La.App. 1st Cir.8/21/96), 694 So.2d 316, 319.

ASSIGNMENT OF ERRORS

The plaintiff argues that the trial court erred in holding that the F & CICC UM policy does not attach until exhaustion of the SIR retention level of $100,000. He further argues that the trial court erred in granting F & CICC a credit against its UM motorist coverage for workers’ compensation benefits paid by S & WB and/or its workers’ compensation insurer, including indemnity and medical benefits paid to and/or on behalf of plaintiff arising out of the accident.

The defendant concedes that the policy in question, No. ASR001199, was purchased by authority of resolution R-129-98, adopted by the S & WB at its June 10, 1998, setting forth the intent of the S & WB to exclude UM coverage for the policy altogether. Nevertheless, the S & WB never endorsed the waiver on a form designated by the insurer, as required by law. F & CICC does not contest that the policy was therefore considered by law to have included UM coverage equal to the bodily injury limits. The defendant asserts that its insurance policy liability limits the UM coverage up to $1,000,000, which only exists in excess to the SIR amount which is $100,000; the $100,000, amount must be exhausted before the UM coverage is applicable.

The trial court granted F & CICC’s partial summary judgment decreeing that any UM coverage afforded by the policy “does not attach until exhaustion of the self-insured retention level of $100,000.” The court 14further noted that F & CICC is entitled to credit against its UM coverage for workers’ compensation benefits paid to the plaintiff by S & WB, including indemnity and medical expenses. The applicable statute for the UM coverage is found in La. R.S. 22: 1406(D).

In the case sub judice the trial court granted the motion based on Tybussek v. Wong, 96-1981 (La.App. 4 Cir.1997), 690 So.2d 225, and ascertained that the S & WB was a self-insured entity that did not need to provide UM coverage to itself, albeit a self-insured entity was exempt from obtaining a formal certificate of self insurance as a political subdivision of the state. In Tybussek, the employee was an employee of the S & WB and was injured while occupying a vehicle owned by his employer. At the time of the accident the S & WB maintained insurance similar to that in the case at bar in that it was responsible for a SIR of $100,000. To cover the excess amount above the SIR, the S & WB purchased a policy with Carolina Casualty to provide $1,000,000 of liability coverage. The plaintiff in that | Bcase argued that the SIR limit set forth in the Carolina Casualty policy applied only to liability coverage and not the UM, which this Court rejected.

In Tybussek, we held that the S & WB was a self-insured entity that did not need to provide UM coverage to itself. Furthermore, pursuant to La. R.S. 32:1041, S & WB as a political subdivision of the state was exempt from obtaining a formal certification of self-insurance. The plaintiffs in Tybussek made a similar argument as Mr. Boyd does in this case, averring that the Carolina Casualty policy still provided coverage for damages within the SIR because there was no clear exclusion or waiver for that layer of liability. We stated in Tybussek that:

Plaintiffs argue that the policy does not contain “a clear and unmistakable exclusion” of UM coverage, thus requiring full coverage for UM benefits. What Plaintiffs fail to realize is that the Carolina Casualty Policy does, in fact, provide full UM coverage in the instant case.
Pursuant to the UM statute, La. R.S. 22:1406(d), every liability policy must contain UM benefits in the amount “not less than the limits of bodily injury liability provided by the policy” unless the insured validly rejects UM coverage or selects lower limits. Here, under the Carolina Casualty Policy, UM coverage was neither rejected nor lower limits selected for the type of vehicle involved in Plaintiffs accident. Rather, the policy was in full conformity with the statutory requirements that UM limits be in the amount “not less than the limits of bodily injury liability.” That is, under the policy, the liability limits are $1,000,000 subject to the $100,000 SIR, and the UM limits are coextensive with the bodily injury coverage. Thus, “a clear and unmistakable exclusion” of UM coverage was unnecessary.

Id. at 230.

In the instant case there are no provisions in the F & CICC policy. That coverage is supplied solely by operation of law. We believe our decision in Tybussek correctly interpreted the law as requiring that UM limits be the same limits of liability coverage. In the case sub judice the limits are $1,000,000 in excess of the SIR limit which is $100,000.

| ^Furthermore, under Louisiana law, even if the excess policy does not specifically provide UM coverage, the failure to secure a valid waiver or selection results in the default selection of UM limits equivalent to the liability coverage. If the liability coverage includes a SIR, the UM coverage will automatically include the same SIR even though the policy language is silent on the question. Trobaugh v. Migliore, 597 So.2d 494 (La.App. 1 Cir.1992).

The F & CICC bodily limits are $1,000,000 excess of a $100,000 SIR. Hence, the UM limits are also $1,000,000 excess of a $100,000 SIR. In other words the insured is obligated to cover itself for the first layer of damages in the amount of $100,000. Therefore, even though the plaintiff may be barred from seeking the SIR portion of UM benefits directly from 5 & WB because of the exclusive remedy provisions of the workers’ compensation law, the F & CICC’s coverage will not attach until damages exceed the SIR.

Accordingly, we find no merit to this assignment of error and affirm the trial court’s judgment on this issue.

Mr. Boyd also asserts that the trial court erred in granting F & CICC a credit against its UM motorist coverage for workers’ compensation benefits paid by S 6 WB and/or its workers’ compensation insurer, including indemnity and medical paid to and/or on behalf of plaintiff arising out of the accident.

In Molony v. U.S. Auto. Assoc., 683 So.2d 891 (La.App. 4th Cir.11/6/96), this Court held that UM carrier and the W/C carrier are solidarily liable for that obligation, the medical and wage benefit, paid by one exonerates the other. In essence the UM carrier is entitled to the credit. To do otherwise would be to allow Mr. Boyd to “double-dip” or make a double 17recovery by collecting UM benefits for damages that have already been compensated by his employer. We find no merit to Mr. Boyd’s argument in this assignment of error. Therefore, we affirm the judgment of the trial court awarding a credit to F & CICC for the payments made pursuant to the workers’ compensation laws.

For the above reasons, we find that the judgment of the trial court is consistent with the statutes and jurisprudence of this state. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . This policy is a commercial auto policy with the effective dates of June 20, 1998 to June 20, 1999 and provides $1,000,000 worth of primary UM coverage. Contained in this policy under the same number is a Self Insured Retention endorsement.

