author: | MAMES F. McKAY III, Judge. I .TOBIAS, J.,

text:
    EASTOVER PROPERTY OWNER’S ASSOCIATION, INC. v. Mrs. Charles Cochrane, Wife of/and Mr. Charles COCHRANE.
    No. 2002-CA-1502.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.

      Philip C. Ciaccio, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Ruhama Dankner, Westwego, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.).
   | MAMES F. McKAY III, Judge.

In 1985, Lake Forest, Inc. (Lake Forest) began developing the Eastover Subdivision, an upscale private residential community in eastern New Orleans. In connection with the subdivision’s development, Lake Forest promulgated a comprehensive act of restrictions which it filed with the Orleans Parish Conveyance Office on April 22, 1987. Article IV of the act of restrictions created the Eastover Property Owners’ Association, Inc. (EPOA), a non-profit corporation responsible for owning, operating, maintaining and administering the common properties of the subdivision and enforcing the subdivision and enforcing the subdivision’s restrictive covenants; every person who is a record title owner of certain lots located in the Eastover subdivision are members of the EPOA.

Article VII of the act of restrictions requires that each member of the association pay regular dues and/or assessments on the first day of each quarter. The amount of dues and/or assessments was originally set at $180.00 per quarter, but has since been increased pursuant to a provision of the act which gives the board of directors the authority to change the regular dues or assessments by ten 12percent in any given twelve month period. This has happened on five occasions since 1987. In August of 1995, the board of directors passed a resolution that imposed a ten percent late fee on the fifteenth day of the second month of a quarter for the late payment of dues and/or assessments. Additionally, the members of the EPOA approved a one time special assessment of $150.00 in 1995.

On July 12, 1988, Mr. and Mrs. Charles Cochrane purchased Lot 13 of square “G” in the Eastover Subdivision from Lake Forest. The act of sale for this lot reflected that the sale was made and accepted subject to a number of conditions, which indicated that the purchasers accepted the purchase of the lot subject to the Eastover act of restriction and therefore became members of the EPOA. The Cochranes paid the quarterly dues and/or assessment on their lot from the date of purchase through January of 1996. Since that time the Cochranes have not paid the assessment on their lot.

On April 20, 1999, the EPOA filed suit against the Cochranes seeking payment of past due assessments plus late fees. In response, the Cochranes filed an answer and reconventional demand as well as an exception of prescription. On July 6, 2000, the trial court denied the Cochranes’ exception of prescription and on November 9, 2000 this Court denied the writ application. On June 15, 2002, the EPOA filed a supplemental and amending petition wherein it sought the payment of past due assessments and late fees from the Coch-ranes that had accrued since the filing of its original petition. The Cochranes denied the allegations in the supplemental petition.

|sThe case proceeded to trial on February 4, 2002 and the trial court rendered judgment in favor of the EPOA and against the Cochranes, ordering them to pay $18,778.15 to the EPOA. On February 15, 2002, the Cochranes filed a motion to correct an error in calculation and on the same day sought to suspensively appeal the judgment of February 7, 2002. On April 9, 2002, the trial court granted the Cochranes motion to correct error in calculation and reduced the amount of the award to the EPOA to $17,429.56.

The Cochranes raise the following assignments of error on appeal: 1) the trial court erred when it dismissed the Coch-ranes’ exception of prescription when suit was filed more than two years after a violation of an act of restriction; 2) the trial court erred when it dismissed a re-conventional demand as a defense; 3) the trial court erred when it held that the Cochranes’ legal remedy for a breach of an act of restrictions was not a breach of contract suit but a writ of mandamus; and 4) the trial court erred when it interpreted a clause that authorized the EPOA to raise assessments by ten percent annually as also authorizing EPOA to impose a ten percent penalty compounded quarterly for late/non-payment of assessments.

It is well settled that a court of appeal may not set aside a trial court’s or 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 evaluations of fact should not be disturbed upon review, Leven though the appellate court may feel that its own evaluations and inferences are as reasonable.” Rosell v. ESCO, 549 So.2d 840 (La.1989).

The Cochranes contend that the quarterly assessments should be treated as building restrictions and that the EPOA should be limited by Louisiana Civil Code Article 781 to collecting past due assessments that are no older than two years from the date suit was filed. In pertinent part, Louisiana Civil Code Article 781 provides: “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.” However, the East-over act of restrictions clearly sets forth the nature of the assessments as being personal to the owners of the property. The last paragraph of Article VII of the act states: “If any member shall fail to pay such dues or assessments when due, the Board of Directors may, in addition to the personal action against such member, ...” (emphasis added). Louisiana Civil Code Article 3499 provides: “Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.” Furthermore, this Court has already ruled that the trial court did not err when it ruled that the EPOA action had not prescribed. Accordingly, we now find no error in this ruling.

The Cochranes contend that the trial court erred when it treated their reconven-tional demand as a defense. The record of this case indicates that the trial court permitted the Cochranes to introduce evidence and testify to those matters which they believed supported their defense of the case as well as their reconventional demand. Furthermore, the Cochranes admit that at a side bar the ^parties and the court agreed that the Cochranes reconven-tional claim did not have to be presented separately, but that the court would consider the testimony of the defendants as a presentation of their case in chief as it related to their reconventional demand. Accordingly, this assignment of error is without merit.

The Cochranes contend that the trial court erred when it interpreted a clause that authorized the EPOA to raise assessments by ten percent annually as also authorizing the EPOA to impose a ten percent penalty compounded quarterly for late/non-payment of assessments. The trial court reasoned that any increase in late fees must be analyzed as if it were an increase in assessments. The trial court also opined that a ten percent late fee is within the range allowed under Article VII of the act of restrictions because Article VII allows the Board to unilaterally raise assessments by as much as ten percent in any given year. Article VII, however, was not the article that the Board relied on when it imposed the late fees; the Board relied on Article 11(f). Article 11(f) gives the authority to do any other things that, in their opinion, will promote the common benefit and enjoyment of the residents of the subdivision.

We must now examine whether the Board exercised the authority reasonably. The Board’s implementation of the late fee was not designed to be a means to generate additional revenue over and above the quarterly assessments provided for in the act of restrictions. The late fee was imposed as a means to encourage all of the property owners to timely pay their quarterly assessments. The Board’s actions were necessitated because a short fall in the collection of the ^quarterly assessments would directly impact all of the property owners in the subdivision because services would have to be reduced or eliminated. This reduction or elimination of services would adversely affect not only the property owners who were delinquent in the payment of the quarterly assessments but the entire subdivision. Therefore, the Board’s decision to impose the late fees was reasonable. Accordingly, we affirm the trial court’s judgment on this issue.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

I .TOBIAS, J.,

DISSENTS IN PART AND ASSIGNS REASONS.

I respectfully dissent in part.

I fully understand the need of the association to have a means to assure that recalcitrant members of the association pay their assessments timely in order to assure that the association can meet its contractual obligations (such as maintenance expenses for common areas). Late fees and the compounding of them in some manner is an appropriate method of policing the actions of the membership. However, the association failed to proceed in accordance with the act creating and granting it certain powers.

Article VII of the Act of Restrictions of 22 April 1987 set the initial “member’s regular dues and/or assessments” at $180.00 per quarter per lot, authorized the membership to change the dues/assessments by a two-thirds vote of the total membership, and permitted the board of directors of the association “from time-to-time to change the then current regular dues and/or assessments by ten (10%) percent in any twelve (12) month period.” The restrictions are a contract and the law between the parties.

At the 23 August 1995 meeting of the board of directors it was proposed

that we assess a 10% late fee on the 15th of the second month of the Quarter (assessed each quarter). Effective 2nd Quarter 95 (Dec. 95). Property owners will be made aware of this at next annual meeting. Motion was made pto approve the 10% late fee which was approved, seconded and carried.

I find nothing in the record on appeal that establishes that the membership was ever informed, considered, or ratified the board’s resolution. Further, even assuming that the membership was made aware-of the late fee and that proper notice was given, I find nothing in the record on appeal addressing the compounding that the association did in this case.

