author: GAIDBY, J.

text:
    Lori Williams BICKHAM v. Ewell Dewitt BICKHAM.
    No. 2002 CA 1307.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Brenda Braud, Independence, Counsel for PlaintifjyAppellee Lori Williams Bick-ham.
    Charles E. Griffin, II, St. Francisville, Counsel for Defendani/Appellant Ewell Dewitt Bickham.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   GAIDBY, J.

Defendant, Dr. Ewell Dewitt Bickham, appeals a trial court judgment ordering him to pay plaintiff, Lori Williams Bick-ham, attorney fees and court costs in connection with past due child support and spousal support, as well as interest on each support payment from the date due; denying his motion to modify a prior judgment to terminate interim spousal support; and denying his motion to strike Mrs. Bick-ham’s judgment debtor rule. For the following reasons, we affirm.

Mrs. Bickham filed a petition for divorce on December 1, 2000, in which she. requested both spousal support and child support. On December 18, 2000, the parties entered into an interim stipulation before Judge George H. Ware that Dr. Bick-ham would pay Mrs. Bickham $1,200 a month in child support, beginning in December 2000. Mrs. Bickham’s attorney was to prepare an order to that effect. On December 29, 2000, an interim order submitted by Dr. Bickham’s attorney was signed by Judge Ware stating that Dr. Bickham would pay Mrs. Bickham $1,200 by December 25, 2000 and monthly thereafter until a hearing could be held. A subsequent interim order, which was submitted by Mrs. Bickham’s attorney on January 10, 2001, was also signed by Judge Ware. This interim order provided that Dr. Bickham would pay Mrs. Bickham $1,200 before Christmas 2000, and on the first of each month thereafter, until a hearing could be held. Judge Ware recused himself from the case on January 10, 2001, apparently after signing the second interim order.

Mrs. Bickham filed a Rule for Contempt on February 16, 2001, alleging that Dr. Bickham was in arrears on February’s child support, which she claimed was due on the first of the month, and asking that he be ordered to pay the past due support, plus interest from the date the payment was due, |3court costs, and attorney fees. A hearing was held before Judge Wilson R. Ramshur, who then declined to hold Dr. Bickham in contempt because he found that it was not clear what the court ordered as to the time when the payments should be made.

On April 16, 2001, a hearing was held on the issues of custody, child support, and spousal support, after which the court ordered Dr. Bickham to pay $2,000 per month as support for the minor children and $2,000 per month as interim spousal support. The increase in child support was effective April 15, 2001. The spousal support ordered was retroactive to December 1, 2000. A judgment to this effect was signed May 14, 2001 by Judge Ramshur.

Mrs. Bickham filed a rule for contempt July 17, 2001, alleging that Dr. Bickham had refused to pay the support ordered in the May 14, 2001 judgment and asking that these past due amounts be made exec-utory. Mrs. Bickham also requested that Dr. Bickham be ordered to pay her court costs and attorney fees. Dr. Bickham filed a rule for divorce and also requested that the prior judgment be modified to grant specific summer visitation and to reduce child support. A hearing was held on these matters on September 10, 2001 before Judge Thomas W. Tanner. A divorce was rendered, and the court ordered that Dr. Bickham continue to pay Mrs. Bick-ham $2,000 per month in interim spousal support, due on the first of each month, for one hundred and eighty days after the rendition of the judgment of divorce. The court found that defendant had failed to comply with the previous order of the court in that he failed to pay any of the interim spousal support due and failed to pay $50 in past due child support, and the court entered judgment in favor of Mrs. Bickham in the amount of $20,000 for interim spousal support Land $50 for child support. The court did not award interest and attorney fees to Mrs. Bickham, and ordered that the parties split court costs equally.

Mrs. Bickham filed a motion for new trial on September 27, 2001, asking that the court grant a new trial and award her interest, attorney fees, and court costs in accordance with La. R.S. 9:875.

Mrs. Bickham also filed a rule for contempt and to make past due support exec-utory. Thereafter she filed a Petition to Examine Judgment Debtor, in which she asserts that she has a judgment in the amount of $20,050, which has been only partially satisfied, and that no suspensive appeal has been taken from the judgment. Dr. Bickham filed a Motion to Dismiss Judgment Debtor Rule, asserting that Mrs. Bickham had already been supplied with all the necessary information in discovery.

A hearing was held before Ad Hoc Judge L.J. Hymel on November 26, 2001, and in a judgment dated December 6, 2001, the court denied Dr. Bickham’s motion to dismiss the judgment debtor rule, and granted Mrs. Bickham’s judgment debtor rule, after which examination of Dr. Bickham took place in open court. The court found that Dr. Bickham remained $8,000 in arrears on past due spousal support, which had been made executory by the judgment of September 19, 2001. In addition, the court found the defendant to be further in arrears in the amount of $4,000, which amount was then made exec-utory. The court held Dr. Bickham in contempt, and sentenced him to thirty days in the parish prison, which sentence was suspended contingent upon his payment of $4,000 in past due support, plus $1,000 in attorney fees and legal interest on the October and November 2001 spousal support payments from the date each payment was due, plus all costs of court. In another judgment also dated December 6, 2001, the court granted Mrs. Bickham’s motion for new trial and modified the September |fi19, 2001 judgment making past due child and spousal support in the combined total amount of $20,050 executory to include an attorney fee award of $300, judicial interest from the date each support payment was due, and all costs of court.

Dr. Bickham appeals, raising the following assignments of error:

1. The trial court committed manifest error in awarding Mrs. Bickham attorney fees and court costs, as well as judicial interest from the date that each support payment was due, rather than from the date of judicial demand.
2. The trial court committed manifest error in denying Mr. Bickham’s motion to modify the trial court ruling of September 19, 2001 to terminate interim spousal support, as there was no hearing to determine need, ability to pay, or the standard of living of the parties during the marriage, as required by La. C.C. art. 113.
3. The trial court committed manifest error in granting the Judgment Debtor Rule and in denying Mr. Bickham’s Rule to Show Cause for sanctions against Mrs. Bickham, since the information sought had already been made available to Mrs. Bickham and the Judgment Debtor Rule was filed merely to harass Mr. Bickham.

DISCUSSION

Judicial Interest

Louisiana Code of Civil Procedure Article 1921 provides that “[t]he court shall award interest in the judgment as prayed for or as provided by law.” (Emphasis added). Since the word “shall” in La. C.C.P. art.1921 is mandatory, the court lacks discretion to deny interest if interest is prayed for or provided for by law. La. R.S. 1:3. Judicial interest on child support and spousal support is provided for in La. C.C. art.2000:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by Article 2924. The obligee may recover these damages without having to prove any loss ....

R Judicial interest on past due child support and spousal support accrues from the date each payment is due, rather than from the date of demand, as alleged by Dr. Bickham. See Miller v. Miller, 321 So.2d 318 (1975); Thompson v. Courville, 372 So.2d 579 (1979); Marshall v. Marshall, 390 So.2d 1365 (1980).

The court was correct in awarding interest to Mrs. Bickham on the past due amounts from the date each was due, and this portion of Dr. Bickham’s first assignment of error is without merit.

Attorney Fees and Court Costs

Louisiana Revised Statutes 9:375 provides that when a court renders a judgment making past-due spousal or child support executory, it “shall, except for good cause shown, award attorney fees and costs to the prevailing party.”

The basis of Dr. Bickham’s argument appears to be that the trial court did not award attorney fees and costs to Mrs. Bickham at the September 10, 2001 hearing because the court found that Dr. Bick-ham’s failure to pay was a result of wording of the judgments and their vagueness. Dr. Bickham states that, until the trial court ruling in May 2001, he was under the mistaken impression that the $1,200 he was paying every month was spousal support and that no child support was owed because the children were living with him half the time. We do not find this argument to be compelling. Dr. Bickham’s own attorney told the Judge at the December 18, 2000 hearing that the $1,200 per month payment was to be for child support. Once Dr. Bickham became aware that he was seriously in arrears on spousal support because his prior payments had actually been for child support, he did not bring his spousal support payments up to date because he had a pending |7motion to modify the September 19, 2001 judgment to terminate interim spousal support.

Dr. Bickham also points out that Judge Tanner, who heard the testimony and declined to award attorney fees and court costs, was in a better position to have made the decision, and Judge Hymel should have deferred to his judgment. This argument is without support in the law. A judge who did not preside at trial can still grant a motion for new trial. Dragon v. Schultz, 97-664, p. 5 (La.App. 5 Cir. 1/14/98), 707 So.2d 1274, 1276.

Mrs. Bickham requested attorney fees and costs in accordance with La. R.S. 9:375 in her rule for contempt. While the court declined to hold Dr. Bickham in contempt, it did render a judgment making the past due amounts executory. As a result, under La. R.S. 9:375 the court must award attorney fees and court costs to Mrs. Bickham, except for good cause shown. It does not appear from the record that Dr. Bickham presented evidence at either the September 10, 2001 hearing or the November 26, 2001 hearing constituting “good cause” for denying attorney fees and costs. A trial court’s discretion in ruling on a motion for new trial is great, and its decision will not be disturbed on appeal absent an abuse of that discretion. Davis v. Wal-Mart Stores, Inc., 00-0445, p. 10 (La.11/28/00), 774 So.2d 84, 93, rehearing denied 00-0445 (La.6/1/01), 785 So.2d 819. Based upon the lack of evidence of “good cause” in the record, the trial court did not abuse this great discretion in granting the motion for new trial and awarding attorney fees and costs. This assignment of error is without merit.

