author: PLANCHARD, Judge.

text:
    STATE of Louisiana v. Jose FIGUEROA.
    No. 03-1390.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.

      Hon. J. Phillip Haney, District Attorney, Walter J. Senette, Jr., Assistant District Attorney, Franklin, LA, for Appellee: State of Louisiana.
    Jason Wayne Robideaux, Attorney at Law, Lafayette, LA, for DefendanVAppel-lant: Jose Figueroa.
    Court composed of GLENN B. GREMILLION, BILLY H. EZELL, and ARTHUR J. PLANCHARD , Judges.

       Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   PLANCHARD, Judge.

The Defendant, Jose Figueroa, was charged by bill of information on July 29, 2002, with manslaughter, a violation of La. R.S. 14:31. The Defendant was arraigned and entered a plea of not guilty on August 13, 2002. This bill of information was nolle prossed on January 9, 2003, and a bill of information charging the Defendant with vehicular homicide, a violation of LaR.S. 14:32.1, was filed. The Defendant waived formal arraignment and entered a plea of guilty on the same date.

On May 6, 2003, the Defendant was sentenced to serve twenty years at hard labor without the benefit of probation, parole, or suspension of sentence, with credit for time served. The Defendant was also ordered to pay eight thousand one hundred eighty-eight dollars and seventy cents in restitution. A Motion for Reconsideration of Sentence was filed on May 13, 2003, and subsequently denied. A Motion for Appeal was filed on June 25, 2003.

FACTS:

On June 7, 2002, the Defendant was driving while intoxicated, his blood alcohol level being 0.11 percent. According to the statement of an independent eye-witness given to the investigating officer, the Defendant cut in front of Glenn Duhon’s motorcycle, striking one car, then going into a spin. Due to Defendant’s actions Duhon was unable to avoid Defendant’s vehicle and hit the car. Mr. Duhon died as a result of the injuries he sustained in the collision.

ERRORS PATENT:

|Jn accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find there are two errors patent concerning the Defendant’s sentence: 1) La. R.S. 14:32.1(B) mandates a fine of not less than two thousand dollars nor more than fifteen thousand dollars; 2) additionally, the statute mandates the court “require the offender to participate in a court-approved substance abuse program or a court-approved driver improvement program, or both.” These statutory requirements were not imposed as part of the Defendant’s sentence in this case.

Statutory law and jurisprudence allow an appellate court to recognize an illegally lenient sentence on its own. La.Code Crim.P. art. 882 and State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790.

Additionally, this court has recognized that the failure to impose a mandatory fine as an error patent. In State v. Cedars, 02-861, pp. 2-3 (La.App. 3 Cir. 12/11/02), 832 So.2d 1191, 1193 (footnote omitted), this court stated as follows:

[T]he sentence for vehicular homicide is illegally lenient. The statute requires the imposition of a fine of not less than $2,000.00, nor more than $15,000.00, and also requires the court to order participation in a court-approved substance abuse program, driver improvement program, or both. The failure to assess Mr. Cedars with a fine and order him into a court-approved program provide ... grounds for vacating the sentence.

The case was remanded for re-sentencing. Cf. State v. Shivers, 02-466 (La.App. 3 Cir. 10/2/02), 827 So.2d 534.

Louisiana Code of Criminal Procedure art. 882(A) provides: “An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.” Nevertheless,

when correction of an illegal sentence does not involve the exercise of sentencing discretion, there is no reason why the appellate court should not simply amend the sentence.... However, if correction involves the 13exercise of sentencing discretion ... the case must be remanded for the trial court to perform that function.

State v. Fraser, 484 So.2d 122, 124, n. 5 (La.1986). See also State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694.

Accordingly, we affirm the Defendant’s conviction; we vacate the Defendant’s sentence and remand for resentencing as correction of the error concerning the mandatory fine requires the exercise of sentencing discretion.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RE-SENTENCING.

      . Judge Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.


source: Caselaw Access Project

author: JjPLANCHARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Kevin D. FUTCH.
    No. 03-1384.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.

      Kenneth J. Beck, Julie Christine Tiz-zard, Gretna, LA, for Appellant, Bankers Insurance Company.
    David Charles Willard, Lafayette, LA, for Defendant-Appellee, Kevin D. Futch.
    David Hutchins, Christopher Luke Edwards, Lafayette, LA, for Plaintiff-Appel-lee, State of Louisiana.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL and ARTHUR J. PLANCHARD , Judges.

       Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.

   JjPLANCHARD, Judge.

A bond provider, Bankers Insurance Company (Bankers), appeals the trial court’s denial of its motion to set aside the forfeiture of a bond it supplied to Kevin Futch.

In August 2001, Bail Bonds Unlimited, Inc., acting as agent for Bankers, posted two bonds for the release of Kevin Futch, who had been arrested. Futch failed to appear for a hearing on July 18, 2002, the bonds were forfeited and an attachment ordered. Notice was mailed to Bankers on August 15, 2002. On December 13, 2002, Bankers moved to set aside the forfeiture. The court denied the motion. Bankers appeals arguing that the State failed to show that Futch was served with notice of his court date.

Louisiana Code of Criminal Procedure article 344 provides the notice requirements in connection with the forfeiture of a bail bond:

A. When a bail bond fixes the initial appearance date, no additional notice is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, if the defendant appears as ordered. If a defendant fails to appear when a bail bond fixes the initial appearance date, no additional preforfeiture notice for that date is required to be given to the defendant or the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety. The bond shall be forfeited forthwith as per R.S. 15:85.
B. (1) When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, shall be given written notice of the time, date, and place the principal is required to appear.
(2) The notice may be delivered to the defendant and the personal ^surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety by an officer designated by the court, at least two days prior to the day set for the appearance; or this notice may be mailed by United States first class mail to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, at least three days prior to the day set for the appearance. The notice shall be mailed to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety to the address designated pursuant to Article 322.
(3) If the defendant appears as ordered and the proceeding is continued to a specific date, the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety need not be given notice of the new appearance date. If the defendant fails to appear as ordered, or the proceeding is not continued to a specific date, the personal surety or the agent or bondsman who posted the bond for the commercial surety shall be given notice of the new appearance date.
(4) Failure to give notice, as required by this Paragraph, relieves the surety from liability on a judgment of bond forfeiture for the defendant’s nonappearance on that particular date.

Bankers argues that the provisions of Section B apply to invalidate the bond forfeiture because the bond did not specify a hearing date and the return on service indicated that Futch was unable to be served with notice of the July 18, 2002 hearing. However, the record shows that prior to his failure to appear in July, Futch did appear in court for a hearing on January 22, 2002. The minute entry for that date states that:

The accused was present in open court and represented by Chris Larue. The accused waived formal arraignment and entered a plea of not guilty. The court granted 15 days for filing of motion and pleadings. The court referred the accused to the indigent defender’s office for the appointment of counsel.

Under these circumstances, La. Code Crim.P. art. 344(B)(3) is applicable: the Defendant appeared as ordered, but the proceeding was continued to a date which was not, as far as this court can determine, specified at that time. In that case, the statute requires only that: “the personal surety or the agent or bondsman who posted the |sbond for the commercial surety shall be given notice of the new appearance date.” Since Bankers’ receipt of notice of the hearing is not contested, and since the record contains a copy of the notice sent to the surety, we find that the notice required by the statute was given. Accordingly, the trial court did not err in denying Bankers’ motion to set aside the bond forfeiture.

Therefore, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Appellant, Bankers Insurance Company.

AFFIRMED.

      . Judge Arthur J. Planchard, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tem-pore.


author: ¶ GREMILLION, Judge.

text:
    CITY OF BROUSSARD v. Michael WATKINS d/b/a Michael’s International.
    No. 03-1383.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Edward B. Broussard, Prosecutor, City of Broussard, Ronny Melebeck, Attorney at Law, Abbeville, LA, for Plaintiff/Appel-lee, City of Broussard.
    Frank Edward Barber, David Groner, P.L.C., New Iberia, LA, for Defendant/Appellant, Michael Watkins.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD , Judges.

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

   ¶ GREMILLION, Judge.

In this case, the defendant, Michael Watkins, appeals the decision of the district court which suspended his occupational license for fifteen days. For the following reasons, we reverse the ruling of the trial court and remand for further proceedings.

FACTUAL BACKGROUND

Watkins was issued two misdemeanor summonses dated January 2, 2002, and March 22, 2002, for violations of Ordinance 144 at his place of business, Michael’s Gentlemen’s Club. Broussard, LA, Ordinance 144 (Mar. 14, 1995). There are court minutes in the record from the magistrate court proceedings that appear to have been filed as attachments to Watkins’ Motion and Order for Appeal to the district court. The minutes indicate Watkins was arraigned on January 31, 2002, and he entered a plea of not guilty. On May 30, 2002, a motion to quash was denied. The magistrate court minutes, dated January 30, 2003, indicate Watkins again pled not guilty, and trial of motions was set for March 27, 2003. On that date, a motion to dismiss was heard and denied. The next minute entry, dated April 24, 2003, states, “[p]lead (sic) not guilty guilty (sic) the judgement (sic) date is 4/24/03 occupational license is to be suspended for 15 days effective immediately upon conviction becoming final (after all appeals have been exhausted); verdict is combined for both convictions.” Although a transcript of the March 27, 2003 hearing on a motion to dismiss/motion to quash appears in the record, there is no trial transcript in the record. The matter was appealed to the district court and that court affirmed the | ^decision of the magistrate court “suspending the occupational license for 15 days effective immediately.” Watkins is before this court seeking review of the district court’s ruling.