Although the board could have increased on a regular basis (not more than 10% in a 12-month period) in a uniform manner the per lot assessment, I find nothing that permits the association to impose a late fee or permits the compounding that the majority by its opinion ratifies. The minutes of the 14 December 1999 membership meeting contain a somewhat vague and ambiguous reference to the issue at hand; in pertinent part, the minutes state:

Amendment to add the following statement to Article VIII-B: “Further failure to pay any dues or assessments shall also result in loss of all voting rights, whether in person or by proxy, and prohibition of attendance at all EPOA meetings until required assessments are paid.”
Presently after 3 quarters past due property is subject to a lien according to Article VII of the Act of Restrictions.
At the request of Eastover residents, a list of past due assessments and the action taken was provided at the meeting.
Failure to pay dues/assessments shall also result in loss of all voting rights and prohibition of attendance at EPOA meetings until everything is current.
EPOA owners paying in protest — “no such thing” as per Sherman Copelin. Pay when due or pay penalty.

But the language does not affirmatively indicate that the late fee and compounding was authorized by the membership.

The board of directors could have uniformly increased the per lot fee by 10% each year, which it apparently in fact did not do; the board, however, apparently did in fact increase the per lot fee over the years (but not every year), which they had the contractual authority to do. But without a favorable vote ofj^two-thirds of the membership, the association and board could not impose a late fee or authorize the compounding.

Additionally, neither La. R.S. 9:1141.1 et seq. (the Louisiana Homeowners Association Act) nor La. R.S. 9:1145 through 1148 (relative to a homeowners association’s privilege/lien for nonpayment of charges, expenses, or dues) address late penalties or the compounding issue.

I therefore find the amount of the judgment should be reduced, and I would accordingly remand for a recalculation of the amount due by the appellants.

      . This Court will not address this issue as we believe it is moot in light of the trial court’s other actions.


source: Caselaw Access Project

author: I «SOL GOTHARD, Judge.

license: Public Domain

text:
    John Jay GRISAFFI, Jr. v. Myrtis L. NIMS.
    No. 03-CA-151.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Rehearing Denied June 19, 2003.
    John A. Stassi, II, Anne B. Nyanda, Christovich & Kearney, L.L.P., New Orleans, LA, for Defendani/Appellant. '
    Clarence F. Favret, II, Favret, Demar-est, Russo & Lutkewitte, New Orleans, LA, for Plaintiff/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and JAMES L. CANNELLA.
   I «SOL GOTHARD, Judge.

The defendant, Myrtis L. Nims, appeals the judgment of the trial court denying its motion for summary judgment and granting the motion for summary judgment filed by plaintiff, John J. Grisaffí, Jr. For the reasons that follow, we affirm the decision of the trial court.

On December 8, 2000, plaintiff and defendant entered into an agreement to purchase real property. On March 21, 2001, the parties went to the act of sale. At that time, taxes were prorated based on an estimated amount. After the act of sale, plaintiff discovered that the taxes for the year 2000 had not been paid, and that the taxes for 2001 had been underestimated. Further, a tax sale was eminent. Plaintiff paid the taxes for 2000 of $7,301.07 and defendant’s pro rata share of $1,299.01, the difference between the correct prorated taxes for the 2001 tax year and the amount that had actually been prorated at the closing, and then filed suit to recover those amounts. Defendant tendered $1,299.01, representing the amount owed for 2001, but refused to pay the $7,301.07. Both parties filed cross motions for summary judgment.

13After a hearing, the trial court rendered judgment in favor of plaintiff for $7,301.07, plus legal interest from date of demand and costs. After the denial of her motion for new trial, defendant filed this appeal.

The purchase agreement between the parties provides that:

The Act of Sale provides that:
PURCHASER expressly waives all warranties as to the property herein sold, whether implied by this or any other writing or representation, as well as all warranties provided by law. This waiver applies to all warranties of any nature, express or implied, including the warranty of fitness for a particular purpose, or of merchantability, or otherwise. PURCHASER understands that under Article 2520 through 2548 of the Louisiana Civil Code and other provisions of law this sale would ordinarily include a warranty, implied by law, against certain defects in the property sold. PURCHASER expressly waives any and all such warranties with respect to all defects, whether apparent or latent, visible or not, and regardless of whether purchaser is presently aware of such defects.

Defendant alleges that delinquent taxes are a redhibitory defect waived by the plaintiff/purchaser.

This identical issue was addressed in the case of Scogin v. Smith, 612 So.2d 739 (La.App. 1 Cir.1992). In that case, plaintiffs sought to rescind a sale of property because property taxes had not been paid. The court noted that the delinquent taxes were neither a redhibitory defect, nor a breach of the warranty of peaceable possession. We agree, and find that the defendant seller herein was not relieved of her obligation to pay the delinquent taxes by the plaintiffs waiver of warranty in this case.

Defendant next alleges that the language in the act of sale that only the 2001 taxes would be pro-rated eliminated the seller’s obligation to pay the 2000 taxes. The purchase agreement signed on December 8, 2000 states that “Real estate taxes, association fees, existing special assessments, and rent are to be prorated to date of Act of Sale.” The Act of Sale, dated March 15, 2001, states that “Taxes for the current year will be prorated.” Defendant’s argument is that this language l4constitutes a waiver of the purchaser’s right to reimbursement if the prior year’s property taxes had not been paid. We disagree.

The Act of Sale clearly states that “... Seller does by these presents sell, transfer, convey and deliver with full warranty of title and subrogation to all rights and actions of warranty Seller may have [.]” Thus, unlike the waiver of warranty for redhibitory defects, plaintiff in this case did not waive the right to have a clear title, unclouded by tax hens, delivered. Having paid the taxes in order to avoid a tax sale, plaintiff was entitled to reimbursement from the defendant/seller.

For the above-discussed reasons, the decision of the trial court is affirmed. All costs are assessed against appellants.

AFFIRMED.


author: MAMES F. McKAY III, Judge. JjTOBIAS, J.,

text:
    Anthony J. DELLAVALLE, Jr. v. DYNEGY MIDSTREAM SERVICES.
    No. 2002-CA-2479.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2003.
    Rehearing Denied July 16, 2003.

      Richard A. Tonry, Richard A. Tonry II, Michael C. Ginart, Jr., Kim C. Jones, Law Office of Tonry & Ginart, Chalmette, LA, for Plaintiff/Appellant.
    Patricia McKay Clotiaux, Waller & Associates, Metairie, LA, for Defendant/Ap-pellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR.).
   MAMES F. McKAY III, Judge.

The claimant, Anthony Dellavalle, appeals the judgment of the Office of Workers’ Compensation (OWC) judgment denying his claim for benefits. The OWC judge found that the claimant failed to meet his burden of proof by a preponderance of the evidence that he was entitled to OWC benefits.

The defendant, Dynegy Midstream Services (Dynegy), employed Anthony Della-valle for the past ten years in the area of electrical maintenance. His daily job activities involved lifting heavy weights and manual labor. It is alleged that on April 28, 2000, Mr. Dellavalle suffered a heart attack, which resulted in an emergency angioplasty and stint insertion. On May 1, 2000, his doctor, Shmuel Shapira, discharged him and placed him in cardiac rehabilitation. On June 22, 2000, he returned to his job at Dynegy, after being compelled to return by the plant manager, Mr. Bryan Crimson; apparently, the requisite company paperwork and procedure had not been completed. On July 16, 2000, he assisted a co-worker, Stanley Dousette, in the removal of a sponge oil pump motor, which entailed | {.removing bolts from a motor. During this activity, Mr. Dellavalle allegedly experienced upper torso pain or chest pains and neck pains. His supervisor and plant manager, Bryan Crimson, ordered him home and suggested that he make an appointment with his cardiologist. He made an appointment with his cardiologist, Dr. Saroj T. Tampira, who ordered additional testing. On July 27, 2000, Dr. Tampira conducted an angio-gram. The following day he performed a second angioplasty in an attempt to alleviate Mr. Dellavalle’s pain; these procedures did not alleviate Mr. Dellavalle’s pain. He visited Dr. Tampira again on August 14, 2000 and August 18, 2000, complaining of severe pain. Dr. Tampira ordered x-rays to rule out any possible causes of pain other than cardiac pain. The x-ray revealed two ruptured discs. He was referred to a neurosurgeon, Dr. Bryant G. George, Sr., and a pulmonologist, Dr. Joe Johnson. Dr. George ordered an MRI, which was performed on September 6, 2000. The MRI revealed a left side disc herniation at the C5-6 and C6-7 levels. Dr. George recommended surgery. Mr. Dellavalle made a claim for workers’ compensation benefits relevant to his asserted work related accident, which he claims occurred on July 16, 2000. Dynegy rejected this demand.