Interim Spousal Support

Dr. Bickham claims that the court erred in dismissing his motion to modify that portion of the September 19, 2001 judgment extending interim Lspousal support for one hundred and eighty days to terminate spousal support since the court failed to hold a hearing in accordance with La. C.C. art. 113 before extending the interim spousal support award.

Louisiana Civil Code article 113 provides:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party interim spousal support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.

Dr. Bickham’s argument that a hearing is required in order for interim spousal support to be extended one hundred eighty days from the rendition of the judgment of divorce is based upon an obvious misinterpretation of Article 113. Interim spousal support terminates not upon the rendition of the judgment of divorce, but upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of the judgment of divorce, whichever comes first. There was no request for final spousal support here, so Mrs. Bick-ham’s interim spousal support would terminate by operation of law one hundred eighty days from the judgment of divorce. The trial court’s order extending interim spousal support one hundred eighty days from the date of the rendition of the judgment of divorce was unnecessary, since the support would not have terminated until then anyway. The “good cause” requirement is for extending interim spousal support beyond one hundred and eighty days from the rendition of the judgment of divorce. Therefore, Dr. Bickham’s argument that a hearing was required is without merit.

^Nevertheless, in denying Dr. Bick-ham’s motion to modify the trial court ruling of September 19, 2001 because no hearing was held, the court found that the court had heard testimony and considered evidence at the September 2001 proceeding before ordering that interim spousal support would extend one hundred eighty days from the date of divorce.

In fact, the following testimony was presented at the hearing held on September 10, 2001 as to Mrs. Bickham’s need for interim spousal support to be extended:

BY MS. BRAUD:
Q. Mrs. Bickham, would you like for the spousal support payment to continue for up to 180 days beyond the date of divorce in accordance with law?
A. Yes, ma'am.
Q. And are you employed at this time?
A. No, ma'am. I’m a full-time mother.
Q. What are the ages of your children?
A. Two and three.
Q. Two and three. Are you planning to go to school or anything?
A. I’m hoping to get back into school, yes, ma'am.
Q. Okay. Thank you. No more questions.
MR. GRIFFIN:
I’d like to be able to cross examine her on that, Your Honor.
THE COURT:
Sure.
BY MR. GRIFFIN:
Q. Mrs. Williams, you have not been employed, you said, since the divorce was filed; is that correct?
A. That’s correct.
Q. Okay. There’s nothing to keep you from being employed, is it?
A. Just that I’ve been a full-time mother to the children since they were born.
Q. Okay. Isn’t it true that Dr. Bickham is available to have the children because of his work schedule — he only works a 48-hour shift so he’s available to have the children?
A. I have no idea what his schedule is.
Q. But before, when y’all were married, he was available, wasn’t he,—
A. No, sir.
Q. —to keep the children?
A. He worked 40 hours a week, plus weekends, plus nights.
Q. And isn’t it true that you worked before, before your marriage?
lirA. I haven’t worked since ’94, no, sir.
Q. But you’re able to be employed?
A. Yes, sir.
Q. Okay. And how old are you?
A. I’m 35.
Q. Okay. And what’s your education?
A. I’ve got approximately two years of college.
Q. Okay.
MR. GRIFFIN:
That’s all the questions I have, Your Honor.

After this testimony, the court granted a divorce and extended interim spousal support for one hundred and eighty days past the divorce'. Therefore, even assuming that a hearing was required by Article 113, Dr. Bickham received such a hearing.

This assignment of error is without merit.

Judgment Debtor Rule

Louisiana Code of Civil Procedure Article 2451(A) provides for examination of a judgment debtor:

In aid of execution the judgment creditor may examine the judgment debtor, his books, papers, or documents, upon any matter relating to his property, either as provided in Articles 1421 through 1515 or as provided in Articles 2452 through 2456.

Dr. Bickham alleges that the court erred in denying his Motion to Dismiss Judgment Debtor Rule and allowing Mrs. Bick-ham to examine him as to his property, since Mrs. Bickham already had all the information she needed and the judgment debtor rule was filed solely to harass him.

At the hearing on Mrs. Bickham’s Petition to Examine Judgment Debtor, the trial court asked Mrs. Bickham’s attorney why they needed to examine Dr. Bickham as to his property if, as Dr. Bickham claims, all the information has already been supplied to them. Mrs. Bickham’s attorney’s response to the judge was that discovery responses had been inadequate and Dr. Bickham had changed jobs during the course of the litigation, so they In still lacked information needed to collect on the judgment. Based upon this, the trial court overruled Dr. Bickham’s objection to the examination of the judgment debtor.

This court held in Dunn & Bradstreet, Inc. v. Harrison, 289 So.2d 316 (1973), that the examination of judgment debtor statute must be liberally construed in favor of the creditor in order to foster its obvious purpose and intent. Since Dr. Bickham had changed jobs and the parties obviously had problems with communication, the court did not abuse its discretion in allowing the judgment debtor examination. This assignment of error is without merit.

CONCLUSION

For the above reasons, the December 6, 2001 judgments of the trial court are affirmed. Costs of this appeal are assessed to Mr. Bickham.

AFFIRMED.


source: Caselaw Access Project

author: KLINE, J.

license: Public Domain

text:
    Ricardo TEANO v. ELECTRICAL CONSTRUCTION, CO.
    Nos. 2002 CA 2032, 2002 CA 2033.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Pete Lewis, New Orleans, Counsel for Appellant Ricardo Teano.
    Max Jones, Jr., John Rabalais, Coving-ton, Counsel for Appellee Electrical Construction, Co.
    Before: FOIL, McCLENDON, and KLINE, JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   KLINE, J.

This is an appeal from a judgment of the Office of Workers’ Compensation (OWC) finding that claimant, Ricardo Teano, violated the provisions of La. R.S. 23:1208, thereby forfeiting his rights to workers’ compensation benefits. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 5, 2000, Ricardo Teano, while in the course and scope of his employment with Electrical Construction Co. (ECC), slipped in a ditch and injured his right knee. Teano began receiving workers’ compensation in the amount of $367.00 per week. Teano was treated by Dr. James Gosey, an orthopedic surgeon. On July 25, 2000, Gosey performed surgery on Teano’s knee. ECC paid for the surgery and provided physical therapy. In October of 2000, Gosey indicated that Teano had reached maximum medical improvement. In November of 2000, after conducting a functional capacity evaluation, Gosey recommended that Teano be placed in a status of light to medium level work and opined that Teano was not going to be able to return to his old job as an electrician. In February of 2001, ECC sent Teano to Stanford McNabb for vocational rehabilitation. McNabb obtained several job leads for Teano, but ECC alleges he did not follow up on those leads. Dr. Go-sey, Teano’s physician of choice, approved Teano for four out of six jobs recommended by McNabb. However, Teano did not pursue those jobs either. On July 6, 2001, ECC filed a disputed claim for compensation alleging that Teano was not cooperating with the vocational rehabilitation.

Teano continued to see Dr. Gosey for follow up visits and Gosey recommended that he see Dr. Denney, a psychiatrist, for depression. Teano filed a disputed claim for compensation on July 30, 2001, and the two cases were consolidated. Teano alleged that ECC had reduced his benefits to SEBS, paid benefits at irregular intervals, and that he was temporarily, totally disabled. Subsequently, Dr. Denney saw Teano on August 16, 2001 and diagnosed Teano with depression. In October of 2001, Dr. Denney opined that Teano was not able |3to work as a result of his psychiatric condition, which included depression and anxiety, even though, as noted, Dr. Gosey had approved several jobs for Teano.

Subsequently, Teano was examined by several other doctors. On November 14, 2001 he was seen by Dr. Richard Roniger, a psychiatrist chosen by ECC; and on February 1, 2002, Teano was examined by Dr. John Sweeney, an orthopedic surgeon chosen by ECC. Dr. Roniger disagreed with Dr. Denney’s opinion that Teano could not return to work. Accordingly, on January 31, 2002, the Office of Workers’ Compensation referred Teano to Dr. Harold Ginzburg, a psychiatrist. ECC provided Teano with psychiatric treatment from August 16, 2001 until March of 2002.

ECC eventually learned that Teano had been treated by a Dr. Mathew Horsefield for various problems, including anger, adjustment disorder, anxiety and depression, prior to his work-related accident. On April 3, 2002, Teano’s benefits were reduced to supplemental earnings benefits. On May 15, 2002, ECC amended its disputed claim form alleging that Teano violated La. R.S. 23:1208, thus, forfeiting his entitlement to benefits. ECC alleged that Teano stated that he had not been treated for depression, anxiety or other psychological conditions prior to the accident. Teano was questioned by the previously named doctors concerning his medical and family history. However, Teano did not relay any prior problems with anxiety, depression or other psychological conditions prior to the accident to anyone, including the doctors, even when questioned. ECC alleged that medical records from other health care providers showed that Teano suffered from anxiety, depression and other psychological conditions for which he sought treatment before the accident. Records from Global Medical Center indicated such and were presented to Teano on the day of trial.

A trial on the matter was held on April 22, 2002. The OWC judge rendered judgment in favor of ECC. The OWC judge found that Teano violated La. R.S. 23:1208(A) and, thus, forfeited his rights to benefits under La. R.S. 23:1208(E). Teano was also assessed a penalty of $5,000.00 pursuant to La. R.S. 23:1208(D). Teano filed this devolutive appeal.