CRIMINAL VERSUS CIVIL CASE

Before addressing the assignments of error raised by Watkins, it is necessary to discuss whether this case should be treated as a civil or criminal matter. If the proceedings are civil, they can continue as an appeal, but, if they are criminal, they would have to proceed as an application for supervisory writs. We note that, from the outset, this case has been treated as a criminal matter by the lower courts. Watkins was charged by affidavit (misdemean- or summons) and was referred to in the court minutes as “the accused.” Additionally, the minutes indicate Watkins was “arraigned” and pled “not guilty.” There is also reference to the “verdict” and “conviction” in the court minutes. Furthermore, on appeal to the district court, that court stated Watkins was “found guilty” and a “sentence” was imposed.

Although both parties refer to this as a criminal matter and neither party has questioned whether this case is criminal or civil, we find this to be a civil proceeding. Although we could find no cases directly on point, we located several cases that provide guidance in assessing whether a proceeding is a criminal or civil matter.

In State v. Page, 332 So.2d 427 (La.1976), the supreme court was called upon to determine whether a license revocation proceeding under the Motor Vehicle Habitual Offender Law was civil or criminal. In addressing this issue, the supreme court stated:

| .¡Factors which militate in favor of the conclusion that the proceeding is civil are these:
1) The Act directs that the petition be filed, not in the parish where the offenses were committed, as would be the case in a criminal action (La. Const, art. I, § 16 (1974); C.Cr.P. art. 611) or a criminal enhancement proceeding [R.S. 15:529.1(D)], but in the parish of the defendant’s residence.
2) An appeal taken from any final action or judgment entered under the provisions of the Act is in the same manner and form as appeals in civil actions. R.S. 32:1478.
3) The fundamental purpose of the Act is to promote highway safety by denying driving privileges to habitual traffic law offenders (32:1471), a distinctly non-criminal objective.
One purpose of the Act is, of course, to discourage repetition of criminal acts, but this alone is not sufficient to give the Act a penal character since deterrence of wrongful criminal conduct while often an object of criminal statutes may be an objective of a regulatory statute as well. See McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754 (1913); United States v. Kordel, 164 F.2d 913 (7th Cir.1947), aff'd, 335 U.S. 345, 69 S.Ct. 106, 93 L.Ed. 52 (1948).
There are, of course, features of the Act not now before us which are penal, or criminal. For instance, 32:1480 may result in imprisonment for driving while classified as a habitual offender. However, this is an independent feature of the Act separate and distinct from the revocation proceeding.

Id. at 429.

After discussing two Louisiana appellate court cases, which hold that a revocation proceeding is civil, and citing numerous other state supreme court cases finding similar proceedings to be civil actions, the supreme court noted that proceedings to revoke local driver’s licenses are “generally regarded as civil proceedings.” Id. at 429-30. The supreme court further stated:

RLicense revocation procedures, even those following conviction for a specific traffic violation, have been considered civil actions by Louisiana courts. Under La.R.S. 32:667, 668 which provides for suspension of license after refusal to take a blood alcohol test, the revocation procedure is unquestionably civil. Culp v. Department of Public Safety, 288 So.2d 680 (La.App. 4th Cir.1974); Gardner v. State, Department of Public Safety, 198 So.2d 184 (La.App. 3rd Cir.1967). Moreover, the revocation of license under R.S. 32:414 also constitutes a civil sanction, in certain circumstances, against motorists who are convicted of driving while intoxicated. Harrison v. State, Department of Public Safety, 298 So.2d 312 (La.App. 4th Cir.1974).
Although due process is required before a driver’s license may be revoked, Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Smith v. Department of Public Safety, 254 So.2d 515 (La.App. 4th Cir.1971), it does not necessarily follow that the revocation of a license constitutes criminal punishment. On the contrary, the revocation of one’s license to operate a motor vehicle under the habitual offender law does not constitute punishment. Rather, it is a civil measure considered necessary by the Legislature to adequately provide for public safety. It is a finding by a court that the person in question is no longer fit to enjoy the privilege of driving a motor vehicle. The result of the finding is to deny the person the right to drive on the public highways of the state; he suffers no loss of liberty, no incarceration nor fine.
We hold therefore that the district attorney’s petition to have defendant declared an habitual offender under the Motor Vehicle Habitual Offender Law, with the attendant minimum five year revocation of driving privileges, is a civil proceeding.

Id. at 430. (footnote omitted).

Later, in Butler v. Department of Public Safety and Corrections, 609 So.2d 790 (La.1992), the supreme court held a driver’s license suspension is a civil matter. The court “conclude[d] that a driver’s license suspension is a remedial measure which attempts to protect society from the hazards posed by drunk drivers by removing the driving privileges of those who have been convicted of driving while intoxicated.” Id. at 796.

In State v. Sonnier, 95-1103 (La.App. 3 Cir. 8/28/96), 679 So.2d 1011, we were asked to determine whether prosecuting someone for driving while intoxicated after their driving privileges had been administratively suspended constituted double jeopardy. In our opinion, we wrote:

[United States v.] Ursery [518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)] reaffirmed and adopted the analytical framework announced in United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984). A two-part test is used. First, are the proceedings intended to be criminal or civil in nature? Second, are the proceedings so punitive in form and effect as to render them criminal, despite legislative intent to the contrary? To satisfy the latter prong of the two-part test, the “clearest proof’ is necessary to show that the sanction is criminal and not civil. Ursery, [518] U.S. at [289], 116 S.Ct. at 2147-48.
The answer to the initial inquiry is simple. Butler stated that “a driver’s license suspension is a civil, not punitive, measure.” Id. at 795. Having so concluded, where, then, is the “clearest proof’ that the suspension proceedings may not legitimately be viewed as civil in nature and that they are, in fact, criminal? We have examined the record and the statutes, La.R.S. 32:667 and 668, and have not discerned the existence of that “clearest proof.” Ursery does not lend guidance to what constitutes “clearest proof.” Like Ursery, however, we have to admit that “... the fact that a [driver’s license suspension] has some connection to a criminal violation is far from the ‘clearest proof necessary to show that a proceeding is criminal.” Id. at [292], 116 S.Ct. at 2149.
The defendants submit attractive arguments which suggest that these suspension proceedings are not remedial and are the functional equivalent of a criminal proceeding. For example, La. R.S. 32:667 and 668 permit one who transgresses the statutory provisions to drive under a temporary permit for a period not exceeding thirty days and to obtain a restricted license once certain conditions are met. Additionally, under La.R.S. 32:415.1, a transgressor may also be eligible for an economic hardship license. The proceedings, the defendants argue, therefore, do not accomplish the objective of removing an intoxicated driver from the state’s highways. Certainly, these are punitive effects. However, while having certain punitive aspects, La.R.S. 32:667 and 668 “serve important nonpunitive goals.” Ursery, [518] U.S. at [290], 116 S.Ct. at 2148. (See Butler, 609 So.2d at 792, 796-797 for a discussion of these nonpunitive goals). These effects, while punitive, are not the “clearest | fiproof ’ necessary to show that these proceedings are criminal in nature.

Id. at 1012-13 (footnote omitted).

Likéwise, contempt proceedings are considered civil, if the intent of the court is to coerce a defendant into obeying an order, and criminal if the intent is to punish the defendant. See Dauphine v. Carencro High School, 02-2005 (La.4/21/03), 843 So.2d 1096.

In March 1995, the City of Broussard adopted Ordinance No. 144, which prohibits “exotic, nude, semi-nude and topless dancing” at businesses required to hold an alcoholic beverage permit. The penalties for violations range from a fifteen day 17suspension of the “Certificate of Qualification and the permits required by Ordinance No. 84, as they apply to alcohol beverage permits” to revocation of the certificate and permits depending on the number of “eonvietion[s].”

The purpose of the ordinance is to promote the protection of the citizens and to maintain peace, which could be both a civil and criminal objective; however, violators suffer no loss of liberty, incarceration, or fine. In that regard, these proceeding are civil in nature. Further, we are guided by La.R.S. 33:4785(A) (footnotes omitted), which states:

Any municipality may suspend or revoke within the corporate limits and any police jury or other governing authority of a parish may suspend or revoke within the limits of the parish, permits issued to retail dealers in beverages having an alcoholic content of more than six percent by volume for causes set forth in R.S. 26:88, 26:89; and may suspend or revoke permits issued to such retail dealers in beverages having an alcoholic content of not more than six percent by volume for causes set forth in R.S. 26:285, 26:286.

The causes set forth in La.R.S. 26:90 and 26:286 encompass the type of activity [¿prohibited by the City of Broussard’s ordinance. Review of cases in which a permit has been suspended or revoked is provided for in La.R.S. 33:4788, which reads:

The holder of the permit who is aggrieved by a decision of the governing body of the municipality or parish or a municipal alcoholic beverage control board to suspend or revoke his permit, may within ten days of the notification of the decision take a devolutive appeal to the district court having jurisdiction of his place of business and on such appeal the trial shall be de novo. Within ten calendar days from the signing of the judgment by the district court the municipality or parish governing authority, a municipal alcoholic beverage control board or the holder of the permit, as the case may be, may devolutively appeal from the judgment of the district court to the court of appeals as in ordinary civil cases.