The matter went to trial on May 16, 2002. The OWC judge held that the claimant failed to prove by a preponderance of the evidence that an accident occurred at work. Claimant’s motion for a new trial was denied. Mr. Dellavalle now appeals the judgment of the OWC.

pOn appeal, Mr. Dellavalle contends that the OWC erred in its findings that he had not carried his burden of proof that his injury was work related.

It is a well-settled principle that the provisions of the workers’ compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 96-1395 p. 5-6 (La.7/2/96), 676 So.2d 582, 586.

The standard of review for findings of fact by a hearing officer in a workers’ compensation case is “manifest error,” and it is the appellate court’s duty to determine not whether the factfinder’s conclusion was right or wrong, but whether it was reasonable. Where there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous. Seal v. Gaylord Container Corp., 97-0688, p. 4 (La. 12/2/97), 704 So.2d 1161, 1164.

The Louisiana Supreme Court determined that the same standard of review applicable to factual findings of district courts is also applicable to factual findings of a workers’ compensation judge. Jurisprudence clearly establishes that in workers’ compensation cases, the appropriate standard of review to be applied by appellate courts is the “manifest error-clearly wrong” standard. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710; Brown v. Coastal Construction & Engineering, Inc., 96-2705, p. 4 (La.App. 1st Cir.11/7/97), 704 So.2d 8, 10. For an appellate court to reverse a workers’ compensation judge’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the |4workers’ compensation judge or that the record establishes that the finding is clearly wrong. See Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the workers’ compensation judge’s finding. The reviewing court must review the record in its entirety to determine whether the workers’ compensation judge’s finding was clearly wrong or manifestly erroneous. See Stobart, supra at 882.

In order to recover workers’ compensation benefits, a worker must first prove that he suffered an injury by an accident arising out of and in the course of his employment. La.R.S. 23:1031(A). An accident is defined as an “unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La.R.S. 23:1021(1).

La. R.S. 23:1031 provides compensation if an employee sustains personal injury as the result of an accident arising out of and in the course of employment. Daspit v. Southern Eagle Sales & Services, Inc., 98-1685 (La.App. 4 Cir. 1/20/99), 726 So.2d 1079. To recover workers’ compensation benefits, an employee must show that he received a personal injury by an accident arising out of and in the course and scope of his employment, and that his injury necessitated medical treatment or rendered the employee disabled, or both. Haws v. Professional Sewer Rehabilitation, Inc. 98-2846 (La.App. 1 Cir. 2/18/00), 763 So.2d 683. The claimant has the burden of proof to establish a work-related injury by a preponderance of the evidence. Daspit, supra. Claimants in a workers’ compensation proceeding have the initial burden of proof as to causation. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, unit denied 98-2314 (La.11/13/98), 731 So.2d 265. The workers’ compensation claimant must prove by a preponderance of the evidence that an employment accident had a causal relationship -to the disability; if the testimony leaves the probabilities evenly balanced, the claimant has failed to carry the burden of persuasion. Harvey v. Bogalusa Concrete, Inc., 97-2945 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130. Once the injured employee carries his initial burden of proving a causal connection between the accident and his disabling condition, the burden shifts to the employer to produce evidence that it is more probable than not that the injury was not caused by a work related accident. Burrell v. Evans Industries, 99-1194 (La.App. 5 Cir. 4/25/00), 761 So.2d 618, writ denied 2000-1493 (La.6/30/00), 766 So.2d 545.

The primary issue presented for decision on appeal is whether appellant proved by a preponderance of the evidence, before the OWC, that he had an accident under La. R.S. 23:1031(A). All of the appellant’s assertions are factual issues. The trial court held that “... the testimony of other witnesses and other evidence discredited or cast serious doubt upon Claimant’s version of the alleged accident and events following, and Claimant has failed to prove by a preponderance of the evidence that an accident occurred at work.” Our | (¡examination of the record fails to find testimony or evidence, which directly disputes claimant’s contentions concerning the occurrence of the accident and the injuries that he sustained as a result of this accident.

There were three witnesses called at trial. Mr. Doucette, claimant’s co-worker, testified that on July 16, 2000 while they were changing out a motor, Mr. Dellavalle felt a sharp pain in his chest and neck. Furthermore, he testified that he immediately reported to their team leader, Mr. Ricky Menesses, that Mr. Dellavalle appeared to be in pain immediately after the accident. The second witness, Mr. Me-nesses, testified that he attempted immediately after the accident to get Mr. Del-lavalle to go to the hospital. The final witness Mr. Dellavalle, testified that he experienced pain while he was disconnecting the bolts on the engine. The aggregate of these testimonies clearly establish that an accident happened on July 16, 2000, while Mr. Dellavalle was at work and doing a work related activity.

Although the symptoms may have initially appeared to be cardiac in nature, they later are proven to be the result of two ruptured discs. After the accident, Mr. Dellavalle suffered persistent pain in his chest and neck. Because of his preexisting heart trouble, he reasonably believed that he was suffering cardiac arrest. Mr. Dellavalle testified that after the accident he began to feel numbness in his arm and persistent pain. He also testified that this numbness in his arm and fingers was not present prior to the accident. This condition was eventually diagnosed on September 12, 2000, through the MRI ordered by Dr. Bryant George 17, which certified left sided herniations at the C5-6 and C6-7 levels. Surgery was recommended but apparently unable to be performed due to his cardiac condition. Dr. George opined relative to the cause of Mr. Dellavalle hernia-tions that “... we can only relate the occurrence of symptoms to the event that he describes. So if he had the occurrence of radiculopathy following pulling the lug nuts, then I contribute causation to that particular event.” This statement was made with the doctor’s appreciation that Mr. Dellavalle had no pre-accident or post-accident history of a medical condition concerning herniations to compare to the claimant’s current condition.

As further indicia that the accident was not cardiac in nature, Dr. Tampira performed an angioplasty after the accident, but prior to Mr. Dellavalle’s visit to Dr. George, his neurosurgeon. Mr. Della-valle’s angioplasty did not alleviate his pain. It was then that Dr. Tampira ruled out coronary problems and ordered cervical and lumbar spine x-rays for Mr. Della-valle. The x-ray results verified two ruptured discs. Immediately thereafter, Dr. Tampira referred Mr. Dellavalle to Dr. George for a neurosurgeon’s opinion.

There is a lack of conflicting evidence presented to the OWC, which would discredit the appellant’s account of his work related accident. Mr. Dellavalle’s co-worker, Stanley Dousette, confirms claimant’s version of the events that transpired on the day of the asserted accident. What initially appeared to be symptomatic of a heart attack later proved to be a disc herniation, which was causally related to the |snature of the activity, to wit, removing bolts from a motor. Mr. Dellavalle sustained a work related injury as a result of this activity, which culminated in injury. Clearly, the claimant proved by a preponderance of the evidence that he had a personal injury by accident arising out of and in the course of his employment. The accident and the causal link between the accident on the job and the injury sustained was established by a preponderance of the evidence in the record before this Court. Contrarily, the defense failed to produce any medical records to indicate that Mr. Dellavalle had ruptured discs pri- or to July 16, 2000. See Walton v. Normandy Village Homes Association Inc., 475 So.2d 320 (La.1985). Dynegy through deposition testimony and cross-examination failed to prove that it was more probable than not that the injury was not caused by a work related accident.

