author: JjTERRI F. LOVE, Judge.

text:
    LINDY DEVELOPMENT, L.L.C. v. Janyce D. DEGAN, In Her Capacity as Sixth District Assessor of the Parish of Orleans, State of Louisiana and City of New Orleans, Department of Finance, Bureau of the Treasury.
    No. 2003-CA-1078.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2004.

      Richard L. Traína, Gary J. Elkins, El-kins, P.L.C., New Orleans, LA, for Plain-tifflAppellant.
    Sherry S. Landry, Acting City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Thomas A. Robichaux, Assistant City Attorney, Joyce G. Joseph, Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   JjTERRI F. LOVE, Judge.

Plaintiff filed suit against the City and the Assessor to recover taxes paid under protest, asserting the tax assessor erroneously re-assessed the property for the years 2000 and 2001 in violation of the terms of the Restoration Tax Abatement Contract. The Assessor filed an exception of no right of action and the City filed exceptions of prescription and no cause of action. The trial court maintained the City’s exception of prescription and dismissed the lawsuit with prejudice without addressing the remaining exceptions. For the following reasons we affirm the judgment of the trial court.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

Lindy Development, L.L.C. (“Lindy”) owns immovable property located at 4125 St. Charles Avenue, New Orleans, Louisiana that is subject to ad valorem taxes. Lindy purchased the aforementioned property from Clark O’Hara, L.L.C. (“Clark”) on October 8, 2001. At the time of purchase, the property was subject to an October 25, 2000 Contract for Limited Exemption from Ad Valorem Taxation (Pursuant to Article VII, Section 21(H) of the Louisiana Constitution of 197k and La. R.S. k7:kSll~kS19) (“RTA Contract”). The RTA Contract was between Clark and the City.

12Pursuant to the terms of the RTA Contract, ad valorem taxes on qualifying projects with' approved abatement contracts are to be paid “based upon the assessed valuation of the property for the year prior to the commencement of the expansion, restoration, improvement, or development.” La. R.S. 47:4313(A)(1). If taxes are paid on the improved value of the property, the contract is void. In the year 1999, ad valorem taxes for the aforementioned property was $7,600.00. The Sixth District Assessor, Janyce Degan, re-assessed the property for the years 2000 and 2001 raising the taxes to over $11,000.00. According to Lindy, he informed the Assessor of the “error” and requested it be corrected, but she refused.

On November 30, 2001, Lindy paid the ad valorem taxes on the property for 2000 and 2001 under protest to avoid a tax sale of the Property for nonpayment of the 2000 ad valorem taxes. Lindy filed suit on December 28, 2001, alleging the Assessor re-assessed the property for the years 2000 and 2001 in violation of the RTA Contract. The named defendants were Assessor Janyce Degan, and the Bureau of the Treasury of the City of New Orleans’ Department of Finance (the “City”).

On the same day suit was filed, Lindy requested by letter that the Louisiana Board of Commerce and Industry (“The Board”) send him information regarding the procedure for transferring the RTA Contract to the new owner. Approximately six months later on June 27, 2002, the Board sent the incorrect form required for the transfer. The Board was notified via fax on July 2, 2002 of the mistake. The Board sent the correct form on July 8, 2002 by U.S. mail instructing Lindy to complete and return five original copies. Lindy completed the RTA transfer contract and mailed the forms to the Board on September 17, 2002. On March 10, 2003, the Governor approved the transfer of the RTA Contract.

[¡¡The trial court entered preliminary defaults against the Assessor and the City on February 5, 2002. Subsequently, both defendants answered and obtained extensions of time within which to respond to the petition. The Assessor filed an exception of no right of action. The City filed exceptions of prescription and no cause of action. The exceptions were heard on November 22, 2002 and the trial court maintained the City’s exception of prescription dismissing the lawsuit with prejudice. Lindy filed this devolutive appeal asserting two assignments of error.

Standard of Review

Appellate review of peremptory exceptions involves the determination of whether the district court was legally correct or incorrect. Peneguy v. Porteous, 2001-1503, p. 6 (La.App. 4 Cir. 5/15/02) 823 So.2d 380, 384, writ denied, 2002-2388 (La.11/27/02), 831 So.2d 287, quoting Landry v. Blaise, Inc., 99-2617, p. 4 (La.App. 4 Cir. 8/2/00), 774 So.2d 187, 190. This Court must give due deference to factual finding of the district court, but the issues presented in this appeal are legal in nature; thus, the analysis must concern the legal grounds for the district court’s judgment. Id.

FIRST ASSIGNMENT OF ERROR

Lindy argues the trial court erred by maintaining the City’s exception of prescription dismissing the lawsuit. Specifically, the plaintiff claims (1) the trial court based its ruling on a decision of the Louisiana Supreme Court later set aside on rehearing; (2) the relevant statutes do not expressly mandate that the taxes paid under protest be paid during the tax year for which they were due; (3) the trial court’s interpretation of the relevant statute would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and (4) the trial | ¿court’s interpretation of the statute would require the taxpayer to breach its contract with the state granting the taxpayer a limited tax exemption.

Trial Court based ruling on an erroneous decision

The assignments urged by the plaintiff are the same urged by the plaintiff in Comm-Care Corp. v. Bishop, 96-1711 (La.7/1/97) 696 So.2d 969, hereinafter “Comm-Care I”. Lindy argues Comm-Care I should not be followed because it was later set aside on rehearing and resolved on an unrelated issue. The defendants disagree stating the Supreme Court did not find error in the legal reasoning of Comm-Care I and the case can still be considered persuasive.

The Supreme Court granted a rehearing in Comm-Care I, designated as Comm-Care II. Comm-Care Corp. v. Bishop, 96-1711 (La.1/21/98) 706 So.2d 425. In Comm-Care II the Supreme Court stated, “[Without finding that our original opinion was in error, we set aside the reasoning and holding of the opinion as having improvidently considered the prescription issue.” Comm-Care II, 1996-1711, p. 1, 706 So.2d at 426. It is dispositive whether the trial court relied on Comm-Care I. As stated earlier, we must give deference to fact found by the trial court, but the issues on appeal are legal in nature. The reasoning of the trial court has no bearing on the issues before this court.

Relevant statutes do not mandate timely payment to protest

Lindy argues the relevant statutes do not expressly mandate that taxes paid under protest be paid during the tax year for which they are due. The City maintains the statutes should be read in para mate-ria concluding taxes paid under protest should be done timely during the tax year they are due.

“[T]he task of statutory construction begins with an examination of the language of the statute itself ... When the law is clear and unambiguous and its ^application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. State v. Barbier, 98-2923, p. 3 (La.9/8/99), 743 So.2d 1236, 1238. This principle applies to tax statutes. Tarver v. E.I. Du Pont De Nemours and Co., 93-1005, p. 3 (La.3/24/94), 634 So.2d 356, 358.

Laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13. The Louisiana Supreme Court has followed the logic of collectively interpreting statutes that deal with the same subject. First Nat. Bank v. City of New Orleans, 555 So.2d 1345 (La.1990). A statutory provision should be construed with the remaining portions of the statute, but more importantly, all statutes on the same subject matter should be read together and interpreted as a whole. Id., Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).