Accordingly, this matter shall proceed as a civil appeal.

TRIAL DE NOVO

Watkins claims the district court should have granted him a trial de novo as required by La.R.S. 13:1896. The City contends Watkins stipulated to the facts in the magistrate’s court and never requested a trial on the merits either in the magistrate court or the district court. The City additionally notes that Watkins did not object to the district court issuing a ruling on the record and that he actually prepared the judgment for the district court’s signature. The City also argues that the only defenses involved legal issues and Watkins offered no facts which were not contained in the record. Finally, the City argues Watkins, who claims he is not the license holder, will suffer no loss as a result of the conviction because he has no license to suspend.

|9We find that, under either La.R.S. 13:1896 or 33:4788, Watkins was entitled to a trial de novo by the district court. La. R.S. 13:1896 requires appeals from may- or’s court and justice of the peace courts to be tried de novo, but this is not a statutory requirement for appeals of city, parish, and municipal court judgments. The minutes indicate the matter was heard by the Broussard Magistrate Court and the order for appeal to the district court is signed by Carol Spell, Magistrate Judge. Accordingly, the Broussard Magistrate Court is a mayor’s court. See La.Code Crim.P. art. 931; La.R.S. 33:441; La.R.S. 33:441.26; and City of Kenner v. Marquis, 98-418 (La.App. 5 Cir. 6/4/98), 715 So.2d 85, unit denied, 98-1806 (La.10/16/98), 726 So.2d 907.

As additional support for his position that he was entitled to a trial de novo, Watkins cites North v. Russell, 427 U.S. 328, 96 S.Ct. 2709, 49 L.Ed.2d 534 (1976). In North, the Supreme Court held that a two-tier court system in which criminal cases are heard first by a nonlawyer police court judge, when a later trial de novo is available, does not deny a defendant due process. The City contends that North is inapposite because in Louisiana, a mayor’s court magistrate must be a licensed attorney. In the City of Broussard, at the mayor’s request, the board of aldermen are to appoint' an attorney to serve as court magistrate. The magistrate is to preside over the mayor’s court at the request of the mayor. Although the Brous-sard magistrate is an attorney, as suggested by the City, this court has found that an accused is, nevertheless, entitled to a trial de novo:

LSA-R.S. 33:441, which provides for the establishment of mayor’s courts, provides in Subparagraph B that the board of aldermen may appoint an attorney, upon request of the mayor, who may serve in the stead of the mayor as magistrate of the mayor’s court with all the Impower and authority of the mayor. This authority is specific in the case of the Town of Cottonport. LSA-R.S. 33:441.8. The case sub judice was heard by and acted upon by an attorney magistrate, so the magistrate was presumptively qualified to fulfill a judicial role. However, it is not required that a board of aldermen appoint an attorney. Therefore, a mayor acting as magistrate may possibly not have the legal training and qualifications one would have to have in order to accord accuseds who appear before the mayor’s courts those constitutional rights to which they are entitled. This court in Broussard v. Town of Delcambre, 458 So.2d 1003 (La.App. 3d Cir.1984) found that no constitutional violations occur when an accused, subject to possible imprisonment, is tried before a non-lawyer magistrate when a later trial de novo is available. In order to give this principle full effect we conclude that it should apply to all criminal cases emanating from mayor’s courts whether or not the magistrate is a trained attorney and regardless of whether the conviction and sentence resulted from trial or the entry of a plea of guilty.

State v. Fontenot, 535 So.2d 433, 438-39 (La.App. 3 Cir.1988).

While we are cognizant that Fonte-not involves a criminal case, for the same reasons espoused therein, the protection of the defendant’s constitutional rights, we hold that a defendant in a civil proceeding in mayor’s court is entitled to a trial de novo. Thus, this case is remanded to the district court for further proceedings.

PROOF BEYOND A REASONABLE DOUBT

Watkins contends the district court erred in finding the City proved its case beyond a reasonable doubt. He notes that the district court referred to incident reports and minutes of court, but did not refer to the actual trial transcript because a proper transcript was not prepared in the case. In light of our decision that the case be remanded for a trial de novo in the district court, this assignment of error is rendered moot.

I, i CONSTITUTIONALITY OF THE ORDINANCE

Watkins contends the district court did not consider his motions concerning the constitutionality of Ordinance 144, noting that the judgment contains no discussions of this issue. We note that the district court’s ruling does not mention the challenge to the constitutionality of the ordinance. We also note that there is no pleading challenging the constitutionality of the ordinance contained in the record before us.

In State v. Williams, 02-0898, 02-1030, p. 7 (La.10/15/02), 830 So.2d 984, 988, the supreme court stated:

The general rule established by this Court is that issues not submitted to the trial court for decision will not be considered by the appellate court on appeal. Constitutional issues are no exception. Vallo v. Gayle Oil Co., 94-1238 (La.11/30/94), 646 So.2d 859. This court has often cited Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308, 1311 (La.1984), as authority when not confronting claims of unconstitutionality where the claim is not the basis for this Court granting of the writ and the issue was not specifically pled in the trial court. Id. at 863. The constitutionality of the statute was clearly not the central focus of any hearing and the trial record does not contain any arguments on the topic. The only mention of the constitutionality of the statute was on appeal. Accordingly, we pretermit defendant’s constitutional challenge as he failed to first raise the issue in the trial court.

In the present case, since there is no indication that the challenge to the constitutionality of the ordinance was raised in the district court, we will not address that issue.

CONCLUSION

Initially, we find that this case is civil, and we considered it as an appeal. After having done so, we reverse the district court’s ruling and remand the case to the district court for a trial de novo. The costs of this appeal are assessed to 1 1i8the plaintiff-appellee, the City of Broussard.

REVERSED AND REMANDED.

      . We note that the March 27, 2003 "transcript” is titled "Minute Report,” but it contains all of the statements made by the parties, as well as the testimony of five witnesses.

      . The ordinance reads in full:
      SECTION I. RULES, REGULATIONS AND REQUIREMENTS
      Each and every person, firm, partnership or corporation engaging in the business of selling, either at retail or wholesale, any beverages of high alcoholic content or any beverages of low alcoholic content, holding a valid permit authorizing such sale issued by the Town of Broussard for consumption on or off the premises of such businesses, and each and every person, firm, partnership or corporation engaging in any business wherein the consumption of beverages of high alcoholic content or beverages of low alcoholic content are permitted on the premises of such business, though not purchased therein, shall be subject to and shall abide by the following rules, regulations, restrictions and requirements, to-wit:
      A)It shall be unlawful and may be a cause for the suspension, termination or revocation of any permit or license issued by the Town of Broussard to any person, firm, partnership or corporation, if such person, firm, partnership or corporation allows exotic, nude, semi-nude, or topless dancing in or near the business premises where alcoholic beverages are sold or consumed. For purposes of this subsection, "exotic, nude, semi-nude or topless dancer” is defined as a person of either gender hired or in any way compensated, whether by salary, commission, gratuities from customers, or otherwise, to dance, gyrate, twist or otherwise engage in any other physical performance in a nude condition in or on any business premises required to possess an alcohol beverage permit; and "nude condition” is defined as the display or exposure, with less than a full opaque covering, of any portion of a person’s genitals, pubic area, buttocks or that portion of the breast lower than the upper edge of the areola.
      SECTION II. VIOLATIONS AND PENALTIES
      A) In addition to the penalties otherwise provided by law, upon the first conviction of violating any of the provisions of this ordinance shall cause the violator's Certificate of Qualification and the permits required by Ordinance No. 84, as they apply to alcohol beverage permits, shall be suspended for a period of fifteen (15) days, commencing the day following the final Judgment of said conviction.
      B) In addition to the penalties otherwise provided by law, upon the second conviction of violating any of the provisions of this ordinance, the violator’s Certificate of Qualification and the alcohol beverage permits required by law shall be suspended for a period of thirty (30) days, commencing the day following the final Judgment of said conviction.
      C) In addition to the penalties otherwise provided by law, upon the third or subsequent conviction of violating any of the provisions of this ordinance, the violator’s Certificate of Qualification and permits required by Ordinance No. 84 of the Broussard Code of Ordinances shall be revoked, effective the date following the final Judgment of said conviction.

      . Title 26 of the Louisiana Revised Statutes of 1950, Liquors-Alcoholic Beverages, was amended and reenacted by Acts 1987, No. 696. La.R.S. 26:88 and 89 are now La.R.S. 26:90 and 91.

      . Acts 1987, No. 696 also changed La.R.S. 26:285 and 286 to La.R.S. 26:286 and 287.

      .We cannot tell from the record before us whether Watkins was convicted or pled guilty to the violation. However, in State v. Fontenot, 535 So.2d 433 (La.App. 3 Cir. 1988), this court held that a defendant is entitled to a trial de novo even if he pled guilty.

      . The City claims the record contains a transcript of the "proceedings in the magistrate court, wherein all relevant evidence is included." The transcript referred to by the City is the transcript of the March 27, 2003 hearing on motions, not the trial transcript.


author: THIBODEAUX, Chief Judge.

text:
    James HEPLER, Elizabeth Gail Hepler, et al. v. Dr. Chih Hao LIN, et al.
    No. 03-1217.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.