I ¿STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Joseph v. J.E. Merit Constructors, Inc., 2001-1666, p. 5 (La.App. 1st Cir.6/21/02), 822 So.2d 72, 76, writ denied, 2002-2295 (La.4/4/03), 840 So.2d 1201; Marsh Buggies, Inc. v. Ledet, 2000-1911, p. 3 (La.App. 1st Cir.12/28/01), 804 So.2d 908, 910. An appellate court cannot set aside the factual findings of a workers’ compensation judge unless there is no reasonable basis for those findings or they are clearly wrong. In addition, when factual findings are based on witness credibility, the appellate court must give great deference to the fact-finder’s decision to credit or discredit a witness’s testimony. Rhodes v. Terrebonne Parish Sheriff, 2001-2279, p. 3 (La.App. 1st Cir.6/21/02), 822 So.2d 114, 116-117. When there is conflict in the testimony, reasonable credibility evaluations and inferences of fact should not be disturbed on review, even if the appellate court feels that its own evaluations and inferences are as reasonable. Rhodes, 2001-2279 at p. 3, 822 So.2d at 117. Consequently, when there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993); Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

The hearing officer made the following findings of fact:

The court had the opportunity to observe Mr. Teano’s demeanor over the course of several hours of testimony. The court finds him to be less than credible insofar as his testimony was contradicted in numerous respects by evidence introduced at trial. Further, many of his responses on cross-examination were evasive or consisted of “I don’t recall.”
Mr. Teano was asked on cross-examination if he had been treated by Dr. Mathew Horsefield, his family physician, for anger and depression in May of 1999. He testified he had been treated for anger, but “didn’t remember” being treated for depression. In fact, certified medical records and Dr. Horsefield’s deposition testimony indicate Mr. Teano had treated with him for anger, depression, anxiety, and adjustment disorder from May 1999 through July 2000. The medical evidence indicated Mr. Teano’s problems were related to his daughter’s rape in 1998 and other family problems. During his treatment with Dr. Horse-field, Mr. Teano reported problems with libido, restlessness, and problems with sleeping.
| ¡^Interrogatories and responses thereto were introduced at trial. Mr. Teano was asked specifically whether he had previously sought treatment for the “injuries, conditions, physical or mental, or the disabilities claimed herein”, to which he answered “The claimant does not recall ever having been treated for any injuries to the right knee and/or mental health related problems prior to the subject accident.” He was also asked to give the name and address of his family physician and all physicians he had seen in the past 15 years; however, no response was given in the answers to interrogatories.
Mr. Teano was also specifically questioned by Dr. Richard Roniger, ECC’S choice of psychiatrist, about “seeing mental health professionals in the past in his life,” to which he responded “I can’t remember.” Dr. Roniger’s diagnosis was adjustment disorder, a diagnosis previously made by Dr. Horsefield in the course of his treatment.
Dr. James Denney, Mr. Teano’s treating psychiatrist, testified by deposition that while Mr. Teano supposedly did inform him of his daughter’s rape in 1998, Dr. Denney did not record that in his records because “Workmen’s (sic) Compensation does not authorize or pay for treatment that is not directly related to the job-related injury.” This admission is particularly troubling since one of the issues before the court was whether Mr. Teano’s current mental condition is related to his knee injury. Regardless of whether or not Mr. Teano disclosed the details of the rape to Dr. Denney, Dr. Denney’s deposition testimony as well as that of Mr. Teano both confirm Mr. Teano never disclosed his prior treatment with Dr. Horsefield.
Certified medical records from Global Medical Center indicate that Mr. Teano presented on March 27, 2000 with complaints with “headaches, nausea, back, neck, shoulders”. Mr. Teano testified he went to Global for a “crick” in his back and headaches. The Global records indicate Mr. Teano disclosed prior problems with depression and stress. He also disclosed problems with concentration, and the records do contain a reference to Dr. Matthew (sic) Horse-field.
Dr. Harold Ginsburg (sic) evaluated Mr. Teano for an independent psychiatric medical examination. Dr. Ginsburg testified by deposition that Mr. Teano never disclosed his prior treatment with Dr. Horsefield nor the rape of his daughter. Dr. Ginsburg also testified that Mr. Teano did not have problems with memory, since Mr. Teano was able to recall certain medical conditions both before and after his work-related accident.(footnote omitted)(footnote inserted.)

We have reviewed the record and find these findings accurate.

ADMISSION OF GLOBAL MEDICAL CENTER RECORDS

On April 19, 2002, ECC received medical records from the Global Medical Center, which showed that Teano had been treated for depression and anxiety in the past. However, Teano’s counsel was not able to receive those records until the morning of trial. The hearing officer allowed the introduction of the records over the objection of Teano. Teano asserts that the OWC judge erred in admitting medical records from the Global Medical Center when those records were not produced by ECC until the day of trial.

| (Teano relies on Lemoine v. Hessmer Nursing Home, 94-836 (La.App. 3rd Cir.3/1/95), 661 So.2d 444, in support of that argument. However, in Lemoine, at issue was the admission of medical evidence pursuant to La. R.S. 23:1122 and in lieu of testimony. In addition, the Hearing Officer Rules were amended in March of 2002, one month before the date of this trial. We do not find in the amended rules one that mandates that all trial exhibits be exchanged within ten days before trial as Teano contends. However, the rules do require that the pre-trial statements include a list and brief description of all exhibits to be offered at trial. Louisiana Administrative Code Title 40, Chapter 60, § 6007. ECC’s statement did not include the Global records. However, § 6007 also states that amendments to the pretrial statement are permitted if good cause is shown.

In addition, LAC 40:6203, states that “the trial of a workers’ compensation claim shall be governed by R.S. 23:1317.” La. R.S. 23:1317 states that “[t]he workers’ compensation judge shall not be bound by technical rules of evidence or procedure .... The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.” See also Brooks v. Leggett & Platt, Inc., 94-0617 (La.App. 1st Cir.11/9/95), 665 So.2d 432. The hearing officer has great discretion in conducting trials in a manner that he or she determines to be consistent with the fair administration of justice. Lemoine, 94—836 at 11, 651 So.2d at 451; Brooks, 94-0617 at 4, 665 So.2d at 434. Furthermore, reasonable questions as to the admissibility of evidence should be resolved in favor of receiving such evidence. Lemoine, 94-836 at 11, 651 So.2d at 451. Also, when a party seeks to exclude evidence on grounds of surprise, the court may grant a constructive continuance by delaying the presentation of the evidence until later in the trial to give the complaining party time to prepare rebuttal evidence, and thus avoid prejudice from surprise. Id. Teano did not request such a continuance. Nor could he claim surprise since the records sought to be introduced were his medical records.

Even though requested to do so through discovery, Teano chose not to reveal the existence of the Global Medical Center records. He also did not reveal 17his prior treatment when questioned by the other doctors. As the hearing officer noted, if Mr. Teano had been “forthcoming about his prior medical treatment, these records would have probably surfaced sooner.” Accordingly, the trial court did not abuse its discretion in admitting the Global Medical Center records into evidence.

VIOLATION OF LA. R.S. 23:1208

La. R.S. 23:1208 states, in pertinent part:

§ 1208. Misrepresentations concerning benefit payments; penalty

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

La. R.S. 23:1208 prohibits a willful misrepresentation made by anyone for the purpose of obtaining or defeating any benefit or payment. La. R.S. 23:1208(A); Hull v. Fluker Farms, 2000-0757, p. 14 (La.App. 1st Cir.5/11/01), 787 So.2d 535, 544, writ denied, 2001-2291 (La.11/16/01), 802 So.2d 612. In Resweber v. Haroil Construction Co., 94-2708, p. 8 (La.9/5/95), 660 So.2d 7, 12, the Louisiana Supreme Court stated that the “legislature has determined workers’ compensation fraud is a severe and growing problem and has continually amended Section 1208 to make it easier to enforce and to make the penalties stiffer.”

The requirements for forfeiture of benefits under La. R.S. 23:1208 are that there is: (1) a false statement or representation, (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. Jim Walter Homes, Inc. v. Prine, 2001-0116, p. 8 (La.App. 1st Cir.2/15/02), 808 So.2d 818, 824. The relationship between the false statement and the pending | sclaim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. Id.

Teano asserts that the hearing officer erred in finding that Teano made false representations by failing to answer interrogatories regarding the identity of his family physician and his medical treatment before the accident. Teano asserts that he was instructed not to answer the interrogatories addressing the identity of physicians he had seen in the past and his medical history. However, the record only shows that Teano was instructed not to answer interrogatory number 5. As the hearing officer found, via other interrogatories, Teano was specifically asked whether he had previously sought treatment for the types of injuries, both physical and mental, for which he complainedi Teano answered that he did “not recall ever having been treated for any injures to the right knee and/or mental health related problems prior to the subject accident.” Interrogatories requesting that Teano provide the name of his family physician and any other physician he had seen in the past 15 years and requesting that Teano provide certain information concerning his past physical and mental health and treatment were left unanswered. At trial, Teano asserted this was because he couldn’t remember. However, even when questioned at trial about his previous depression and anxiety, Teano still asserted he did not remember such.

Teano also asserts that the hearing officer erred when it found that Teano made false representations when he stated that he didn’t remember being treated for depression. In addition, Teano asserts that the medical and lay evidence refutes the hearing officer’s conclusion that Teano should have remembered the specific nature of his treatment with his primary care physician, Dr. Horsefield, because that treatment was limited in duration, was for basic care and occurred more than a year before the accident.

Teano relies on the testimony of Dr. Denney, who stated that Teano was experiencing concentration problems which marred his ability to remember day to day things. In addition, Teano claims that the evidence refutes the hearing officer’s conclusion that Teano should have remembered the specific nature of lathe treatment he received when he visited the North-shore Hospital more than two years earlier.

