author: THOMAS F. DALEY, Judge.

text:
    Patricia FASSITT v. JEFFERSON PARISH HOSPITAL SERVICE.
    No. 07-CA-695.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2007.

      David J. Benedict, Metairie, Louisiana, for Plaintiff/Appellee.
    Jacqueline G. Griffith, Charles 0. Taylor, Carl L. Aspelund, Chehardy, Sherman, Ellis, Murray, Recile, Griffith, Stakelum & Hayes, LLP, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| ¡..The employer has appealed the grant of summary judgment in favor of the employee in this workers’ compensation suit. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY:

Claimant, Patricia Fassitt, was employed by East Jefferson General Hospital, (hereinafter referred to as the employer), as a unit secretary when she sustained injuries to her left elbow, right hip, and right ankle in an on the job accident that occurred on March 16, 2004. She was paid workers’ compensation benefits in the form of total temporary disability payments (TTD). Following Hurricane Katrina, claimant relocated to Port Arthur, Texas.

On June 23, 2006, the employer filed a disputed claim for compensation seeking to decrease claimant’s benefits due to plaintiffs failure to participate in vocational rehabilitation. On October 9, 2006, claimant was examined by Dr. Thomas Ford at the request of the employer. Dr. Ford rendered a report stating |¡¡that claimant would be able to return to her prior job as a unit secretary. On the basis of this report, the employer discontinued TTD payments to claimant on November 15, 2006. On January 8, 2007, the employer filed a Motion to Dismiss the disputed claim for compensation. This motion was granted on January 16, 2007. In the meantime, on January 12, 2007, claimant filed a reconventional demand stating benefits had been terminated on November 15, 2006. The employer filed a response stating that claimant was offered a job as unit secretary at East Jefferson.

On March 8, 2007, claimant filed a Motion for Summary Judgment seeking “reinstatement of wage replacement benefits” along with penalties and attorney’s fees for the employer’s arbitrary and capricious termination of such benefits. In this motion, claimant states that she objected to the job of unit secretary at East Jefferson, which is located over 250 miles from her current residence. The employer filed an opposition to this motion stating that claimant had not established that she is entitled to a reinstatement of benefits, penalties, or attorney’s fees.

On April 16, 2007, the employer filed a Motion for Summary Judgment stating that claimant is not eligible for any workers’ compensation benefits. On May 1, 2007, claimant filed an opposition to the employer’s motion attaching her original motion for summary judgment.

On May 4, 2007, a hearing on the competing motions for summary judgment was held. At the conclusion of the hearing, summary judgment was granted in favor of claimant. On May 16, 2007, judgment was rendered reinstating TTD payments to claimant from the date of termination. This timely appeal followed.

\ ¿LAWAND DISCUSSION:

An appellate court reviews a trial court’s decision to grant a Motion for Summary Judgment in workers’ compensation cases de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. LeJeune v. Brewster, 97-2342, (La.App. 1 Cir. 11/6/98), 722 So.2d 74. As in all cases of summary judgment, the initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the non-moving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. C.C.P. art. 966(C)(2).

LSA-R.S. 23:1221(l)(a) states claimant shall be paid temporary total disability:

For any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, or experience, sixty-six and two-thirds percent of wages during the period of such disability.

LSA-R.S. 23:1221(l)(c) provides:

For purposes of Subparagraph (l)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (l)(b) of this Paragraph, compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or |semployment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

Thus, in order to receive benefits for temporary total disability, a claimant in a workers’ compensation case must prove by clear and convincing evidence that, he is physically unable to engage in any employment or self-employment due to his injury. Veazie v. Gilchrist Const. Co., 04-118 (La.App. 3 Cir. 6/2/04), 878 So.2d 742, writ denied, 04-1692 (La.10/8/04), 883 So.2d 1018. A claimant must introduce objective medical evidence to establish by clear and convincing evidence that he is unable to engage in any type of employment. Broussard v. Lafayette Parish School Bd., 2005-575 (La.App. 3 Cir. 4/5/06), 926 So.2d 713, writ denied, 2006-1044 (La.6/23/06), 930 So.2d 983.

Several documents were attached to support plaintiffs Motion for Summary Judgment, including correspondence between claimant’s attorney and the employer’s attorney, wherein claimant was notified that she could apply for a unit secretary position at East Jefferson and instructing her on how to do so and a letter from claimant’s attorney reminding the employer that claimant now resides in Texas and “it is not appropriate for your client to expect that Ms. Fassitt will be able to work for them.” The medical report from Dr. Ford stating that claimant “would be able to return to her job as a unit secretary” was attached to the motion. An affidavit from claimant attesting that she has resided in Port Arthur, Texas since September 2005 and that she is currently receiving treatment from Dr. Margaret Lang Williams in Port Arthur was also attached to the motion.

In support of her Motion for Summary Judgment, claimant argues that on the identification of jobs within vocational rehabilitation, La. R.S. 23:1226(B)(2) provides that “employment in a worker’s local job pool must be considered and selected prior to consideration of employment in a worker’s statewide job pool.” | fiShe notes that with regards to supplemental earnings benefits, employment is looked at that is “proven available to the employee in the employee’s or employer’s community or reasonable geographic region.” Claimant then points to Fontenot v. Reddell Vidrine Water Dist., 2002-0439 (La.1/14/03), 836 So.2d 14, wherein the court found that for the purposes of vocational rehabilitation, it is the duty of the vocational rehabilitation consultant to examine the job pool in the worker’s geographic area. Claimant concludes that “vocational rehabilitation, if and when appropriate, should be performed in the Port Arthur, Texas area.”

Claimant goes on to argue that since the job offered is unavailable because she resides out of state, supplemental earnings benefits should be awarded. This argument is based on Allen v. City of Shreveport, 92-0874 (La.5/24/93), 618 So.2d 386, which held that it is irrelevant for the purposes of entitlement of supplemental earnings benefits whether an employee can return to a former position if that is unavailable.

We find claimant’s argument is misplaced. She was awarded payments for temporary total disability. In order to continue receiving these benefits, plaintiff had to prove by clear and convincing evidence that she was unable to engage in any employment or self-employment due to her injury. She failed to do so. In fact, she presented evidence showing that she was able to perform her pre-injury job , Accordingly, we find the trial court erred in granting summary judgment and awarding TTD. Since there has been no showing that claimant is not able to earn 90% of her pre-injury wages, we find she is not entitled to supplemental earnings benefits at this time. While we agree with plaintiff that any vocational rehabilitation should be conducted in Port Arthur, Texas, from the record before 17us, it does not appear that plaintiff is seeking vocational rehabilitation at this time, since she has not presented any evidence that she is unable to return to her former position of unit secretary.

For the foregoing reasons, the judgment of the trial court is reversed. This matter is remanded to the trial court for a determination on the merits of what, if any, benefits are due claimant.

REVERSED; MATTER REMANDED.

      . While claimant attests that she is under the care of a physician in Port Arthur, Texas, she chose not to attach any documentation from this physician to her motion.


source: Caselaw Access Project

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

license: Public Domain

text:
    Eugenie Duvic RICHARDSON v. Joseph Rosson RICHARDSON.
    No. 2007-CA-0430.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 28, 2007.

      Ellen Cronin Badeaux, Christine E. Ber-geron, Ellen Cronin Badeau, LLC, Mande-ville, LA, for Plaintiff/Appellee.
    Lanny R. Zatzkis, Karen D. McCarthy, Yvette A. D’Aunoy, Zatzkis McCarthy & Associates, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court Composed of Judge PATRICIA RTVET MURRAY, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.)
   MAX N. TOBIAS, JR., Judge.

|,Joseph Rosson Richardson (“Richardson”) timely appeals rulings of the trial court (1) admitting into evidence certain drug test results; (2) awarding sole custody of his minor daughter, Sophie Sorrell Richardson (“Sophie”), to Eugenie Duvic Suggs (“Suggs”); (3) limiting his visitation with Sophie to supervised visitation; (4) ordering him to enter a Drug Treatment Program within 60 days; and (5) setting child support arrearages in the amount of $23,202.50. For the following reasons we affirm in part, amend in part, reverse in part, and render as amended.