      John E. Bergstedt, John Gregory Bergstedt, The Bergstedt Law Firm, Lake Charles, LA, for Defendant/Appellee, Dr. Chih Hao Lin.
    Edward J. Fonti, William M. Nolen, Jones, Tete, Nolen, Fonti & Belfour, L.L.P., Lake Charles, LA, for Plaintiffs/Appellants, James Hepler and Elizabeth Gail Hepler.
    Benjamin Wakefield Mount, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellee, Galen-Med, Inc.
    Michael Keith Prudhomme, Lundy & Davis, Lake Charles, LA, for Defendant/Appellee, Louisiana Patient’s Compensation Fund.
    Lisa Coleman Lee, Department of Health and Hospitals, Baton Rouge, LA, for Defendant/Appellee, State of Louisiana, Department of Health and Hospitals.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and ARTHUR J. PLANCHARD , Judges.

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

   THIBODEAUX, Chief Judge.

In this medical malpractice case, plaintiffs, James Hepler (James) and Elizabeth Gail Hepler (Gail), assert that defendant, Dr. Chih Hao Lin (Dr. Lin), a neonatologist, breached the standard of care while caring for their extremely premature newborn daughter, Courtney Danielle Hepler (Courtney). At the conclusion of a jury trial in the matter, judgment was rendered in favor of Dr. Lin and the hospital where he worked, Galen-Med, Inc. d/b/a Columbia Women and Children’s Hospital (Columbia Hospital). The Heplers appeal. We affirm.

I.

ISSUES

We shall consider whether:

(1) Dr. Lin deviated from the standard of care in treating a premature baby when he failed tp go to the hospital to treat the infant who was suffering from vasospasm;
(2) the trial court erred in rejecting the plaintiffs’ proposed jury charges on res ipsa loquitur and inconsistent statements of witnesses;
(3) the trial court erred in denying to plaintiffs the admission of a discovery deposition conducted by the defendants and submitted to a medical review panel; and,
(4) the trial court erred in denying the plaintiffs’ post-trial motion for judgment notwithstanding the verdict and, alternatively, for a new trial.

II.

FACTS

Gail was pregnant with twins. On September 13, 1998, she was only six months into her pregnancy when the first of her twins, a boy, Cameron, was born on 1 ^September 13, 1998. On September 15, 1998, the second twin, Courtney, was born. The twins were born at Columbia Hospital almost four months premature. Evidence in the record establishes that children born at twenty-three weeks gestation have less than a fifteen percent survival rate. Due to their prematurity and immediately after birth, the twins were put under the care of Dr. Lin, a neonatologist. The treatment of the first born twin, Cameron, who died on February 24, 2002 of liver cancer unrelated to his prematurity, is not the subject of this appeal. This case involves Dr. Lin’s treatment of Courtney on the night of September 16,1998.

At birth, Courtney had a grade III brain hemorrhage that required the placement of a shunt in her head which led into her stomach. Dr. Lin testified that Courtney’s lungs were immature and that she had a weak cardiovascular system, low blood pressure, low body temperature and immature kidneys. Courtney received nutrition from an I.V. line. Further, by December 1998, Courtney was blind. Dr. Lin inserted an umbilical arterial catheter (UAC) into one of the two arteries in Courtney’s umbilical cord. From the UAC Dr. Lin could get vital sign information as well as administer medicines and nutrients. Gail testified that on the day Courtney was born, she saw nothing wrong with her leg. However, by 3:25 p.m. the following day, Dr. Lin was paged by Courtney’s attending nurse, Jackie Shaughnessy (Nurse Shaughnessy), and informed that Courtney’s lower right leg was turning purple and had areas of blanching. Dr. Lin surmised that Courtney was suffering from vasospasm in her right leg, a condition where the blood vessels contract. Dr. Lin explained that vasospasm and discoloration are often side effects of the use of UAC lines in infants. To help increase blood circulation to Courtney’s right leg, Dr. Lin ordered that warm compresses be applied to Courtney’s left leg. By 5:10 p.m., Courtney’s right leg was still discolored. Dr. Lin then ordered that the warm compresses be applied to the affected leg. Gail testified that she last saw Dr. Lin just |sprior to the 7:00 p.m. nursing shift change. Dr. Lin testified that he had an opportunity to see Courtney’s right leg and did not leave the hospital until 8:00 p.m.

After leaving the hospital, Dr. Lin went to his home located about ten minutes from the hospital. According to Dr. Lin, he received the first of many calls regarding Courtney’s right leg condition at 9:25 p.m. on September 16, 1998. Throughout the night of September 16th and into the early morning of September 17th, Dr. Lin gave Courtney’s attending nurses various orders to alleviate what he thought was a vasospasm; however, he did not return to the hospital to check the leg himself until the next morning at approximately 7:00 a.m. During the night, Courtney’s leg greatly deteriorated becoming almost black. Meanwhile, Gail testified that she was not informed of Courtney’s right leg treatment during the night of September 16, 1998. She saw Dr. Lin between 8:00 a.m. and 9:00 a.m. on the morning of September 17,1998.

Gail testified that Dr. Lin told her that Courtney’s leg was burned and that there was a possibility that it would have to be amputated. She also testified that she was never told about the many calls which Courtney’s nurses made to Dr. Lin the night before. Dr. Lin explained that the change in the color of Courtney’s right leg from light to dark purple and extending to her mid-thigh area is a common result of vasospasm. He also stated that at one point he ordered the administration of “priseoline,” a vasodilator that is used to open blood vessels.

In his progress notes Dr. Lin wrote that Courtney sustained a right leg burn secondary to application of a heel warmer. He explained that he wrote the note because that was one of several possible causes of the burn. When he actually saw the purple color of Courtney’s leg, he surmised that it was caused by vasospasm and not the heel warmer therapy. As noted above, a complication of using a UAC line, which is inserted in the navel of the baby, is vasospasm. Dr. Lin explained that it [4could be placed in the wrist or ankle artery by surgical procedure but because of Courtney’s size it is a more difficult procedure. Eventually, the UAC line was withdrawn and placed in an ankle artery.

As a result of the injury to her right leg, Courtney had to undergo four surgeries with a plastic surgeon, Dr. Ralph W. Col-pitts (Dr. Colpitts), and a pediatric orthopedist, Dr. R. Baxter Willis (Dr. Willis). Gail testified that she will have to undergo at least three additional surgeries on her leg. Courtney also has physical therapy to stop her leg retracting and to soften the scar tissue. She has no use of her right leg, has no feeling in that area and must wear braces on her leg. Aso, she is unable to walk. As she grows, the braces will have to be changed. At the time of trial, Courtney was four-and-a-half years old. Athough Dr. Willis testified in his deposition that regardless of what happened to Courtney’s leg, she would not have been able to walk due to other medical problems, however, Gail disagreed and insisted that but for the injury to Courtney’s right leg, Courtney would have been able to walk.

Courtney’s parents, the Heplers, brought suit against Dr. Lin and Columbia Hospital. They alleged that Dr. Lin and Columbia Hospital negligently caused the right leg injuries suffered by Courtney. The Heplers asserted that Dr. Lin knew that Courtney was experiencing right leg vasospasm yet failed to return to her bedside after numerous calls from Courtney’s attending nurses during the night of September 16, 1998. Further, the Heplers asserted that Dr. Lin did nothing to minimize the damage caused by the vasospasm. With respect to their claim against the hospital, the Heplers claim that Courtney’s leg was burned because the neonatal intensive care unit (NICU) nurses negligently applied heat to her right leg.

The Heplers submitted their claim to a medical review panel. The panel concluded that neither the care by Dr. Lin nor the hospital nurses fell below the | Rstandard of care in treating their daughter. The He-plers then filed a medical malpractice action which was tried to a jury. Prior to trial in this matter, the Heplers settled their case against the hospital for $75,000.00, an amount less than $100,000.00 which is necessary for an admission of liability. Thus, the Heplers reserved their right to proceed against the Patient’s Compensation Fund (PCF). At the conclusion of trial, the jury rendered a verdict in favor of Dr. Lin and the hospital. It is from that decision that the Heplers appeal.

III.

LAW AND DISCUSSION

Standard of Review

“An appellate court generally reviews the factual findings of a trial court according to the manifest error standard of review.” This standard applies in jury trials and judge trials. Powell v. Regional Transit Authority, 96-715, p. 4 (La.6/18/97), 695 So.2d 1326, 1328. The standard has best been stated in Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989):

It is well settled that 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,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. (Citations omitted.)
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. (Citations omitted.) Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, Ifithat a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. (Citations omitted.) But where such factors are not present, and a fact finder’s finding is based upon its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (Citations omitted.)

The above principles are based not only on the trial court’s better capacity to evaluate witnesses in person, but also upon the allocation of trial and appellate court functions. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

“The manifest error standard of review assumes that ‘consequential evidentiary rulings and instructions on the law were correct and proper.’ ” James v. Beauregard Elec. Co-op., Inc., p. 3, 99-71 (La.App. 3 Cir. 6/9/99), 736 So.2d 353, 355, writ denied, 99-2030 (La.11/15/99), 750 So.2d 180, quoting, McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986). The manifest error standard is not applied if the jury verdict is tainted by error. Id. Therefore, we will first examine the Heplers’ assertions dealing with the trial court’s evidentiary rulings and the jury instructions before we discuss the Heplers’ assignment concerning the jury’s verdict.