      . The endorsement specifically states in pertinent part:
      The limit of liability as stated in the policy declarations shall apply in excess of the retention as stated in this endorsement, and the Insured agrees to assume the retained limit of $100,000.00 per accident

      . La. R.S.22:1406 (D) provides that:
      Specific duties of casualty and surety division; uninsured motorist coverage; tern-porary substitute vehicles and rental vehicles.
      D. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
      (l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Subsection unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Subsection is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item D(l)(a)(ii) of this Subsection. In no event shall the policy limits of an uninsured motorist policy be less than the minimum liability limits required under R.S. 32:900, unless economic-only coverage is selected as authorized herein. Such coverage need not be provided in or supplemental to a renewal, reinstatement, or substitute policy when the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer or any of its affiliates. The coverage provided under this Subsection may exclude coverage for punitive or exemplary damages by the terms of the policy or contract. Insurers may also make available, at a reduced premium, the coverage provided under this Subsection with an exclusion for all noneco-nomic loss. This coverage shall be known as "economic-only” uninsured motorist coverage. Noneconomic loss means any loss other than economic loss and includes but is not limited to pain, suffering, inconvenience, mental anguish, and other noneconomic damages otherwise recoverable under the laws of this state.


author: 1CHARLES R. JONES, Judge.

text:
    John H. SEAL, JR. v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 2008 CA 0880.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      Brett E. Emmanuel, New Orleans, LA, for Plaintiff/Appellee.
    Brian A. Ferrara, General Counsel, Gerard M. Victor, Assistant Special Counsel, John D. Lambert, Jr., Special Counsel, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge DENNIS R. BAGNERIS SR.).
   1CHARLES R. JONES, Judge.

The Office of Workers’ Compensation (hereinafter the “OWC”) awarded the Ap-pellee, John Seal, Jr., workers’ compensation benefits, attorneys fees and penalties for injuries sustained in a work-related accident. For the reasons set forth below, we affirm the award of worker’s compensation benefits, but reverse the award of attorneys’ fees and penalties.

Statement of the case

Mr. Seal was employed as a heavy equipment operator for the Appellant, Sewerage and Water Board of New Orleans (hereinafter the “S & WB”). According to the testimony of Mr. Seal, on January 8, 1997, at the end of his shift, he was walking to the bathroom when he made a sudden stop to turn toward his locker and twisted his left knee. He felt immediate pain and reported the incident to his supervisor. Pursuant to company policy, because an injury was reported, Mr. Seal was required to see a doctor.

Dr. Axelrod examined Mr. Seal on the day of the accident and diagnosed the injury as a sprain/strain of the left knee. Mr. Seal began treatment on January 17, 1997 with orthopedic specialists, Drs. Cazale and Mímeles. Dr. Cazale performed [¡.arthroscopy surgery on Mr. Seal’s left knee in March 1997. Mr. Seal treated with Drs. Cazale and Mímeles until July 2000, and received worker’s compensation benefits and medical expenses for the injury.

In February of 1998, Mr. Seal began experiencing pain in his right knee for which he sought treatment with Dr. Sketchier. Dr. Sketchier opined that the right knee pain was related to the initial accident. Thereafter, Dr. Laborde was appointed by the OWC to provide an independent medical evaluation of the right knee. Dr. Laborde agreed with Drs. Ca-zale and Mímeles that the pain in Mr. Seal’s right knee was not a result of the January 8, 1997 accident. Mr. Seal was denied payment of medical benefits for treatment to his right knee.

A hearing was held on January 8, 2008, and judgment was rendered on February 14, 2003, in favor of Mr. Seal, with the following findings by the OWC:

1. On January 8, 1997, claimant John Seal, Jr. was an employee of the Sewerage and Water Board, which was self-insured; (By stipulation)
2. Claimant was involved in an accident on January 8, 1997, (By stipulation) which arose out of and was within the course and scope of employment with his said employer; (By stipulation)
3. Claimant’s average weekly wage was $389.00; (By stipulation)
4. Claimant was injured as a result of said accident and it is undisputed that claimant suffered injury to his left knee, (By stipulation)
5. Claimant was injured as a result of said accident within the course and scope of his employment with defendant and which resulted in injury to his right knee;
6. Claimant has been and continues to be paid temporary disability benefits for his left knee. This is not at issue.
7. Claimant has been and continues to be paid medical expenses for injury to his left knee. This is not in dispute.
8. Claimant is entitled to have all medical bills and expenses, including mileage, at issue for his right knee | ¡¡paid by defendant, plus legal interest, until paid, on all unpaid medical bills and expenses;
9. Defendant did not carry its burden of proof under La. R.S. 23:1203E that defendant “communicated to claimant information, in plain language, regarding the procedure for requesting an independent medical examination in the event a dispute arises as to the condition of the employee ...” Therefore, pursuant to La. R.S. 23:1203E, defendant must pay for the medical care, service and treatment of claimant’s right knee.
10. Defendant employer did fail to authorize and or pay medical benefits pursuant to La. R.S. 23:1203E; and defendant did not “reasonably controvert” the claim nor did it “occur due to conditions over which defendant had no control.”
11. For violation of La. R.S. 23:1201E, attorneys fees are awarded in the amount of $3,500.00, which are assessed against defendant employer.
12. For violation of La. R.S. 23:1201E, a penalty is assessed against defendant employer in the amount of twelve percent of the unpaid compensation or a total of not more than fifty dollars per calendar day, whichever is greater, but with the $50.00 per day penalty not to exceed an aggregate of two thousand dollars under La. R.S. 23:1201F.
13. Costs of these proceedings are assessed against defendant employer.

Standard of Review

In a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Dales v. Ceco Concrete Const., 02-2740 (La.App. 4 Cir. 6/4/03), 849 So.2d 790; Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Under this standard of review, an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. After reviewing the entire record, the appellate court must determine if the factfinder’s conclusion was reasonable. Where conflicting testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed. Id. at 738. If the Lfactfinder’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. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/01/97), 696 So.2d 551.