I. Factual Background and Procedural History

Suggs and Richardson were married on 4 April 1998, and divorced on 8 May 2001. Since the filing of the original petition for divorce on 22 August 2000, numerous judgments and interim orders had been issued by the court.

By consent judgment entered on 6 December 2000, the parties agreed to joint custody of their only child, Sophie, with Suggs being designated as the primary domiciliary parent and Richardson being granted specified rights of 12unsupervised visitation. An interim judgment of support was issued on 20 February 2001 ordering Richardson to pay Suggs $625.00 per month in child support.

On 11 January 2002, a consent judgment was signed wherein Richardson’s visitation schedule was modified. The previously ordered interim child support was maintained, and Richardson was further ordered to continue payment of health insurance coverage for Sophie with the right to deduct the monthly insurance premium from his $625.00 monthly child support obligation. Both parties were ordered to refrain from having unrelated persons of the opposite sex spend the night when Sophie was in his or her respective care. The consent judgment further provided that either party could request the other to undergo random drug testing once per month.

On 17 April 2002, as part of the consent judgment partitioning the community, Richardson was ordered to immediately pay $5,500.00 to Suggs (the amount of interim spousal support and child support arrearages due), and to pay $5,000.00 of community debts. Richardson was also ordered to pay an additional $2,525.00 in interim spousal support and child support arrearages within one year from the date of the signing of the judgment.

In March 2005, Suggs filed a motion to increase the child support being paid, alleging a change in circumstances; she further filed a motion for contempt | .^and for a wage assignment due to Richardson’s alleged failure to timely pay child support payments and his failure to comply with the court’s order to pay the outstanding $5,000.00 community debt. On 23 May 2005, Richardson was found to be in contempt of court and ordered to pay the remainder of the outstanding community debt within 30 days; it was agreed that child support payments would be made to Suggs via an income wage assignment directly from Richardson’s employer. An income assignment order was signed by the court on 8 June 2005. The court further ordered the parties to appear on 18 July 2005 to address any matters still pending.

On 18 July 2005, a trial was commenced, but not completed, on several pending rules, including Suggs’ motion to increase the child support and a motion for contempt filed by Suggs alleging that Richardson failed to comply with the 11 January 2002 judgment requiring random drug testing within 24 hours of a request for a test. Based on the testimony presented, including testimony from a certified public accountant, the trial court issued an interim order of child support, without prejudice to either party, increasing Richardson’s monthly support obligation to $1,707.00 retroactive to 2 March 2005. The trial judge further ordered the parties to return to court on 17 August 2005 for the taking of further testimony on the child support issue; the matter was left open. On 15 August 2005, Richardson jyfiled a motion for contempt alleging Suggs violated the court’s 12 November 2001 order by allowing an unrelated person of the opposite sex to reside in her home, and a rule to amend visitation. On 17 August 2005, the parties appeared at which time the trial court reissued an interim child support award of $1,707.00 per month and allowed Richardson’s then counsel to withdraw. All open and pending matters, including the rule to increase the child support, were continued to 26 September 2005.

On 29 August 2005, Hurricane Katrina struck the New Orleans area, ravaging the city and leaving behind in its wake a mass of destruction. Consequently, the September 2005 hearing did not go forward as scheduled. Circumstances arising out of the hurricane further complicated the instant litigation. Richardson’s employer relocated him to Dallas, Texas, and he has remained in Texas since that time.

In February 2006, Richardson was terminated from his job for lack of production, and remained unemployed until August 2006. As a result of his unemployment and the corresponding change in his financial circumstances, in July 2006, Richardson filed a rule to reduce/suspend child support payments. Additionally, following the hurricane, Suggs remarried, moved from New Orleans to Mandeville, Louisiana, and changed jobs. In September 2006, as a result of the relocation by both parties, and claiming the existing visitation schedule was no longer feasible, Richardson filed a rule to amend the visitation.

lfiOn 15 September 2006, Suggs filed an in camera motion for a change in custody and for supervised visitation on the grounds that (1) Richardson tested positive for cocaine metabolites on two occasions, evidencing an ongoing drug addiction affecting his ability to care for Sophie while she was in his custody, and (2) Richardson relocated to Texas. After several continuances and brief court appearances, the trial on all pending matters was reset for December 2006.

Trial was held on 4 and 5 December 2006. As a result thereof, the court issued two judgments dated 12 December 2006 and 4 January 2007. Reasons for judgment accompanied the January 2007 judgment. In the 12 December 2006 judgment, the trial court ordered: (1) sole custody of Sophie be granted to Suggs; (2)a change in visitation, whereby Richardson would only be allowed supervised visitation in the presence of a court-appointed supervisor; (3) that Richardson undergo monthly random drug testing; (4) that Richardson enter a drug treatment program within 60 days; and (5) that Sophie not be left alone with any person known by Suggs to have a current drug or alcohol addiction. In the 4 January 2007 judgment, the trial court ruled: (1) that Richardson was in child support arrears in the amount of $23,202.50, which amount was made executory; (2) that Richardson’s interim child support obligation of $1,707.00 per month be reduced to $930.00 per month, retroactive to the date of his filing of the motion to | fisuspend/reduce child support on 6 July 2006; (3) that Richardson pay an additional $150.00 per month until all child support arrears were paid; (4) that Suggs maintain health insurance coverage for Sophie, with Richardson being responsible for 54% of the premium and Suggs responsible for 46%; (5) that Richardson be responsible for 54% of any extraordinary medical expenses and Suggs responsible for the remaining 46%; (6) that Richardson was in contempt for failing to pay child support as ordered by the court, and that he pay $2,000.00 in court costs and attorney’s fees; and (7) that Suggs was in contempt of court for eohabi-tating with her current husband prior to her marriage in violation of the court’s judgment.

It is from these two judgments that Richardson timely appealed wherein he posits the trial court erred in the following ways, to wit:

(1) admitting the drug testing results without proper change of custody evidence and without the proper expert testimony to interpret the results;
(2) allowing Farley Richard to testify as an expert relative to drug testing results;
(3) ordering Richardson to enter a Drug Treatment Program within 60 days;
(4) awarding sole custody of the minor Sophie to Suggs;
(5) limiting Richardson’ visitation to supervised visitation; and
(6) calculating incorrectly the amount of child support arrearages owed by Richardson.

|7II. Law and Analysis

In child custody matters, the determinations of the trial judge are entitled to great weight, and the trial court’s discretion will not be disturbed on appellate review in the absence of a clear showing of abuse. AEB v. JBE, 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 761.

A. Admissibility of the Drug Testing Reports

Due to an apparent concern from the inception of this litigation that Richardson and Suggs might be partaking of illicit drugs, the court ordered that both parties be subject to random drug testing. Introduced into evidence at trial were the reports of three separate drug tests for Richardson taken over a 17-month period. Each of the three reports indicated that Richardson tested positive for illicit drug use.