However, the hearing officer did not mention the Northshore Hospital as one of the reasons for her findings. Also, although Dr. Denney testified that Teano experienced concentration problems which could hinder his ability to remember things, other doctors testified to the contrary. In fact, Dr. Sweeney testified that Teano was very clear on some details but not on others, and the record clearly confirms that. Generally, the other details were those concerning prior treatment for the type of medical problems Teano was complaining of in this suit. Dr. Sweeney did testify that if someone is depressed it can affect the quality of the history they provide. However, he did not feel that was the case in this instance. Also, Dr. Ginzburg testified that he did not believe Teano’s memory was affected. Furthermore, Dr. Sweeney testified that when he questioned Teano about his previous medical history, Teano told him that he was “perfectly healthy” prior to the accident. The record shows this was clearly not the case, and this type of assertion goes beyond Teano simply “failing to remember” past medical treatment, but rather is a completely false assertion which he knew to be incorrect.

Teano also asserts the hearing officer erred in finding that Teano was not suffering from memory problems based exclusively on the testimony of Dr. Ginzburg, who only saw Teano for two hours, who did not have Teano’s pertinent medical records, and who did not examine Teano during the time in which he made the allegedly false statements. Teano also asserts that the hearing officer erred in giving greater weight to Dr. Ginzburg’s testimony than to that of Dr. Denney.

However, the hearing officer’s judgment was not based solely on Dr. Ginzburg’s testimony, but on an abundance of evidence, including the previously mentioned testimony of Dr. Sweeney. Dr. Denney classified Teano as having cognitive impairments in concentration and memory. He also stated that patients under a great deal of stress are notoriously bad historians. However, Dr. Ginzburg explained that the type of concentration problems that Teano may have |inexperienced would not have prevented him from remembering the medical problems and treatments about which he was questioned on numerous, in fact many, occasions.

In furtherance of his argument, Teano asserts that Dr. Ginzburg was not given all the pertinent medical records. However, Dr. Denney was also not provided pertinent medical records, such as Dr. Horse-field’s records, because Teano did not provide him with those records. In addition, as the hearing officer noted, Dr. Denney claims to have been informed about the rape of Teano’s daughter and other problems, including “every last detail” to some extent. However, he states he did not include those items in his report because it was not related to the accident. In fact, Dr. Denney testified that he did not include in his medical reports anything Teano told him that wasn’t related to the work related accident. Accordingly, the hearing officer questioned the credibility of Dr. Denney and was correct in giving greater weight to Dr. Ginzburg, the independent medical examiner, than to Dr. Denney.

Also, weighing against Dr. Denney’s conclusions is the fact that the Global Medical Center records show that Teano was able to remember approximately four months before the accident being treated by Dr. Horsefield for depression. Furthermore, Dr. Horsefield’s records show that Teano was taking medication, such as Wellbutrin when he visited Dr. Horsefield on April 10, 2000, less than three months before the accident in question. As the hearing officer noted, the “treatment which Mr. Teano failed to disclose to his employer or his doctors or claims to not remember was so close in time to his July 5, 2000 injury it is inconceivable that he forgot about it.”

Furthermore, there was conflict between the testimony of Dr. Denney and that of the other doctors. The hearing officer’s findings were thus based on her credibility determinations. These findings should not be disturbed on review. Rhodes, 2001-2279 at p. 3, 822 So.2d at 117.

Teano also asserts that the hearing officer erred in finding that Teano willfully made false statements because, due to Teano’s state of mind, he lacked the requisite knowledge and willfulness to violate R.S. 23:1208.

Inin support of that argument, Teano cites Sumner v. Lake Charles Marine, 96-280 (La.App. 3rd Cir.6/5/96), 676 So.2d 653, writ denied, 96-1772 (La.10/11/96), 680 So.2d 645. In Sumner, the court held that the claimant made a false statement concerning his injuries. However, the court held that the claimant did not forfeit his benefits because the statement was not willfully made. In reaching this conclusion, the court noted the defendant’s lack of education, severe pain exacerbated by the defendant’s refusal to authorize pain management and his depression. Sumner, 96-280 at p. 4, 676 So.2d at 655. However, in the case sub judice, even though Teano left high school after the eleventh grade, he did receive his GED and went to Delgado college. The record also shows he was the captain of a boat in the Mississippi River. Furthermore, in Sumner the claimant initially gave a direct and full account of his injuries. Contrarily, Teano never did so. Also, in Sumner, the court stated that the claimant’s false statements did nothing to help him obtain benefits. Sumner, 96-280 at p. 6, 676 So.2d at 656. However, in the case sub judice, Teano’s misrepresentations concerning his prior depression relate directly to his claim for benefits since he alleges his depression, allegedly stemming from the accident, is preventing him from going back to work. It is also important to note that Teano did not begin complaining of depression to ECC and asserting that it was keeping him from work until McNabb began providing him with job opportunities.

The record is replete with instances in which Teano stated he was not able to remember any previous treatment, including those instances in answers during his deposition, his response to interrogatories, his testimony in court, and his related history when examined by doctors.

Based on the foregoing, we cannot say the hearing officer erred in finding that Teano violated the provision of La. R.S. 28:1208.

EXPERT WITNESS FEES

Teano asserts the hearing officer signed a judgment taxing the costs of the experts to Teano. He alleges that the hearing officer erred in assessing those costs to him on the basis that ECC did not file the motion to tax costs until after the hearing officer signed the May 10, 2002 judgment. However, even L ¡¡though there is a judgment dated November 2, 2002 attached to Teano’s brief, the motion to tax costs and the judgment awarding those costs are not found in the record. In addition, that judgment shows that a separate hearing was held on the issue and the November 2, 2002 judgment was rendered pursuant to that hearing. The proper procedure for Teano to have had that judgment reviewed would have been to appeal. that judgment.

ASSESSMENT OF CIVIL PENALTY

Teano also asserts that the hearing officer erred “when it assessed a civil penalty against Mr. Teano in the amount of $5,000.00 pursuant to [La. R.S. 23:1208(D) ].” However Teano did not brief this assignment of error. Rule 2-12.4, Uniform Rules—Courts of Appeal, states, “[a]ll specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.” La. R.S. 23:1208(D) states, in pertinent part:

In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars.

Clearly, the hearing officer has discretion in assessing a civil penalty of up to $5,000.00. Teano has not stated how the hearing officer abused its discretion in awarding the $5,000.00 penalty. Accordingly, we affirm that part of the judgment.

REIMBURSEMENT OF BENEFITS

ECC answered the appeal of Teano and asserted that the hearing officer erred in failing to award ECC restitution pursuant to La. R.S. 23:1208(D). La. R.S. 23:1208(D) states, in pertinent part:

In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be ... ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct, (emphasis added.)

The word “shall” is mandatory and the word “may” is permissive. Hoag v. State ex rel. Kennedy, 2001-1076, p. 9 (La.App. 1st Cir.11/20/02), 886 So.2d 207, 216, writ denied, 2002-3199 (La.3/28/03), 840 So.2d 570. La. R.S. 23:1208 does not mandate that the hearing officer order restitution. The awarding of restitution lies within the discretion of the hearing officer. Rhone v. Boh Brothers, 2001-0270, pp. 6-7 (La.App. 4th Cir.12/12/01), 804 So.2d 764, 768-769. In its answer to this appeal, ECC does not show how the hearing officer abused that discretion. See Rhone, 2001-0270, 804 So.2d 764; See also Rule 2-12.4, Uniform Rules, Courts of Appeal.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation Hearing Officer is affirmed. Teano is to pay all costs of this appeal.

Affirmed.

      . Teano's visits to Dr. Horsefield in 2000 were not for anxiety and depression, but Horsefield's records show that Teano was still taking Wellbutrin at that time.


author: Judge DENNIS R. BAGNERIS, SR.

text:
    Sherry WATTERS, et al. v. DEPARTMENT OF SOCIAL SERVICES, et al.
    No. 2003-C-0703.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 14, 2003.

      Mickey P. Landry, Frank J. Swarr, Charmaine L. Marchand, Landry & Swarr, L.L.C., Craig Mitchell, Janet Ahem, Mitchell Ahem, New Orleans, LA, Robert G. Creely, Nicole Loup Hackett, Madro Bandaries, Amato & Creely, APLC, Gret-na, LA, for Plaintiffs.
    Robert E. Kerrigan, Jr., Francis J. Barry, Jr., Walter P. Maestri, New Orleans, LA, for Evanston Insurance Company.
    Gary M. Zwain, Joseph B. Mortin, III, Christian B. Bogart, Kevin R. Derham, James A. Stapp, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for BG Real Estate.
    John E. Unsworth, Jr., W. Marvin Hall, Michele D. Ahlers, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Clarendon America Insurance Company.
    John W. Hite, III, Melissa M. Savoie, Glen S. Neubauer, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, for United National Insurance Company.
    Andrew W. Braun, Michelle L. Corrigan, Geiger, Laborde & Laperhouse, L.L.C., New Orleans, LA, for Great Lakes Reinsurance (UK) PLC.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO, JR.).
   Judge DENNIS R. BAGNERIS, SR.

STATEMENT OF THE CASE

In this mesothelioma-personal injury action, plaintiff-relator Christine Songy seeks supervisory review of the denial of her motion for partial summary judgment. Plaintiff Christine Songy and approximately 679 others filed this class action on October 25, 2001, seeking damages for exposure to mold and asbestos in the Plaza Towers office building.

Plaintiff Songy filed a motion for summary judgment on a number of issues. The matter came for hearing on March 28, 2003, and a written judgment denying plaintiffs motion was signed on April 4, 2003.