The present case record provides insufficient conflicting testimony or evidence to controvert the appellant’s position. Given the absence of significant controverted evidence it was unreasonable for the OWC judge to conclude that the claimant failed to satisfy his burden of proof. Accordingly, the OWC judge was clearly wrong and manifestly erroneous in his judgment. Therefore, we reverse the OWC judgment and remand the matter to the OWC for further action commensurate with this opinion.

REVERSED AND REMANDED.

TOBIAS, J., DISSENTS WITH REASONS.

JjTOBIAS, J.,

DISSENTING WITH REASONS.

I respectfully dissent from the majority opinion to reverse the judgment of the trial court.

We are required to decide whether a trial judge’s decision is manifestly erroneous or clearly wrong. Stobart v. State Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706. From a word-for-word reading of the record (testimony, depositions, and medical records), it is clear that the trial court did not believe the plaintiff/appellant’s version of events surrounding the alleged incident and subsequent treatment. For example, the plaintiff/appellant’s version of that which he told his physician, Dr. George, varied from that which the physician recorded and understood. That is, the plaintiff/appellant’s version of the facts changed in an apparent effort to establish a claim for workers’ compensation benefits. As a result, the trial concluded that the plaintiff/appellant did not carry his burden of proof at trial.

That is not to say that had I been the trier of fact that I would not have found for the plaintiff/appellant. However, insofar as the trial court has the discretion to make credibility determinations at trial when evidence conflicts, an appellate court is required to defer to the trial court’s findings of fact and conclusions therefrom, lol cannot say that the determinations of the workers’ compensation judge were clearly wrong or manifestly erroneous. Stobart, supra at 882.

      . Appellant is not asserting that his cardiac problem is work related nor is it part of his workers’ compensation claim for benefits.

      . It appears from the record that the claimant was not officially medically released to return to work on June 22, 2000.

      .Apparently, surgery is not a valid option based on the claimant's cardiac condition.

      . There is some conflict in the evidence in the record as to whether Mr. Dellavalle had experience some back trouble prior to the accident.

      . Dr. George's testimony was submitted through deposition.


author: J^LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Evelyn T. BALLARD, a/k/a Lisa Williams.
    No. 2002-KA-2431.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2003.

      Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for Plaintiff/Ap-pellee.
    Karen G. Arena, Metairie, LA, for Defendant/Appellant, Evelyn T. Ballard a/k/a/ Lisa Williams.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III, Judge LEON A. CANNIZZARO, JR.).
   J^LEON A. CANNIZZARO, JR., Judge.

The defendant, Evelyn Ballard a/k/a Lisa Williams, was charged by bill of information with aggravated kidnapping of a child, a violation of La. R.S. 14:44.2 Following a trial, the trial court found the defendant guilty of simple kidnapping, a violation of La. R.S. 14:45, and sentenced her to three years in the Department of Corrections with credit for time served. The defendant appealed her conviction and sentence.

FACTS

Ranata Harris awoke in the early morning on December 25, 2001, to feed her infant daughter, Jovanshay Bass. Ms. Harris’ brother, Joseph Harris, and the defendant, whom Ms. Harris knew as Lisa Williams, were also present because Lthey had spent the night at Ms. Harris’ home. After feeding her daughter, Ms. Harris gave Jovanshay to her brother and returned to her bedroom and fell asleep. When Ms. Harris awoke a short time later, she discovered that Jovanshay and the defendant were gone. Ms. Harris searched the area near her home but failed to locate them.

When Ms. Harris called the police to report her daughter missing, she informed them that the defendant probably had taken her baby. Ms. Harris also gave the police a Polaroid photograph of Jovanshay and informed them that the defendant had mentioned she might be traveling to Texas by bus. Ms. Harris and the police checked the bus station, but did not find the defendant and the infant. Ms. Harris later went to the defendant’s apartment and discovered from a piece of mad that the defendant’s real name may have been Evelyn Ballard. She informed the police of the defendant’s real name. That same afternoon, the police showed Ms. Harris an individual photograph of a suspect, whom she positively identified as the person she knew as Lisa Williams.

On the evening of December 25, 2001, Ms. Harris traveled with the New Orleans police to Houma, Louisiana, where her daughter was recovered.

Joseph Harris corroborated his sister’s testimony.

Sergeant David LeBoueff, of the Terre-bonne Parish Sheriffs Office, testified at trial that he and several other officers traveled to 5972 North Bayou Black Drive. Upon entering the residence, the officers found several children in one room and the defendant in another room, lying on a pile of clothing. The missing infant was discovered under the same pile of clothing. The sheriff deputies transported the defendant and the infant to the Terrebonne Parish Sheriffs Office and notified the New Orleans Police Department. After learning of an ^outstanding warrant for the defendant, the sheriff deputies arrested her for kidnapping.

ASSIGNMENT OF ERROR-ORIGINAL BRIEF

In the sole assignment of error raised in her original appeal brief, the defendant argues that the trial court imposed an excessive sentence.

Although a sentence is within the statutory limits, the sentence may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739 (La.1992).

Generally, a reviewing court must determine whether the trial judge adequately complied with the sentencing guidelines set forth in La.C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco, 441 So.2d 719 (La.1983).

If adequate compliance with Article 894.1 is found, the reviewing court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged. State v. Quebedeaux, 424 So.2d 1009 (La.1982). The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982).

14As previously stated, the trial court found the defendant guilty of simple kidnapping. The sentencing provision for simple kidnapping, La. R.S. 14:45 B, states, “Whoever commits the crime of simple kidnapping shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than five years, or both.”

In State v. Thrasher, 480 So.2d 850 (La.App. 2 Cir.1985), the Second Circuit found that the trial court did not abuse his discretion in sentencing the defendant to five years for the simple kidnapping of an eight-year old girl.

In this case, the three-year sentence imposed by the trial court is within the statutorily mandated sentencing range for simple kidnapping. Also, the trial court based his sentencing on a previously ordered pre-sentence investigation that indicated the defendant had prior misdemean- or convictions. The record clearly reflects an adequate factual basis for the sentence. This assignment of error is without merit.

ASSIGNMENT OF ERROR-SUPPLEMENTAL BRIEF

The defendant also raised an assignment of error in her supplemental brief, arguing that the State erroneously charged her by a bill of information rather than by a grand jury indictment.

Generally, a defendant charged with aggravated kidnapping of a child pursuant to La. R.S. 14:44.2 is subjected to a possible punishment of life imprisonment without the benefit of parole, probation, or suspension of sentence. In Louisiana, the prosecution of an offense punishable by life imprisonment is to | sbe instituted by a grand jury indictment. See La. Const.1974, Art. 1. § 15 and La.C.Cr.P. art. 382 A. This requirement is based upon the legal precept that an individual should not be accused of a crime punishable by life imprisonment except by a group of his fellow citizens acting independently of either the prosecuting attorney or judge. State v. Demolle, 621 So.2d 167 (La.App. 4 Cir.1993).

In the instant case, the State never alleged in either the bill of information or at trial that the child victim was returned physically injured or sexually abused. In the absence of such an allegation in the bill of information, if the defendant had been convicted as charged, pursuant to La. R.S. 14:44.2 B(2), she would have been sentenced in accord with the provisions of La. R.S. 14:44.1, relative to second degree kidnapping, which contains no provision for a life sentence. Because the allegations in the bill of information charging the defendant were insufficient to constitute an offense punishable by life imprisonment, a grand jury indictment was not necessary to institute the prosecution against her. Thus, under these circumstances, the State did not err in charging the defendant by bill of information.