La. R.S. 9:331.1 enables a court in a child custody or visitation proceeding to order a party to submit to drug testing, and states that “[t]he provisions of R.S. 9:397.2 and 397.3 shall govern the admissibility of the drug test results.” See La. R.S. 9:331.1. Richardson avers the trial court erred in admitting his drug test reports into evidence based on the lack of compliance with the requirements set forth in La. R.S. 9:397.2 and 397.3 A, B, and C.

|sLa. R.S. 9:397.3 provides safeguards, which, if followed, authorizes the introduction of blood test results without the necessity of the personal appearance and live testimony of an expert. See State v. Stringer, 567 So.2d 758 (La.App. 2 Cir.1990); State v. Simien, 95-1407 (La.App. 3 Cir. 7/24/96), 677 So.2d 1138. Specifically, La. R.S. 9:397.3 A, B, and C provide:

A. (1) A written report of the results of the initial testing, certified by a sworn affidavit by the expert who supervised the tests, shall be filed in the suit of record. The affidavit shall state in substance:
(a)That the affiant is qualified as an examiner of blood or tissue samples for inherited characteristics, including but not limited to blood and tissue types, to administer the test and shall give the affiant’s name, address, telephone number, qualifications, education, and experience.
(b) How the tested individuals were identified when the samples were obtained.
(c) Who obtained the samples and how, when, and where the samples were obtained.
(d) The chain of custody of the samples from the time obtained until the tests were completed.
(e)The results of the test and the probability of paternity as calculated by an expert based on the test results.
(f) The procedures performed to obtain the test results.
(2) A notice that the report has been filed shall be mailed by certified mail to all parties by the clerk of court or shall be served in accordance with Code of Civil Procedure Article 1314.
(3) A party may challenge the testing procedure within thirty days of the date of receipt or service of the notice.
|flB. (1) If the court finds there has been a procedural error in the administration of the tests, the court shall order an additional test made by the same laboratory or expert.
(2) (a) If there is no timely challenge to the testing procedure or if the court finds there has been no procedural error in the testing procedure, the certified report shall be admitted in evidence at trial as pri-ma facie proof of its contents, provided that the party against whom the report is sought to be used may summon and examine those making the original of the report as witnesses under cross-examination. The summons for the individual making the original of the report may be served through his employer’s agent for service of process listed with the secretary of state or served pursuant to R.S. 13:3201 et seq.
(b) A certified report of blood or tissue sampling which indicates by a ninety-nine and nine-tenths percentage point threshold probability that the alleged father is the father of the child creates a reputable presumption of paternity.
C. Any additional testing ordered by the court pursuant to this Part shall be proved by the testimony of the expert.

Initially, we note that a trial judge has vast discretion concerning the admissibility of evidence. The trial judges decision to admit or exclude evidence will not be reversed on appeal absent a clear showing that he or she has abused that discretion. Boykins v. Boykins, 04-0999, p. 4 (La.App. 4 Cir. 4/24/07), 958 So.2d 70, 74; Boutte v. Kelly, 02-2451, p. 10 (La.App. 4 Cir. 9/17/03), 863 So.2d 530, 541. In the case at bar, our review of the record indicates that the drug test reports do not meet the requirements set forth in La. R.S. 9:397.3 A for their admissibility into evidence. Specifically, the drug test reports were not accompanied by the sworn affidavits of the experts supervising the drug testing of Richardson’s hair or urine samples. The record also contains no evidence that the notice of their filing was sent to all parties. While the jurisprudence is clear that trial testimony of the expert certifying the test results is not necessary for admission of the test report h pinto evidence, the affidavit of the expert supervising the testing is required. See Rigaud v. Deruise, 613 So.2d 761 (La.App. 4 Cir.1993). Without the required certification by affidavit made at or near the time of testing, a testing report is not admissible. See Dept. of Social Services v. Dorsey, 95-0446, p. 4 (La.App. 1 Cir. 11/9/95), 665 So.2d 95, 97.

To overcome the affidavit requirement, counsel for Suggs sought to certify the drug test reports through the testimony of Farley Richard, who dictated them into the record. However, Mr. Richard was admittedly not the person who supervised the drug testing of Richardson’s specimens; neither was he in any way affiliated with the drug laboratories that actually performed the testing. Additionally, Mr. Richard could not verify the required “chain of custody” of the hair and urine samples tested as required by La. R.S. 9:397.3 A. Thus, had Mr. Richard given an affidavit to support the admissibility of Richardson’s drug test reports in lieu of his live testimony attempting to certify them, his affidavit would not have complied with the statute, as he was not the “expert who supervised the tests.” See La. R.S. 9:397.3.

Several cases interpret La. R.S. 9:397.3, albeit each involving blood sample testing in paternity suits, wherein courts have allowed the admission of test reports that are accompanied by the sworn affidavit of an expert affiliated with the laboratory performing the testing, even if the affiant expert did not himself actually perform the tests. In Carter v. Williams, 98-1526 (La.App. 4 Cir. 12/29/99), 750 So.2d 1153, this court found that the certification of two separate blood test reports complied with the statutory requirements for admissibility as the affidavits were made by the associate directors of the laboratories performing the actual tests.

InMoreover, in State v. Simien, supra, certification of one set of drug reports was found to comply with La. R.S. 9:397.3 when the reports were accompanied by the affidavit of the associate director who monitored the testing of the testing laboratory, even though he was not the person who performed the actual testing. In addition to the affidavit, the certifying expert also provided live testimony at trial regarding the testing protocol employed by the laboratory over which he was the director. Conversely, a second set of test reports were deemed inadmissible because the certification indicated that the certifying expert had only reviewed the test results and faded to establish that he, in fact, performed or supervised the testing as required by the statute. Significantly, the certifying expert for the first set of reports testified at trial, whereas the certifying expert for the second set of reports was not called to the stand.

Based on our review of the jurisprudence interpreting La. R.S. 9:397.3, in order for drug testing reports to properly be admitted into evidence, we find the statute requires either an affidavit of the expert that actually performed or supervised the testing accompany the drug test report sought to be introduced, and/or the live testimony of the expert certifying the test results who holds a supervisory position over the facility performing the drug testing and who can verify the protocol and procedures employed by the lab when conducting such testing. In this case sub judice, Mr. Richard testified that he is the owner of CT Medical Services, a specimen collection service provider. While Mr. Richard’s facility was responsible for obtaining Richardson’s hair and urine samples used for two sets of his drug tests, the actual hair and urine analyses were performed by another laboratory. Specifically, the drug analysis on Richardson’s hair sample was conducted by Omega Laboratories, who generated the report containing the lipdrug test results. Kroll LSI was the facility that performed the quantitative analysis of Richardson’s urine specimen and generated the drug testing report documenting its results. The record indicates that neither Mr. Richard nor his facility participated in, or had any supervision over, the drug testing of Richardson’s samples upon which the drug test reports sought to be introduced were generated.

The record also reveals that Mr. Richard was unable to verify the chain of custody of Richardson’s hair and urine samples once they were picked up from his laboratory by the courier, who then delivered them to the actual testing laboratories. The chain of custody documentation presented at trial established the chain of custody of the samples only while they were in the possession of CT Services. As CT Services did not perform the actual testing on the samples at its facility, once the samples were picked up by courier to be delivered to Omega and Kroll LSI, Mr. Richard could not verify the chain of custody beyond that point.

Richardson further argues that allowing Mr. Richard to certify the drug test reports by dictating them into the record amounts to “the improper admission into evidence of impermissible hearsay” because Mr. Richard had no personal knowledge regarding the accuracy of the drug testing results, and thus, had no personal knowledge of the “truth” of the results as his laboratory did not actually perform the tests. More specifically, without authentication and a proper | ^foundation, we find the drug test results should have been excluded as hearsay under Article 803(6) of the Louisiana Code of Evidence.

Hearsay is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered into evidence to prove the truth of the matter asserted.” La. C.E. art. 801C. In dictating the drug test results into the record, Mr. Richard was offering the statements of others (namely, Omega Laboratories, Kroll LSI, and Quest Diagnostics) as true. While drug test results would normally fall under the business records exception to the hearsay rule set forth in La. C.E. art. 803(6), we agree with Richardson and hold that in accordance with La. R.S. 9:331.1, La. R.S. 9:397.2 and 9:397.3 (rather than La. C.E. art. 803(6)) provide the statutory exceptions to the hearsay rule for the admissibility of drug testing information sought to be introduced into evidence in child custody and visitation proceedings. It is well established that in determining the applicability of laws, the more specific governs over the more general. See In the Interest of A.C., 93-1125, p. 16 (La.1/27/94), 643 So.2d 719, 730 (citing Mixon v. St. Paul Fire and Marine Ins. Co., 147 La. 302, 84 So. 790, 791 (1920)). Applying La. R.S. 9:397.2 and 9:397.3 A to Richardson’s drug test reports, we find that allowing Mr. Richard to offer the drug testing results as his own testimony was the improper admission of hearsay evidence.

Based on the foregoing, we find that Suggs failed to meet her burden of laying a proper foundation for the admissibility of the drug test reports in accordance with the requirements set forth in La. R.S. 9:397.3 A. Without a proper foundation witness to authenticate these drug test reports and verify their results, |uwe find they are inadmissible, and the trial court erred in allowing them into evidence. Moreover, we find that it was also error to allow Mr. Richard to certify the drug test reports by dictating them into the record.