FACTS

Plaintiff sought summary judgment finding that: (1) she has malignant mesothelio-ma; (2) exposure to asbestos was “a” cause of her mesothelioma; (3) she was exposed to asbestos in the Plaza Tower office building; (4) she was exposed to mold in the Plaza Tower office building; (5) her exposure to mold, mold spores and the by-products of mold spores at the Plaza Tower was a “promoter and a substantial contributing factor to her injuries;” (6) she did not have malignant mesothelioma in 1997; and (7) she had no other direct occupational exposure to asbestos except the Plaza Towers.

A number of exhibits are attached to plaintiffs writ application, and were submitted to and considered by the trial court.

Exhibit 1 is a May 20, 2002 Meadow-crest Hospital tissue report from Dr. Don Hemelt, a pathologist, concluding that plaintiffs pleural biopsy showed “probable” malignant mesothelioma. Dr. Hemelt confirmed Dr. Ronald Welsh’s ^diagnosis of “probable” malignant mesothelioma, which diagnosis is reflected in a May 20, 2002 letter from Dr. Welsh to Dr. Hemelt. Dr. Welsh, also a pathologist, stated that the results he saw “do not make a positive diagnosis of mesothelioma, but do make it the most likely one at this time.” He noted that additional proof would come by electron microscopy, and further noted that “[i]f there is the possibility of litigation it would be well to inform the patient and family of the need for autopsy verification of the diagnosis to exclude other primary malignant neoplasms.” Dr. Welsh thanked Dr. Hemelt for the opportunity to “study this most interesting case.”

Exhibit 2 is an office note from Dr. N. Chandrasekaran, an oncologist, referencing a June 10, 2002 office visit by plaintiff. The note is copied to Drs. Lillibeth Ro-chon, Mark Kappelman and William Bor-rón. The note refers to plaintiff being aware of the diagnosis of mesothelioma, an incurable disease, and mentions possible chemo-treatment options, and the possibility of enrolling in a treatment trial at LSU.

Exhibit 3 is a July 3, 2002 letter from Dr. William Borron to Dr. Lillibeth Ro-chon, noting that he had seen plaintiff previously in Meadowcrest Hospital for “recurrent pleural effusion.” He reported that the results of her pleural biopsy were “consistent with malignant mesothelioma.”

Exhibit 4 consists of excerpts from a January 13, 2003 deposition of Dr. Tim Oury, a pathologist, who said that the stain test in plaintiffs case was “not definitive for mesothelioma, but is most consistent with mesothelioma.” He said “[w]ith what I have right now, my opinion is it is more probable than not that this is mesothelio-ma.” He could not rule out asbestos as a cause, but said the slides he viewed showed no asbestos bodies, which made him “consider this as a possibility Uof being an idiopathic mesothelioma.” He implicitly confirmed that asbestos causes almost 9 out of 10 cases of mesothelioma.

Exhibit 5 is the October 21, 2002 deposition of Dr. Paul Schwarzenberger, who said he believed plaintiff had malignant mesothelioma. He found it unlikely that she had a pleural effusion in 1997, or that if she did, that it would be related in any way to her present malignant mesothelio-ma. He said most studies support a latency period for mesothelioma of between 10 and 40 years, but that it could be less, depending on the level of asbestos exposure. With regard to plaintiff, he could not exclude exposure to asbestos when she was five years old, or exposure six years ago.

Exhibit 6 is the March 12, 2003 affidavit of Dr. Howard Sandler, president of San-dler Occupational Medicine Associates, Inc. in New York State, who was aware that plaintiff was diagnosed with mesothe-lioma in May 2002, and had worked in Plaza Tower three and one-half years, beginning in October 1998. The latency period for asbestos-induced mesothelioma is a minimum of 15 years, with the maximum exceeding 50 years. 10-20% of all mesothe-liomas are idiopathic, meaning they cannot be linked to any specific exposure or circumstances. There was no scientific evidence demonstrating that inhalation exposure to mold or mold by-products are causally related to the initiation, promotion or progression of mesothelioma. There was no evidence that any molds present in the Plaza Tower building produced any mycotoxins (mold produces mycotoxins) at appreciable levels. Dr. Sandler found that the “likely etiologic factor” for plaintiffs mesothelioma was her exposure to asbestos approximately 45 years ago during her weekly visits to her uncle’s home. Plaintiffs uncle worked at a Johns-Manville asbestos-products manufacturing plant and died of an asbestos-related disease. His Uwife was also diagnosed with an asbestos-related disease, indicating the presence of environmental or paraoccupational asbestos exposure.

Exhibit 7 consists of excerpts from the October 24, 2002 deposition of Dr. Mark Kappelman, a thoracic surgeon, who first saw plaintiff April 23, 2002 on a referral for a recurrent pleural effusion for which an etiology had not been established. He confirmed that one of the causes of pleural mesothelioma is asbestos exposure, but that there are also some unknown causes. During a May 14, 2002 thoracoscopy, he observed multiple nodules in her chest cavity, which he said is what you see most of the time with mesotheliomas. The pathology in plaintiffs case was reported as a malignant mesothelioma. He said that virtually all the mesotheliomas that one sees are related to asbestos exposure, especially in “this” part of the country. He recalled plaintiffs history as being treated in 1997 for what was described as pneumonia. Dr. Kappleman talked about the latency periods for mesothelioma — 10 to 20 years, but as short a period as 5 to 10 years.

Exhibit 8 consists of excerpts from the December 10, 2002 deposition of Danny Joyce, an industrial hygienist, who believed that plaintiff, just from working in the Plaza Tower building, “certainly had exposure to asbestos as she traversed the building, went in stairwells, worked in office settings on those floors and on other floors where asbestos was present.” He said the Plaza Tower building had water problems that facilitated mold growth, and that the removal of dry materials without adequate containment measures increased the amount of spores dispersed in the air. With regard to asbestos, he said a combination of things led to asbestos insulation on steam pipes disintegrating and falling into machinery spaces, with an increased likelihood that the heating and air conditioning system would pick up and disperse asbestos fibers throughout the building. He believed there was a | ¡¡significant likelihood that the symptoms alleged by the plaintiffs, including Mrs. Songy, were caused by the mold in the Plaza Tower building.

Exhibit 9 consists of excerpts from plaintiffs October 19, 2002 deposition, in which she talked about the different places she worked, beginning with D.H. Holmes in 1969-1970. She worked for a Westinghouse distributorship in an old building at the dead end of Poydras Street, starting in 1973. She did not know if any of the places she worked in contained any type of asbestos products. She began working for the Orleans Parish District Attorney’s Office in 1986.

Exhibit 10 consists of excerpts from the January 11, 2003 deposition of Terri Lynn Smith, a legal assistant with the Orleans Parish District Attorney’s Office, which moved into the Plaza Tower building in 1998. The DA’s office occupied floors 32 and 33. She described a horrible “dirty clothes,” sweaty, wet smell in her office upon opening her door every morning. She also described a white residue that appeared daily on her desk, computer, bookcase, floor — “everywhere.” There were black spots on her ceiling tiles. Some tiles had water on them, others had fallen out.

Exhibit 11 is a Louisiana DEQ amended penalty assessment issued on July 6, 1998 to the BAHAR Development, Inc., Baha Towers Limited Partnership, Schu-man Rafizadeh and Madonna Rafizadeh, citing a number of violations involving the 11th and 15th floors of the Plaza Tower building. A June 1996 inspection revealed small piles of construction debris on the 11th floor containing fireproofing identified as asbestos containing material. Pieces of dislodged asbestos-containing building material were found on the floor around several pipes on the 15th floor. This was described as “significant asbestos contamination.” | fi Inspection of the 11th floor revealed holes in concrete that had been made using a hammer drill. The DEQ noted that the use of a hammer drill there would cause significant vibration, which in turn would cause asbestos-containing building material to be disturbed. The piles of asbestos-containing building materials were dry and had not been adequately wetted prior to and during a stripping operation. The asbestos-containing building materials had not been sealed in leak-tight transparent containers.

Exhibit 12 is the March 27, 2003 affidavit of Dr. Janine Parker, a pulmonologist, who attested that she treated plaintiff on July 2, 1997 for a follow-up to pneumonia. It was Dr. Parker’s opinion, to a reasonable degree of medical certainty, that plaintiff did not have mesothelioma in 1997.

Exhibit 13 consists of excerpts from the March 25, 2003 deposition of Dr. Manuel Lopez, who stated that tests indicated plaintiff had been exposed to mold, but that there was no test that would indicate that the exposure occurred in the Plaza Tower. He also said that “most” of the exposure that she had was what one would see in “normal” individuals exposed to the “normal” environment. He agreed that some antibodies were elevated compared to the others, but that they were not “abnormal.”

Defendant BG Real Estate Services, Inc.’s (“BG”) opposition contains a number of attachments.

Exhibit 1 is BG’s trial court opposition. It contains the affidavit of Dr. Howard Sandler. The March 13, 2003 affidavit of Dr. Tim Oury is also attached. Dr. Oury’s affidavit is essentially the same as Dr. Sandler’s. David Straus, Ph.D., identified as plaintiffs expert microbiologist, stated in deposition excerpts that antibodies in an exposed person document that in fact mold exposure has occurred, |7but do not tell you anything beyond that, such as where the person was exposed. He said there was no way to track the presence of myco-toxins in human beings. He agreed that the symptoms plaintiffs complained of in the Plaza Tower were consistent with what he would expect to see upon exposure to toxic mold, but could not say with absolute certainty that exposure occurred. He said there was a “very good likelihood” that the plaintiffs were suffering from “Sick Building Syndrome,” meaning that people are ill while inside the building, but their symptoms abate upon leaving.