CONCLUSION

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED

      . La. R.S. 14:44.2 provides:
      A. Aggravated kidnapping of a child is the unauthorized taking, enticing, or decoying away and removing from a location for an unlawful purpose by any person other than a parent, grandparent, or legal guardian of a child under the age of twelve years with the intent to secret the child from his parent or legal guardian.
      B. (1) Whoever commits the crime of aggravated kidnapping of a child shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
      (2) Notwithstanding the provisions of Paragraph (1) of this Subsection, if the child is returned not physically injured or sexually abused, then the offender shall be punished in accordance with the provisions of R.S., 14:44.1.

      . La. Const. 1974, Art.l, § 15 provides, in part, that “no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury.”

      . La.C.Cr.P. art. 382 A provides:
      A prosecution for an offense punishable by death, or for an offénse punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.


author: I MICHAEL E. KIRBY, Judge.

text:
    The STATE of Louisiana in the Interest of C.P.
    No. 2002-CA-1515.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2003.

      John F. Rowley, District Attorney, Wayne J. McDougall, Assistant District Attorney, Walker H. Drake, Jr., Assistant District Attorney, Chalmette, LA, for Plaintiff/Appellee.
    Eric A. Wright Chaney & Recasner, LLC, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY.
   I MICHAEL E. KIRBY, Judge.

In this juvenile criminal proceeding in St. Bernard Parish, the defendant, C.P., was charged with two counts of attempted first-degree murder, violations of La. R.S. 14:27(30), one count of aggravated battery, a violation of La. R.S. 14:34 and one count of aggravated criminal damage to property, a violation of La. R.S. 14:55. After trial, the trial court found defendant to be a delinquent as a result of having committed the offense of one count of attempted first-degree murder. The trial court ordered defendant committed to the Youth Services Division of the Department of Corrections until his 21st birthday. The court stipulated that it would review the sentence upon defendant’s completion of his GED and any other requirements established by the Youth Services Division of the Department of Corrections. The defendant now appeals.

Trial in this matter was held on June 4, 2002. The defendant was tried along with three co-defendants, B.L., D.L. and R.N. The State ultimately ^dismissed the charges against R.N., and B.L. and D.L. were found not guilty of the charges against them.

John Vaccarella testified that on April 6, 2002, he and a friend, John Heidel, went to Val Riess Park in Chalmette to check on Vaccarella’s brother, Dominick, after hearing reports that Dominick had gone to the park to fight with a group of Asian-Ameri-ean males. According to Vaccarella’s testimony, there were 50 to 60 Asian-Ameriean males at the park when he arrived. He said that the crowd surrounded his car and hit the car with baseball bats and golf clubs. He and Heidel were each hit in the face with baseball bats as they tried to get out of the car. As Vaccarella began to drive away, someone in the crowd fired gunshots into his car, shattering the back windshield and one of the passenger windows, and leaving bullet holes in the front windshield. At trial, Mr. Vaccarella identified the defendant as the person who fired shots at him. He said someone else in the crowd shot at Heidel.

Mr. Vaccarella testified that he spoke to two officers after the shooting, but he did not speak with Detective Jackson until a few days later. He said he did not tell the officers he spoke to on the date of the shooting the names of the perpetrators. He explained that he could not tell them the names because he was shaken up from the incident. He later said he could not recall if he gave the perpetrators’ names to the officers. He said he never told Detective Jackson that the defendant was the person who shot at him because he did not know defendant’s name. He said defendant was not the person that hit him with a baseball bat.

Mr. Vaccarella stated that after the incident, his face was swollen and “gushing blood,” but he did not seek medical treatment. He said the police officer |sthat interviewed him the night of the incident advised him to seek medical treatment.

Lisa Vaccarella, John Vaccarella’s mother, testified that on the night of the incident, her son’s head was bleeding but he wiped off the blood before the police arrived. She also said that Detective Jackson and other detectives came to her home on the night of the incident. Detective Jackson took a statement from John.

The next witness was Detective Darren Hope of the St. Bernard Parish Sheriffs Department. He testified that he participated in the investigation of the April 6, 2002 shooting at Val Riess Park by interviewing R.N., one of the co-defendants in this case, approximately three days after the shooting. R.N. did not testify at trial. Detective Hope testified that R.N. indicated to him that he was present when the shooting occurred, and that he saw who did the shooting. He said R.N. did not tell him that he participated in any criminal activity at the park. R.N. showed Detective Hope where the shooter lived, and he pointed out someone walking out of that house as the shooter. R.N. did not know the shooter’s real name; he knew only a nickname. Detective Hope was unable to identify defendant in court as the person pointed out to him earlier by R.N.

Detective Mark Jackson was the next witness. He testified that he was the primary case officer in the investigation of the April 6, 2002 shooting at Val Riess Park. He stated that he went to Mr. Vac-carella’s residence that night at approximately 10:30 p.m. He spoke to Mr. Vaccar-ella, and Mr. Vaccarella gave him the names of the perpetrators. Detective Jackson said that Mr. Vaccarella looked nervous and frightened, but had no signs of physical injury. Detective Jackson arrived at the Vaccarella residence approximately one and one-half hours after the shooting incident. Detective Jackson arrested the suspects named by Mr. UVaccarella, but the defendant’s name was not included in that group. Detective Hope advised Detective Jackson that R.N. volunteered to show them where the shooter lived. Detectives Hope and Jackson and two other detectives accompanied R.N. to the house in question, and R.N. identified the defendant as the shooter as he exited the house. The defendant was then arrested. He did not give a statement, and a search of his home revealed no weapon or other evidence linking him to the shooting.

Detective Jackson testified that Mr. Vaccarella told him in his second interview that the defendant was the person that hit him with the baseball bat. In his investigation, Detective Jackson determined that one of the young men named by Mr. Vac-carella as being at the park on the night in question was not there because a police report established that he was involved in a car accident at a different location at the time of the shooting incident. Detective Jackson stated that he had no other evidence linking defendant to the shooting other than the statement from R.N. He said that Mr. Vaccarella consistently maintained to him throughout the investigation that he did not see who fired the shots at him.

On appeal, the defendant argues that the trial court erred in finding that the State proved beyond a reasonable doubt that the defendant was the perpetrator of the attempted murder of John Vaccarella. Defendant also argues that the trial court committed reversible error by allowing inadmissible hearsay evidence regarding a co-defendant’s out-of-court statements naming defendant as the person that shot at Mr. Vaccarella on the evening of April 6, 2002.

Following trial, the trial court made the following statement before ruling that the State had proven beyond a reasonable doubt that the defendant was the perpetrator of the attempted first-degree murder of Mr. Vaccarella:

|fi“I guess as pointed out, and as the Court has stated there are certain things that the Court is firmly convinced of. One, is that shots were fired, damage was done to the vehicle, and two parties were inside the vehicle when that was done. As to other things the Court is not as sure of, but one thing I am, and the Court is convinced that Mr. Vaccar-ella did receive trauma to his head on the night of this, and that he was in somewhat of a confused state when questioned originally by Detective Jackson. And if the only evidence as to [defendant] were the statement alone of Mr. Vaccarella, the Court may not be as certain that proof beyond a reasonable doubt has been established, however, that was not the only evidence as to [defendant.] The evidence, the statement of the codefendant also established him at the location with the weapon, firing at the weapon.”

Other than the testimony of Mr. Vaccar-ella, which the trial court found was not enough to establish proof beyond a reasonable doubt that defendant fired shots at Mr. Vaccarella, the only other evidence offered to establish that defendant was the shooter was the out-of-court statements of the co-defendant, R.N. that were offered during the testimony of Detectives Hope and Jackson.