The case at bar requires us to analyze the statutes regarding ad valorem taxes and when a taxpayer can pay under protest. The Louisiana Constitution authorizes the collection of ad valorem taxes in the state. La. Const. Art. VII, § 18. La. R.S. 47:1997 discusses when ad valorem taxes become delinquent in Orleans Parish and its consequences. La. R.S. 47:1997(B) states in pertinent part:

| (¡The collection of taxes shall begin on the first day of January of the year 1972, and for each year thereafter, for which such taxes are levied. Beginning with the year 1972, the entire amount of such taxes shall become delinquent on the first day of February and said taxes shall bear ten percent per annum delinquent penalty from the date of delinquency until paid. On the thirty-first day of December of each year, commencing with December 31, 1972, the director of finance of the city of New Orleans, under such regulations as may be prescribed by the city council, shall forthwith proceed to advertise and sell for. delinquent taxes the real estate and public utilities upon which taxes are delinquent and shall also proceed to enforce the collection of delinquent personal property taxes, (emphasis added)

LSA R.S. 47:1997(B). In Orleans Parish, ad valorem taxes are assessed the year prior to the taxing year. The taxes are collected beginning January 1st of the taxing year and become delinquent on February 1st of the taxing year. If taxes are not paid by December 31st of the taxing year, the property shall proceed to a tax sale,

La. R.S. 47:2110 discusses how to pay taxes under protest. It states in pertinent part:

|7Any person resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax
and shall give him, the parish or district assessor, and the Louisiana Tax Commission written notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If a suit is timely filed contesting the correctness of the assessment pursuant to R.S. 47:1998 and seeking the recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be' further held pending the outcome of the suit. That portion of the taxes paid by the taxpayer to the officer which is neither in dispute nor the subject of a suit | scontesting the correctness pursuant to R.S. 47:1998, shall not be made subject to the protest, (emphasis added)

LSA R.S. 47:2110.

Under La. R.S. 47:2110, if a taxpayer resists payment of any amount of tax, then they may pay under protest. To pay under protest, the taxpayer must pay the amount due to the designated officer with a written notice of his intention to file suit for the recovery of taxes paid. At that time, the portion that is in dispute will be segregated. If the taxpayer files suit timely, the portion in dispute shall be further held pending the outcome of the suit. If a taxpayer fails to file suit timely, the disputed portion will be returned to the general fund.

Because a statutory provision should be construed along with the remainder of the statute, and all statutes on the same subject matter should be read together and interpreted as a whole, we find La. R.S. 47:2110 and La. R.S. 47:1997 should be read pari materia. As noted in Capital Drilling, the statutes cited herein are both located in Title 47 of the Louisiana Revised Statutes pertaining to Revenue and Taxation. They are located in Subtitle III discussing Provisions Relating to Ad Valo-rem Taxes. Capital Drilling Co. v. Graves, 496 So.2d 487, 491 (La.App. 1st Cir.1986). These provisions do not indicate that a taxpayer should be allowed the right to litigate a delinquent tax by payment under protest. Id. We have adopted the same view in Capital Drilling holding only the timely payment of the contested tax preserves the right to litigate the validity of the tax in court. Affordable Housing Developers, Inc. v. Kahn, 2000-0611, p. 4 (La.App. 4 Cir. 4/25/01), 785 So.2d 251, 253, writ granted, 2001-1951 (La.11/2/01), 800 So.2d 861, rev’d on other grounds, Fransen v. City of New Orleans, 2002-2384 (La.App. 4 Cir. 11/19/03), 862 So.2d 142. See also, Louisiana Employers-Managed Ins.Co. v. Litchfield, 2001-0123 (La.App. 1 Cir. 12/28/01), 805 So.2d 386.

IflAd valorem taxes are payable in full on or before February 1st of the taxing year. In the case subjudice, the taxes for the 2000 and 2001 tax years were paid on November 28, 2001. The taxes for 2000 were due by February 1, 2000 and the taxes for 2001 were due by February 1, 2001. The ad valorem taxes for both years were delinquent. The payment made herein was untimely and did not preserve Lindy’s right to litigate pursuant to La. R.S. 47:2110.

Due Process

Lindy argues the imposition of the December 31 payment deadline could effectively deny taxpayers expecting to take advantage of the limited exemption bestowed by State programs such as the RTA Contract due process of law. The City respectfully disagrees with this assertion indicating a procedure is in place to pay taxes under protest and the action can be subject to a short statute of limitations.

The United States Supreme Court set forth the federal constitutional parameters imposed on the recovery of taxes in McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dep’t of Business Regulation of Florida, 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990); Church Point Wholesale Beverage Co. v. Tarver, 614 So.2d 697, 702 (La.1993). In Church Point, the Louisiana Supreme Court found the state has two options to comply with Due Process. First, a state can provide the avenue of pre-deprivation by allowing the taxpayers the ability to meaningfully challenge the tax before paying it. Secondly, a state can choose the option of post-deprivation by affording its taxpayers an opportunity to challenge the validity of the tax and a certain remedy with the following procedural requirements: (1) only taxpayers paying “under protest” hnwould be entitled to relief; and, (2) the actions could be subject to short statute of limitations. Church Point, 614 So.2d at 703.

In the case sub judice, Lindy paid its taxes, therefore we are only concerned with post-deprivation relief. Under La. R.S. 47:2110, a person resisting payment of any amount of tax must pay the amount due to the appropriate officer and give the officer notice of his intention to file suit for the recovery of such tax. The officer shall segregate funds paid until the suit is filed. If the suit is filed timely contesting the correctness of the assessment pursuant to R.S. 47:1998, within thirty days of notice, the taxes being disputed will further be segregated until the dispute is resolved. Upon review, we find no due process violation. Lindy paid the amount of tax due under protest, untimely. Had he paid timely, Lindy would have been afforded the appropriate relief.

A procedure is in place to correct the mistaken assessment of ad valorem taxes. In the record, Lindy avers they asked the assessor to correct the mistake prior to paying the taxes under protest. They continue stating if the taxes are paid, then it will cause a breach of the RTA Contract that disallows payment of post-restoration taxes.

Title 47 has a procedure for review of an allegedly incorrect assessment of ad valo-rem taxes. Casey v. Johnson, 2001-0912, p. 4 (La.App. 4 Cir. 6/19/02), 821 So.2d 743, 746. An assessment valuation shall be challenged first by appeal to the Board of Review as provided by La. R.S. 47:1992, then by appeal to the Louisiana Tax Commission as provided by La. R.S. 47:1989, and finally by judicial review as provided by La. R.S. 47:1998. Id. Lindy did not follow the procedure found in the revised statutes to correct the incorrect assessment.

\uBreach of Contract

Lindy argues that by interpreting the relevant statutes to require taxes be paid timely, it would require Lindy to breach the RTA Contract. The RTA Contract specifically states the contract is void if taxes have been paid on the basis of an assessed valuation which reflects the improvement. The City contends by enforcing the deadline to pay protested taxes it would not require the RTA Contract to be breached. They argue Lindy should have paid the taxes timely and under protest which would have preserved the right to dispute the legality of the assessment as well as complied with the express terms of the RTA Contract.

We are revisiting a similar issue discussed in Casey, supra. In Casey, the plaintiff was applying for an extension of his RTA Contract wherein the assessor reassessed his property increasing his ad valorem taxes. The plaintiff refused to pay the increased taxes because it would cause a breach of the RTA Contract. We found the plaintiff was correct in filing a writ of mandamus to compel the assessor to return the assessment to the pre-im-provement amount because the plaintiff had relied on the state’s communication not to pay or she would be ineligible for the contract renewal. Id. at p. 7, 821 So.2d at 748.