Although the admission of the drug test reports was erroneous, we find that their admission was harmless error. See Fernandez v. Pizzalato, 04-1676, p. 20 (La.App. 4 Cir. 4/27/05), 902 So.2d 1112, 1124 (finding a violation of the La. C.C.P. art.1636 requirement that a proffer be allowed was harmless error because other evidence of arrest records was present in the record); Arceneaux v. Amstar Corp., 06-1592, p. 19 (La.App. 4 Cir.10/31/07), 959 So.2d 755, (finding a failure to allow a proffer of evidence was harmless because other evidence of the prescription issue was in the record). The effect of an erroneous evidentiary ruling is that “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.” La. C.E. art. 103. The concept of “substantial right” as used in article 103 is “akin to the ‘harmless error’ doctrine applicable in both civil and criminal matters.” George Pugh, Robert Force, Gerald Rault and Kerry Triche, Handbook on Louisiana Evidence Law, p. 300 (2006 Ed.). The jurisprudence has “properly taken the view that the risk of prejudice is often less likely in a bench trial than in a jury trial.” Id.

In the case at bar, we cannot say, based on the totality of the record, that a substantial right of Richardson was violated by the trial court’s admission of the drug test reports in light of other admissible evidence contained in the record on appeal. The record is replete with testimony by Richardson acknowledging his use of cocaine over a period of time. Most significant is Richardsons admission at trial that he used cocaine within the preceding “several months.” The date of 11BRichardsons testimony was 4 December 2006. His testimony of drug use corresponds with the date of his last drug test yielding positive results for cocaine metabolites, which occurred on 18 October 2006. Richardsons own self-incriminating testimony substantiates the trial courts finding of a material change in circumstances, specifically, Joseph Richardsons continued use of illegal drugs and that this change of custody is in the best interest of the minor child. Clearly Richardsons testimony admitting ongoing drug use obviated the need for the courts consideration of the three positive drug test reports in rendering its judgment. We find the drug test reports to be merely cumulative and corroborating of Richardsons own damning testimony. Accordingly, we find the courts evidentiary error in allowing Richardsons drug test reports into evidence when they failed to comply with the admissibility requirements of La. R.S. 9:397.3 was harmless.

B. Testimony of Farley Richard

By his next assignment of error, Richardson challenges the trial courts decision to qualify Mr. Richard as an expert in interpreting drug testing results. In addition to allowing Mr. Richard to certify Richardson’s drug test reports by dictating them into the record, the trial court certified Mr. Richard as an expert qualified solely to interpret Richardson’s drug testing results based on the fact that Mr. Richard has seen the numerical numbers contained in the drug test reports thousands of times and understands their significance. While we recognize that Louisiana law does not require that a person possess a specific educational degree in order to qualify as an expert in a given field, and that an expert can be qualified based on his or her experience alone, because we find that the admission of Richardson’s drug testing reports into evidence was harmless error, we pretermit 11 (¡discussion as to whether Mr. Richard was qualified to testify regarding the drug testing results in this case.

C. Druy Treatment

Richardson contends the trial court erred in ordering him to participate in a drug treatment program as it violated his right to refuse medical treatment under both the Louisiana and United States Constitutions. Richardson’s argument is twofold: (1) the trial court’s order for drug treatment was based solely on the inadmissible drug test reports and findings of the expert witness, Mr. Richard, and (2) the drug treatment order was not linked with the orders for sole custody or supervised visitations, making it a stand-alone order for Richardson to accept medical treatment for which he has the constitutional right to refuse.

At the outset, we acknowledge that in the instant case, as in most custody cases, the trial courts determination was based heavily on factual findings. We are further mindful that as an appellate court, we cannot set aside the trial courts factual findings unless we determine that no reasonable factual basis exists for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Dept. of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Major v. Major, 02-2131, p. 5 (La.App. 1 Cir. 2/14/03), 849 So.2d 547, 550.

Based on these precepts, in the instant case, we find there was ample evidence in the record—independent of the drug test reports or the testimony of the expert, Mr. Richard—substantiating Richardson’s continued illegal drug use. 117Puring his own testimony, Richardson freely and unequivocally admitted to using cocaine within the three months immediately preceding the December 2006 trial. And even if the three positive drug tests showing repeated and ongoing cocaine use were not properly admitted into evidence, Richardson did not refute or deny that the findings were somehow in error. The record indicates the trial judge specifically questioned Richardson regarding his repeated use of cocaine. Richardson testified that he was also taking several different medications for which he asserted he had prescriptions. In light of Richardson’s testimony and, after reviewing the record as a whole, we find ample support for the trial court’s order for him to enter a drug treatment program.

Next, Richardson’s contention that somehow the drug treatment order was “separate and apart” from the trial court’s custody and visitation orders is without merit. The judgment embodying the drug treatment order is clearly entitled “Judgment on Child Custody and Visitation.” The judgment begins with an order for sole custody based upon the finding of a material change in circumstances triggered by Richardson’s “continued use of illegal drugs.” The judgment then orders supervised visitation monthly, as well as random drug testing, and concludes with the order for drug treatment. Richardson concedes in his brief that “[h]ad the Trial Court linked the drug treatment order to Mr. Richardson’s visitation and/or the custody provisions, it would have passed constitutional muster.” After reviewing the trial court judgment in its entirety, we find that the order for drug treatment is clearly sufficiently linked to the visitation and child custody provisions to pass constitutional muster in the instant case.

Accordingly, we find this assignment is without merit and that, based on the totality of the record, including Richardson’s own admission of ongoing drug use, hsthe trial court was well within its vast discretion in a child custody and visitation proceeding to order him to submit to drug treatment. We do, however, note that the trial court judgment should have made Richardson’s entry into and successful completion of a drug treatment program a condition to his ability to enjoy unsupervised visitation in the future with Sophie. Therefore, we affirm the trial court’s order of drug treatment, but further, modify the trial court’s judgment to provide that until such time, following a contradictory hearing, that the court finds by a preponderance of the evidence that Richardson has successfully completed a drug treatment program, he shall continue supervised visitation with Sophie.

D. Grant of Sole Custody and Restricted Visitation

In his next two assignments of error, Richardson argues the trial court erred in awarding sole custody of Sophie to Suggs because Suggs failed to establish by “clear and convincing evidence” that sole custody is in Sophie’s best interest. Richardson further contends the trial court erred in restricting his visitation with Sophie because there was no evidence that supervised visitation was necessary to protect the minor child.

It is a well-recognized tenet in Louisiana jurisprudence that an award of child custody is not a tool to regulate human behavior. Everett v. Everett, 433 So.2d 705, 708 (La.1983); Cleeton v. Cleeton, 383 So.2d 1231, 1236 (La.1979)(on rehearing). Every child custody case must be viewed within its own peculiar set of facts. McKenzie v. Cuccia, 04-0112, p. 5 (La.App. 4 Cir. 6/23/04), 879 So.2d 335, 339.

In Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, the Louisiana Supreme Court discussed the burden of proof that a party seeking a change in child custody must meet. The general rule is that “the paramount | ^consideration in any determination of child custody is the best interest of the child.” Id. at p. 12, 708 So.2d at 738. See also La. C.C. art. 131. The trial judge is in the best position to ascertain the best interest of the child given each unique set of circumstances. See Bagents v. Bagents, 419 So.2d 460 (La.1982). An additional jurisprudential burden is imposed when a change in a considered custody decree is requested. In Evans, the Supreme Court described the burden of proof in that situation. The Supreme Court stated:

When a trial court has made a considered decree of permanent custody, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is “so deleterious to the child as to justify a modification of the custody decree,” or of proving by “clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.”

97-0541 at p. 13, 708 So.2d at 738 (citation omitted and emphasis in original). See also Fernandez v. Pizzalato, 04-1676, pp. 4-5 (La.App. 4 Cir. 4/27/05), 902 So.2d 1112, 1116-1117.