Louisiana Code of Evidence Article 804 provides certain exceptions, where the declarant is unavailable, to the general rule against the admissibility of hearsay statements. State v. Manson, 2001-0159, p. 10 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 757-758. A declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. La. C.E. art. 804(A). R.N. was a co-defendant in this trial, and chose not to testify. Therefore, he is considered “unavailable as a witness” under the Code of Evidence. In allowing R.N.’s statements to the police officers into evidence, the trial court stated that it was finding the statements admissible because they were made against the interest of R.N. in that they placed him at the scene of the crime.

|fiOne of the exceptions to the hearsay rule if the declarant is unavailable as a witness is if the statement is a statement against interest. La. C.E. art. 804(B)(3) defines a statement against interest as:

“A statement which was at the time of its making [is] so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”

R.N.’s out-of-court statements were not offered to exculpate the defendant, so the second sentence of La. C.E. art. 804(B)(3) is not applicable. The fact that R.N.’s statements placed him at the scene of the crime does not make his statements against his own interest, given the fact that there is no evidence in the record that R.N. told police that he participated in any criminal activity. R.N.’s admission that he was present in the park when shots were fired was not enough to subject him to criminal liability. See, State v. Haynes, 99-1973 (La.App. 1 Cir. 6/23/00), 762 So.2d 1247. Therefore, his out-of-court statements were not statements against interest, and did not fall within this exception to the general rule against the admissibility of hearsay statements. The trial court erred in allowing these hearsay statements into evidence.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. State v. Grainer, 2002-0703, p. 10 (La.App. 4 Cir. 12/4/02), 834 So.2d 555, 562. Confrontation errors are subject to a harmless error analysis. Id. Factors to be considered by the reviewing |7court include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contracting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case. Id., citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

According to the trial court’s own statement at the conclusion of trial, R.N.’s out-of-court statements were the only evidence establishing defendant as the person that fired shots at Mr. Vaccarella, other than the testimony of Mr. Vaccarella, which was not enough alone to establish proof beyond a reasonable doubt. Because there was no other credible evidence of defendant’s guilt, R.N.’s out-of-court statements identifying defendant as the shooter were not cumulative. Therefore, the admission of these statements was not harmless error.

For the reasons stated above, the defendant’s conviction is reversed and this matter is remanded to the trial court for a new trial.

REVERSED AND REMANDED.

      . Because the defendant is a juvenile, we will refer to him only by his initials, C.P.

      . At the end of trial, the trial court stated that it was finding defendant guilty of attempted first-degree murder, aggravated criminal damage to property and rioting. However, at the sentencing hearing, the trial court only stated that it was finding defendant guilty of attempted first-degree murder and sentenced defendant only on that charge.

      . A minute entry indicates that pretrial motions were heard on May 22, 2002, and defense counsel makes numerous references to the transcript of the hearing. However, we are not able to review that transcript because it is not included in the appeal record.

      . We will also refer to the co-defendants by their initials because of their juvenile status.

      . Mr. Heidel did not testify at trial.


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

text:
    Juanita Gwin RUSSELL v. ALLSTATE INSURANCE COMPANY.
    No. 2002-CA-1178.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2003.

      Joseph F. LaHatte, Jr., Rico Alvendia, Law Office of LaHatte and Alvendia, New Orleans, LA, for Plaintiff/Appellant, Juanita Gwin Russell.
    Daniel L. Dysart, Dysart & Tabary, L.L.P., Chalmette, LA, for DefendanVAp-pellee, Allstate Insurance Company.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.).
   CLEON A. CANNIZZARO, JR., Judge.

The plaintiff, Juanita Gwin Russell, appeals from a trial court judgment that dismissed her suit against the defendant, Allstate Insurance Company (“Allstate”). We affirm.

FACTS

This litigation arose from an automobile accident that occurred on June 5, 1998, in Chalmette, Louisiana. At the time, the plaintiff was operating her 1983 Mazda when a 1996 Pontiac being driven by Nicholas Rodrigue struck her from behind. Following the accident, the plaintiff filed a personal injury suit against Rodrigue, his father and the owner of the Pontiac, Peter Rodrigue, and Southern Farm Bureau Casualty Insurance Company, the Rodrigues’ liability insurer. The plaintiff settled her claims against the Rodrigues and Southern Farm Bureau for $99,000.00, within the policy limits of $100,000.00.

The plaintiff subsequently filed suit against Allstate, her uninsured/ underin-sured motorist carrier. Allstate denied the claim, arguing that the plaintiffs damages did not exceed the Rodrigues’ policy limits of $100,000.00.

| ¡The matter was tried before a judge on October 4, 2001. The plaintiff and her husband were the only witnesses to testify at trial and her medical records were introduced into evidence. The trial court rendered judgment in favor of Allstate, finding that the plaintiffs damages were within Southern Farm Bureau’s $100,000.00 liability policy limits. In his reasons for judgment, the trial court stated, in part, “it does not appear to this court that Mrs. Russell has been significantly affected by her injury. This court does not find that Mrs. Russell intends to have surgery.” The plaintiff appealed.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 883 (La.1993). In Mart v. Hill, 505 So.2d 1120, 1127 (La.1987), the Supreme Court announced a two-part test for the reversal of a fact finder’s determinations:

1. The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2. The appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. See generally Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cense, 579 So.2d 973 (La.1991). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, | seasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

DISCUSSION

The plaintiff raises two assignments of error in her appeal brief. First, she argues that the trial court erred in finding that she was not significantly affected by her injuries. In support of her argument, the plaintiff relies on her testimony that as a result of the accident she continues to have neck and wrist pains, discomfort in her arm and hand, and constant headaches. She can no longer play tennis, golf, exercise at the gym, or take long bike rides as she did before the accident. Also, her husband must now do most of her household chores.

In her second assignment of error, the plaintiff argues that the trial court erred in finding the evidence insufficient to support her claim for future medical treatment. She relies on Dr. Kenneth Vogel’s diagnosis that recommended a cervical disc removal and fusion. The plaintiff contends that because she treated her injuries conservatively and declined to undergo surgery, the trial court mistakenly found that future surgery was unlikely.

Allstate, on the other hand, argues that the trial court’s judgment is supported by the evidence and should not be disturbed on appeal. Specifically, it argues that the trial court’s finding that the plaintiffs wrist pain was unrelated to the accident is supported by the opinion of Dr. Harold Stokes, the plaintiffs treating physician. Allstate also asserts that the first three doctors that had examined the plaintiff, Dr. Aaron Friedman, Dr. George Murphy, and Dr. Robert Mímeles (Allstate’s independent medical examiner), all recommended |4conservative treatment. Dr. Mí-meles, after ordering an MRI in March 1999, diagnosed the plaintiff with degenerative disc disease. Only Dr. Vogel recommended a cervical fusion after reviewing the MRI ordered by Dr. Mímeles.

Allstate emphasizes that the plaintiff admitted that she was satisfied with conservative treatment. It notes that although the plaintiff testified that she wanted a second opinion regarding surgery, she never sought one, notwithstanding that she had obtained two referrals from her physician.

The trial court’s determination that the plaintiffs damages did not exceed the coverage provided by the Rodrigues’ liability policy is factual in nature, and thus, must be evaluated under the manifest error or clearly wrong standard set forth in Rosell, supra.

The evidence in the record indicates that in March 1999, the plaintiff underwent an MRI pursuant to Dr. Mímeles’ orders. The test revealed that she had advanced degenerative disc disease at the C5-6 level, for which Dr. Mímeles recommended conservative treatment. The plaintiff testified that she was comfortable with Dr. Mímeles’ recommendation of conservative treatment, and sought treatment with a chiropractor. The medical records indicated that the plaintiffs visits to the chiropractor were sporadic, with substantial periods of time where she received no treatment.

The plaintiff later obtained an opinion from Dr. Vogel, who agreed with the MRI results, but recommended surgery. The plaintiff testified that she was still considering surgery, but wanted a second opinion. When questioned on the issue, however, she admitted that she had not investigated the surgery option any further and did not seek a second opinion. Moreover, when the case finally went to trial more than three years after the accident the plaintiff still had not yet sought a |fisecond opinion. Thus, in view of the plaintiffs testimony and other evidence, the trial court did not err in concluding that the plaintiff did not intend to have surgery.