Whether a claimant has carried his burden of proof and whether his testimony is credible are questions of fact to be determined by the workers’ compensation judge. Harris v. Coushatta Indus. Sand, Inc., 31, 977 (La.App. 2 Cir.6/16/99), 741 So.2d 143. A claimant’s burden of proof in establishing a causal relationship between a job-related accident and a disability is by a preponderance of the evidence. Durham v. Plum Creek Manufacturing, 32,888 (La.App. 2 Cir.5/10/00), 760 So.2d 564.

In determining whether the worker has discharged the burden of proof, the trier of fact should accept as true a witness’s uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion on the reliability of his testimony. A worker’s testimony alone may be sufficient to discharge the burden of proof provided that two essential elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the incident. Jackson v. Creger Automotive Co., Inc., 29,249 (La.App. 2 Cir. 04/02/97), 691 So.2d 824.

Appellant’s Argument

In its first assignment of error, S & WB assert that the OWC erred in ruling that the parties stipulated that the injury to claimant’s left knee arose out of, and was in the course and scope of his employment at the time of the injury. S & WB relies on the discussion that took place on the record at the beginning of trial to |5show that there was no such stipulation. In particular, when asked by the court what the issues were, S & WB responded, “Whether the alleged injury of January 8, 1997, arose out of the employment ... ”. The court then stated, “All right, so as I understand it, number one, whether the incident on January 8, 1997, was an accident and occurred within the course and scope of employment; is that correct?” S & WB responded “yes”.

S & WB further argues that beyond the fact that there was no stipulation, the Louisiana Worker’s Compensation Law provides compensation to a worker who suffers an injury by accident which occurs during the course of the employment and which arose out of the employment. In particular, S & WB submits that the principle objective of the “arising out of the employment” requirement is to separate accidents attributable to employment risks, which form the basis of the employer’s obligation under the compensation system, from accidents attributable to personal risks, for which the employer should normally not be responsible. Mundy v. The Department of Health and Human Resources, 593 So.2d 346 (La.1992). S & WB contends that in Mr. Seal’s case, he was simply walking across a level surface when he stopped to change directions and twisted his knee. S & WB therefore argues that this was not an employment risk, as it was not related to the nature of the employment.

In its second assignment of error, S & WB asserts that the OWC erred in finding that the condition of Mr. Seal’s right knee was a result of the January 8, 1997 incident. In support of this argument, S & WB relies on the opinions of Mr. Seal’s treating physicians, Drs. Cazale and Mí-meles. S & WB submits that both doctors opined that the pain in Mr. Seal’s right knee was degenerative and was not related to the injury of his left knee. S & WB further points out that Dr. Laborde, the independent medical examiner, concurred with the opinions of the treating physicians, and only in the opinion of Dr. Sketchier, who Mr. Seal did not see until 1 f;July 2000, was the pain in his right knee partially related to the injury to the left knee. S & WB suggests that the opinions of the two' treating physicians and the independent medical examiner should control.

In its third and fourth assignments of error S & WB argues that the OWC erred in ruling that S & WB violated La. R.S. 23:1203(E) and in finding that appellant failed to carry the burden to prove compliance with the statute. La. R.S. 23:1203(E) provides:

Upon the first payment for a claimant’s medical care, service, or treatment, the payor, as defined in R.S. 23:1142(A)(1), shall communicate to the claimant information, in plain language, regarding the procedure for requesting an independent medical examination in the event a dispute arises as to the condition of the employee. A payor shall not deny medical care, service, or treatment to a claimant unless the payor can document a reasonable and diligent effort in communicating such information. A payor who denies medical care, service, or treatment without making such an effort may be fined an amount not to exceed five hundred dollars or the cost of the medical care, service, or treatment, whichever is more.

S & WB submits that the issue regarding the communication of the independent medical examination procedure was never raised by Mr. Seal and was never discussed at trial. Accordingly, it is argued that for the OWC to rule that S & WB failed to carry the burden to show compliance with R.S. La. 23:1203(E) is not supported by the record.

In assignments five, six and seven, S & WB asserts that the OWC erred in ruling that it did not “reasonably controvert” the claim, thereby assessing attorneys fees and penalties. S & WB contends that in denying the claim for injury to Mr. Seal’s right knee, it reasonably relied on the sound medical opinion of two physicians who treated him for over two years and of the objective findings of the independent medical examiner.

[ 7LegaI Analysis

After a thorough review of the record, we conclude that the finding by the OWC that Mr. Seal injured his left knee in the work related accident of January 8, 1997, was not manifestly erroneous. Mr. Seal’s version of the incident was not disputed, and in fact, the testimony of Hillary Williams, Mr. Seal’s supervisor, corroborated his claim. Mr. Williams testified that at the time of the incident, he thought he witnessed Mr. Seal actually fall to the floor. He further testified that Mr. Seal told him that he tripped, causing him to injure his knee. Mr. Seal’s claim is also corroborated by the fact that he reported the incident immediately and sought medical attention the same day. The diagnosis of a strain/sprain of the left knee was also consistent with Mr. Seal’s claim. Accordingly, we find that Mr. Seal carried his burden of proof to establish a work-related accident, and the question of whether the parties stipulated to this fact is inconsequential.

We further find no manifest error on the part of the OWC in determining that the injury to Mr. Seal’s right knee was a result of the January 8, 1997 incident. We recognize that this opinion was not shared by all of the medical experts in this case however, the opinion of Dr. Sketchier did support this finding. Specifically, Dr. Sketcher stated in his April 25, 2001 report that “Mr. Seal does have bilateral knee disease with a history of injury to one knee on the job. Over the years, in my opinion, his opposite right knee has gradually worn at least in part due to his opposite knee injury. Therefore, there is some work relatedness at least partially to his present right knee problems.” In light of the opinion of Dr. Sketcher, we cannot say that the finding of the OWC judge was manifestly erroneous or clearly wrong. It is well established that where there are two permissible views of the evidence, a factfinder’s choice between them |scan never be manifestly erroneous or clearly wrong. Stobart v. State Through Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880.