We find the instant case distinguishable. The contract at issue is between the previous owner, Clark, and the State. Lindy is not a party to the RTA Contract. Lindy was seeking a transfer of the contract, but did not begin inquiry until the day suit was filed, December 28, 2001. At the time the taxes were paid under protest and the day suit was filed, the taxes were delinquent. Lindy did not request a transfer of the RTA Contract prior to filing suit to place the assessor or the state on notice of the change of ownership. Lindy did not rely on any communication with the state regarding the RTA Contract in question. Had the taxes been paid timely 11gand the transfer of the RTA Contract been in process, a different result may have occurred.

We maintain the statutes read in para materia require ad valorem taxes to be paid by the 1st day of February of the taxing year to recover taxes paid under protest. Lindy failed to pay under protest the taxes timely to reserve their right to dispute the increased taxes. The City did not violate the due process requirements mandated by McKesson. The procedure for paying under protest would not cause a breach in the RTA Contract had it been followed correctly. We find this assignment does not have merit.

SECOND ASSIGNMENT OF ERROR

Lindy argues that if this court affirms the trial court’s decision, it should not have dismissed the entire lawsuit as the ad valo-rem taxes for 2001 were timely paid. Plaintiff maintains the taxes for 2001 were paid timely in November of 2001 under La. R.S. 47:1997B and 47:2110. They reasoned the taxes for 2001 could be paid through the end of 2001 to avoid potential enforcement proceedings.

The City maintains in order to pursue an action under La. R.S. 47:2110 for taxes paid under protest, the taxes must be paid timely. In Orleans parish, ad velorem taxes are due by February 1st of the year represented by the taxes, not by December 31st as the plaintiffs argue.

As we have stated herein, the taxes for both years 2000 and 2001 were untimely. In 1999, the taxes are assessed for the taxing year 2000. Ad valorem taxes for 2000 are due by February 1, 2000. After the aforementioned date, the taxes are considered delinquent. If taxes are not paid by December 31, 2000, the property may be sold at tax sale. In the case at bar, the taxes paid for tax year 2000 on November 28, 2001 were untimely.

113Ad valorem taxes for the tax year 2001 are assessed in 2000. The taxes are due for tax year 2001 by February 1, 2001. If the taxes were not paid by the aforementioned date, the taxes are considered delinquent. If taxes are not paid by December 31, 2001, the property may be sold at tax sale. In the case at bar, the taxes paid for tax year 2001 on November 28, 2001 were untimely. This assignment of error has no merit.

CONCLUSION

For the aforementioned reasons, we find neither assignment of error has merit. We affirm the trial court decision.

AFFIRMED.

      . § 1997. Filing of rolls, payment of taxes, and sale of property for delinquent taxes; Orleans Parish
      A. Beginning with the year 1963, on or before the fifteenth day of October of each year, copies of the rolls showing the final assessment of real and personal property shall be sent to the city and state tax collector for the parish of Orleans, the state comptroller, the recorder of mortgages for the parish of Orleans and the director of finance of the city of New Orleans. The collection of taxes shall begin on- the first day of January of the year for which such taxes are levied. Said taxes may be paid in two equal installments payable, respectively, in January and May of each year beginning with the year 1964; provided that the taxpayer shall pay one-half of said taxes during the month of January. Unless the taxpayer during the month of January shall pay all real estate, personal, and public utilities taxes on property owned by him in the parish of Orleans or one-half thereof, as hereinabove provided, the entire amount of such taxes shall become delinquent on the first day of February and said taxes shall bear ten per cent per annum delinquent penalty from the date of delinquency until paid. If a second installment is elected as hereinabove provided it shall be delinquent on the last day of May and shall bear the ten per cent per annum delinquent penalty from the date of delinquency until paid. On the thirty-first day of December of each year, commencing with December 31, 1963, the director of finance of the city of New Orleans, under such regulations as may be prescribed by the city council, shall forthwith proceed to advertise and sell for delinquent taxes the real estate and public utilities upon which táxes are delinquent and shall also proceed to enforce the collection of delinquent personal property taxes. The proceedings by the director of finance for the enforcement of the payment of delinquent real estate, personal property, and public utilities taxes shall be in the manner and form as now provided by law.
      B. Beginning with the year 1971, on or before the fifteenth day of October of each year, copies of the rolls showing the final assessment of real and personal property shall be sent to the city and state tax collector for the parish of Orleans, the state comptroller, the recorder of mortgages for the parish of Orleans and the director of finance for the city of New Orleans. The collection of taxes shall begin on the first day of January of the year 1972, and for each year thereafter, for which such taxes are levied. Beginning with the year 1972, the entire amount of such taxes shall become delinquent on the first day of February and said taxes shall bear ten percent per annum delinquent penalty from the date of delinquency until paid. On the thirty-first day of December of each year, commencing with December 31, 1972, the director of finance of the city of New Orleans, under such regulations as may be prescribed by the city council, shall forthwith proceed to advertise and sell for delinquent taxes the real estate and public utilities upon which taxes are delinquent and shall also proceed to enforce the collection of delinquent personal property taxes. The proceedings by the director of finance for the enforcement of the payment of delinquent real estate, personal property, and public utilities taxes shall be in the manner and form as now provided by law.

      . § 2110. Suits to recover taxes paid under protest
      A. (1) No court of this state shall issue any process whatsoever to restrain or render any decision that shall have the effect of impeding the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution.
      Text of par. (A)(2) effective until July 1, 2005
      (2) Any person resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax and shall give him, the parish or district assessor, and the Louisiana Tax Commission written notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If a suit is timely filed contesting the correctness of the assessment pursuant to R.S. 47:1998 and seeking the recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be further held pending the outcome of the suit. That portion of the taxes paid by the taxpayer to the officer which is neither in dispute nor the subject of a suit contesting the correctness pursuant to R.S. 47:1998, shall not be made subject to the protest.
      (3) If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the actual rate earned on the money paid under protest in the escrow account during the period from the date such funds were received by the officer to the date of such refund. If the taxpayer does not prevail, the taxpayer shall be liable for the additional taxes together with interest at the rate set forth above during the period from the date the notice of intention to file suit for recovery of taxes was given to the officer until the date such taxes are paid.
      B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer or agency designated and provided for in R.S. 47:1998(A)(2) or (B)(3) or Subsection A of this Section shall be required.
      Text of subsec. C effective until July 1, 2005
      C. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action at law in the state or federal courts where any tax or the collection thereof is claimed to be an unlawful burden upon interstate commerce, or in violation of any act of the Congress of the United States, the Constitution of the United States, or the constitution of the state. Upon request of a taxpayer and upon proper showing by such taxpayer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the taxpayer, upon agreement to abide by the pending decision of the courts, may pay the additional assessment under protest but need not file an additional suit.
      D. An assessment valuation shall be challenged only pursuant to the method or procedures as provided first in R.S. 47:1992, then R.S. 47:1989, and finally R.S. 47:1998.
      Text of subsecs. E and F effective until July 1, 2005
      E. Any taxpayer in the state who has paid his disputed taxes under protest as provided herein and who has filed suit under the provisions of R.S. 47:1856, 1857, or 1998 shall cause to be served in said suit notice to the officer or officers designated for the collection of said taxes in the parish or parishes where the property is located, the assessor or assessors for the parish or district, or parishes or districts, where the property is located and the chairman of the Louisiana Tax Commission.
      F. Any taxpayer who has disputed his tax liability pursuant to R.S. 47:1856 or 1857 may appeal an adverse decision of any court as provided in the Code of Civil Procedure; however, a taxpayer shall not be required to post bond or provide other security in connection with such appeal.


source: Caselaw Access Project

author: | tMICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    WOLFMAN, INC. v. CITY OF NEW ORLEANS, Departments of Safety and Permits, and Finance, Bureau of Revenue; Paul A. May; Reginald Zeno; City Planning Commission, Board of Zoning Adjustments.
    No. 2003-CA-0120.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2004.
    Christopher G. Young, Christopher G. Young, APLC, and David J. Halpern, Jill A. Gautreaux, Halpern, Danner, Martin & Miles, L.L.C., Metairie, LA, for Plaintiff/Appellant.
    Edward R. Washington, III, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Charles L. Rice, Jr., City Attorney, M. Michelle Segu, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.).
   | tMICHAEL E. KIRBY, Judge.