As to her wrist injury, the plaintiff claimed that the pain prevented her from participating in many of the physical activities that she had enjoyed prior to the accident. To the contrary, however, the trial testimony disclosed that the plaintiff began playing more tennis and joined a tennis league within one year after the accident. She was forced to stop playing tennis when she developed the wrist ailment, but Dr. Stokes’ records indicated that she did not seek medical attention for her wrist pain until more than one year after the accident. Based on the medical evidence, the trial court’s finding that the plaintiffs wrist ailment was unrelated to the accident is not clearly wrong.

CONCLUSION

After a thorough review of the record, we find the trial court’s findings were not manifestly erroneous. Accordingly, for the foregoing reasons, the trial court’s judgment dismissing the plaintiffs suit against Allstate is affirmed.

AFFIRMED.


author: hMAX N. TOBIAS, JR., Judge.

text:
    The BOARD OF DIRECTORS OF THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF NEW ORLEANS, Louisiana, Inc. v. All TAXPAYERS, PROPERTY OWNERS, CITIZENS OF THE CITY OF NEW ORLEANS and Non-Residents Owning Property or Subject to Taxation Therein, and All Other Persons, et al.
    No. 2003-CA-0827.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2003.

      Albert A. Thibodeaux, Chief Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, And Wayne J. Neveu, Harold B. Judell, Meredith L. Hathorn, Foley & Judell, L.L.P., New Orleans, LA, David E. Henderson, Foley & Judell, L.L.P., Baton Rouge, LA, for Plaintiff/Ap-pellee.
    Cameron C. Gamble, Cameron C. Gamble, A PLC, and Camille J. Strachan, and Michael A. Duplantier, New Orleans, LA, for Defendants/Appellants.
    (Court Composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., and Judge DAVID S. GORBATY).
   hMAX N. TOBIAS, JR., Judge.

The defendants/appellants, as representatives of all taxpayers, property owners, citizens of the city of New Orleans and non-residents owning property or subject to taxation in New Orleans, and all other persons in or affected in any way by the issuance of not more than $29 million in industrial revenue bonds of the Industrial Development Board of the City of New Orleans, Louisiana, Inc. (hereinafter collectively “appellants”), have appealed the judgment of the trial court granting the plaintiffs motion for validation of bonds. This appeal comes before the court on an expedited basis pursuant to La. R.S. 13:5128.

The bond issue arises out of the proposed sale of $29 million of industrial revenue bonds (known as the LGD Rental I, L.L.C. Project) to be financed by the acquisition, construction, and installation of off-site multi-family mixed-income residential housing facilities on the site of the former St. Thomas Housing Project. The bonds will be secured by the “improvements” to be constructed on land that is owned by the Housing Authority of New Orleans; the land will be leased to a private developer for a term of 99 years. While the bonds are in effect, no ad valo-rem taxes will be collected on the project; payments in lieu of taxes of $1.00 per unit per year for the 122 affordable units and $100.00 per unit per year for the | a174 market rate units until the bonds are retired, will be collected. The resolution authorizing these bonds and the extension of the repayment of the bonds from 30 to 40 years was approved by the plaintiff, the Board of Directors of the Industrial Development Board of the City of New Orleans, Louisiana, Inc. (hereinafter “IDB”) on 18 December 2002; the State Bond Commission, approved the change on 19 December 2002.

The following facts were established in the trial court. The IDB, a political subdivision and a nonprofit corporation as well as “governmental unit” pursuant to La. R.S. 13:5121(2), was created by the City Council for the city of New Orleans on 4 January 1973. On 17 October 2000, the IDB adopted the Preliminary Authorization Resolution, which approved housing facilities and the acquisition of off-site mul-ti-family residential housing facilities to be located in the city of New Orleans (hereinafter “the Project”) and granted preliminary authorization for the issuance of the bonds to provide a portion of the moneys necessary to finance the acquisition, construction, and installation of the Project.

On 16 August 2001, the State Bond Commission granted preliminary approval for the issuance of the bonds, and on 22 July 2002, adopted a resolution increasing preliminary authorization for the IDB to issue the bonds in an aggregate principal amount not exceeding $29 million.

The Project was the subject of a public hearing on 19 November 2002. On 18 December 2002, the IDB adopted a resolution, which confirmed all prior resolutions and supplemented these resolutions by increasing the maturity of the bonds from 30 years to 40 years. The draft resolution of the IDB was mailed to the State Bond Commission on 9 December 2002 and was received and filed with lathe commission on 10 December 2002; it was given final approval on 19 December 2002.

The IDB filed suit to validate the bonds pursuant to La. R.S. 13:5121, et seq. On 3 March 2003, the appellants filed various discovery requests; thereafter they filed an answer, a reconventional demand, and a third-party demand against the State Bond Commission. After the IDB filed what the appellants deemed to be incomplete discovery responses, the appellants filed a motion to compel and subpoena duces tecum; the motion was denied and the subpoena was quashed by the trial court. The trial court also denied the appellants’ request to continue the hearing on the motion to validate the bonds until the State Bond Commission could answer. The trial court then severed the third-party demand and proceeded to trial on the main and recon-ventional demands.

The appellants filed an application for a supervisory writ from the decisions relating to discovery. On 4 April 2003, this court issued an opinion that denied the appellants relief. The trial court rendered judgment and reasons therefor in favor of the IDB on 15 April 2003 stating:

This Court finds that the Industrial Development Board acted properly and within the course and scope in issuing the bonds for the LGD Rental I, L.L.C. Project. This Court therefore finds no evidence of substantial defects, material errors and omissions in the incidents of the bond issue. [Footnote omitted.]

The appellants have taken an expedited appeal from that decision.

On 20 May 2003, the appellants filed a motion to remand this case on the grounds of newly discovered evidence, for the purpose of reopening the trial, and allowing the discovery and introduction of additional evidence in the trial court. This “newly discovered evidence” consists of documents which purportedly Ldemonstrate that one of the directors of the IDB entered into a contract of value with the developer/bond beneficiary, thereby receiving “something of value,” which is prohibited by La. R.S. 42:1111, et seq. This director voted at the 18 December meeting of the IDB on a matter affecting the subject bonds. Eight of the fourteen members of the IDB were present at the meeting (a minimum quorum) and the resolution passed on an 8-0 vote.

While we admit that the evidence submitted by the appellants is potentially disturbing, this court is a court of record, which must limit its review to the evidence in the record before it. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885. Pursuant to La. C.C.P. art. 2164, an appellate court must render a decision upon the record on appeal. The record on this appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, judgments and other rulings, unless otherwise designated. La. C.C.P. arts. 2127 and 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Augustus v. St. Mary Parish School Board, 95-2498, p. 16 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156. The appellate briefs or motions of parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein, or in exhibits attached thereto, if those facts are not in the record on appeal. Id. The appellants must seek their remedy, if any, before the trial court. See La. C.C.P. art.2001, et seq.

The appellants have assigned three errors for consideration. First, they argue that the trial court erred in denying their motion to compel discovery, responses to the subpoena duces tecum, and to adjourn to allow discovery. Second, the appellants argue that the bonds should not have been validated because of 1 /‘substantial defects, material errors and omissions” contained in the bond issue pursuant to La. R.S. 13:5130. Finally, they argue that the trial court erred by severing the third-party demand against the State Bond Commission from the validation proceeding.

On the first assignment of error, the appellants argue that they could not adequately defend against the bond validation without the records and evidence requested in their discovery. They claim that complete answers would have proved their defenses and reconventional demands, thereby defeating the motion for judgment. The appellants argue that, as a result, they were denied procedural due process.

In response, the IDB states it was served with the subpoena duces tecum on 1 April 2003, less than 48 hours before the hearing date of 3 April 2003, which was both unreasonable and oppressive. In addition to the time limitation, the subpoena duces tecum sought numerous documents as outlined in 27 separate requests, most of which were part of the public record and not in IDB’s possession. It contends that the trial court acted within its discretion and did not commit reversible error.