We next address the third and fourth assignments of error offered by S & WB wherein it is argued that the OWC erred in finding that S & WB violated the provisions of La. R.S.23:1203(E). S & WB is correct in saying that the issue of compliance with La. R.S. 23:1203(E) was never addressed at trial. The record is void of any evidence to show whether S & WB did or did not communicate to Mr. Seal the procedure for requesting an independent medical examination as required by the statute. The record does not support the OWC’s finding that S & WB violated La. R.S. 23:1203(E).

Finally, we must determine whether the OWC properly assessed attorneys fees and penalties in this matter. La. R.S. 23:1201(F) provides for the greater of $2,000 or a twelve percent (12%) penalty on any workers’ compensation or medical benefits that an employer fails to pay plus reasonable attorney fees, unless the employer reasonably controverts the employee’s claim for compensation or benefits. A claimant’s rights to benefits are “reasonably controverted” if the employer’s factual and medical information reasonably counters that of the claimant. Connor v. Jones Bros. Enterprises, 606 So.2d 996, 1004 (La.App. 4 Cir.1992). Employers must demonstrate that they made reasonable efforts to ascertain the workers’ exact condition before denying benefits. “An employer has an ongoing duty to review medical reports concerning an injured employee’s disability, and may not deny oy discontinue compensation based on inconclusive medical reports.” Blanque v. City of New Orleans, 612 So.2d 948, 952 (La.App. 4 Cir.1993). The determination of whether an award of penalties and attorneys fees is warranted is a question of Igfact that shall not be disturbed unless manifestly erroneous or clearly wrong. Price v. City of New Orleans, 95-1851 (La.App. 4 Cir. 3/27/96), 672 So.2d 1045, 1051.

After a review of the entire record, we conclude that S & WB did reasonably controvert the claim by making a reasonable effort to ascertain whether the pain in Mr. Seal’s right knee was connected to the January 8, 1997 incident. Specifically, we find that S & WB reasonably relied on the opinions of Dr. Cazale and Dr. Mímeles, who treated Mr. Seal for over two years. Both physicians opined that the condition in Mr. Seal’s right knee was degenerative and was not related to the injury of the left knee. After receiving a report from Dr. Sketchier in April 2001, which suggested that the condition of the right knee was at least partially related to the accident, S & WB made further inquiry by having Mr. Seal evaluated by an independent medical examiner. Dr. Laborde agreed with Drs. Cazale and Mimeles that the condition of the right knee was not related to the accident. In light of this conflicting medical evidence, we are of the opinion that S & WB did reasonably controvert the claim and accordingly, it was error for the OWC to assess attorneys fees and penalties against S & WB.

Decree

For the reasons stated herein, the judgment of the OWC, granting Mr. Seal compensation benefits for the work-related injury to both his left and right knees, is affirmed. However, we find manifest error in the OWC’s ruling that S & WB violated La. R.S. 23:1201(E) and La. R.S. 23:1203(E), as the record does not support that ruling. Accordingly, that part of the judgment awarding attorneys fees and penalties is hereby reversed. Each party to bear the cost of this appeal.

AFFIRMED IN PART; REVERSED IN PART.


author: 1DAVID S. GORBATY, Judge.

text:
    Bernard HANDY v. NEW ORLEANS DEPARTMENT OF CIVIL SERVICE.
    No. 2003-CA-0535.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      John D. Lambert, Jr., Special Counsel, Gerard M. Victor, Assistant Special Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for PlaintiffiAp-pellant.
    Gilbert R. Buras, Jr., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, and Judge DAVID S. GORBATY).
   1DAVID S. GORBATY, Judge.

The appellant seeks review of the judgment of the New Orleans Civil Service Commission (“Commission”) denying his request for a waiver of the requirement of possession of a commercial driver’s license (“CDL”) for promotion from Senior Maintenance Technician I (“SMTI”) to Network Senior Maintenance Technician II (“NSMTII”).

FACTS AND PROCEDURAL HISTORY

The appellant was a nineteen-year employee of the Sewerage and Water Board of New Orleans (“SWB”) when he sought to be promoted to the position of NSMTII. One of the requirements for this position is possession of a CDL. Due to a seizure disorder controlled by daily medication, the appellant did not qualify for a CDL. The appellant, however, met every other requirement for the position.

The SWB joined the appellant in submitting a written request to the Civil Service Department (“Department”) for a waiver of the CDL requirement. The SWB agreed to treat the waiver of the CDL as a reasonable accommodation under the Americans With Disabilities Act (“ADA”). On March 21, 2001, the written request to the Department was rejected because “... the operation of equipment requiring the possession of a Class A’ CDL is a primary duty that an individual Lmust be able to perform in this classification, either with or without accommodation.”

On April 16, 2001, the appellant filed with the Commission his letter of appeal of the Department’s ruling. The appellant argued in his pre-appeal memorandum that a waiver of the CDL requirement would be a reasonable accommodation in this case under the ADA because the CDL requirement is not an essential function of the position. Furthermore, a majority of the workers whom the appellant would supervise if he were promoted have a CDL, and it would not create a hardship for someone other than the appellant to drive trucks or equipment to a worksite.

On June 6, 2002, a hearing was held before a Commission hearing examiner, who heard testimony and argument of counsel for all parties. The SWB argued on behalf of itself and the appellant. The appellant testified that he was capable of performing all of the required duties if he were promoted, with the exception of driving trucks or equipment to the worksite because he could not qualify for a CDL. Jesse Perkins, the appellant’s immediate supervisor, testified that the appellant was a very good employee, and the appellant’s inability to obtain a CDL would not pose a hardship in the operation of the crews. Eric Kelly, a Chief of | ¡¡Networks with the SWB, testified in support of the appellant’s request for a waiver of the CDL requirement. Kelly testified that a restructuring of job titles occurred at the SWB in September 2000, and the position of NSMTII was created. The purpose of the restructuring was to create a multi-skilled workforce. Kelly testified that the appellant possessed all the required skills for the NSMTII position, other than the CDL, and that the CDL was not critical to the performance of the job duties. Kelly clarified that the SWB was not requesting that the CDL requirement be deleted from the job description for a NSMTII, but that the requirement be waived in this particular case.