Exhibit 2 is defendant Evanston Insurance Co.’s response to plaintiffs listing of suggested uncontested facts, and Evans-ton’s listing of contested facts.

Exhibit 3 is the District Attorney’s trial court opposition.

Exhibit 4 is a copy of defendant United National Insurance Co.’s trial court opposition, which includes excerpts from the March 6, 2003 deposition of Dr. Michael Gray. He referred to plaintiffs possible exposure to asbestos at her uncle’s home. She reported “frequently” spending weekends there in the late 1950’s and early 1960’s. However, Dr. Gray noted that plaintiffs history was that her uncle had five children now ranging in age from 40 to 61 years, none of whom suffered from any signs of pulmonary or pleural asbestosis. Asked whether mold and mycotoxins had ever been identified as promoters of meso-thelioma, Dr. Gray said they had been identified as agents capable of compromising the immune system, the first fine against malignancy. Dr. Gray confirmed that to a reasonable medical certainty, plaintiff had been exposed to asbestos pri- or to the first time she entered the Plaza Tower building in 1998. However, he was referring to exposure a normal person of her age would have had due to “background levels of multiple mutagens,” including asbestos.

| ¡Exhibit 5 is defendant MBA, LLC’s trial court opposition, containing a March 21, 2003 affidavit by Dr. Manuel Lopez, an adjunct professor of environmental health sciences at Tulane’s School of Public Health, and a professor and chief of clinical immunology, allergy and rheumatology at Tulane Medical School. He said there was no data demonstrating that there were mycotoxins in the air at the Plaza Tower, or that the molds isolated from the building were producing mycotoxins. Thus, he said that Dr. Gray’s opinion that plaintiff was exposed to significant amounts of my-cotoxins capable of affecting her immune system did not have any scientific basis. He said there was no clinical or laboratory evidence that plaintiff’s immune system was impaired by exposure to the work environment at the Plaza Tower.

Exhibit 6 is defendant Great Lakes Reinsurance (UK) PLC’s trial court opposition.

Exhibits 7 & 8 are defendant Monticello Insurance Co.’s trial court opposition and supplemental opposition, respectively, with Dr. Lopez’s affidavit attached.

Exhibit 9 consists of excerpts from an April 10, 2002 hearing in another action, in which Dr. Victor Roggli, a pathologist, testified to the standards required to link a particular asbestos exposure to a case of mesothelioma.

Exhibit 10 is excerpts from plaintiff’s October 19, 2002 deposition, in which she stated that she would visit her uncle’s home on weekends.

Exhibit 11 consists of reports by Dr. Chandrasekaran and Dr. Gray. Dr. Chan-drasekaran’s report, referencing a May 28, 2002 office visit, said there was a strong suspicion for a malignant mesothelioma. Dr. Gray’s environmental health evaluation reflects plaintiff’s history. She said her office in the Plaza Tower had 19missing and moldy ceiling tiles, a moldy floor, and that every morning there would be a white power residue on her office contents. There was “white stuff” in the stairwells. She reported that her right lung and diaphragm were removed in August 2002, and she began chemotherapy treatments in November 2002.

Defendant Clarendon America Insurance Co.’s writ opposition filed in this court contains excerpts from plaintiffs October 19, 2002 deposition, a deposition of Dr. Gray, and the December 10, 2002 deposition of Danny Joyce, the industrial hygienist. Clarendon’s opposition also contains a copy of a March 3, 2003 Times-Picayune newspaper article concerning a delayed state health department report on cancer rates near now-defunct New Orleans area businesses that might have processed asbestos-contaminated material.

Defendant Great Lakes Reinsurance (UK) PLC’s writ opposition contains its trial court opposition, with attachments (part of this trial court opposition was attached to defendant BG Real Estate Services, Inc.’s writ opposition, see supra). In excerpts from his March 6, 2003 deposition, Dr. Michael Gray said that the concern in plaintiff’s case was that the latency period of her exposure (at the Plaza Tower) from October 1998 through diagnosis in May 2002 was three and one-half years, while the literature suggests that the average latency period is 37 years. He cited a study evidencing that latency period, and an outside range of 5 to 55 years. He said part of plaintiff’s history was a spontaneous pneumothorax in 1997. He was not aware of a link between this and plaintiff’s mesothelioma. He was asked if a spontaneous pneumothorax could be a clinical manifestation of a slow-growing mesotheli-oma, and he replied that he believed “spontaneous pneumothorax can occur in the context of mesothelioma.”

ImGreat Lakes’ writ opposition also contained excerpts from Dr. Tim Oury’s January 13, 2003 deposition. He was asked about an asbestos exposure and subsequent development of mesothelioma in less than 15 years, and he replied: “Then it becomes very questionable if it is asbestos .... depending on where you put that before 15 years, it becomes more and more questionable that it’s related to the asbestos exposure versus idiopathic.”

DISCUSSION

Appellate courts review the grant or denial of a motion for summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 780, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

“[S]ummary judgment may be rendered dispositive of a particular issue.” La. C.C.P. art. 966(E). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by La. C.C.P. art. 969. La. C.C.P. art. 966(A)(2). Summary judgments In are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. Nevertheless, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/08/00), 775 So.2d 1049, 1050. A court cannot make credibility determinations on a motion for summary judgment, and must assume that all of the affiants are credible. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, p. 16, 755 So.2d at 236.

Plaintiff incorrectly states that a party moving for summary judgment merely has to point out an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense in order to shift the burden to the nonmoving party, who then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. This is the applicable law only where the moving party “will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment.” La. C.C.P. art. 966(C)(2). In the instant case, plaintiff is the moving party, and bears the burden of proof at trial.

Again, plaintiff sought summary judgment finding that: (1) she has malignant mesothelioma; (2) exposure to asbestos was “a” cause of her mesothelioma; (3) she was exposed to asbestos in the Plaza Tower office building; (4) she was exposed to mold in the Plaza Tower office building; (5) her exposure to mold, mold spores and the by-products of mold spores at the Plaza Tower was a “promoter and a substantial contributing factor to her injuries;” (6) she did not l^have malignant mesothelio-ma in 1997; and (7) she had no other direct occupational exposure to asbestos except the Plaza Towers.

(1) Drs. Don Hemelt and Ronald Walsh diagnosed “probable” malignant mesothelioma. Dr. Welsh said the results were not “positive,” but made it the “most likely one at this time.” These apparently were the initial diagnoses of plaintiffs condition, made in May 2002. Dr. Chandra-sekaran, an oncologist, saw plaintiff in June 2002 for possible chemotherapy and enrollment in a trial for treatment of her mesothelioma. In July 2002, Dr. William Boron referred to plaintiffs biopsy results being consistent with malignant mesotheli-oma. Dr. Tim Oury said on January 13, 2003 that, while a stain test was “not definitive for mesothelioma,” his opinion was that it was more probable than not that it was mesothelioma. Dr. Paul Schwarzen-berger said in October 2002 that he believed plaintiff had malignant mesothelio-ma. Dr. Mark Kappelman said that the multiple nodules he saw during a May 14, 2002 thorascopy of plaintiffs chest were what one saw “most of the time” with mesothelioma. Plaintiff reported that her right lung and diaphragm were removed in August 2002, and she began chemotherapy treatments in November 2002.

Defendant BR Real Estate Service, Inc. concedes in its writ opposition that that “[r]eview of the medical records strongly suggests that Ms. Songy has mesothelio-ma.” Defendant Evanston Insurance Co. admitted in its trial court opposition that plaintiff has mesothelioma.

The evidence establishs that, to a reasonable medical certainty, plaintiff has malignant mesothelioma. Therefore, we find that there is no genuine issue of material fact, and that the trial court erred in not granting the motion for summary judgment on this issue.

(2) Dr. Howard Sandler attested that some 10-20% of mesothelioma cases are idiopathic, meaning they cannot be linked to any specific exposure or circumstances. However, he also said that the “likely etiologic factor” for plaintiffs meso-thelioma was her exposure to asbestos approximately 45 years ago during her weekly visits to her uncle’s home. Dr. Mark Kappelman said that “virtually all” the mesotheliomas that one sees are related to asbestos exposure, especially in “this” part of the country. Pathologist Dr. Tim Oury said the slides of plaintiffs pathology specimens he viewed showed no asbestos bodies, which made him “consider this as a possibility of being an idiopathic mesotheli-oma.” In addition, Dr. Oury said that the further one gets from the recognized minimum 15 year latency period, it becomes more and more questionable that it’s related to the asbestos exposure versus idiopathic. There is evidence that plaintiff possibly was exposed to asbestos as a child in the late 1950’s and early 1960’s at her uncle’s home, and possibly exposed while working at the Plaza Tower building for three and one-half years, from 1998 to 2002. There is a genuine issue of material fact as to the issue of whether asbestos exposure was a cause of plaintiffs meso-thelioma.

(3) There is evidence that plaintiff and Terri Lynn Smith, another DA’s Office employee, would find white dust covering their offices at the Plaza Tower. Plaintiff also noticed white stuff in the stairwell. The La. DEQ found asbestos contaminated building products on the 11th and 15th floors of Plaza Tower in June 1996, some two years before the DA’s Office moved in. The DA’s Office was on the 32nd and 33rd floors of the building. Industrial Hygienist Danny Joyce said his inspection found asbestos contamination in mechanical areas, from disintegrating steam pipe coverings, and an “increased” “likelihood” that asbestos would be |14picked up and dispersed throughout the building by the heating and air conditioning system.