Plaintiff, Wolfman, Inc., appeals the September 30, 2002 trial court judgment in favor of the defendants, City of New Orleans, et al, denying plaintiffs petition for a writ of mandamus seeking to compel' the defendants to issue to plaintiff a permit to operate a standard restaurant.

Before summarizing the series of events leading to this appeal, we note that plaintiff and defendants have attached to their briefs items that are not contained in the record, and have referred to those items in their arguments. As a court of record, we must limit our review to that which is in the record before us. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885. The record contains no transcripts of the hearings in this matter.

On September 13, 2002, plaintiff filed a petition for a writ of mandamus and for declaratory judgment, naming as defendants the City of New Orleans; the City of New Orleans, Departments of Safety and Permits and Finance; Mr. Paul A. May, in his capacity as Director of the Department of Safety and Permits; Mr. Reginald Zeno, in the capacity as Director of the Department of Finance; and the | ¡.Board of Zoning Adjustments (“BZA”), City Planning Commission, City of New Orleans. In that petition, plaintiff asked that a writ of mandamus issue to the defendants ordering them to either issue licenses and/or permits for plaintiff to open and operate a standard restaurant at 943 Whitney Avenue, and such other municipal locations that plaintiff desires to open and operate similar standard restaurants, or show cause to the contrary on September 19, 2002. This petition also asked that a declaratory judgment issue against the BZA stating that the BZA’s rules prevent it from reconsidering, at a subsequent meeting, its reversal of the decision of the Director of the Department of Safety and Permits denying plaintiffs occupational license application.

Plaintiff owns and operates a restaurant called Chicken Box, with several locations throughout the City of New Orleans. Plaintiff sought to establish a Chicken Box outlet in the area zoned as the B-l Neighborhood Business District. On June 14, 2002, plaintiff applied for an occupational license to operate a “standard restaurant” at 943 Whitney Avenue in New Orleans. In support of its application, plaintiffs attorney sent a letter to Mr. Paul May, the Director of the Department of Safety and Permits for the City of New Orleans, and attached documentation to support its request that the proposed Chicken Box restaurant be deemed a “standard restaurant,” rather than a “fast food restaurant.” Shortly thereafter, plaintiffs application was denied. The denial of the application is not in the record. On June 21, 2002, plaintiff appealed the denial of its occupational license application to the BZA.

laBy letter dated September 6, 2002, Mr. May requested that the BZA grant a “rehearing” in this matter in order to afford the BZA an opportunity to hear a complete explanation of the decision of the Department of Safety and Permits. Mr. May further stated that his department’s position was not represented at the BZA’s previous meeting. On August 16, 2002, the BZA, noting the plaintiffs appeal was heard at a public hearing on August 12, 2002, granted plaintiffs appeal and reversed the decision of the Director of the Department of Safety and Permits denying plaintiffs occupational license application. In the order granting the appeal, the BZA stated that counsel for plaintiff appeared at the August 12, 2002 public hearing to appeal the decision of the Director of the Department of Safety and Permits that the Chicken Box on 943 Whitney Avenue would not meet the requirements to be categorized as a standard restaurant. On September 13, 2002, the trial court issued a writ of mandamus ordering the defendants to either issue licenses and/or permits for plaintiff to open and operate a standard restaurant at 943 Whitney Avenue, and such other municipal locations that plaintiff desires to open and operate similar standard restaurants, or show cause to the contrary on September 19, 2002.

On September 18, 2002, the defendants filed a peremptory exception of no cause of action, arguing that mandamus is not the appropriate remedy for denial of “the alcoholic beverage permit in question.” The record in this case does not include a request for an alcoholic beverage permit at the restaurant located at 943 Whitney Avenue, and the plaintiff states in its appeal brief that no alcoholic |4beverage permit was ever requested. The defendants also argue in this exception that plaintiff failed to exhaust its administrative remedies before filing a petition for writ of mandamus.

On September 23, 2002, the defendants filed a memorandum in opposition to the writ of mandamus concerning the issue of the applicability of Robert’s Rules of Order. In that memorandum, the defendants argue that under Robert’s Rules of Order, the BZA can reconsider an earlier vote at any time.

On September 30, 2002, the trial court rendered judgment in favor of the defendants denying plaintiffs petition for writ of mandamus. In reasons for judgment, the trial court noted that this matter came before the court on September 20, 2002 for a hearing on a petition for a writ of mandamus and was subsequently taken under advisement to determine whether the defendants failed to follow proper procedure when the BZA placed this issue on its agenda after having heard and ruled in favor of plaintiff in a previous meeting in the absence of the Director of the Department of Safety and Permits.

The trial court stated that Section 37 of Robert’s Rules of Order states in pertinent part, “a reconsideration can be moved only by one who voted aye if the motion involved was adopted, or no if the motion was lost.” The court noted that plaintiff contends that the making of such a Motion to Reconsider must be made on the same day the vote to be reconsidered was taken. The court stated that those are Uthe general rules regarding reconsideration of an issue, and Robert’s Rules of Order provide that a motion to reconsider a vote in a committee can be made and taken up regardless of the time that has elapsed since the vote was taken.

The trial court found that under Robert’s Rules of Order, the BZA could move to reconsider an issue during the next meeting following the first hearing on that issue. It found the fact that Mr. May made a request to the BZA to reconsider the issue to be inconsequential. The court found that it was appropriate for the BZA itself to move for and grant the reconsideration and subsequently set it for rehearing at a later meeting. The petition for a writ of mandamus was denied as premature because plaintiff had not yet exhausted all of the administrative remedies available, 1.e. because the BZA was set to rehear the matter on October 14, 2002.

Plaintiff appealed the trial court judgment. On appeal, plaintiff argues that the trial court erred in ruling that the BZA is entitled to reconsider its decision in plaintiffs favor at a subsequent meeting even though no motion to reconsider was made until a subsequent meeting.

Section II.E.l of the BZA Rules states, “in the absence of any provision in these rules to the contrary, the rules of procedure provide by Robert’s Rules of Order shall prevail.” The BZA Administrative Rules, Policies and Procedures do not include procedural rules for reconsideration; therefore, we must look to Robert’s Rules of Order.

Section 37 of Robert’s Rules of Order states as follows, in pertinent part:

1 ^Reconsider — a motion of American origin — enables a majority in an assembly, within a limited time and without notice, to bring back for further consideration a motion which has already been voted on. The purpose of reconsidering a vote is to permit correction of hasty, ill advised, or erroneous action, or to take into account added information or a changed situation that has developed since the taking of the vote.
* % * * #
(b) the making of this motion is subject to time limits, as follows: In a session of one day — such as an ordinary meeting of a club or a one-day convention — the motion to Reconsider can be made only on the same day the vote to be reconsidered was taken. In a convention or session of more than one day, a reconsideration can be moved only on the same day the original vote was taken or on the next succeeding day within the session on which a business meeting is held. These times limitations do not apply to standing or special committees.