The Department called Robert Hag-mann, an Assistant Personnel Administrator in the Compensation Division of the Department, to testify. Hagmann testified that the CDL requirement was included in the job description for NSMTII to improve efficiency of network operations by using a team-based approach. The CDL was considered an essential function of a NSMTII:

Q: And what is it about the possession of the CDL that made it a critical requirement of its classification?
A: I guess when your [sic] dealing with team-based job descriptions, in effect, everybody’s expected to participate and to work in a particular work crew. Previously, when you had like more specific — specialized classifications, the expectations of each of these old classifications were relatively limited. Now, with this broader based new scheme and new organization, you can expect in effect, a person to perform a multitude of tasks that weren’t originally, like very, very narrow.
... it could be in effect expected and then anyone who was part of this crew could in effect perform those duties and responsibilities rather than, well, the crew can’t go out today because so-and-so with the CDL isn’t here today.

Hagmann also testified that the appellant’s lack of a CDL would not prevent him from keeping his present position as SMTI; rather, it would only prevent him from being promoted.

|4On February 7, 2003, the Commission rendered its judgment upholding the position of the Department in denying the appellant’s request. The Commission found that the CDL requirement was placed in the SMTI and NSMTII classifications at the request of the SWB because the ability to operate certain equipment requiring a CDL was an essential function of the classification. The Commission also recognized the tension between the competing interests in this case: the desire of the SWB to reward a valued employee with a promotion and the necessity of the Department to remain objective and observe its own rules. The Commission concluded that no rule allowed such a waiver of an established job requirement and upheld the ruling of the Department.

DISCUSSION

On February 19, 2003, the appellant filed his motion for appeal. He argues that the Commission erred in failing to find that he was disabled under the ADA and in failing to grant a waiver of the CDL as a reasonable accommodation under the ADA. The Department argues in response that the appellant failed to show that the job qualification for which he sought a waiver was not reasonably related to a valid governmental purpose and that the Commission was not the appropriate forum for the appellant’s claim of discrimination under the ADA. The Department concludes that a waiver of the requirement would result in a violation of the Constitutional mandate that the classification plan be uniform.

[RThis court recently reiterated the standard of review of a decision by the Commission:

The standard of appellate review of the Commission’s decision is set out in Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. First, the Commission’s factual determinations are reviewed under the clearly erroneous/manifest error standard of review. Id. Thus, regardless of our own view of the evidence, we may not disturb the Commission’s findings of fact so long as they are reasonable. Stobart v. DOTD, 617 So.2d 880 (La.1993); Resell v. ESCO, 549 So.2d 840 (La.1989). Second, in deciding whether the Commission’s action was based on legal cause and that the action taken was commensurate with the situation, we should not modify the Commission’s decision unless it is arbitrary, capricious, or characterized by abuse of discretion. Bannister, supra. “Arbitrary or capricious” means the absence of a rational basis for the action taken. Id.

Martin v. Sewerage And Water Bd., 2002-1415, 2-3 (La.App. 4 Cir. 1/8/03), 834 So.2d 672, 674.

A CDL is also required for the SMTI position that Mr. Handy currently holds. Mr. Handy was grandfathered into his present classification, and has demonstrated that he can capably perform his job duties, despite his lack of a CDL. We find that he would also be able to perform the job duties of an NSMTII. Mr. Kelly, among others, testified that repair crews consisting of at least two people are sent out to the job sites. The crews typically have other members who possess CDLs who can drive the trucks. It is not necessary for the NSMTII, as the team leader, to spend any time driving.

Based on the record before this court, we find to be arbitrary and capricious the Commission’s ruling that the ability to operate certain equipment requiring a CDL was an essential function of the classification. We find that although no rule provides for a waiver of this qualification, | ^equity demands that one be applied in this particular case. Mr. Handy is a highly qualified applicant for this position, and his lack of a CDL does not impact his ability to competently perform the essential functions of an NSMTII. It would cause no undue hardship or inconvenience for another member of the crew to execute any duties requiring a CDL.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the Commission denying the appellant’s request for a waiver of the CDL requirement is reversed.

REVERSED.

      . The appellant paraphrased the following in his memorandum and cited it in support of his position:
      For example, many employers require driver’s licenses for a variety of jobs which do not require driving or where driving is incidental to the job. A driver's license is often required because it is presumed that people who drive to work are more likely to arrive at work on time or because a driver can do an occasional errand. The "essential functions” requirement assures that a person who cannot drive because of his or her disability is not disqualified for these reasons if he or she can do the actual duties of the job.
      In one case, a person with epilepsy applied for the job of group counselor at a juvenile hall. After receiving a job offer, the offer was withdrawn when the employer learned that the applicant did not have a driver’s license. Driving was required for emergencies, to take a juvenile to the hospital, for example, and to transport the juveniles to court appearances. While it was necessary that some of the group counselors be able to drive, it was not essential that all group counselors be available to drive. On any given shift, another group counselor could perform the driving duty. Hence, it is necessary to review the job duty not in isolation, but in the context of the actual work environment.
      H.R.Rep. No. 101-485(111), 101st Cong., 2nd Sess., at 33 (1990), U.S.Code Cong. & Admin.News 1990 at 455, 456.

      . La Const, art. 10, § 10(A)(1) provides as follows:
      Each commission is vested with broad and general rulemaking and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety. (Emphasis added).


author: 1LEON A. CANNIZZARO, JR., Judge.

text:
    Barry SAMUEL and B. Samuel Company, Inc. v. The CITY OF NEW ORLEANS BOARD OF ZONING ADJUSTMENTS.
    No. 2003-CA-0604.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2003.