Jury Instructions

The Heplers argue that had the trial court given the jury their specific jury instruction regarding prior inconsistent statements, the jury would have found in their favor. We disagree.

Jury instructions that identify the issues and provide the correct principles of law to the jury are adequate. James, 736 So.2d 353. In this case, the trial court instructed the jury as follows with respect to a witness’s prior inconsistent statements:

[I]n weighing the testimony of any witness, you may consider their demeanor on the stand, their interests or want of interest in the outcome of the suit, their means of |7knowing the facts about which they testified, the consistency or inconsistency of their statements, whether they made statements at other times contrary to those made on the witness stand, and any other circumstances surrounding the giving of their testimony that may help you in determining the weight that should be given to their statements. (Emphasis supplied). If you believe a witness swore falsely to any fact for the purpose of deceiving you, you have the right to reject the entire testimony of that witness, thereby disregarding their testimony completely. You also have the right to accept as true or reject as false any statements of any witness according to the way you are impressed with his or her truthfulness.

The special jury charges requested by the Heplers come from the case of State v. Williams, 338 So.2d 672 (La.1976). The Heplers’ interpretation of the Williams rule is as follows:

If the testimony of a witness here in court is inconsistent with a prior statement he has made, it is your duty to determine if the testimony of the witness here in court should be discredited. If you decide that the testimony of the witness has been discredited, then you are to decide what weight, if any, to give to the testimony of the witness. If you should find that a witness has testified falsely as to a material fact, then you have the right to reject the entire testimony of the witness or to reject only part of the testimony, based upon how you are impressed with the truthfulness of the witness.

We conclude that the fundamental elements regarding what a jury is to do when it finds that a witness has made inconsistent statements are present in both the trial court’s instructions and the Heplers’ proposed jury charge. Therefore, we find no error in the trial court’s refusal to use the Heplers’ specific jury charge on prior inconsistent statements made by witnesses.

Res Ipsa Loquitur

The Heplers contend that the trial court erred in failing to give a jury instruction about res ipsa loquitur to prove that the negligence of Dr. Lin and | {¡Columbia Hospital resulted in Courtney’s right leg being burned and deformed. They argue that by not giving any instruction regarding res ipsa loquitur, the jury was denied the opportunity to find the defendants liable on the basis of that doctrine.

“Res ipsa loquitur is an eviden-tiary doctrine that requires a defendant to exculpate himself from an inference of negligence.” Walston v. Lakeview Reg. Med. Ctr., 99-1920, p. 6 (La.App. 1 Cir. 9/22/00), 768 So.2d 238, 242, writ denied, 00-2936 (La.12/15/00), 777 So.2d 1229. The first circuit further explained that the doctrine “applies when: the accident would not normally occur in the absence of negligence, there exists an absence of direct evidence to explain the activities leading to the injury, and the accident or injury was caused by an agency or instrumentality within the actual or constructive control of the defendant[s].” Id. In the present case, the Heplers did not present the expert testimony of a neonatologist to meet their burden of proof. However, it is not always necessary for a plaintiff use expert testimony to meet his or her burden of proof that the care by a particular physician fell below the standard of care. Pfiffner v. Correa, 94-924, 94-963, and 94-992 (La.10/17/94), 643 So.2d 1228. When a physician does an obviously careless act, negligence may be inferred. Id. Examples of an “obviously careless act” include fracturing a leg during an examination, amputating the wrong limb, dropping a surgical instrument on a patient or leaving a sponge in a patient’s body. Id. at 1233.

The Heplers have alleged a specific act of negligence by Dr. Lin and the hospital, i.e. the failure of Dr. Lin to come to the bedside of Courtney during the night when she was experiencing a vasospasm in her right leg, and the application of a heel warmer to improve the condition of her leg. There is evidence in the record, through medical records and witness testimony, that the manner in which the nurses and Dr. Lin, as a neonatologist, cared for Courtney, including communicating by telephone throughout the night, did not fall below the standard of care. Further, there is | flevidence that the injury to Courtney’s leg occurred due to a vasospasm and not a burn. Thus, we find, as did the trial court, that the application of res ipsa lo-quitur was not proper.

Cross Examination of Members of the Medical Review Panel

Drs. Shute and Robinson, two members of the medical review panel in this case, testified at trial. The Heplers assert that the trial court erred when it denied them the opportunity to question the doctors regarding the underlying bases of their opinion. Specifically, the Heplers wanted the trial court to admit into evidence the discovery deposition conducted by the defendants and submitted to the medical review panel, to cross examine Dr. Robinson regarding the bases of his opinion. When the Heplers submitted their case to the medical review panel, their evidence included an affidavit signed by Dr. Willis. Subsequent to the submission of the affidavit, the defendants conducted a discovery deposition of Dr. Willis. Their questions focused on the drafting of his affidavit by plaintiffs counsel as well as the modifications he made to the original draft prior to signing the document. When the case went to trial, the affidavit was attached to the discovery deposition and made part of the record. As noted above, in his video trial deposition which was presented to the jury Dr. Willis testified that he would defer to the expertise of Dr. Lin with respect to his treatment of Courtney as a neonatol-ogist, since pediatric orthopedics and not neonatology is his specialty. By cross-examination of Dr. Robinson, the Heplers’ counsel sought to have the contents of Dr. Willis’ affidavit, used by the medical review panel, presented to the jury to impeach their own witness. To do so, the Heplers sought to have Dr. Willis’ discovery deposition, to which the affidavit was attached for trial, admitted into evidence through the testimony of Dr. Robinson. Dr. Willis’ trial deposition testimony was previously admitted into evidence. Thus, 110the scope of cross examination of Dr. Robinson is not at issue, but it is the trial court’s ruling excluding the introduction into evidence of Dr. Willis’ discovery deposition that the Heplers contend was error.

The trial transcript reveals that the He-plers sought to have Dr. Robinson admit that he reviewed both Dr. Willis’ affidavit submitted to the panel by the plaintiffs and discovery deposition submitted to the panel by the defendants as part of the panel’s proceedings. The trial court allowed this line of questioning, and Dr. Robinson testified in the affirmative. The trial court further allowed counsel for plaintiffs to ask Dr. Robinson whether the discovery deposition tended to discredit what Dr. Willis stated in his affidavit, to which Dr. Robinson testified that it did discredit his affidavit testimony and affected the opinion he rendered in this case. Next, counsel for the plaintiffs sought to question Dr. Robinson in detail about Dr. Willis’ affidavit testimony. The trial court denied that request as the information counsel sought was allowed without submission of the affidavit.

“The trial court is vested with vast discretion in connection with the admissibility of evidence.” Bertrand v. Air Logistics, Inc., 01-1655, p. 16 (La.App. 3 car. 6/19/02), 820 So.2d 1228, 1238. Its decision on evidentiary matters will not be reversed on appeal in the absence of abuse of that vast discretion. Id. Inasmuch as the Heplers were allowed to question Dr. Robinson regarding the information they told the court they wanted, we find that the trial court did not abuse its vast discretion in excluding the discovery deposition of Dr. Willis, especially given the fact that Dr. Willis’ had already testified at the trial by deposition.

Medical Malpractice Act — La.R.S. 40:1299.41, et seq.

The Heplers contend that the defendants, Dr. Lin and Columbia Hospital, Inviolated the Medical Malpractice Act (MMA) by treating their daughter in a manner that is below the standard of care found in the Act. In particular, the Heplers contend that Dr. Lin did not come to the bedside of their extremely prematurely born daughter during the night when she was experiencing vasospasm of her right leg. Instead, he relied on reports made by their daughter’s attending nurses when ordering various treatments for the condition. The Heplers contend that the nurses’ administration of warm compresses to their daughter’s right leg during a vasos-pasm caused a serious burn in the limb.

Defendant, Columbia Hospital, contends that its nurses properly followed the orders given to them by Courtney’s neona-tologist, Dr. Lin. It further contends that the nurses regularly reported any change in Courtney’s condition to the doctor throughout the night and, therefore, the jury was correct in finding that the He-plers failed to prove that any acts of the attending nurses were the proximate cause of Courtney’s leg problems. Likewise, Dr. Lin contends that his observance of Courtney’s right leg vasospasm prior to his departure from the hospital on September 16, 1998, as well as his constant telephone contact with the nursing staff throughout that night, ordering various treatments to relieve Courtney’s vasospasm, did not fall below the standard of care of a neonatologist in this situation. Dr. Lin asserts that Courtney was experiencing various life-threatening complications due to her extreme prematurity and was vulnerable to vasospasm due to the UAC line necessary to monitor her condition. He essentially argues that his failure to go to the hospital during the night Courtney experienced va-sospasm in her right leg did not contribute to the progressive deterioration of her leg.

| ^Louisiana Revised Statutes 9:2794 provides for a plaintiffs burden of proof in a medical malpractice action against various healthcare providers. The alleged negligence of the healthcare provider must be proved by a preponderance of the evidence. La.R.S. 9:2794(C). In, Charpentier v. Lammico Ins. Co., 606 So.2d 83, 87 (La.App. 3 Cir.1992) this court stated:

The law does not require perfection in medical diagnoses and treatment. On the contrary, a doctor’s professional judgment and conduct must be evaluated in terms of reasonableness under the then existing circumstances, not in terms of results or in light of subsequent events.

| ^(Citations omitted).