The original hearing of plaintiffs appeal of the denial of its occupational license application was held on August 12, 2002. At the conclusion of that hearing, the BZA granted plaintiffs appeal and reversed the decision of the Director of the Department of Safety and Permits denying plaintiffs application. All parties agree that the motion to reconsider plaintiffs appeal was made at a subsequent hearing on September 9, 2002, and a new hearing date of October 14, 2002 was set. After the October 14, 2002 hearing, the BZA reversed its August 12, 2002 decision and reinstated the earlier decision of the Director of the Department of Safety and Permits denying plaintiffs occupational license application.

Plaintiff argues that the trial court erred in concluding that the BZA is a committee, and entitled to make a motion to reconsider a vote regardless of the l7time that has elapsed since the vote was taken. We agree. By its own title, the BZA is a board. Furthermore, the City of New Orleans Home Rule Charter refers to the BZA as a board. The defendants cite no legal authority to support its position that the BZA is a hybrid of a board and a committee, and we can find none. The exception to the time limitations set forth in Robert’s Rules of Order, Section 37(b) applies only to standing or special committees, and we find the BZA to be neither.

As a board, the only way the BZA could properly reconsider its August 12, 2002 vote to reverse the decision of the Director of the Department of Safety and Permits denying plaintiffs occupational license application was if a motion to reconsider had been made on that same date. No motion to reconsider was made on August 12, 2002. The parties agree that the motion to reconsider the August 12, 2002 vote was not made until the meeting on September 9, 2002. The BZA chose to abide by the procedural rules of Robert’s Rules of Order, and under those rules, the September 9, 2002 motion to reconsider was untimely. See and cf., Old Carrollton Neighborhood Association v. City of New Orleans ex rel. Its Board of Zoning Adjustments, 2003-0711, pp. 10-11 (La.App. 4 Cir. 10/1/03), 859 So.2d 713, 718-719, writ denied, 2003-3021, 2003-3026, (La.1/30/04), 865 So.2d 79, 80.

La. C.C.P. article 3863 states that a writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. Once the BZA voted on August 12, 2002 to reverse the Department of Safety and Permits’ denial of plaintiffs occupation license application and then did not move to reconsider that decision on that same date, it became the ministerial duty of the BZA to grant plaintiffs application to operate as a standard restaurant.

|sFor the reasons stated above, we reverse the trial court judgment denying plaintiffs petition for writ of mandamus. A writ of mandamus is hereby issued ordering the defendants to grant the plaintiffs occupational license application for a standard restaurant to be operated at 943 Whitney Avenue in New Orleans, and issue the permits necessary for the operation of a standard restaurant at that location once the prerequisites for issuance of those permits have been met. In light of our conclusion, we need not address plaintiffs remaining assignment of error.

REVERSED; WRIT OF MANDAMUS GRANTED.

      . Apparently, the trial court gave the defendants additional time to file an opposition memorandum after the September 20, 2002 hearing.

      . Although originally set for hearing on September 19, 2002, a Thursday, the trial court apparently heard the motion on September 20, 2002.


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

text:
    Annie Mae I. MITTER v. TOURO INFIRMARY.
    No. 2003-CA-1608.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2004.
    Rehearing Denied June 15, 2004.

      Charles A. Kronlage, Jr., Kronlage & Kronlage, APLC, New Orleans, LA, for Plaintiff/Appellant, Annie Mae I. Mitter.
    Paul B. Deal, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee, Touro Infirmary.
    (Court composed of Judge JAMES F. MeKAY, III, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

In this medical malpractice case, the plaintiff, Annie Mae Mitter, appeals from two judgments of the trial court rendered in her favor; the first judgment awarded her damages of $1,500.00 for pain and suffering in addition to costs and legal interest and the second judgment awarded her expert witness fees of $1,000.00. The defendant, Touro Infirmary, answers the appeal.

FACTS AND PROCEDURAL HISTORY

Ms. Mitter, seventy-nine years of age, underwent arthroscopic surgery to replace her left knee at Touro Infirmary in June 1998. Dr. J. Gregory Kinnett, an orthopedic surgeon and Touro staff physician, performed the surgery. Four months later, in October 1998, Ms. Mitter underwent a second left knee arthroplasty by Dr. Kin-nett at Touro.

Ms. Mitter filed a medical malpractice complaint pursuant to the Louisiana Medical Malpractice Act. In her complaint, she asserted that Touro’s non-physician employees committed three separate acts of medical malpractice during | gher two hospitalizations. Specifically, she complained that three days after her first knee surgery, while a nurse and nurse’s aide were helping her get into a wheelchair, the nurse dropped the removable, metal leg and foot rest of the wheelchair onto her left knee. She further alleged that several days later, while undergoing physical therapy in Touro’s rehabilitation unit, Sidney Stone, a physical therapy assistant, used excessive force to push her leg back, causing her knee to “pop.” These two acts, Ms. Mitter alleged, caused the rupture of the medial (internal) collateral ligament in her left knee, which resulted in her having to undergo the second operation. The third act of alleged medical malpractice occurred following the second surgery when a nurse improperly set the chronic passive motion (CPM) machine during therapy, causing Ms. Mitter intense pain.

A medical review panel was convened to hear the claims. The panel, consisting of three orthopedic surgeons and an attorney-chairman, unanimously concluded that Touro did not breach the applicable standard of care. The panel gave the following reasons:

1. The patient was seen by numerous physicians shortly after the incidents and none of the doctors failed to meet the applicable standard of care.
2. There [was] no offer of contradictory statements that the incidents happened.

Ms. Mitter then filed suit, against Touro. Following a judge trial, the trial court found that Ms. Mitter failed to prove by a preponderance of the evidence that LTouro’s employee breached the applicable standard of care by improperly setting the CPM machine during therapy after her second surgery or that Mr. Stone breached the applicable standard of care by applying excessive force during physical therapy following the first surgery. However, the trial court did find that a Touro nurse breached the applicable standard of care by dropping the wheelchair foot and leg rest on Ms. Mitter’s left knee, causing her intense pain. Nonetheless, the court concluded that Ms. Mitter failed to prove that either the dropped foot and leg rest incident or Mr. Stone’s actions caused her to have to undergo the second knee operation. In accord with her findings, the trial court awarded Ms. Mitter $1,500.00 in damages for her pain and suffering as a result of the nurse’s negligence. Thereafter, Ms. Mitter filed a motion to tax Dr. Kinnett’s expert witness fee as costs against Touro. The trial court granted the motion but limited Dr. Kin-nett’s expert witness fee to $1,000.00.