There is no direct evidence to show that plaintiff was exposed to asbestos on the 32nd or 33rd floors of Plaza Tower, or in any other place in the building. Thus, there is a genuine issue of material fact as to whether she was exposed to asbestos in the building.

(4) Dr. Manuel Lopez stated in his deposition that tests indicated that plaintiff had been exposed to mold, but that there was no test that would indicate that the exposure occurred in the Plaza Tower. He also said that “most” of the exposure that she had was what one would see in “normal” individuals exposed to the “normal” environment. He agreed that some antibodies were elevated compared to the others, but that “they’re not abnormal.” Danny Joyce stated that the Plaza Tower building had water problems that facilitated mold growth, and that the removal of dry materials without adequate containment measures increased the amount of spores dispersed in the air. He said mold would grow on wet organic materials such as sheetrock and ceiling tile, that this was evidenced by his observations and the “limited” air monitoring results he had viewed. David Straus, Ph.D., identified as plaintiffs expert microbiologist, stated in deposition excerpts that antibodies in an exposed person document that in fact exposure to mold has occurred, but does not tell you anything beyond that, such as where the person was exposed. He further stated that the symptoms “plaintiffs” complained of in the Plaza Tower are consistent with what he would expect to see upon exposure to toxic mold, but could not say with absolute certainty that exposure occurred.

DA employee Terri Lynn Smith spoke of a “dirty clothes,” sweaty, wet smell in her office upon opening her door every morning, black spots on her |1Ficeiling tiles, and water on some of them. Plaintiff said that her office in the Plaza Tower had moldy ceiling tiles and a moldy floor.

Because there was no definitive finding of mold on the 32nd or 33rd floor, or in any part of the building through which plaintiff traversed or visited, there is a genuine issue of material fact as to whether she was exposed to mold at Plaza Tower.

(5) Dr. Sandler said there was no scientific evidence demonstrating that inhalation exposure to mold or mold byproducts are causally related to the initiation, promotion or progression of meso-thelioma. When Dr. Gray was asked whether mold and mycotoxins had ever been identified as promoters of mesothelio-ma, he replied that they had been identified as agents capable of compromising the immune system, the first line against malignancy.

There is a genuine issue of material fact as to whether any exposure to mold, mold spores and the by-products of mold spores at the Plaza Tower was a “promoter and a substantial contributing factor” to plaintiffs injuries.

(6) Pulmonologist Dr. Janine Parker, who treated plaintiff in July 1997 for a follow-up to pneumonia, believed that to a reasonable degree of medical certainty, plaintiff did not have mesothelioma in 1997. Dr. Paul Schwarzenberger found it unlikely that plaintiff had a pleural effusion in 1997, or that if she did, that it would be related in any way to her present malignant mesothelioma. Defendant BG cites the possibility of plaintiffs exposure to asbestos during her childhood while frequently spending weekends at the home of her uncle, a worker in a Johns-Manville plant manufacturing asbestos products, and the normal lengthy latency period for mesothelioma. The inference here is that plaintiffs 1997 lung problem, i.e., pneumonia, might have been undiagnosed meso-thelioma. Dr. Gray was asked 11fiduring a deposition if a spontaneous pneumothorax, which he said plaintiff had in 1997, could be a clinical manifestation of a slow-growing mesothelioma, and he replied that he believed “spontaneous pneumothorax can occur in the context of mesothelioma.” However, Dr. Gray also noted that plaintiffs history was that her uncle had five children now ranging in age from 40 to 61 years, none of whom suffered from any signs of pulmonary or pleural asbestosis.

There is a genuine issue of material fact as to whether plaintiff had mesothelioma in 1997.

(7) Finally, there is a genuine issue of material fact as to whether plaintiff had any other direct occupational exposure to asbestos except the Plaza Towers. Plaintiff worked at a number of places and buildings, and could not say, one way or the other, whether there was asbestos in any of those buildings.

For the foregoing reasons, we grant the writ in part, and amend the judgment to grant plaintiffs motion for summary judgment on the issue that she has malignant mesothelioma. The judgment is affirmed in all other respects.

WRIT GRANTED IN PART, JUDGMENT AMENDED AND AFFIRMED AS AMENDED


author: Judge LEON A. CANNIZZARO, JR.

text:
    Sherry WATTERS, Frances M. Breyne, Gina Recasner, Gretchen Wiltz, and Wendy Lemieux individually and on behalf of others similarly situated v. DEPARTMENT OF SOCIAL SERVICES, Department of Health and Hospitals, Division of Administration, BG Real Estate Services, Inc., Baha Towers Limited Partnership, Bahar Development, Inc., Noob I GP, LLC, Noob I, LP and ABC Insurance Company.
    No. 2002-CA-1425.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 4, 2003.

      Mickey P. Landry, Frank J. Swarr, Landry & Swarr, L.L.C., Craig Mitchell, Mitchell Ahern, New Orleans, LA, Robert G. Creely, Nicole, Loup, Hackett, Madro, Bandaries, Amato & Creely, APLC, Gret-na, LA, for Plaintiff/Appellee.
    Lawrence J. Duplass, Joseph B. Morton, III, Christian B. Bogart, Kevin R. Der-ham, James A. Stapp, Duplass, Zwain, Bourgeois & Morton, Metairie, LA, for DefendanVAppellant.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, and Judge LEON A. CANNIZZARO, JR.).
   Judge LEON A. CANNIZZARO, JR.

The defendant, BG Real Estate Services, Inc. (“BG”), appeals from a trial court judgment granting the plaintiffs’ rule for contempt and sanctions. We affirm.

FACTUAL AND PROCEDURAL HISTORY

The plaintiffs in this litigation are employees of several agencies of the State of Louisiana whose offices are located in the Plaza Tower Building at 1001 Howard Avenue, New Orleans, Louisiana. On October 25, 2001, the plaintiffs filed a class action suit against BG, the leasing and management agency of the Plaza Tower Building, and other defendants, alleging that they sustained personal injuries from exposure to mold and other toxic substances inside the building. On October 30, 2001, the plaintiffs filed a Motion and Order to Permit Entry Onto Premises For Minor Destructive Testing and Request for Injunctive Relief. Pursuant thereto, the trial court issued a temporary restraining order prohibiting any environmental cleaning of the building pending the plaintiffs’ being allowed to [^conduct environmental tests of the premises. Also, on that day, the parties entered into a consent judgment, which the trial court signed and rendered on November 5, 2001. The consent judgment provided:

IT IS ORDERED, ADJUDGED AND DECREED that BG Real Estate Services, Inc. shall not do or authorize any clean up of toxic substances located at 1001 Howard Avenue, New Orleans, Louisiana, until putative class representatives and defendant, BG Real Estate Services, Inc., can conduct joint environmental testing of the areas occupied by the Department of Social Services, Department of Health and Hospitals and Division of Administration;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the areas to be tested include areas occupied by putative class members who work for the Department of Social Services, Department of Health and Hospitals and Division of Administration;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the areas to be tested include the office space occupied by the above putative class members as well as the HVAC system that services the premises that the putative class members occupy;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the environmental testing shall be completed no later than November 9, 2002(sic); and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that until the environmental testing can be completed that the putative class members or any of their representatives or agents shall not move any of the ceiling tiles located in the area in which they occupy.

(Footnote added).

On November 8, 2001, the plaintiffs’ counsel argued to the trial court that Donna Davis, BG’s Senior Operations Manager, had delayed the testing and restricted his clients’ right to inspect, sample, and test the premises. At that time, the trial court ordered the testing to commence immediately. EnviroCare, Inc., the | oplaintiffs’ environmental consulting firm, completed the testing on November 15, 2001, well past the November 9, 2001 deadline. As a result, the plaintiffs filed a Rule for Contempt and Sanctions, alleging that Davis intentionally interfered with and delayed the testing by restricting En-viroCare’s entry onto the premises and by seeking the Louisiana Department of Environmental Quality’s (“DEQ”) approval before allowing the court ordered testing to proceed. The plaintiffs further alleged that BG directly violated the consent judgment by removing ceding tiles and cleaning the HVAC system while the environmental testing was in progress.

Following a two-day hearing on the plaintiffs’ rule for contempt, the trial court rendered judgment holding BG in contempt and imposed sanctions of $7,000.00. In her reasons for judgment, the trial court stated:

This Court finds that BG Real Estate Services, Inc., through Donna Davis, intentionally interfered with and delayed the time of entry onto the premises, and the completion of the environmental testing. This Court finds more credible the plaintiffs’ testimony that tiles were removed and the HVAC system subsequently cleaned. Additionally, this Court finds that BG Real Estate Services, Inc.[,] intentionally interfered with the environmental testing by creating an element of delay through a last-minute facsimile requiring the building manager, Michelle Thibodeaux, to impose a list of prerequisites, including DEQ notification, before allowing inspection of the premises.

APPLICABLE LAW

Constructive contempt of court is any contempt other than a direct one, including the “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” La. C.C.P. art. 224. A trial court is vested with great Indiscretion to determine whether circumstances warrant holding a party in constructive contempt of court pursuant to La. C.C.P. art. 224 for wilful disobedience to a court order. Alagdon v. Guertin, 97-0235, p. 5 (La.App. 4 Cir. 10/1/97), 701 So.2d 480, 483. Moreover, a trial court must find that the party’s violation was wilful in order to hold that party in contempt, meaning that the party must have “ ‘intentionally, knowingly and purposely acted or failed to act.’ ” Id., citing Riley v. Pennix, 442 So.2d 563, 565 (La.App. 1st Cir.1983). A court may not hold a party in contempt unless it finds that the party’s reasons for violating the order were without justifiable excuse. Id.