      Philip C. Ciaccio, Jr., New Orleans, LA for Plaintiffs/Appellants, Barry Samuel and B. Samuel Company, Inc.
    M. Michelle Segu, Assistant City Attorney, Edward R. Washington, III, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Sherry S. Landry, Acting City Attorney, New Orleans, LA, for Defendant/Appellee City of New Orleans Board of Zoning Adjustments.
    F. Evans Schmidt, Denechaud & Dene-chaud, New Orleans, LA, for Intervenor-Appellee, Xavier University of Louisiana.
    Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.
   1LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal from the trial court’s decision to deny the relief requested by the plaintiffs, Barry Samuel and B. Samuel Company, Inc. (collectively, the “Samuels”). The Samuels applied to the district court for a writ of certiorari to review a decision of the City of New Orleans Board of Zoning Adjustments (the “Board”) granting Xavier University (“Xavier”) certain variances from the Comprehensive Zoning Ordinance of the City of New Orleans (the “Comprehensive Zoning Ordinance”). The Samuels sought to have the Board’s decision reversed. The district court declined to modify the Board’s decision, and the Samuels are now appealing to this Court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Xavier is a university located in the City of New Orleans in an area zoned as a light industrial district. Because of a lack of student housing on its campus, Xavier is building a seven-story dormitory (the “Dormitory”) to house a portion of its student body. The Dormitory complies with the requirements for a light ^industrial district except with respect to its height and its floor area ratio. The maximum floor area ratio for buildings in a light industrial district is 1.00, and the height limitation for such buildings is 75 feet. Comprehensive Zoning Ordinance Article 7, Section 7.3.7, Table 7-C.

Xavier filed an application with the Board for a variance in these two requirements. The application requested a ten-foot height variance for the Dormitory and a variance of the floor area ratio from a ratio of 1.00 to a ratio of 4.00.

The Board’s staff report recommended that the Board grant both of the variances that were requested. A public hearing was held on the proposed variances. There was no opposition to the variances, and the Board approved them unanimously.

The Samuels filed suit challenging the approval of the variances, because they were not given notice of the public hearing. Xavier consented to having a second public hearing on the request for the variances. At the second hearing the Samuels objected to the variances, but the Board again approved them unanimously.

The Samuels appealed the Board’s decision to the district court and applied for a writ of certiorari to review the Board’s action. The district court granted the writ of certiorari, a hearing was held, and a judgment affirming the Board’s approval of the variances was rendered. The Sam-uels are now appealing that judgment.

| ^STANDARD OF REVIEW

In Elysian Fields, Inc. v. St. Martin, 600 So.2d 69 (La.App. 4th Cir.1992), which involved a writ of certiorari requesting a review of the Board’s denial of a zoning variance, this Court stated that “[t]he purpose of certiorari is to review the findings of boards and quasi-judicial tribunals to determine whether jurisdiction has been exceeded, or to decide if the evidence establishes a legal and substantial basis for the Board’s decision.” 600 So.2d at 72 (citing Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir.1977)).

This Court further discussed the standard of review to be applied to decisions of the Board in Flex Enterprises, Inc. v. City of New Orleans, 2000-0815 (La.App. 4 Cir. 2/14/01), 780 So.2d 1145. In that case, this Court stated that there is a rebuttable presumption that the decisions of the Board are valid. Also, the reviewing court must determine whether the Board’s decision is supported by “substantial and competent evidence” presented at the proceedings. Id. at p. 6, 780 So.2d at 1149. Finally, a reviewing court must not substitute its judgment for that of the Board unless there is a showing that the Board acted arbitrarily or capriciously, the Board abused its discretion, or the Board rendered a decision that was manifestly erroneous in light of substantial evidence in the record. Id. See also, e.g., King v. Caddo Parish Commission, 97-1873 (La.10/20/98), 719 So.2d 410; French Quarter Citizens for Preservation of Residential Quality, Inc. v. New Orleans City Planning Commission, 99-2154 (La.App. 4 Cir. 4/12/00), 763 So.2d 17.

^DISCUSSION

Standard for Variances

Comprehensive Zoning Ordinance Article 14, Section 14.6.1 states that “[t]he purpose of the variance procedure is to afford an applicant relief from the requirements of the letter of the Zoning Ordinance when unnecessary hardship or practical difficulty exists.” Comprehensive Zoning Ordinance Article 14, Section 14.6.2 specifies the only instances in which a variance may be granted. Pursuant to section 14.6.2, the Board may grant a variance to allow a floor area ratio greater than that permitted, but variances involving height requirements are not permitted by section 14.6.2. Exemptions from height requirements are addressed in another section of the Comprehensive Zoning Ordinance, and, unlike the variance provisions of the ordinance, the section allowing height exemptions does not require that a specific list of criteria be met.

Comprehensive Zoning Ordinance Article 14, Section 14.6.4, which governs a request for a floor area ratio variance, provides that the Board shall not authorize a variance from the requirements of the Comprehensive Zoning Ordinance unless the Board has found that the nine specific criteria set forth in section 14.6.4 have all been met based upon the evidence presented to the Board. The criteria are as follows:

1. Special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures, or buddings in the same zoning district.
2. Literal interpretation of the provisions of this Ordinance would deprive the applicant of rights commonly enjoyed |Bby other properties in the same district under the terms of this Ordinance.
3. The special conditions and circumstances do not result from the actions of the applicant or any other person who may have or had interest in the property.
4. Granting the variance requested will not confer on the applicant any special privilege which is denied by this Ordinance to other lands, structures, or buildings in the same district or similarly situated.
5. The variance, if granted, will not alter the essential character of the locality.
6. Strict adherence to the regulation for the property would result in a demonstrable hardship upon the owner, as distinguished from mere inconvenience.
7. The purpose of the variance is not based exclusively upon a desire to serve the convenience or profit of the property owner or other interested party(s) [sic].
8. The granting of the variance will not be detrimental to the public welfare or injurious to other property or improvements in the neighborhood in which the property is located.
9. The proposed variance will not impair an adequate supply of light and air to adjacent property, or increase substantially the congestion in the public street, or increase the danger of fire, or endanger the public safety.

Comprehensive Zoning Ordinance Article 14, Section 14.6.4, (l)-(9).

In Curran v. Board of Zoning Adjustments Through Mason, 580 So.2d 417 (La.App. 4th Cir.1991), this Court stated the standard the Board must use in determining whether a variance may be granted:

The first question which must be answered is: Did the owner seeking the variance present evidence that he would be subjected to hardship, rather than inconvenience or economic disadvantage if he was not granted the variance? If answered in the affirmative, the second question must follow: Did the owner seeking the variance present evidence to the board, or did the board adduce on the record, facts which satisfy all of the IfiCriteria set out in Sec. 15, 2.3, (a)-(i) [now codified as Article 14, Section 14.6.4, (l)-(9) ]?