ASSIGNMENTS OF ERROR

On appeal, Ms. Mitter raises the following three assignments of error: 1) the trial court erred, as a matter of law, in requiring her to prove with “reasonable certainty” that the nurse’s dropping of the foot and leg rest on her left knee contributed to her having to undergo the second left knee operation; 2) the trial court abused her discretion in awarding only $1,500.00 in damages for pain and suffering as a result of the nurse’s negligence; and 8) the trial court abused her discretion in limiting Dr. Kinnett’s total expert witness fee to $1,000.00.

l4In answering the appeal, Touro argues that the evidence in the record does not support an award for pain and suffering, as Ms. Mitter’s medical records do not indicate that the alleged wheelchair foot and leg rest incident ever occurred or that Ms. Mitter sustained any additional injury as a result of it. Touro also argues that the trial court abused her discretion in assessing all costs of the proceedings against it, as it successfully defended all but one of Ms. Mitter’s claims.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the Louisiana Supreme Court reiterated the two-part test for the reversal of a fact finder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

INAPPLICABLE LAW AND DISCUSSION

Negligence and Fault

A hospital is responsible for the negligence of its nurses under the respondent superior doctrine. In re Triss, 2001-1921, 2001-1922, p. 13 (La.App. 4 Cir. 6/5/02), 820 So.2d 1204, 1212. Nurses, including licensed practical nurses, are defined as qualified health care providers under La. R.S. 40:1299.41(A)(1). Thus, in a medical malpractice case, the plaintiff must establish the standard of care applicable to the nurse, a violation by the nurse of that standard of care, and a causal connection between the nurse’s alleged negligence and the plaintiffs injuries resulting therefrom. See Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233.

Expert testimony is not required in a medical malpractice case when there is some obvious act from which a lay person can infer negligence, such as fracturing a leg during an examination, amputating the wrong limb, dropping a knife, scalpel, or acid on the patient, leaving a sponge in a patient’s body, failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary. Johnson v. State of Louisiana/University Hospital, 2001-1972, p. 5 (La.App. 4 Cir. 1/16/02), 807 So.2d 367, 371.

As previously mentioned, the trial court found that Touro’s nurse breached the applicable standard of care by dropping the wheelchair foot and leg rest on Ms. Mit-ter’s knee, causing her increased pain, but concluded the evidence was insufficient to prove that the incident contributed to her need to undergo the second | (¡knee surgery. In her reasons for judgment, the trial court stated, “Dr. Kinnett could not state with reasonable certainty that any incident which may have occurred at Touro contributed to her need for future surgery.”

Ms. Mitter argues that the trial imposed the wrong legal standard by requiring her to prove “with reasonable certainty” that the incident caused further injury to her knee necessitating the second surgery. She contends that to satisfy her burden of proof she had to demonstrate only by a preponderance of the evidence, i.e., more likely than not, that the nurse’s negligence caused her to have to undergo the later surgery. Touro, on the other hand, contends the evidence does not support the finding that the incident ever occurred.

Ms. Mitter testified at trial that three days following her first knee surgery a nurse and another hospital employee, whom she believed was named “James,” came into her room to assist her in getting out of bed and seated in a wheelchair as per Dr. Kinnett’s orders. While doing so, the nurse dropped the wheelchair’s foot and leg rest on her left knee. Ms. Mitter, testifying as to the severity of the pain, stated, “I screamed to the top of my voice. I have never had nothing to hurt me so bad in my life, except that day when that dropped on my leg.”

Ms. Ruby Olive, Ms. Mitter’s roommate, testified that she heard Ms. Mitter scream but did not actually witness the incident. When she asked Ms. Mitter what happened, Ms. Mitter replied that the nurse hit her left knee with 'a part of the wheelchair. Ms. Olive testified that neither the nurse nor the other employee contradicted Ms. Mitter’s statement. In addition, Ms. Olive stated that when she looked at Ms. Mitter’s side of the room, she noticed a part of the wheelchair still on the floor.

|7Ms. Mitter’s sister, Ms. Viola Hopkins, testified that when she visited her sister later that same day, her sister was complaining of severe pain and told her that the nurse had dropped the wheelchair leg rest on her left knee.

Touro defended the claim by offering the testimony of Juliette Phipps and Rosa Scott, two registered nurses who cared for Ms. Mitter following her first knee surgery. Ms. Phipps testified that she worked the 7:00 a.m. to 7:30 p.m. shift but did not recall an incident in which a nurse dropped a wheelchair leg rest on Ms. Mit-ter’s knee. In reviewing Ms. Mitter’s hospital records, Ms. Phipps noted that the alleged incident was never documented. She also testified that had the incident occurred she would have reported it to Dr. Kinnett and to the nursing supervisor on duty as well as noting it in Ms. Mitter’s chart. Ms. Scott, the night duty nurse, worked from 7:00 p.m. to 7:30 a.m. She, too, did not recall the accident and corroborated nurse Phipps’ testimony that if it did, in fact, happen, Touro’s policy required her to report the incident. On cross-examination, both Ms. Phipps and Ms. Scott acknowledged that during their respective shifts other nurses were also on duty who may have tended to Ms. Mitter.

Although Ms. Mitter’s medical records contain no mention of the incident, the trial judge believed Ms. Mitter’s testimony that a nurse dropped the wheelchair foot and leg rest on her left knee. She also found significant Ms. Olive’s testimony that neither the nurse nor James refuted Ms. Mitter’s claim. After reviewing the record, we find no error in the trial court’s finding that the incident occurred. In addition, we find no error in the trial court’s conclusion that the unidentified Touro nurse breached the standard of care applicable to nurses despite the absence of expert testimony regarding the standard of care. The trial judge could certainly infer negligence from the nurse’s actions.

IfiNext, we consider whether the trial judge erred in concluding that the evidence was insufficient to prove the nurse’s negligence was the cause of Ms. Mitter’s need to undergo the second knee surgery.

Dr. Kinnett testified that Ms. Mitter was discharged from Touro on June 29, 1998, eighteen days after the first surgery. One week later, on July 6, he examined her at a follow up office visit and noted that she was progressing well. Ms. Mitter returned for another follow up visit on August 5, at which time Dr. Kinnett concluded that her knee looked good and nothing indicated a delay in healing. According to Dr. Kinnett, Ms. Mitter called his office on August 17 and said she was not necessarily feeling any pain but wanted to see him. She returned to his office on August 19, complaining of instability of the medial aspect of her left knee. At that time, Ms. Mitter informed Dr. Kinnett that ten days earlier, as she was walking down an incline and stepping off the curb at the bottom, she sustained “a torsional valgus injury” or an abnormal, inward turn of the knee and, as a result, had trouble moving it. Dr. Kinnett examined the knee and found nothing wrong with the total knee arthro-plasty, per se, but noted a problem with the medial collateral ligament. He prescribed a knee brace and recommended that Ms. Mitter use crutches. Several weeks later, Dr. Kinnett performed the second left knee surgery to repair the ruptured collateral ligament. According to Dr. Kinnett, nothing in the medical records indicated Ms. Mitter had a problem with the medial collateral ligament prior to the August 19 visit. However, when asked by Ms. Mitter’s counsel whether a blow to the left knee three days post operatively could have been a contributing factor to the rupture of the medial collateral ligament, Dr. Kinnett replied, “I believe it could have been.” Also, when asked whether such a blow could have weakened the collateral ligament so as to make it more vulnerable lato being ruptured by stepping off the curb as described by Ms. Mitter, Dr. Kinnett replied, “That’s correct.” Nevertheless, Dr. Kinnett reiterated that nothing indicated that she needed additional surgery on the left knee at the July 6 and August 5 office visits.