Additionally in Evans, the Supreme Court stated that when the original custody decree is a stipulated judgment, the heavy burden of proof required for a change in a considered decree is not applicable. When the custody decree sought to be modified is a stipulated decree, the party seeking to modify the decree must prove “(1) that there has been a material change of circumstances since the original custody decree was entered, and (2) that the proposed modification is in the best interest of the child.” Evans, supra at p. 13, 708 So.2d at 738; Fernandez, supra at p. 5, 902 So.2d at 1116-1117.

[ ¡,nOnly the stipulated decree rendered in the instant case is the decree that is being appealed. Therefore, because Suggs was not seeking a change of a considered decree when she brought her rule for a change in custody, we find that she was not required to meet the heavy the burden of proof required for a change in a considered decree.

La. C.C. art. 134 sets forth the relevant factors a court shall consider in making a determination regarding the best interest of the child in custody and visitation matters, which include, but are not limited to, the following factors:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child;
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10)The willingness and ability of each party to facilitate and -encourage a close and continuing relationship between the child and the other party.
|g1 (11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The court is not bound to make a mechanical evaluation of all of the statutory factors listed in article 134, but should decide each case on its own facts in light of those factors. Flanagan v. Flanagan, 36,852, p. 6 (La.App. 2 Cir. 3/5/03), 839 So.2d 1070, 1074. The court is not bound to give more weight to one factor over another; when determining the best interest of the child; the factors must be balanced and weighed in view of the evidence presented. See Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773. Moreover, the factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Sawyer v. Sawyer, 35,583, p. 3 (La.App. 2 Cir. 11/2/01), 799 So.2d 1226, 1229-30.

In the case at bar, as in most child custody cases, the trial court’s determination was based heavily on factual findings. As stated previously, an appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d at 844. In the case at bar, Suggs was required to show a change in circumstances as part of her burden of proof. We find that she has met this part of her burden of proof. The trial court was presented with evidence of repeated cocaine use by Richardson over a seventeen-month period of time, even though Richardson knew that he was subject to drug testing upon 24-hour notice as per a court order. The trial court also heard testimony from the witnesses, including | ^Richardson, and was in the best position to evaluate their credibility, and obviously did not find credible Richardson’s testimony that he was not a habitual user of illegal drugs. The court expressed concern in its reasons for judgment about the safety of the minor child due to Richardson’s ongoing drug use, and determined that this alone was sufficient to warrant a change in custody from joint custody of the parties to sole custody to Suggs. There was also testimony regarding concern about the child’s proper supervision when visiting Richardson in Texas. While Richardson and his new wife attempted to refute this testimony, the trial judge exercised her discretion in determining that supervised visitation in the state of Louisiana is in the best interest of Sophie at this time. Based on our review of the record, and applying the factors set forth in the child support statute, we cannot say that the trial court abused its discretion or that it was clearly wrong in modifying the custody award and visitation schedule in this case.

While we affirm the trial court’s judgment modifying custody and implementing supervised visitation only in the state of Louisiana based on Richardson’s testimony admitting illegal drug use, we further modify the trial court’s judgment to provide that upon Richardson’s showing by a preponderance of the evidence that he has successfully completed a drug treatment program and, further, that it is in the best interest of Sophie, he can petition the court for a resumption of the previous unsupervised visitation schedule.

E. Child Support and Arrearages

In his last assignment of error, Richardson contends the trial court erred in determining past due child support when it used the $1,707.00 per month “interim” judgment award in its calculation of arrearag-es, instead of using the “final” judgment award of $625.00. The trial judge calculated child support arrearages 12Sin the amount of $23,202.50, making that amount executory. The trial court’s “Reasons for Judgment Signed January 4, 2007” make it clear that it was, in effect, granting Richardson’s rule to reduce child support, which was filed after the interim judgment was issued, thereby reducing the interim amount of $1,707.00 per month (effective 2 March 2005), to $930.00 per month, retroactive to July 6, 2006, the date of the filing of his rule seeking reduction.

In support of his argument on appeal, Richardson contends that, at the time the interim support award was rendered on 18 July 2005 following the hearing on Suggs’ motion to increase support, the issue of child support was left open and scheduled to be tried further on another day. Thus, Richardson avers that when the support issue was fully tried on 4 and 5 December 2006, the judgment rendered thereafter was actually a final judgment on Suggs’ motion to increase child support (effectively granting same and increasing the amount from $625.00 to $930.00), and not a granting of Richardson’s motion to reduce/suspend support as indicated by the trial court’s judgment, based on the fact that the $625.00 amount was not reduced, but rather increased to $930.00. Richardson further argues that because the award was increased from $625.00 to $930.00, the interim award of $1,707.00 should not even be considered when calculating the amounts past due. We disagree and find that the trial court correctly used the interim support award of $1,707.00 in its calculation of arrearages. Based on the record, we calculate the child support ar-rearages due by Richardson as follows:

March 2005 through June 2006 (at $1,707.00 per month) — $27,312.00
July 2006 through December 2006 (at $930.00 per month) — $5,580.00

li>4Thus, the total amount of child support Richardson was obligated to pay from March 2005 to December 2006 totals $32,892.00. The record shows that during these months, Richardson did make payments totaling $8,912.50. Accordingly, giving Richardson credit for the amounts paid, we find the total amount of child support arrearages due to be $23,979.50, and we modify the trial court judgment to reflect this amount.

CONCLUSION

For the foregoing reasons, we affirm the trial court judgment in part, amend in part, reverse in part, and render as amended.

AMENDED IN PART; AFFIRMED AS AMENDED.

      . Mrs. Suggs was remarried on 11 November 2006 to her current husband, Robert Suggs.

      . Mr. Richardson remarried in 2003 to his current wife, Ann Richardson.

      . This visitation schedule was further modified by a consent judgment signed on 17 April 2002.

      .The consent judgment provided that should Suggs elect to take over maintenance of the health insurance coverage, she would become responsible for the premium and Richardson would then be obliged to pay the full amount of $625.00 per month in child support.

      .At the 18 July 2005 hearing on the motion to increase the child support, due to Richardson's failure to produce any tax returns, Form 1099 to employees, his current wife’s bank statements, credit card statements and pay stubs, the trial court imputed Richardson’s annual income from his bank statements and the testimony taken. The court ordered Richardson to pay $1,082.00 (the difference between the $625.00 in child support paid by wage assignment and the increased amount of $1,707.00) directly to Suggs. The original judgment to this effect was signed by the trial court on 26 July 2005. The judgment, however, contained typographical errors and a motion to vacate it was filed by Richardson and then by Suggs. The interim judgment was reissued and signed on 18 January 2006.

      . A judgment to this effect was signed on 26 July 2005.

      . The rule to amend the visitation was heard by the court on 20 September 2006, and Richardson was granted one weekend visitation in October 2006, with future visitation rights to be considered by the court in the subsequent trial of all remaining pending matters.

      . On 20 June 2006 the court ordered Richardson to submit to a hair drug test within 24 hours of the hearing, which test yielded positive results for cocaine metabolites. Richardson previously tested positive for cocaine metabolites on 16 May 2005.

      . The trial court considered the following motions and rules: (a) the completion of testimony related to Suggs’ motion to increase the child support; (b) Suggs' motions for contempt against Richardson for failure to pay child support and to comply with the court-ordered drug testing; (c) Suggs' motion for sole custody and supervised visitation; (d) Richardson's rule to suspend/reduce the child support; (e) Richardson’s rule to amend the visitation; and (f) Richardson’s motions for contempt against Suggs for her cohabitating with her husband prior to marriage.

      . The court having found "good cause" did not impose sanctions on Suggs.

      . On 16 May 2005, Richardson underwent drug testing performed by Quest Diagnostics revealing positive results for cocaine metabolites based on a hair sample. On 21 June 2006, Richardson reported for a second drug test. Both hair and urine samples were obtained. Omega Laboratories reported that the hair sample yielded positive results for the presence of cocaine metabolites. Kroll LSI’s report evidences that the urinalysis was positive for benzodiazepines. Then, on 18 October 2006, Richardson again reported for drug testing. His hair sample sent to Omega Laboratories for a quantitative analysis tested positive for cocaine metabolites, and the urinalysis conducted by Kroll LSI showed positive results for cocaine metabolites and benzo-diazepines.