Questions regarding the standard of care in medical malpractice actions against hospitals under respondeat superi- or principles are subject to the same burden of proof as a physician whose treatment actions are questioned. Corley v. State Dept. Of Health & Hospitals, 32,613 (La.App. 2 Cir. 12/30/99), 749 So.2d 926. The Louisiana Supreme Court has explained:

A hospital is bound to exercise the requisite amount of care toward a patient that a particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.

Hunt v. Bogalusa Comm. Med. Ctr., 303 So.2d 745, 747 (La.1974).

As stated above, the Heplers claim that Dr. Lin committed malpractice by taking telephone calls regarding the condition of Courtney’s leg throughout the night instead of traveling from his home to the hospital, a ten minute drive, to observe the condition of Courtney’s leg in person. They claim that had Dr. Lin gone to the hospital instead of relying on the nurses’ telephone reports of the leg’s condition, he would have seen that his prescribed treatment caused the leg to develop a serious burn. The facts indicate that before Dr. Lin left for the night he saw that Courtney was developing a vasospasm and ordered treatment for the condition. At that point he did not want to remove the UAC line because the baby needed constant monitoring of her vital signs. The record also shows that Dr. Lin left instructions to call him at home throughout the night with updates on the baby’s condition. These orders were followed by the nurses.

Dr. Willis testified on behalf of the He-plers. He was tendered as an expert on pediatric orthopedics. His practice is limited to the treatment of orthopedic | uPi-oblems in children. He was originally asked by Dr. Lin to do a consultation on Courtney regarding her right leg. He opined that Courtney suffered from thrombosis because he is aware that some premature children develop vascular problems as a result of the UAC. When he saw Courtney in January 1999, he was aware that she had undergone a full thickness skin graft. He next saw Courtney in October 1999 for an evaluation related to removal of scar tissue that caused constriction which, in turn, caused foot deformity. Dr. Willis operated on Courtney’s right leg on November 11,1999, and was assisted by a plastic surgeon, Dr. John Lindsey (Dr. Lindsey). Essentially, Dr. Willis did surgery to release the sear tissue and to release her tendons and muscles. Dr. Lindsey was present to correct any further defects. In his deposition testimony, Dr. Willis opined that “the only plausible explanation ... that could have caused this was ... a burn or thermal injury from the outside in.” Dr. Willis explained that with the type of problem Courtney had, future surgery would be necessary due to the scarring contracture.

Dr. Willis testified that it was difficult for him to testify regarding the actions taken by Dr. Lin. He emphasized that it is especially difficult when the physician is within another specialty other than his own. He also stated that knowledge of the particular hospital’s nursing care is important. Dr. Willis agreed that the nurses’ notes indicating some pinking to the right leg showed improvement in Courtney’s condition and that he has no criticisms of Dr. Lin’s decision to maintain Courtney’s UAC. He also agrees that Dr. Lin’s use of warm compresses and the administration of a vasodilator was proper to remedy the vasospasm. Dr. Willis admitted that he knew of nothing else he would have done differently and that neonatology is outside of his area of expertise. Dr. Willis testified that he would defer to Dr. Lin’s expertise in the standard of care to be given to a neonate in Courtney’s condition.

hsThe defendants presented the testimony of three doctors: Dr. Patrick Robinson, a pediatrician; Dr. Claudia Shute, a neona-tologist; and, Dr. Colpitts, a plastic surgeon who performed surgery on Courtney. Drs. Robinson and Shute served on the medical review panel convened in connection with this case. Dr. Robinson agreed that it was very important for Dr. Lin to maintain the UAC line even though it comes with its own set of possible complications, including vasospasm. He stressed that the UAC for a baby as premature as Courtney is a lifeline; without it, she would surely not survive. Dr. Robinson further testified that the use of a heating pad when a vasospasm occurs is a treatment that has been around for “twenty-five years.” The treatment protocol followed by Dr. Lin — first applying the heating pad to the unaffected leg then to the affected leg. — is proper even knowing that the chance of further injury to the affected leg could occur, because a doctor would want to preserve the baby’s lifeline. As to whether he would have gone out to the hospital to observe Courtney’s condition, Dr. Robinson testified that it depended on the experience of the nurse, the nurses’ description of the condition, as well as whether the nurse specifically asked him to go out. Dr. Robinson did admit that because Courtney’s skin was extremely thin due to her prematurity, that it would be more likely to burn by application of heat than a baby with normal type skin. However, in his experience, heating pads do not get hot enough to cause burns. Essentially, Dr. Robinson testified that Dr. Lin did not fall below the standard of care when he did not go to the hospital on the night of September 16, 1998, to check Courtney’s condition, and chose instead to rely on updates by Courtney’s attending nurses as to her condition.

Dr. Shute, who primarily practices neo-natology, also testified on behalf of the defendants. She explained that a baby-born at twenty-three weeks gestation, as Courtney was, is “on the edge of viability” with very low chance of survival. She further explained that methods other than the UAC do not measure the carbon dioxide hfilevel, the acid level or the pH. Thus, a baby like Courtney would need the UAC line. Her testimony supported that of Dr. Lin and Dr. Robinson, that the UAC is a premature baby’s “life line.” She further stated that the smaller the baby, the harder it is to get the catheter into peripheral blood vessels as in the ankle or wrist. Thus, the greater need for insertion into the umbilical vessels. Dr. Shute testified that, from her review of the records, Courtney had low blood pressure and was on three different drugs to help increase her pressure. Without the proper blood pressure, babies like Courtney die due to lack of oxygen. Dr. Shute explained that a complication of treating the low blood pressure is that the treatment causes the blood vessels to the skin, a non-essential organ, to constrict. Keeping the blood pressure high to areas like the brain, kidneys and heart are essential. According to Dr. Shute, the goal is to keep the baby alive until she matures.

Dr. Shute stated that premature babies lack the ability to maintain a proper body temperature due to the lack of subcutaneous fat and must be heated by external means. There is no question that Courtney needed the UAC. Further, the occurrence of vasospasm in a baby of Courtney’s age is more likely to happen. Dr. Shute opined that Dr. Lin’s treatment of Courtney’s vasospasm of her right leg— heat applied to opposite leg, heat applied to affected leg and use of vasodilator medications — is the standard progression of treatment. When Dr. Shute was asked why the panel found that the issue of what caused the damage to Courtney’s leg was irrelevant, she responded “everything was being addressed appropriately. The standard of care was being met.... [T]hat is the standard of care of how you manage these problems. So it didn’t matter to us what the injury was; ... things were being done appropriately.” Dr. Shute testified that the panel considered the maintenance of the UAC, the resultant leg injury as well as Dr. Lin’s phone consultations throughout the night in reaching its conclusion that Dr. Lin’s treatment was not below l17the standard of care. The panel had a similar opinion with regard to the nursing care Courtney received at the hospital. Although Dr. Shute admitted that personal observation of an injured body part makes it easier to determine the cause of the injury, she felt that personal observation by experienced nurses with whom the doctor has a close relationship and with whom he is in constant communication is a proper manner of treatment when a doctor is not present.

The three nurses who attended Courtney during the time in question, Christine Bergeron, Jackie Shaughnessy and Carrie Bradley, also testified at the trial. Nurse Shaughnessy, an NICU nurse for fifteen years, was Courtney’s nurse from 7:00 a.m. through 7:00 p.m., September 16,1998. At the beginning of her shift, she saw no problems with Courtney’s leg. According to Nurse Shaughnessy, she observed that Courtney’s right leg turned purple with areas of blanching by 3:25 p.m. All of the nurses testified similarly to the physicians stating that discoloration of the legs due to vasospasm is a common occurrence with the use of a UAC line. The use of warm compresses was ordered by Dr. Lin. Later in the evening, the leg still had problems, and Dr. Lin was at Courtney’s beside at 6:10 p.m. to examine her leg. His orders were to continue the warm compresses — a heel warmer wrapped in gauze. With respect to Dr. Lin’s care of Courtney, Nurse Shaughnessy testified that the care of the babies in the NICU is a team effort, and that it is normal procedure to communicate with the doctors by telephone when they are not present. She further testified that Dr. Lin never failed to respond when she called him, and had she asked him to be present, he would have gone to the hospital. With respect to the heel warmer used on Courtney, Nurse Shaughnessy testified that she has never known one to cause damage or injury to an infant.

Nurse Bergeron’s shift began on September 15, 1998, at 11:00 p.m. and ended at 7:00 a.m. the next morning when Nurse Shaughnessy came to the unit for lisher shift. She saw no problems with Courtney’s leg during her shift. During her shift, she stayed at Courtney’s bedside. She did not return to the NICU until September 17, 1998, at 7:00 a.m., when she relieved Nurse Bradley, who .had stayed by Courtney’s bedside during the night. At that time she was told about the problems with Courtney’s right leg. She testified that Nurse Bradley’s notes indicated several calls to Dr. Lin about the discoloration of Courtney’s right leg as well as Dr. Lin’s orders. Like the doctors who testified in the case and the other nurses, Nurse Bergeron said that the condition of Courtney’s leg did not cause her concern because it was typical complication of using a UAC line. At 8:20 a.m., she saw Dr. Lin in the NICU. She explained that when the doctor is not present in the NICU, it is normal practice for the nurse attending the babies to keep in contact with, and get orders from, the doctor by telephone. She further testified that from the nurses notes, she saw that no nurse requested that Dr. Lin come into the hospital during the night of September 16,1998.