Although the trial judge noted “Dr. Kin-nett could not state with reasonable certainty” that any incident which may have occurred at Touro contributed to the second knee surgery, we do not find that she applied an incorrect burden of proof in evaluating Ms. Mitter’s claim. The evidence in the record indicates that it was more likely than not or equally possible that Ms. Mitter’s stepping off the curb at the bottom of the incline and twisting her knee inward caused the rupture of the medial collateral ligament in the left knee. As the trial court correctly noted, until that incident, Ms. Mitter had no complaints with her left knee after being discharged following her first surgery. Thus, we cannot say the trial court erred in concluding that Ms. Mitter did not prove the nurse’s negligence caused her to undergo the second knee surgery.

Damages

In her second assignment of error, Ms. Mitter contends the trial court’s award of $1,500.00 in damages for pain and suffering is too low. Touro counters that the evidence does not support the award.

“ ‘General damages involve physical and mental pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other factors which affect the victim’s life.’ ” In re Triss, supra, at p. 24 (La.App. 4 Cir. 6/5/02), 820 So.2d at 1218, citing Delphen v. Dep’t of Transp. & Dev., 94-1261, p. 13 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, 336. The standard of review for |inabuse of discretion in awarding general damages is “difficult to express and is necessarily non-specific.” Cone v. National Emergency Services, Inc., 99-0934, p. 8 (La.10/29/99), 747 So.2d 1085, 1089. In Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), the Supreme Court stated:

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

628 So.2d at 1261.

The trial court awarded general damages, finding the nurse’s negligent dropping of the wheelchair foot and leg rest on Ms. Mitter’s left knee caused her an increase in pain. The trial court noted in her reasons for judgment that Ms. Mitter’s medical records reflect that on the day of the incident, “she had increased complaints of knee pain.” After reviewing the record, we agree with the trial court’s conclusion that general damages are warranted. Although the $1,500.00 award is not generous by any means, we cannot say, in applying the Youn standard, that it is an abuse of the court’s discretion.

Costs

In answering the appeal, Touro contends that the trial court abused her discretion in assessing all costs of the proceedings to it.

La. C.C.P. art. 1920, relative to costs, provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
InExcept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

Although Touro successfully defended two of the three claims against it, the trial court cast Touro in judgment for the damages sustained by Ms. Mitter as a result of its nurse’s negligence. Considering the trial court’s vast discretion to tax costs pursuant to La. C.C.P. art. 1920, we decline to disturb the assessment of costs in this case.

In a related issue, Ms. Mitter argues that the trial court abused her discretion in limiting Dr. Kinnett’s total expert witness fee to $1,000.00. She subpoenaed Dr. Kinnett to testify as an expert at trial and his total fee was $2,012.00.

As with other costs, the trial court enjoys great discretion under La. C.C.P. art. 1920 in the taxing of expert witness fees. Boseman v. Orleans Parish School Board, 98-1415, p. 9 (La.App. 4 Cir. 1/6/99), 727 So.2d 1194, 1199. Trial courts are not bound by agreements concerning expert witness fees, by the expert’s statements concerning his charges, or by the actual fee paid to an expert witness. Id. Thus, we cannot say the trial court abused her discretion in setting Dr. Kinnett’s expert witness fee at $1,000.00.

CONCLUSION

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

AFFIRMED.

      . La. R.S. 40:1299.41 etseq.

      . A CPM machine is used during physical therapy rehabilitation to apply controlled sequential motion to a limb to facilitate extension and flexion.


author: JgCLARENCE E. McMANUS, Judge.

text:
    STATE of Louisiana v. Juaquin R. MARTINEZ.
    No. 04-KA-38.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 27, 2004.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District Court, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appel-lee.
    Holli A. Herrle-Castillo, Harvey, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   JgCLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On May 7, 2003, the Jefferson Parish District Attorney filed a bill of information charging the defendant, Juaquin R. Martinez, with possession of cocaine in violation of LSA-R.S. 40:967(C). The defendant was arraigned on May 16, 2003 and pled not guilty. On October 20, 2003, the defendant’s motion to suppress evidence was denied. On that same date, the defendant withdrew his plea of not guilty and tendered a plea of guilty under State v. Crosby, 338 So.2d 584 (La.1976). The trial court subsequently sentenced the defendant to imprisonment at hard labor for two years, suspended the sentence, and placed the defendant on active probation for two years. On October 24, 2003, the defendant filed a motion for appeal that was granted.

FACTS

The following facts and testimonies were presented at the hearing on the motion to suppress. Detective Daniel Jewell was the arresting officer. He testified |3that he had been employed by the Jefferson Parish Sheriffs Office narcotics division for approximately two years and that, during his four years with the New Orleans Police Department, he had made hundreds of drug arrests.

In regards to this case, Detective Jewell testified that his office had received an anonymous complaint regarding numerous people coming and going from 4120 Trenton Street Apartment No. 3 in Metairie, Louisiana. Based on this information, Detective Jewell and his partner conducted surveillance on the apartment on April 1, 2003. During the 45 minute surveillance, Detective Jewell observed five subjects going to the apartment and staying approximately two to five minutes. He explained that this behavior was consistent with the purchase of narcotics.

Detective Jewell then testified that the defendant, Juaquin R. Martinez, was the sixth person to approach the apartment. After the defendant left the apartment, Detective Jewell’s partner stayed and continued the surveillance and Detective Jewell followed the defendant who walked about three blocks away to Independence Street. Detective Jewell stated that he never lost sight of the defendant, nor did the defendant approach any other residences.

Detective Jewell then stopped the defendant and identified himself as a police officer. Detective Jewell thought the defendant had possibly purchased narcotics from someone in the apartment. The detective questioned the defendant about his ID, what he was doing in the apartment, and whether he knew the people there. The defendant could not give him a good answer and kept looking around. Detective Jewell thought the defendant was about to flee.

Detective Jewell testified that the defendant kept sticking his hands in his pockets and his waistband after being told numerous times not to. He also testified that the defendant “could not hold an object in his hand without dropping it.” When the detective asked the defendant to produce his identification, Detective |4Jewell noticed that the defendant was very nervous and sweating profusely, even though it was rather cool.

Based on the defendant’s attitude and the way he carried himself and knowing from experience that narcotics and weapons went “hand-in-hand”, Detective Jewell conducted a pat down for weapons because he was concerned for his safety. Detective Jewell heard a “distinctive crunch of plastic”, which he associated with being a cigarette wrapper, when he got to the lower, right part of the defendant’s leg around the sock and ankle area. When Detective Jewell touched the wrapper, the defendant bent down and moved the detective’s hand away from his ankle. Detective Jewell testified that every time he went near the defendant’s ankle, the defendant would move his hands near the ankle. Because of these actions, Detective Jewell was concerned for his safety.

Once he was able to actually pat the area around the ankle, Detective Jewell felt a small, rock-like object. He testified that he did not have to manipulate the object to feel it and it was “very distinctive” and he “immediately recognized it.” Detective Jewell then lifted the defendant’s pant leg and saw the top of the plastic sticking out of his sock. Detective Jewell then seized a small piece of crack cocaine and the defendant was placed under arrest.

On cross-examination, Detective Jewell admitted that he did not see any hand-to-hand transactions or drugs change hands during his 45 minutes of surveillance and he did not stop the other five people who left the apartment.

The trial court denied the defendant’s motion to suppress the evidence finding that the detective had a reasonable suspicion to stop and talk to the defendant and that under the totality of the circumstances, the detective was entitled to conduct the pat-down because he reasonably suspected he was in danger. The defendant now appeals the trial court’s denial of the motion to suppress.