      . The sample for the initial drag test was collected by B.A.L. & Associates and submitted to Quest Diagnostics for testing. No representative from either facility was called to testify at trial.

      . La.R.S. 397.3 A(l)(d) requires that in order for a drug test report to be admissible, certification of the "chain of custody of the samples from the time obtained until the tests were completed” must be included in the sworn affidavit accompanying the report. Additionally, La. R.S. 9:397.2 provides that the chain of custody "may be established if documentation is submitted with the expert’s report and if such documentation was made at or near the time of the chain of custody and was made in the course of regular business activity.”

      . R.S. 9:331.1 specifically states that La. R.S. 9:397.2 and 397.3 A, B, and C “shall govern the admissibility of the drug test results,”

      . A "considered decree” is "an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children.” Evans, supra at p. 12 (La.2/6/98), 708 So.2d at 738.

      . A "stipulated judgment” is one in which the parties consent to a custodial arrangement and no evidence of parental fitness is taken. Id.

      . In this regard, the record indicates that Richardson did not appear for even one of his drug tests within 24 hours of such a request for drug testing as required by the court's judgment.

      . Suggs filed the rule to increase child support on 2 March 2005. The interim judgment setting the amount at $1,707.00 was made retroactive to this date.

      . Richardson filed his rule to reduce/suspend child support on 6 July 2006, and the trial court judgment granting the decrease from $1,707.00 to $930.00 was made retroactive to the date of filing.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    DORIAN M. BENNETT, INC. v. Charles C. SHANKLE, Jr. and the Shankle Partnership.
    No. 2007-CA-0703.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 28, 2007.

      William F. Wessel, Wessel & Associates, A Law Corporation, Victoria Lennox Bar-tels, Law Offices of Joseph C. Bartels, New Orleans, LA, for Plaintiff/Appellee, Dorian M. Bennett, Inc.

      Charles G. Shankle, Jr., Kings Beach, CA, in Proper Person, Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff, Dorian Bennett, Inc. (Bennett), brought suit against Charles Shankle, Jr. and The Shankle Partnership (Shankle) for a real estate commission. On February 5, 2002, Bennett filed suit in the Civil District Court for the Parish of Orleans alleging that on or about April 16, 1999, Shankle entered into an authorization to lease agreement with Bennett whereby Bennett would act as a leasing agent for a residence owned by Shankle, located at 904 Dauphine Street in New Orleans. According to the terms of the agreement, Shankle would pay Bennett sixty percent of the first month’s rent, and a commission of six percent on the gross amount of any sale or exchange of the property to any person procured by Bennett as a tenant or lessee. Bennett alleged that on or about July 1, 1999, it obtained James Kennedy as lessee for the property on conditions that were acceptable to Shankle. Ultimately, Shankle sold the property to Mr. Kennedy for $575,000. Despite amicable demand, Shankle refused to pay the contractual commission. Bennett sought the six percent commission with interest from the date of demand, for costs and for attorneys’ fees.

|2On April 5, 2002, Shankle filed an answer, admitting that the partnership, as owner of the Dauphine Street property, entered into a lease on July 1, 1999, and ultimately sold the property to the lessee, James Kennedy. Shankle stated in the answer that the- agreement with Bennett contained a provision calling for payment of a commission of six percent on the gross amount of any sale or exchange of the above property to any person procured by Bennett as a tenant or lessee. Shankle also admitted that on July 1, 1999, Bennett acted as leasing agent for the lease of the Dauphine Street property by Shankle to Mr. Kennedy. Shankle claimed that the lease agreement also addressed the issue of the commission to be paid in the event of a sale, and that the blank space wherein the amount of the commission would have been entered was specifically and intentionally struck through to indicate that there would be no such commission. Thus, Shankle contends that the lease agreement modified the terms of the authorization to lease agreement and canceled its provision for payment of a sale commission. Shan-kle further denied that attorneys’ fees were owed.

The matter proceeded to a bench trial, following which the trial court rendered judgment on March 13, 2007, in favor of the plaintiff in the amount of $34,500 together with legal interest from the date of demand and costs. Shankle has perfected the instant appeal from that judgment. For the reasons that follow, we affirm the judgment of the trial court.

In its reasons for judgment, the trial court found that the authorization to lease entered into by and between Bennett and Shankle on April 16, 1999, called | ¡¡for a six percent commission on the gross amount of any sale or exchange of the leased property to any person procured by Bennett as a tenant or lessee. Bennett obtained a tenant for the property, James Kennedy, who leased the property from Shankle. Although the price agreed upon between Shankle and Mr. Kennedy was $250 per month less than the rent requested in the authorization to lease, nonetheless Shankle entered into the lease agreement for seventeen and one-half months, from July 15, 1999, to December 31, 2000. Mr. Kennedy continued to rent the property until approximately June of 2001 when Shankle sold the property to him.

The trial court found that the lease was signed solely by Shankle and Mr. Kennedy, and not by Bennett. The testimony shows that the agent who handled the lease between Shankle and Mr. Kennedy did not sign the lease on behalf of Bennett, but merely filled in the blanks. The trial court concluded that the testimony shows that the agent did not have the authority to alter the authorization agreement of April 16, 1999. The trial court found that the agent who handled the lease did not know the contents of the authorization agreement executed by Dorian M. Bennett on behalf of Bennett. The court accepted the testimony of the office manager and of Mr. Bennett that no agent had the authority to change any agreement signed by Mr. Bennett, and, in particular, the authorization to lease agreement at issue in this litigation. The trial court accepted Mr. Shankle’s testimony that the Dauphine Street property was sold to Mr. Kennedy for $575,000.

|4Mr. Shankle identified the authorization agreement at trial on cross-examination, and admitted that he authorized Bennett to lease his property at 904 Dauphine Street on behalf of the Shankle partnership, of which his daughters were the sole partners, and testified that he had authority to sign on behalf of the partnership. He also admitted that Bennett obtained Mr. Kennedy as a tenant for the property and that Mr. Kennedy purchased the property in 2001 from Mr. Shankle and the partnership for $575,000. He admitted having signed the authorization agreement on behalf of himself and of the partnership. The authorization agreement and demand letter were introduced into evidence without objection.

On direct examination, Mr. Shankle testified that Kate Hines, an agent of the Bennett corporation, inserted the dash that appears over the line in the lease agreement where the amount of a sales commission could be inserted. He did not recall having discussed elimination of the sales commission with Mr. Bennett, although Bennett was handling four or five million dollars’ worth of property for Shan-kle at the time. He claimed that he would not have signed the lease and accepted $2800 monthly rent if he had known he would owe brokerage fees. He claimed that he spoke with the agent, thinking she represented Bennett, and she lined through the sales commission blank. However, notwithstanding his sophistication as the owner of millions of dollars of real estate managed by Bennett, Mr. Shankle did not ask Mr. Bennett to modify the terms of the authorization agreement.

| sMr. Bennett testified that he is the broker owner of Dorian Bennett, Inc. and entered into the authorization agreement with Shankle on behalf of the corporation. He testified that Mr. Kennedy bought the property during his tenancy. Mr. Bennett testified that neither he nor the corporation entered into any amendment or written agreement of any sort to change the obligation contained in the authorization agreement to pay a sales commission. Only he had the authority to change that provision. Mr. Bennett testified that he has not received the sales commission provided for by the authorization agreement despite having requested payment from Shankle.

Under cross-examination, Mr. Bennett testified that he drew the authorization to lease document. He identified Kate Hines as an agent with Bennett, and noted that she is not a broker agent nor was she ever a broker, to his knowledge. Mr. Bennett identified the lease between Shankle and Mr. Kennedy as a lease for the entire building located at 904 Dauphine Street. He testified that the authorization agreement provided that it would remain in full force and effect for a period of six months from April 16, 1999. According to Mr. Shankle, Bennett procured the lessee well within that six month period.