580 So.2d at 419 (emphasis in original).

In determining whether the Board was arbitrary or capricious or abused its discretion in granting a variance, the reviewing court must answer the two questions posed in the Curran case. The questions must be answered affirmatively for the court to conclude that the variance was properly granted.

Height Variance

According to the record before us, Xavier sought a 10 foot variance for the height of the Dormitory. Xavier requested that the 75 foot limit set forth in the Zoning Ordinance for buildings in light industrial districts be increased to 85 feet for the Dormitory. The purpose of the increase was to accommodate a green gabled roof that has become identified with the buildings on the Xavier campus as a symbol of the university. Xavier representatives testified at the hearing before the Board that, in fact, the roof would actually occupy only 4.5 feet of extra height rather than 10 feet.

The Board is prohibited from granting a height variance under Comprehensive Zoning Ordinance Article 14, Section 14.6.2, which permits variances only in certain instances, none of which apply to the height limits on buildings. The Board does have the authority, however, to grant a special exception under Comprehensive Zoning Ordinance Article 14, Section 14.7.5, which permits special height exceptions in certain instances. That section provides in relevant part as follows:

The Board may grant an exception to the height regulations ... so as to relieve practical difficulties or particular hardships in cases when and where ... by reason of ... other extraordinary and exceptional | situations or conditions of such property, the strict application of such regulation or restriction would result in peculiar and exceptional practical hardship upon the owner of such property.

The record in this case does not permit us to review the Board’s reasoning in determining whether a special exception should be granted in the case of the Dormitory. The application for the variance sought by Xavier and the report of the Board’s staff are not in the record. The only evidence in the record is the testimony in the transcripts of the two public hearings that were held before the Board.

There is testimony in the transcripts to the effect that the additional height created by the trademark green gabled roof will not have a substantial impact on the sunlight supplied to the Samuels’ property. The impact on the supply of sunlight to that property will be affected far more by the first 75 feet of the Dormitory than the last 4.5 feet. The 4.5 foot roof will be sloped and will, therefore, have less effect on the sunlight than the straight walls of the building.

La. R.S. 33:4727(C)(3)(c), however, gives the Board the authority to provide relief from the strict letter of Comprehensive Zoning Ordinance if the relief will not violate the spirit of the ordinance. That statute provides:

(3) The board of adjustment shall have the following powers:
(c) In passing upon appeals, where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the ordinance, to vary or modify the application of any of the regulations or provisions of the ordinance relating to the use, construction, or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.

See also French Quarter Citizens for Preservation of Residential Quality, Inc. v. New Orleans City Planning Commis sion, 99-2154 (La.App. 4 Cir. 4/12/00), 763 So.2d 17.

We find that pursuant to La. R.S. 33:4727(C)(3)(e) the Board had the authority to modify the strict letter of the height requirements of the Comprehensive Zoning Ordinance in connection with the Dormitory. Unlike the floor area ratio variance, the height exemption does not have to meet the nine criteria in Comprehensive Zoning Ordinance, Article 14, Section 14.6.4 that must be satisfied for variances to be granted. Therefore, even on the limited record before us, we can determine that the Board did not act arbitrarily or capriciously or abuse its discretion in modifying the application of the Comprehensive Zoning Ordinance’s height restrictions to the green gabled roof of the Dormitory. This is particularly true in view of the fact that ornamental towers and spires are exempted from the height limitations of the Comprehensive Zoning Ordinance under Article 15, Section 15.5.5. Adding an additional 4.5 feet to a seven-story building to achieve the objective of architectural harmony with other campus buildings and to permit the use of Xavier’s trademark type of roof does not violate the spirit of the ordinance’s height restriction.

Floor Area Ratio Variance

Comprehensive Zoning Ordinance Article 2, Section 2.2(79) defines floor area ratio as “[t]he floor area of a building or buildings on any lot divided by the area of the lot.” Xavier requested an increase in the permitted floor area ratio from 1.00 to 4.00.

To determine whether a variance for an increase in the floor area ratio was permissible under the Comprehensive Zoning Ordinance, we must first determine 13whether Xavier presented evidence to the Board that it would be subjected to “unnecessary hardship or practical difficulty” if it were not granted the variance. Comprehensive Zoning Ordinance Article 14, Section 14.6.1; Curran v. Board of Zoning Adjustments Through Mason, 580 So.2d 417 (La.App. 4th Cir.1991). This Court has made it clear that the test for whether a variance should be granted is “unusual hardship or difficulty.” Financial reasons, forfeiture of federal funds, or enlarging a business do not meet the test. See, e.g., Uptown Improvement Association v. Board of Zoning Adjustments of the City of New Orleans, 243 So.2d 345, 345-46 (La.App. 4th Cir.1971).

At the public hearing that was held before the Board, Xavier’s representatives stated that “Xavier has reached a point where it is absolutely imperative that they acquire and build a new dormitory to house the increasing student body.” The record does not reflect, however, that there was any evidence presented to the Board to support this contention or that the Board determined that this created a hardship within the meaning of Comprehensive Zoning Ordinance Article 14, Section 14.6.1.

The second inquiry we must make in determining whether the Board properly granted the floor area ratio variance is whether all of the requirements set forth in Comprehensive Zoning Ordinance Article 14, Section 14.6.4 were met. The requirements were not specifically addressed at the hearing before the Board, and there is no other evidence in the record that Xavier addressed, or that the Board considered, each of the nine criteria required to be met by section 14.6.4. The Samuels, however, did present evidence at the hearing to show the traffic |1ftcongestion in the area and the decrease in the supply of sunlight to their property that would result from building the Dormitory.

Based on the record before us, there is insufficient evidence for us to determine whether the Board properly considered the criteria required to be met by section 14.6.4. Xavier was required to present evidence to the Board, or the Board was required to adduce facts on the record, to show that all nine of the criteria set forth in section 14.6.4, (l)-(9) were met. Either this was not done, in which case the variance was not properly granted, or the record we have before us is incomplete. The district court did not furnish written reasons for her judgment. Therefore, we do not know the basis upon which she affirmed the Board’s action.