Nurse Bradley, who had worked in the NICU of the hospital for four months pri- or to becoming Courtney’s attending nurse, was present during Courtney’s delivery and was part of the team that admitted her into the NICU. Her shift began at 7:00 p.m. September 16, 1998, and ended at 7:00 a.m. the next morning. Thus, she was Courtney’s nurse on duty during the night in question. While in NICU, three sources of heat were applied to Courtney due to her severe prematurity. Heat is necessary to help premature babies maintain a normal body temperature. The heat from the heel warmer was needed to alleviate the vasospasm Courtney experienced as a result of the use of the UAC line.

Nurse Bradley testified that she called Dr. Lin four times during the night to report Courtney’s condition. During the calls, she described the condition of Courtney’s right leg. Dr. Lin asked questions and gave orders for its treatment. | ¶ ¡Although she testified that she would have felt better if Dr. Lin had gone out to the hospital to examine the leg, she did not request that he do so. Although it appeared that the condition of Courtney’s leg was getting worse, Nurse Bradley’s call to Dr. Lin at 3:30 a.m. indicated otherwise when she told him that the leg appeared purple with small patches of pink. Further, she stated that if she thought Courtney’s leg was being burned by the heel warmer, she would have told Dr. Lin to come to the hospital. She felt that all along that the vasospasm was causing the leg problems. All of the nurses testified that they have never heard of a heel warmer burning an infant. Subsequent to her work at Columbia Hospital, Nurse Bradley worked in NICUs in New Orleans and Baton Rouge. She testified that in those units, contact by phone with the neonatologist when he or she is not present is how the care of infants in the NICU is conducted.

After hearing all of the above testimony regarding how babies in a NICU are cared for when the neonatologist is not present and how Dr. Lin and the nurses cared for Courtney during the night of September 16, when her right leg experienced a va-sospasm, the jury found that Dr. Lin’s and the nurses’ care did not fall below the standard of care of neonatologists. Thus, Dr. Lin and the nurses did not commit malpractice. We cannot say that the jury erred in its conclusion.

Post Trial Motions

Judgment Notwithstanding the Verdict/New Trial

At the conclusion of trial in this matter, the Heplers filed a motion for judgment notwithstanding the verdict (JNOV) and, in the alternative, a new trial. Based on their above arguments, the He-plers assert that the trial court erred in not granting their motions. The defendants argue that the Heplers did not meet the standard for a grant of a JNOV because there is support in the record for the factual | apfindings of the jury. “[A] motion for JNOV is appropriately granted only in the event that ‘the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover.’ ” Sturlese v. Six Chuter, Inc., 01-1634, p. 8 (La.App. 3 Cir. 6/26/02), 822 So.2d 173, 179, writ denied, 02-2385 (La.11/22/02), 829 So.2d 1049, quoting Joseph v. Broussard Rice Mill, Inc., 00-628, p. 4 (La.10/30/00), 772 So.2d 94, 99.

The supreme court instructed appellate courts in the proper method of review for the JNOV, explaining:

[T]he appellate court must first determine if the trial judge erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e., do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

Joseph, 772 So.2d at 99.

The supreme court further detailed the standard for granting a JNOV as follows:

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences | ai or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.”
Id. at 99. (Citations omitted).

In the present case, the jury found that Dr. Lin’s care of Courtney during the night of September 16, 1998, did not fall below the standard of a neonatologist rendering care to an extremely premature infant. In its oral reasons for judgment denying the Heplers’ motion for JNOV the trial court acknowledged that a motion for JNOV presents “one of the toughest standards ... in the law to overcome.” The trial court believed that the jury was made up of reasonable persons and that the judgment was reasonable based on the evidence in the ease. We agree. In fact, in our reading of the record there is virtually no evidence that Dr. Lin fell below the standard of medical care in taking care of Courtney by not going to the hospital during the night to personally examine her leg. Therefore, the trial court did not commit manifest error when it denied the JNOV motion.

Alternatively, the Heplers assert that the trial court should have granted their motion for a new trial based on La. Code Civ.P. art. 1972(1), i.e., “the verdict or judgment appears clearly contrary to the law and the evidence.” The test with respect to whether a new trial should be granted is less stringent than that of a JNOV because if a new trial is granted, the parties are not denied the opportunity to have the issues decided by a jury. Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84. The trial court must balance many factors in making its decision to grant or deny a motion for new trial. Id. In Dams, the supreme court stated:

[T]he trial judge may evaluate evidence without favoring any party and draw his own inferences and conclusions. Perhaps the significant authority is the ability to assess the credibility of witnesses when determining whether to grant or deny the motion for new trial.

122(Citations omitted). Id. at 93. The trial court has great discretion in ruling on a new trial motion and its determination will not be disturbed on appeal absent an abuse of discretion. Id. In further explaining the trial court’s discretion, the supreme court instructed:

The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus, the jury’s verdict should not be set aside if it supportable by any fair interpretation of the evidence.

Davis, 774 So.2d at 93. (Citations omitted) (Emphasis in original).

In denying the Heplers’ alternative motion for a new trial, the trial court stated in its oral reasons for ruling that the jury’s verdict was not “clearly contrary to the law and the evidence.” We agree with the trial court. A fair interpretation of the evidence as set out above in this opinion, supports the jury’s verdict. Thus, the trial court did not abuse its great discretion when it denied the Heplers’ new trial motion.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court, in favor of the defendants-appellees, is affirmed. Costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
      (1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
      B. Any party to an action shall have the right to subpoena any physician, dentist, optometrist, or chiropractor for a deposition or testimony for trial, or both, to establish the degree of knowledge or skill possessed or degree of care ordinarily exercised as described in Subsection A of this Section without obtaining the consent of the physician, dentist, optometrist, or chiropractor who is going to be subpoenaed only if that physician, dentist, optometrist, or chiropractor has or possesses special knowledge or experience in the specific medical procedure or process that forms the basis of the action. The fee of the physician, dentist, optometrist, or chiropractor called for deposition or testimony, or both, under this Subsection shall be set by the court.
      C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist, or chiropractic physician. The jury shall be further instructed that injury alone does not raise a presumption of the physician's, dentist’s, optometrist's, or chiropractic physician’s negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.


author: GREMILLION, Judge.

text:
    HIDDEN HILLS COMMUNITY, INC. v. Frank ROGERS, Jr., et al.
    No. 03-1447.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    André Doguet, Lafayette, LA, for Plaintiffs/Appellants, Hidden Hills Community, Inc., Bobby Broussard.
    Francis A. Olivier, III, Sunset, LA, for Defendant/Appellee, Frank Rogers, Jr.

      Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PL AN CHARD, Judges.

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

   GREMILLION, Judge.

In this case, the plaintiff, Hidden Hills Community, Inc., appeals the judgment in favor of the defendant, Frank Rogers, Jr., finding that he was not in violation of their restrictive covenant. Rogers also appeals the trial court’s failure to grant his exceptions of no right of action and/or no cause of action. He asserts the peremptory exception of prescription and abandonment for the first time on appeal. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Hidden Hills is a community surrounding a lake. The developers of Hidden Hills adopted a set of restrictions and affirmative duties in order to maintain the community in the manner it deemed fit and recorded them in the records of the Clerk of Court for the Parish of St. Landry. Article 17 of the Restrictions provides that lots must be kept “reasonably neat and clean.” In September 2001, Hidden Hills filed a Petition for Declaratory Judgment seeking to enforce the above restriction and to have the trial court determine if Rogers’ property was “reasonably neat and clean” in accordance with the subdivision restrictions. It further sought to assess Rogers with a $200.00 per day fine in accordance with the rules. Rogers filed an Exception of No Right of Action urging that Hidden Hills did not have the authority to bring the lawsuit. The trial court dismissed the exception. After a trial on the merits in February 2003, the trial court found that Rogers’ “presentation in his decoration and landscaping do not violate the covenants as written.” Hidden Hills thereafter filed a Motion for New Trial, which was denied. Hidden Hills now appeals.

ISSUES

Hidden Hills’ sole assignment of error is that the trial court committed manifest error in finding that Rogers’ property did not violate the Act of Amended Restrictions of its community. We shall review the trial court’s decision in that | ¿regard. Rogers assigns as error the trial court’s failure to grant his peremptory exception of no right of action. However, since he failed to file an answer to appeal, we need not address this assignment pursuant La. Code. Civ. P. art. 2133.

PRESCRIPTION

Rogers urges, for the first time on appeal, that Hidden Hills’ claims against him have prescribed and/or been abandoned pursuant to La.Civ.Code arts. 781-782.

La.Civ.Code art. 781 states:

No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.

Rogers claims that the suit is prescribed because several of the residents had begun noticing his unusual manner of decoration as early as 1998. To wit, he states:

1. Bobby Broussard testified that in 1998 he was aware that his home was colored a light pastel, he had noticed bones on the trees, his sidewalks had been painted m a striped fashion, the bottom of his house was painted in a checkerboard fashion, and he had items hanging from his trees.
2. Alvin Guidroz testified by the time he finished construction on his house in 1997, Rogers had life rafts, resin plastic chairs painted floreseent colors and umbrellas and different colored carpet on his lawn.