The lease provided for a monthly rental of $2300, reducible to $2250 if the rent were paid on the first of the month, not the $2500 specified in the authorization agreement. Mr. Bennett testified that he assumed that Kate Hines lined out the sales commission provision contained in the lease agreement; however, only Shan-kle and Mr. Kennedy were parties to the lease agreement. | ^According to Mr. Bennett’s testimony on cross-examination, the lease agreement between Shankle and Mr. Kennedy would not modify any agreement that Bennett had with Shankle with respect to the leasing or sale of the property. The lease is an agreement solely between the lessor, Shankle, and the lessee, Mr. Kennedy, and was not signed or intended to be signed by Bennett or its agent.

On re-direct examination, Mr. Bennett testified to his belief that Mr. Kennedy retained possession of the premises from the inception of the lease until the time he purchased the property from Shankle. He also testified that, assuming Ms. Hines lined out the blank in the sales commission provision in the lease, she had no authority to change the authorization agreement that provided for the six percent sales commission.

Georgia Saucier testified that at all times pertinent to the transactions at issue herein she was Bennett’s manager. She identified the authorization agreement and Mr. Bennett’s signature on the agreement. She testified that no one in the Bennett corporation, except Mr. Bennett, has authority to change listing agreements on behalf of Bennett.

On cross-examination, Kate Hines identified the lease agreement and testified that when she was working as a Bennett agent she drew up the lease on a standard residential lease form used by the Bennett office. At the time she drew up the lease, she was aware that there was an authorization agreement relating to the property, but was unaware of its terms and had not seen it prior to her preparation of the lease form. The only time her signature appears is in connection with a 17statutorily mandated lead disclosure statement attached to the lease agreement signed by Shankle and Mr. Kennedy. Her only connection with the transaction was to acknowledge that she had informed the lessor of its obligations under 42 U.S.C. 4582(d) and was aware of the responsibility to insure compliance.

On direct examination, Ms. Hines testified that she had not had any discussion with Mr. Shankle concerning the sale commission when she struck through the line. She said she did not know what the percentage was going to be. Furthermore, she testified that she did not have authority to change any Bennett listing agreement.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest error or unless it is clearly wrong. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence |sso contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

Because Shankle asserts that its obligation to pay the sales commission has been modified or extinguished by the execution of the lease agreement, it bears the burden of proving the facts or acts giving rise to the modification or extinction of that obligation. La.C.C. art. 1831.

In the first assignment of error, Shankle contends that the trial court erroneously relied solely on oral testimony to establish the lack of authority of Bennett, its real estate agent, Kate Hines, and office manager, Georgia Saucier, to amend or modify the authorization agreement. We note that Mr. Shankle did not testify that he spoke with Mr. Bennett about the sales commission at any time after the authorization agreement, providing for such a commission, was confected. The record contains only Mr. Shankle’s unsupported testimony that it was not true that if he had an agreement with Bennett, both he and Mr. Bennett would have to agree to effect an amendment to the agreement.

| ^Counsel for Mr. Shankle asked his client who marked through the commission line on the lease, and he replied, “Actually, Kate Hines marked through that line. We had talked about it, and as I remember she asked me about it. And that’s what she did.”

In response to his counsel’s question, “[Y]ou change it [Bennett contracts] all the time with other people?”, Mr. Shankle responded:

We negotiated, we thought — I was dealing with an agent. I assumed the agent was representing or the broker would be responsible for anything that the agent did. I talked to the agent about the brokerage fees. And she marked through it. I would not have leased this property at $2800 if I had known that I would have had to pay brokerage fees. I wouldn’t have done it.

There is no testimony supporting the proposition that Ms. Hines or any other Bennett employee had authority to modify contracts entered into by Mr. Bennett on behalf of Bennett. The testimony of Mr. Bennett, Ms. Hines and Ms. Saucier to the contrary stands uncontradicted. The trial court’s choice to accept the testimony of these three individuals is not unreasonable, considering the record as a whole.

Shankle, while recognizing in its brief the applicability of the manifest error standard of review in the context of this appeal, contends that oral testimony without any corroborating documentation may not be used to establish the lack of an agent’s authority to modify a principal’s contract. We note that Bennett does not bear the burden of establishing Ms. Hines’s lack of such authority. Under La.C.C. art. 1831, Shankle bears the burden of establishing Ms. Hines’s authority. Based on the record before us, we are compelled to conclude that Shankle has not met that burden.

| ^Shankle argues that the Louisiana Supreme Court’s opinion in Tedesco v. Gentry Development, Inc., 540 So.2d 960, 964 (La.1989) requires a contrary result. That case does not support Shankle’s position. The Supreme Court held that while there is no express codal or statutory authority for the doctrine of apparent authority in Louisiana, it is an important part of the modern law of agency, and has been utilized by the courts in this state “to protect third persons by treating a principal who has manifested an agent’s authority to third persons as if the principal had actually granted the authority to the agent.” Tedesco v. Gentry Development, Inc., 540 So.2d at 963. In this case, the record contains no evidence to indicate that Bennett, the alleged principal, engaged in any prior transactions or in any activities with respect to the authorization agreement that would indicate that Ms. Hines had authority to modify that agreement or any agreement between Shankle and Bennett.

Shankle cites Tedesco for the proposition that testimonial evidence is inadequate to show a lack of agency. Notwithstanding that Bennett does not bear the burden of proof as to the agency issue, we note that Tedesco does not support the stated proposition. The court held that where a contract must be reduced to writing, testimonial proof is insufficient to prove the existence of the contract. Shan-kle argues the converse, that testimonial proof is insufficient to prove the non-existence of the contract. There is nothing in the Tedesco opinion to support that argument.

In the second assignment of error, Shankle contends that the trial court erroneously did not find or consider as a matter of law that Ms. Hines possessed apparent authority to modify the authorization to lease, absent documentary evidence to the contrary. Shankle argues that it “relied on the belief that Ms Hines |nhad the apparent authority to execute the [lease].” However, the documentary evidence shows that Ms. Hines did not execute the lease. The record does not contain any evidence that Bennett clothed Ms. Hines with authority to modify the authorization agreement. One who seeks to benefit from the apparent authority doctrine may not blindly rely even on assertions of an agent. The person who deals with an agent, by the mere fact of agency, is given both the right and the duty to determine, at his peril, whether the agency purportedly granted by the principal will permit the proposed act by the agent. See Adams v. Louisiana Coca-Cola Bottling Co., Ltd., 531 So.2d 501 (La.App. 4th Cir.1988).

Shankle relies on the general rule of construction that a form prepared by one party to the contract is construed against the preparer. However, the corporation was not a party to the lease. Although it allowed its form to be used by Shankle and Mr. Bennett as a matter of convenience, Bennett did not by reason of that fact modify the authorization agreement it had entered into with Shankle.

We find no basis in law or in fact for the conclusion suggested by Shankle that Ms. Hines’s signature on the lead paint disclosure form attached to the lease agreement constitutes Bennett’s modification of the earlier authorization agreement. There are a myriad of documents and disclosures that may from time to time be attached to contracts. To hold that a party appearing in such a document or disclosure becomes, ipso facto, a party to the basic contract would be unprecedented and would constitute an unauthorized change in Louisiana contract law.

We also note that Shankle did not contend in the trial court that the doctrine of apparent authority was applicable, but asserted that Ms. Hines had actual 11¡.authority to bind Bennett, a contention wholly unsupported by the evidence of record.

In the third assignment of error, Shankle contends that the trial court erroneously did not find as a matter of law that a manifestation of agency may be demonstrated by the principal’s ratifying acts. Shankle argues that by accepting the rental commission of sixty percent of the first month’s rent, Bennett ratified the lease’s lack of a sales commission. As a matter of law, agency may be demonstrated by acts of ratification. However, in a particular case, this demonstration must be proven by evidence of such acts of ratification. Bennett’s acceptance of the rental commission at the commencement of the lease term demonstrates only that the company accepted the rental commission provided for in the authorization agreement. We find no basis on which to conclude that this act modified or deleted the sales commission provided for in the agreement.