We also note that the argument was made that Xavier did not need a variance of the floor area ratio based on the provisions of Comprehensive Zoning Ordinance Article 15, Section 15.5.6(2). That section provides that the requirements for lot area per family do not apply to dormitories that are accessory to a permitted use and that have no cooking facilities in the individual rooms. We do not find this argument persuasive, however, because section 15.5.6(2) applies to lot area per family, not to floor area ratio. Lot area is “[t]he total horizontal area within the lot lines of the lot.” Comprehensive Zoning Ordinance, Article 2, Section 2.2(116). Therefore, the lot area per family is the minimum area required for each family unit occupying a particular lot. The fact that the lot area per family 1 ^ requirements of the ordinance do not apply to the Dormitory has no bearing on the floor area ratio requirements that do apply to it.

The Board’s Responsibilities

It is the responsibility of the Board to create a record upon which its decisions are made. In the instant case, the Board approved the variances requested by Xavier unanimously at two different public hearings, but it did not document in the record before us the basis upon which the approvals were given. There is no evidence in the record before us that the Board complied with its obligation to evaluate the variance request in accordance with the requirements of the Comprehensive Zoning Ordinance, particularly the requirements of section 14.6.4 of article 14.

If the Board did not evaluate Xavier’s request in accordance with section 14.6.2, it was derelict in its duties. If this is the case, the Board has done a grave disservice to Xavier, the Samuels, and the public. Xavier, in legal good faith, constructed the Dormitory after having been granted on two separate occasions the variances it requested. Furthermore, if the Board has not properly discharged its duties, the property rights of the Samuels may have been impinged, leaving the Samuels with no adequate remedy. It would be inequitable to require Xavier, which relied in good faith on the Board’s decision to grant the variances, to remove portions of the Dormitory. Finally, if the Board has not fulfilled its obligations in accordance with the applicable law, it has breached the public trust that has been granted to it.

The District Court’s Review

It is the district court’s duty to review the record of the proceedings of the Board to determine whether it has complied with the applicable law in deciding | ^whether to grant or deny a zoning variance. If the Board has complied with the applicable law and has made a decision based on a finding of facts that is not arbitrary or capricious or an abuse of the Board’s discretion, the Board’s decision should be confirmed. If the Board abused its discretion either in failing to comply with applicable law or acted arbitrarily or capriciously in finding the facts upon which it based its decision, the district court should reverse the decision of the Board. Elysian Fields, Inc. v. St. Martin, 600 So.2d 69 (La.App. 4th Cir.1992). See also, e.g., Lake Forest, Inc. v. Board of Zoning Adjustments of City of New Orleans, 487 So.2d 133 (La.App. 4th Cir.1986); State ex rel. Pitts v. Board of Zoning Adjustments of City of New Orleans, 327 So.2d 140 (La.App. 4th Cir.1976); Uptown Improvement Association v. Board of Zoning Adjustments of City of New Orleans, 243 So.2d 345 (La.App. 4th Cir.1971).

In the instant case the record on appeal is insufficient for us to determine whether the Board’s decision with respect to the floor area variance was properly made or whether the Board’s decision was arbitrary, capricious, or an abuse of discretion, in which case it should be reversed. Therefore, the district court must review only the testimony, documents, and evidence that were presented to the Board at the hearing at which the Samuels were represented.

La. R.S. 33:4727(E) sets forth the procedure to be followed by the district court when a party is aggrieved by a decision of the Board. Pursuant to that statute, if it appears to the district court that additional testimony is necessary for the proper disposition of the matter, the district court “may take additional evidence or 113appoint a referee to take such evidence as it may direct ... and report the same to the court with his finding of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made.” La. R.S. 33:4727(E)(4). The district court may “reverse or confirm, wholly or in part, or may modify the decision brought up for review.” La. R.S. 33:4727(E)(5).

In the instant case, it may be necessary for the district court to obtain additional evidence before she can determine whether or not the decision of the Board was properly made with respect to the floor area ratio variance. See, e.g., Lakeshore Property Owners Association v. City of New Orleans, Zoning Board of Appeal and Adjustments, 481 So.2d 162, 166 (La.App. 4th Cir.1986), where this Court found that additional evidence was necessary, because “[t]he ‘hearing’ before the BZA [the Board] contains no evidence other than statements made by persons or their representatives who either opposed or supported the requested variance.” Accordingly, we will remand this case for further review by the district court.

CONCLUSION

Based on the foregoing, we hereby affirm the decision of the district court insofar as it confirms the Board’s decision to permit the height variance in the Dormitory, and we hereby vacate the decision of the district court insofar as it confirms the Board’s decision to grant a variance in the floor area ratio for the Dormitory. We further remand this case to the district court with instructions to determine, based on a complete record, whether or not the decision of the Board to grant the variance in the floor area ratio should be reversed, confirmed, or modified. In doing this, the district court should consider only the testimony, documents, and evidence that were before the Board at the meeting at which the | uSamuels were represented to determine whether the action taken by the Board was proper.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      . The construction of the Dormitory is now either complete or nearing completion.

      . The floor area ratio is the floor area of a building or buildings on a lot divided by the area of the lot. Comprehensive Zoning Ordinance Article 2, Section 2.2(79).

      . A floor area ratio variance may not be granted in the Central Business District, however.

      . Height exemptions are addressed in Comprehensive Zoning Ordinance, Article 14, section 14.7.5, and they may be granted to "relieve practical difficulties or particular hardships.”

      . This statute relates to appeals to the Board by persons aggrieved by the actions of officers, departments, boards, or bureaus of the municipality.

      . There is a Return to Writ of Certiorari in the record that references a number of documents that may shed light on whether the Board considered the factors it is required to consider under section 14.6.4. Although these documents may have been available to the district court, they are not in the record before us, and we cannot review them.

      . The transcript of the public hearing refers to a videotape showing the traffic congestion in the area of the Dormitory, but the videotape is not in the record. There is in the record, however, a diagram showing the effect the Dormitory will have on the sunlight that reaches the Samuels' property.

      . The hearing was held on March 11, 2002.