The record shows that the trial court denied the appellants’ request for more complete answers, finding that the responses to the request for admissions by the IDB were sufficient. As to the return on the subpoena duces tecum, the trial court remarked that from its review of the documents that were produced, counsel for the appellants were present at many of the public hearings and that it “appeared that there was a defense that was being prepared many months ago.” The trial court reminded counsel that many of the documents sought by appellants were available |fito them within five days by a proper request pursuant to the Public Records Act, La. R.S. 44:1, et seq., and refused to postpone the hearing for further discovery.

No constitutional right to discovery exists; discovery is a statutorily created privilege. Council of the City of New Orleans v. All Taxpayers, Property Owners, 2003-0189 (La.App. 4 Cir. 2/24/03), 841 So.2d 72. While the courts should construe the discovery statutes broadly and liberally, as a general rule, the trial court’s discretion in discovery matters is vast. See Succession of Manheim, 98-2051 (La.App. 4 Cir. 4/21/99), 734 So.2d 119, 125, writ denied, 99-1861 (La.10/8/99), 751 So.2d 218. Absent an abuse of discretion, an appeal court should not reverse a trial court’s discovery ruling. Id.; see also Laburre v. East Jefferson Gen. Hosp., 555 So.2d 1381, 1385 (La.1990).

After reviewing the record on appeal, we do not find an abuse of discretion by the trial court. Counsel for the appellants had ample time to obtain most, if not all, of the requested documents through a timely public records request. In addition, the court found that the requests for admissions had been satisfactorily answered, and no abuse of discretion has been shown. Accordingly, we reject this assignment of error.

In their second assignment of error, the appellants contend that the violation of the rules and regulations of the State Bond Commission regarding the filing and approval of the bond resolution constitutes “substantial defects, material errors and omissions” pursuant to La. R.S. 13:5130. In particular, they argue the bond application filed on 18 December 2002, and approved by the State Bond Commission the next day violated the commission’s rules and regulations that require an application be submitted no later than twenty working days prior to the |7State Bond Commission meeting or the application will not be considered, absent an extraordinary case of emergency.

In response, the IDB states that the State Bond Commission adopted a resolution on 16 August 2001, granting preliminary approval to the issuance of the bonds, that the commission on 22 July 2002, through proper resolution, increased the amount and that the 19 December 2002 resolution gave final approval to the issuance, sale, and delivery of the bonds. The IDB contends that the 19 December 2002 approval merely confirms its prior resolutions and does not violate commission rules. In addition, the IDB argues that filing rules are procedural in nature, can be waived by the commission, and do not rise to the level of substantial defects, material errors or material omissions. Finally, the IDB points out that the commission refused to rehear this issue on 20 February 2003, based on a Letter of Advice issued by the Attorney General on 9 January 2003.

La. R.S. 13:5130 provides as follows:

No court in which a proceeding to invalidate or sustain bonds is brought shall invalidate the bonds unless it finds substantial defects, material errors and omissions in the incidents of such bond issue. Matters of form shall be disregarded. [Emphasis added.]

The appellants are relying on La. Admin. Code 71:111 § 103(C), which provides in pertinent part:

C. Applications ... must be filed with the commission at least 20 working days prior to the commission meeting at which the application will be considered. However, the secretary of the commission may approve a later filing for an emergency or an ^extraordinary situation.... Unless otherwise provided by these rules, all information relating to an application shall be submitted to the commission no later than 10 working days prior to the commission meeting at which the application will be considered; otherwise the application will not be docketed for consideration.

We have carefully reviewed the record and note that the proposed resolution that changed the term of the bonds from thirty to forty years was filed with the commission on 10 December 2002, eight working days prior to the commission meeting, although it was not formally adopted by the IDB until 18 December 2002. We also note that the resolution at issue was not a new application, but was a resolution to amend prior resolutions previously approved by the commission.

As noted in Attorney General opinion number 79-1384, as confirmed by Attorney General opinion number 02-456, procedural rules “are routinely suspended by public bodies under applicable rules.” All prior documentation relating to the application had been previously filed by the IDB and approved by the commission. We have reviewed the Louisiana Administrative Code rules applicable to the commission, as well as the rules of the commission set forth in Louisiana Register. Neither Procedural Rule 2, relied upon by the IDB, nor La. Admin. Code 71:111 § 103(C), cited by the appellants, addresses the filing of amendments to previously approved applications. Therefore, we do not find that the filing of the amended resolution by the IDB on 10 December 2002 constitutes a substantial defect, material error or omission, as required by the statute.

1 flThe final assignment of error concerns the third-party demand the appellants filed against the State Bond Commission. Before the hearing, the trial court severed the third-party demand. It thereafter rendered judgment only on the plaintiffs motion for judgment. The appellants contend that the third-party demand should have been tried simultaneously with the main demand because the failure to do so deprived them of the opportunity to prove a material defect of the bonds in question.

In response to this assignment, the IDB states that the State Bond Commission is not an indispensable party to these proceedings and commission approval of the bonds can be proven without the commission’s involvement as a party. The IDB further asserts that because the records of the commission are public, the appellants’ ability to prove their case was not thwarted by the commission’s absence.

We disagree with the appellants’ position on this issue. In attempting to defend the bond validation suit, the appellants were not prevented from calling representatives of the State Bond Commission as witnesses or subpoenaing records. In addition, as pointed out by the IDB, all records of the commission could have been obtained through timely public records requests and introduced into evidence during the trial.

The jurisprudence describes an “indispensable party” as one whose interest in the subject matter of the litigation is so interrelated that a complete adjudication of the controversy cannot be made unless the party is joined in the action. Smith v. State, 620 So.2d 1172, 1178 (La.App. 1 Cir.1992); Hatfield v. Bush, 540 So.2d 1178, 1180 (La.App. 1 Cir.1989), writ denied, 576 So.2d 49 (La.1991).

hoSince mid-1995, the Louisiana Code of Civil Procedure no longer refers to parties as “necessary” or “indispensable.” Rather, the code mandates an analysis of the interests of the joined and non-joined parties with respect to the action to determine whether the action may proceed. La. C.C.P. art. 641 mandates, in pertinent part: “a person shall be joined as a party in the action when either: (1) in his absence complete relief cannot be accorded among those already parties.” Pursuant to La. C.C.P. art. 642, “[i]f a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed.” Failure to join a party may be noticed by the trial or appellate court on its own motion. La. C.C.P. art. 645.

In the instant matter, the commission’s presence is not necessary for complete relief because the issue of whether the commission followed its procedures is a matter of ordinary proof that the appellants could have attacked collaterally in this case in the trial court. The commission’s presence as a party was not needed to call commission witnesses or introduce commission documents to demonstrate that a material defect in the bonds existed.

We also note that the appellants have filed a separate suit against the State Bond Commission, which is currently pending in the Nineteenth Judicial District Court for the Parish of East Baton Rouge, number C 504986, wherein they challenge the validity of the commission’s actions and seek to set aside the actions taken by the commission approving the bonds. The appellants could have obtained relevant discovery from that litigation and introduced it in the hearing below to prove its case. In any event, no showing of a substantial defect, material error or omission has been made here and, therefore, this assignment of error is without merit.

InBased on the foregoing, we affirm the judgment of the trial court and deny the appellants’ motion to remand. All costs of this appeal are assessed against the appellants.

AFFIRMED; MOTION TO REMAND DENIED.

      . The appellants also argue that the application to the State Bond Commission was deficient because it did not contain five years of financial information as required by Rule 127 of the Louisiana Administrative Code. However, as pointed out by the IDB, LGD Rental I, L.L.C. has no prior operating history and, therefore, this requirement was waived by the commission. (Logically one cannot produce that which one does not have.)

      . Procedural Rule 2 found in the Louisiana Register requires that applications be filed with the commission at least eight working days in advance of a commission meeting, except in cases of absolute emergencies or in cases where staff permission for later filing of routine matters is granted. See LR 2:343, § 11(2) (November 1976), amended LR 4:392 (October 1979).