In determining the appropriate penalty for disobedience of or disregard for court orders relating to pretrial procedures, a court is to consider whether the attorney and/or the client committed the misconduct, the stage of the proceeding at which the violation occurred, the presence or absence of prejudice to the opposing party’s preparation of the ease, and the nature and persistency of the misconduct that constitutes the violation. Benware v. Means, 99-1410 (La.1/19/2000), 752 So.2d 841, 847. Each case must be decided upon its own facts and circumstances, and the trial judge is vested with much discretion in determining the penalty for a violation of pre-trial or discovery orders. Id. A trial court’s decision to impose sanctions for failure to comply with a pre-trial or discovery order, as well as its choice of sanctions, will not be reversed absent a clear showing of an abuse of discretion. See Johnson v. Nguyen, 2000-1148 (La.App. 4 Cir. 7/11/01), 793 So.2d 370; Reeder v. New York Life Insurance Company, 01-148 (La.App. 5 Cir. 1.6/27/01, 790 So.2d 712). Not only is the trial court’s choice of sanction subject to the abuse of discretion standard of review, but as with any other case, the trial court’s factual findings cannot be reversed by a reviewing court where there is a reasonable factual basis in the record for such a finding and where such a finding is not clearly wrong. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, 205 (J. Kimball dissents, citing Stobart v. State through Dept. of Transportation and Development, 617 So.2d 880 (La.1993)).

DISCUSSION

On appeal, BG raises four assignments of error. First, it argues that the trial court erred in finding that BG delayed the on site environmental testing of the property in wilful disobedience of the consent judgment. BG contends that the building’s lease obligations and asbestos maintenance plan required that the DEQ be notified before any environmental testing which involved the disturbance of ceiling tiles and/or the inspection of areas above the ceilings could begin. Based on advice from BG’s attorney, Davis, BG’s Senior Operations Manager, insisted that the DEQ be notified before permitting the testing to proceed. BG also attributes the delay to EnviroCare’s failure to provide either Davis or Michelle Thibodeaux, the building manager, its “protocol” or inspection plan prior to the morning the inspection was to commence. Its failure to submit a plan prevented BG from making prior arrangements with the building’s tenants to allow EnviroCare’s inspectors access to the restricted areas. Similarly, BG claims EnviroCare’s lack of organization once on the premises contributed to the delay. |fiFor example, rather than splitting into several groups to simultaneously test several areas, EnviroCare’s inspectors remained together throughout the testing process.

Although BG claims that the delay was caused by EnviroCare’s disorganization and failure to provide it with a protocol prior to the time testing was to commence, the evidence in the record indicates otherwise. It is undisputed that the testing and inspection of the premises was to begin at 10:00 a.m. on November 8, 2001. However, at 9:10 a.m., David Lakin, vice-president of BG, faxed a checklist to Thibo-deaux containing twenty items that BG wanted satisfied before testing would proceed. Some of the items included city and state permits, the DEQ notification, proof of licensing from the environmental testing firms, proof of certifications from the individual inspectors, notarized authorizations from the buildings’ occupants whose work areas were to be tested, and hold harmless agreements.

Steven Brien, EnviroCare’s president and a forensic environmental investigator, testified that he and the other inspectors arrived at the Plaza Tower Building at 9:00 a.m. on November 8, 2001. Several days prior to commencement of the inspection, Brien had requested that Davis provide him with the plumbing, electrical, and HVAC system diagrams as well as blueprints for each floor of the building. He also requested that a BG maintenance representative, who was familiar with the building, accompany EnviroCare’s inspectors during the testing. According to Brien, Davis’ failure to satisfy his request and the unavailability of a BG maintenance representative greatly delayed the testing. Instead of taking an estimated two and one-half days to complete, the testing took five days. Brien also disputed Davis’ claim that EnviroCare had not given BG its testing protocol, testifying that he sent an inspection plan to BG on October 81, 2001.

17Gloria Bolds, an attorney with the Department of Justice, testified that she arrived at the Plaza Tower Building shortly before 9:00 a.m. on November 8, 2001, to witness on behalf of the State the court ordered environmental testing of the premises. According to Bolds, Davis suggested that she, as a representative of the State, contact the DEQ to notify it of the testing. Davis also told those persons present that they had to sign hold harmless agreements before the testing could commence. Bolds informed Davis that because the State was neither a party to the consent agreement nor conducting the testing, the State’s representatives were not responsible for notifying DEQ and did not have to sign hold harmless agreements. Bolds testified that Davis delayed the testing and characterized her as “hostile” to those present. When asked whether the plaintiffs were responsible for the delay, Bolds responded, “no.”

Bertha Meisner, an adjustor for the Louisiana Office of Risk Management, testified that she, too, was present for the environmental testing. She corroborated Bolds’ testimony that Davis had informed all parties that the DEQ had to be notified before the testing could proceed and that any person participating in the testing had to sign a hold harmless agreement. Meis-ner testified that Davis had insisted that no specimen samples could be collected from the site without her authorization. Davis also restricted the inspectors’ access to certain areas of the building. In particular, she would not allow EnviroCare’s investigators to inspect the HVAC system within the agreed upon time frame because, allegedly, BG’s maintenance personnel were unavailable to turn off the air conditioner, even though the maintenance personnel were in the building’s lobby just moments before. Like Brien and Bolds, Meisner attributed the delay to Davis’ actions.

|sAs to BG’s claim that the DEQ approval was necessary before ceiling tiles could be removed for environmental testing purposes, thus, contributing to the delay, the testimony of Aaron Johnson, BG’s maintenance engineer, indicates otherwise. Johnson testified that he routinely removed ceiling tiles without the DEQ’s authorization.

In view of the evidence in the record, the trial court’s finding that BG, through Davis, intentionally interfered with and delayed the time of entry on to the premises and the completion of testing is not clearly wrong.

BG, in its second and third assignments of error, argues that the trial court erred in determining that the removal of the ceiling tiles and the cleaning of the HVAC system constituted wilful disobedience of the consent judgment. BG does not dispute that the ceiling tiles were removed. Rather, it contends that the consent judgment only prohibited the plaintiffs and/or their agents from removing the tiles. BG claims that the plumbing contractors had removed the ceiling tiles during routine maintenance and placed them in nearby bins. Similarly, BG asserts that the consent judgment did not prohibit it from doing routine maintenance on the HVAC system.

The temporary restraining order issued on October 30, 2001 enjoined the environmental clean up of the state agencies’ offices located in the Plaza Tower. The consent judgment rendered on November 5, 2001 prohibited BG from authorizing or conducting any clean up of toxic substances on the premises until the parties completed the court ordered environmental testing. Despite the restraining order and consent judgment, Annie Brown, an employee of the Department of Health and Hospitals, whose offices were located on the ninth and tenth floors of the building, testified that BG maintenance personnel had removed |9wet ceiling tiles on the tenth floor from November 6th or 7th through November 15th because the men’s restroom on the eleventh floor had flooded. Sherry Watters, a plaintiff in the suit and an employee of the Department of Social Services, testified that BG personnel had removed wet ceiling tiles from the sixteenth floor of the building on November 9th and 13th while the environmental testing was in progress. Both Brown and Watters described the wet ceding tiles as containing some type of residue. Brien, too, noted that BG maintenance personnel had removed and replaced several dirty, moldy ceiling tiles during the testing period.

Regarding the HVAC system, Brien testified that during the testing and inspection of the building he noted that several components of the “air handling system” appeared to have been cleaned and freshly painted. Specifically, he recalled seeing a “mold-type substance” that had been painted over. Brien explained that several HVAC system components were wrapped in fresh tape and when peeled away disclosed a “black powdery substance.” He also noted that air conditioning drip pans in several areas of the building had been replaced while testing was underway.

Watters testified that although Davis had informed the plaintiffs that BG would not allow any environmental testing to be done on Saturday, November 10th, because it did not want to pay its maintenance personnel overtime, she (Watters) drove by that morning and saw a crane and two flatbed trucks with air conditioning equipment in front of the building. The street had been blocked off and BG maintenance personnel were working on the premises outside the building.

Even though the consent judgment expressly prohibited the plaintiffs and/or their agents from removing the ceiling tiles, it unequivocally prohibited BG from authorizing or conducting any toxic substance cleaning until the court ordered | ^environmental testing was complete. The unrefuted testimony that BG maintenance personnel removed moldy ceiling tiles from restricted areas during the testing period supports that trial court’s finding that BG wilfully violated the consent judgment. Similarly, Brien’s testimony that several HVAC system components were wrapped in fresh tape, which concealed a black powdery substance, and that air conditioning drip pans had been replaced was unrefuted. Based on this testimony the trial court concluded that BG maintenance personnel had cleaned the HVAC system. The trial court found the plaintiffs’ witnesses to be credible. Thus, considering their testimony, the trial court’s finding that BG had removed ceiling tiles and cleaned the HVAC system in violation of the consent judgment was not clearly wrong.

Finally, in its fourth assignment of error, BG argues that the trial court abused her discretion by ordering it to pay the plaintiffs’ $7000.00 in sanctions for its wilful disobedience of the consent judgment. The trial court determined that BG’s failure to comply with the terms of October 30, 2001 consent judgment prejudiced the plaintiffs. Because the evidence in the record clearly supports that finding, the trial court did not abuse her discretion in imposing sanctions against BG in the amount of $7,000.00.

CONCLUSION

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

AFFIRMED

      . The Louisiana Department of Health and Hospitals, Department of Social Services, and the Office of the Governor Division of Administration

      . heating, ventilation, and air conditioning