I -ASSIGNMENT OF ERROR NUMBER ONE

The defendant argues that the trial court erred in denying the motion to suppress the evidence. He contends the officer had no reasonable suspicion to stop him after he left the apartment. He also argues that, even if the officer had reasonable suspicion to stop him, the officer was not justified in patting him down. Further, he asserts that even if the stop and pat-down for weapons were legal, the retrieval of the cellophane wrapper containing the crack rock was not.

The Fourth Amendment to the United States Constitution and La. Const. Art. 1, § 5 protect individuals from unreasonable searches and seizures. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984). However, the right of law enforcement officers to stop and question a person where there is reasonable suspicion to believe that the person is committing, has committed or is about to commit a crime was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also: State v. Keller, 403 So.2d 693, 696 (La.1981); State v. Duran, 96-602 (La.App. 5 Cir. 3/25/97), 693 So.2d 2, 3, application dismissed, 97-1485 (La.1/9/98), 705 So.2d 1087.

The requirements for a valid Terry stop and for any search incident to the stop was codified in LSA-C.Cr.P. art. 215.1, which provides in pertinent part:

A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he. may search the person.
IfiC. If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

Investigatory stops require reasonable suspicion of criminal activity. “Reasonable suspicion” is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court must take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048.

An officer’s experience, his knowledge of recent criminal patterns and his knowledge of an area’s frequent incidence of crimes, are factors that may support reasonable suspicion for an investigatory stop. State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98. Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause. State v. Belton, 441 So.2d 1195, 1198 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

Furthermore, an anonymous tip corroborated by police surveillance can, under some circumstances, supply enough reliability to support an investigatory 17stop. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990); State v. Morgan, 00-1501 (La.App. 5 Cir. 3/28/01), 783 So.2d 514.

In State v. Jernigan, 377 So.2d 1222, 1225 (La.1979), cert. denied, 446 U.S. 958, 100 S.Ct. 2930, 64 L.Ed.2d 816 (1980), the Louisiana Supreme Court held, “[A]n anonymous tip can provide the basis of an investigatory stop. However, the information received from the anonymous tipster must carry enough indicia of reliability, such as specificity of the information and corroboration by independent police work, to justify the stop.”

When a police officer observes conduct which leads him to reasonably conclude that criminal activity may be afoot and that the persons with whom he is dealing may be armed and dangerous, he is entitled to conduct a carefully limited search to discover weapons that might be used to assault him, in the course of the investigatory stop. Terry v. Ohio, 88 S.Ct. at 1884-1885; State v. Tolliver, 556 So.2d 166, 169 (La.App. 5 Cir.1990). The pat-down is justified under circumstances where a reasonably prudent man would be warranted in the belief that his safety or that of others was in danger. State v. Keller, 403 So.2d 693, 697 (La.1981); State v. Edwards, 630 So.2d 302, 304 (La.App. 5 Cir.1993). See also: State v. Mitchell, 96-999 (La.App. 5 Cir. 3/25/97), 692 So.2d 1251, 1252.

If, in the course of a frisk pursuant to LSA-C.Cr.P. art. 215.1(B), an officer feels an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize it under the “plain feel” exception to the warrant requirement. Minnesota v. Dickerson, 508 U.S. 366, 377, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334, (1993); State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284.

In the instant case, the first issue we must address is whether the officer had reasonable suspicion to conduct the investigatory stop. The facts of this case are very similar to a case recently decided by this Court, State v. Washington, 03-1134, pp. 1-5 (La.App. 5 Cir. 2/10/04), 866 So.2d 1058. In State v. Washington, this Court held that there was no reasonable suspicion for the officers to conduct the investigatory stop. In Washington, narcotics detectives testified that they were members of a “take down unit” conducting surveillance at a specific address. Other officers witnessed narcotics transactions from the residence and were in the process of obtaining a search warrant for the residence. During the surveillance, an officer observed a truck approach the front of the residence. Defendant, a passenger, exited the truck, entered the residence briefly, and returned to the truck. The truck was subsequently stopped, and defendant exited the vehicle. As he did so, two pieces of wrapped aluminum foil, which the officer recognized as the packaging for heroin, fell to the ground.

In Washington, this Court found that the state did not present evidence to show that the officers had information sufficient to give them reasonable suspicion to stop the truck. Neither officer testified that defendant acted suspiciously or unusually, and defendant’s entering a residence and exiting to a waiting vehicle, standing alone, was not enough to provide officers with reasonable suspicion to stop defendant. This Court distinguished this case from State v. Fontaine, 01-1291 (La. App. 4 Cir. 3/6/02) 814 So.2d 592 and State v. Smith-Holmes, 01-1810 (La. App. 4 Cir. 3/27/02), 815 So.2d 351, noting that, in those cases, the defendants’ actions of briefly entering and exiting the residence under surveillance fit the actions of others who had been found to have drugs or drug paraphernalia on them.

In addition, in State v. Rodriguez, 99-914 (La.App. 5 Cir. 1/25/00), 761 So.2d 14, 15-20, writ denied, 00-0599 (La.4/7/00), 759 So.2d 765, this Court found that the officers did not have reasonable suspicion to stop the vehicle in which defendant was riding. In Rodriguez, a federal agent received information from a reliable confidential informant that a specific apartment was involved in the distribution and storage of heroin. The agent also learned that, on a specific date, a 19large quantity of heroin was to be delivered by one of the residents. The agent provided the information to a detective who set up surveillance.

Approximately one hour after the surveillance began, the detective saw two individuals exit the apartment and enter a vehicle located in the parking lot. The officers followed the vehicle, but did not observe any suspicious activity, and ultimately stopped the vehicle. The detective subsequently observed the defendant, the passenger, throw a plastic bag on the ground, which later tested positive for heroin.

This Court found that the state did not meet its burden of proving the validity of the warrantless vehicle seizure, noting that the information was so sparse that it was impossible to determine the veracity, basis of knowledge and reliability of the informant and the information given, and that the predictive aspect of the information was so vague that it did not rise to the level of reasonable suspicion. As such, this Court reversed the trial court’s denial of the motion to suppress and remanded for further proceedings.

In the instant case, we find that the officer did not have reasonable suspicion to conduct the investigatory stop. There was no evidence that Detective Jewell witnessed defendant engage in any criminal activity. Detective Jewell did not see any hand-to-hand transactions, nor did he see any drugs change hands. No one prior to defendant was stopped and found to have drugs or drug paraphernalia on them. Prior arrests for drug offenses had not been made in connection with that location. The police had no prior suspicion of the residence, and there was no evidence that the location of the encounter was in a high drug trafficking area. None of the five subjects who entered and exited the apartment before defendant were known to the police as being narcotics traffickers. In addition, the predictive aspect of the tip was vague. Although the residence was suspected as being used Imfor narcotics transactions, we find that, defendant’s presence there, without more, was as equally consistent with innocent behavior as with criminal conduct.

We find there was no reasonable suspicion to conduct the investigatory stop. Since the evidence, the rocks of crack cocaine, were obtained as a result of this illegal stop, the trial court erred in denying the motion to suppress. As a result, we, reverse the trial court’s judgment and grant the defendant’s motion to suppress the evidence.

Since we have found that the officer had no reasonable suspicion to conduct the stop and we reverse the trial court’s judgment on this basis, we will not address whether the pat-down and seizure of the cocaine was legal.

ERROR PATENT REVIEW

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals no errors patent that require corrective action.

Accordingly, we reverse the denial of the motion to suppress the evidence and the defendant’s conviction and sentence are hereby vacated.

REVERSED; CONVICTION AND SENTENCE VACATED.