We disagree and do not find these things were enough to qualify as the commencement of a noticeable violation. We hold that bright and unusual paint choices as well as fluorescent painted lawn chairs do not meet the standard of not “reasonably neat and clean.” The testimony below reveals that the massive accumulation of various objects in Rogers’ yard did not become a noticeable violation until late 2000, when the residents of the community began to report it to the Hidden LHills Board of Directors as a violation of the covenant. This assignment of error is dismissed as being without merit.

ABANDONMENT

In connection with his claim of prescription, Rogers argues that La.Civ.Code. Art. 782 applies, which provides that building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction, and that Hidden Hills has abandoned its claim. La. Code. Civ.P. art. 2163 (emphasis added) states in pertinent part:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to the submission of the case for a decision, and if proof of the ground of the exception appears of record.

There is absolutely no proof whatsoever in the record pertaining to abandonment of the Hidden Hills covenant agreement. This assignment of error is also without merit.

REASONABLY NEAT AND CLEAN

We will not set aside a trial court’s finding of fact in the absence of error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. “[W]here two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart v. State, Through DOTD, 617 So.2d 880, 883 (La.1993). “[T]he issue to be resolved by a reviewing court is not | ¿whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Id. at 882.

A restrictive covenant is a contract and, as such, is subject to the general rules governing contracts. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. “The words of a contract must be given their generally prevailing meaning.” La. Civ.Code art. 2047. Restrictive covenants are governed by La.Civ.Code arts. 775 et seq. as they are building restrictions. La. Civ.Code art. 775 defines building restrictions:

Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.

Further, “[b]uilding restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan.” La.Civ.Code art. 778. The affirmative duty in question under the “MAINTENANCE” heading of the Rules and Restriction and/or by-laws of Hidden Hills Community, Inc., states:

Lots, both occupied and unoccupied, are expected to be kept in a reasonably neat and clean condition, with grass not to exceed 18 inches in height. Upon complaint by other members, the offending member’s lot may be mowed or cleaned at the direction of a member of the board and charges for the work shall be presented for payment to the offending property owner.

After reviewing the evidence, particularly the photographs, we find that the trial court’s finding that Rogers’ property was “reasonably neat and clean” was not reasonable. WebsteR’s New Collegiate Dictionary 212 (10th ed.1993) defines “clean” as “free from dirt or pollution.” It is synonymous with words such as “immaculate,” “spotless,” and “unsullied.” Webster’s Collegiate Thesaurus 140 (1976). It is in contrast with words such as “grubby,” “messy,” “slovenly,” and R“foul.” Id. “Neat,” on the other hand, is defined as “free from irregularity,” and “marked by tasteful simplicity.” Webster Collegiate DiCtionary 775 (10th ed.1993). When used as an adjective, it means, “plain, pure, unadulterated, undiluted and unmixed,” or “manifesting care and orderliness.” Webster’s Collegiate Thesaurus 545 (1976). It is synonymous with words-such as “orderly,” “shipshape,” “tidy,” “trim,” “uncluttered,” and “well-groomed.” Id. Words that contrast “neat” are “disheveled,” “disorderly,” “sloppy,” “slovenly,” “unkempt,” “untidy,” “lax,” and “remiss.” Id.

Bobby Brousssard testified that he began building a home in the Hidden Hills subdivision in 1997, three houses down from Rogers’ home. He stated that, at the time his house was completed, in 1998, Rogers’ home was colored a light pastel, and thére were multi-colored rings in Mar-di Gras colors around his trees and bushes. However, he stated that, later that year, Roger's began hanging bones from trees, painting stripes on his sidewalk and a checkerboard pattern on the bottom of his house. By mid-1999, Broussard testified he began hanging more items from trees and placing toilets on his lawn. Brous-sard, who is President of the Hidden Hills Landowner Association, testified that he began receiving complaints from neighbors in late 2000. He stated that the board had a meeting on March 23, 2001, and Rogers was served on March 25, 2001, with a notice of the violations giving him thirty days to remove boards which were restricting the right of way and lines that were in the lake. Broussard testified that the boards were removed from the lake, but the lines were back on June 6, 2001, and the boards were back in a right of way on June 7, 2001.

Broussard testified that none of the items hanging from the trees have been removed and that, in fact, Rogers has added to the collection with jugs, flags, streamers, and concession stand looking items. He then reviewed with counsel a | ^series of pictures depicting the conglomeration of objects that Rogers has placed on his property.

Frank Rogers, Jr., testified that he bought the lot in Hidden Hills in June 1986, and began “decorating” his property sometime in 1997, beginning with painting the bottom portion of his house several different colors. However, at this time, the front of his house remained yellow with green shutters. Rogers testified that, over the years, he began “touching up a little bit here and there with a lot of different colors.” He testified that the white plastic bleach jugs he has hanging from string between trees are birdhouses, although he has not cut out any holes for the birds. He further testified that, since the institution of the lawsuit, he has added more political signs, jugs, surveyor tape, and triangular banners typically used at car dealerships. He also testified that he has around four or five displays of bundled up empty chlorine bottles strung together hanging from the trees, which he says serve as birdhouses. Rogers has also added a peanut machine, a cash register machine, TVs, pieces of ladders, non-working satellite dishes, snow cone advertisements, a sign that says “rice and gravy,” and cow skulls with deer horns and bull horns in them or a telephone sitting on top.

Deanna Cobb, Rogers’ immediate next-door neighbor, testified that she has lived in the house next door since 1997. She stated that Rogers’ property began to substantially change sometime in November 2000. Cobb testified that Rogers painted his shrubs assorted colors, painted rings around the trees, and painted animal horns and hung them from the trees. He continued adding items to the exterior of his property such as: dishwashers, weedeat-ers, lawnmowers, squirrel traps, vacuum cleaners, and telephones strung from the trees. Cobb testified that the next thing to occur, following her March 2001 complaint to the board, was a “plastic explosion,” which included long pieces of triangular banners, plastic bottles hung from trees, |7flagging tape banners, political signs, food signs, real estate signs, home loan signs, PVC pipe, rope, television sets, computer monitors, and a plastic grandfather clock. She also noted a screen door suspended in the air, and a glove six or seven feet high in the air on PVC pipe with the middle finger pointing toward her property. Cobb testified that there are in excess of one thousand jugs on Rogers’ property, and that he runs his sprinklers all night which cause the jugs to hit each other and make noise all night long.

Alvin Guidroz, who lives across the lake from Rogers’ property, testified that he purchased his lot in 1995, and started building in 1997. He stated that, at this time, Rogers’ home was neat and well kept, through to 1998. Guidroz testified that, after he moved into his house, he started noticing little changes here and there but nothing to be concerned about. However, he testified that it escalated to the hundreds of jugs, tapes, and assorted sundry items.

While the testimony in this case is brief, the photographic evidence tells the story. Rogers’ property evidences thousands of plastic chlorine bottles hung in every which way on his property, brightly painted shrubs, hundreds of political signs, banners, caution tape, and flagging hanging everywhere. It can only be called a veritable junkyard, but brighter and more noticeable as many of the items, such as the white plastic jugs, are suspended from lines run across the trees.

The definition of neat referred to by the trial court, was “clean and in good order; trim, tidy.” WebsteR’s New WORLD DICTIONARY 905 (3rd ed.1994). Using this definition, the trial court found that Rogers’ property was “reasonably neat and clean” and not in violation of the covenant. We disagree with our learned colleague. Not only do we find that the property is not “dean and in good order: tidy, trim,” we find that it is not “immaculate,” “spotless,” nor “unsullied.” To the contrary, it is “grubby,” “messy,” “slovenly,” and even “foul.” The property is |scertainly not “free from irregularity” or “marked by tasteful simplicity.” It is not “plain, pure, unadulterated, undiluted, and unmixed” nor does it “manifest care and orderliness.” It is, on the other hand, “disheveled,” “disorderly,” “sloppy,” and “unkempt.”

Further, we find that the term “reasonably neat and clean” is not ambiguous in the context used. In drafting the restrictive covenants, the redactors clearly meant to prohibit certain uses to one’s property. It would be virtually impossible to draft a set of covenants that would consider all conceivable offending uses of property, notwithstanding the fact that no one would have dreamed up this instant offending use of property.

We acknowledge that “one person’s trash is another person’s treasure,” however, a reasonable person cannot claim that the Rogers’ property is neat and clean. He argues that the term “neat and clean” actually describes his property and argued at oral argument that the jugs and other objects are strung in a geometrical manner which should be pleasing to the eye. In a word, that is absurd. Accordingly, we reverse the trial court’s finding that Rogers’ property was not in violation of the restrictive covenant. We shall not address the penalty assessment, but shall remand this case to the trial court for a determination whether a penalty should be assessed under the restrictive covenants and, if so, how much.

CONCLUSION

The judgment of the trial court finding that the defendant-appellee, Frank Rogers, Jr., did not violate the plaintiff-appellant’s, Hidden Hills Community, Inc., restrictive covenant is reversed and this matter is remanded to the trial court for a determination of the penalty assessment. All costs of this appeal are assessed to Rogers.

REVERSED AND REMANDED.