The record is totally devoid of any evidence that Mr. Bennett, the only person who had authority, actual or apparent, to modify the terms of the authorization agreement, saw the executed lease agreement with the lined out blank in the lease’s sales commission clause, prior to his acceptance of the rental commission.

Shankle also suggests that Bennett had an obligation to repudiate the lease between Shankle and Mr. Kennedy to avoid the application of the lined-out blank to modify the authorization agreement and eliminate its right to the sales commission provided for in the latter agreement. Again, we note that Bennett was not a party to the lease, and therefore was not in a position to repudiate it. His only action with regard to the lease was to accept the rental commission due upon its | ^execution and the payment of the first month’s rent, a commission due pursuant to the unmodified provisions of the authorization agreement.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . We find nothing in the record to indicate that Shankle alleged that Ms. Saucier modified or amended the authorization agreement.


author: BROWN, Chief Judge. PER CURIAM.

text:
    Sharon BROWN, Plaintiff-Appellant, v. KTBS, INC. and CNA Insurance Companies, Defendants-Appellees.
    No. 42,847-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 9, 2008.
    Opinion on Rehearing Feb. 7, 2008.

      Alex S. Lyons, for Appellant.
    Mayer, Smith & Roberts, LLP by Kim P. Thomas, Shreveport, for Appellees.
    Before BROWN, STEWART, and CARAWAY, JJ.
   BROWN, Chief Judge.

hOn November 17, 2000, claimant, Sharon Brown, while in the course and scope of her employment with defendant, KTBS, Inc., was involved in a work-related accident which aggravated her pre-existing cerebral palsy. Claimant filed a workers’ compensation claim and is currently receiving workers’ compensation indemnity and medical benefits under a judgment dated October 14, 2002.

On March 10, 2003, while undergoing physical therapy, claimant fell and rein-jured herself and since that accident, she has relied almost exclusively on a manual wheelchair to get around. Since October 2004, claimant’s treating physicians, Dr. Steve Atchison and Dr. Marion Milstead, have recommended that she use a “power assist” wheelchair.

Claimant filed a disputed claim for compensation on March 16, 2006, alleging defendants’ failure to authorize or pay for the wheelchair prescribed by Dr. Atchison. After this claim was filed, defendants stipulated that the power wheelchair was reasonably and medically necessary, but insisted that the device be purchased from defendants’ vendor of choice. Claimant wanted to use a local vendor that she had experience with and who would customize the chair to claimant’s needs. This local vendor testified at the hearing that his charge would be within the fee schedule and would include any necessary repairs and maintenance. Defendants did not tender a power chair from their out-of-town vendor. The judgment of the workers’ compensation judge (“WCJ”) was rendered on April 30, 2007. The WCJ awarded penalties and attorney fees to claimant for defendants’ failure to initially provide the prescribed | ¿wheelchair and noted that even after trial defendants had not furnished the prescribed wheelchair. The WCJ then found that although claimant was entitled to the wheelchair, defendants rather than claimant got to choose the vendor.

The sole issue raised by claimant on appeal is whether the WCJ erred in finding that defendants rather than claimant have the right to choose the vendor of her wheelchair. For the reasons set forth below, we amend the judgment of the WCJ, and as amended, affirm.

Discussion

An employer must furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of the state as legal. La. R.S. 23:1203(A); Pardee v. Forest Haven Nursing Home, 42,321 (La.App.2d Cir.06/20/07), 960 So.2d 1216; Collins v. Patterson Drilling, 39,668 (La.App.2d Cir.05/11/05), 902 So.2d 1264. A claimant may recover medical expenses that are reasonably necessary for treatment of a medical condition caused by a work-related injury. Pardee, supra; Knotts v. Snelling Temporaries, 27,773 (La.App.2d Cir.12/06/95), 665 So.2d 657.

Subsection (B) of La. R.S. 23:1203 provides that the employer’s obligation to furnish necessary care, services, treatment, drugs, and supplies is limited to the reimbursement of the actual cost or the usual and customary charges as set forth in a reimbursement schedule published annually pursuant to La. R.S. 23:1034.2, whichever is less. (Emphasis |sadded). Under La. R.S. 23:1203, liability for medical expenses arises only as those expenses are incurred. Knotts, supra.

La. R.S. 23:1203 does not address the issue of which party has the right to choose a vendor for a reasonable and necessary medical device, unlike La. R.S. 23:1226, which specifically gives an employer the right to select a vocational counselor, or La. R.S. 23:1121, which provides a claimant with the right to select a treating physician. As noted above, La. R.S. 23:1203 does set forth the obligation of an employer to a claimant, which is simply that of reimbursement of the lesser of the amount provided by the fee schedule or the actual amount paid for a recommended medical device. To “reimburse” means to pay back money spent, to repay or compensate a person for expenses, damages, or losses. Webster’s New World Dictionary (Third College Edition 1994). As noted by this court in Knotts, supra, an employer is only liable for medical expenses once they are incurred.

We again note that defendants only recognized their responsibility to provide the power chair after a disputed claim was filed, they have yet to provide such a wheelchair. In fact, defendants were taxed with penalties and attorney fees for their obstinacy. Obviously, claimant could have purchased the wheelchair, and defendants would have been obligated to reimburse -the cost. What is contemplated by the legislature is that a claimant will incur expenses for necessary drugs, supplies, care, services, or, as in this case, a medical device, then obtain reimbursement from his or her employer. Under the circumstances of this case, claimant clearly has the Lright to choose the providers of the necessary drugs, supplies, services, etc., and defendants are protected by: (1) the requirement that said drugs, supplies, services, etc., be necessary and (2) the cost limit established La. R.S. 23:1203(B).

In the instant case, if claimant is able to obtain the wheelchair from her vendor of choice at a price within the fee schedule, she may do so. Or, should the cost of the wheelchair from her vendor of choice exceed the price set forth in the fee schedule, claimant nonetheless can choose to purchase her wheelchair from that vendor, but her reimbursement from defendants will be limited to the amount set forth in the fee schedule. The WCJ erred in holding otherwise.

Conclusion

For the reasons set forth above, the judgment of the WCJ is amended in the above respect, and as amended, affirmed. Costs of this appeal are assessed to defendants, KTBS, Inc., and CNA Insurance Company.

ON REHEARING

Before BROWN, STEWART, CARAWAY, MOORE, and LOLLEY, JJ.

PER CURIAM.

IrThe obligation of the employer and insurer to guarantee payment of necessary drugs, supplies, services, etc., has not been overruled by amendments to the Workers’ Compensation Act. Thomas v. Highlands Insurance Company, 92-2177 (04/12/98), 617 So.2d 877 (La.1998).

Thus, we amend our ruling to add:

IT IS ORDERED, ADJUDGED AND DECREED that defendants, KTBS, Inc., and CNA Insurance Companies, issue a guarantee of payment to plaintiffs choice of vendor for the wheelchair within ten days of this opinion. All costs are assessed to defendants.


author: LOLLEY, J.

text:
    Judy MABRY, Plaintiff-Appellant, v. UNION PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 42,856-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2008.

      Dollar Laird by Johnny E. Dollar, Monroe, for Appellant.
    Rankin, Yeldell & Katz by Stephen J. Katz, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

| ¶ Judy Mabry appeals a judgment of the Third Judicial District Court, Parish of Union, Louisiana, in favor of the Union Parish School Board. For the following reasons, we affirm the trial court’s judgment.

Facts

Judy Mabry initially was chosen as superintendent of schools by the Union Parish School Board (“School Board”) under an interim contract from April 12, 2005 through June 30, 2005. Effective July 1, 2005, the School Board extended a subsequent contract to Mabry for another two year period ending June 30, 2007. On February 20, 2007, the School Board met and, upon a motion by Steve Johnson and a vote of 5 to 3 with one abstention, decided not to renew Mabry’s contract past June 30, 2007. Those voting not to renew her contract were: Howard Allen, Marcus Whatley, Steve Johnson, Casey Kennedy and Jimmy Hollis. School Board members voting to renew Mabry’s contract were Michael Holley, Robert James and Barbara Yarborough. John Ellis abstained from voting.

In response to the vote not to renew her contract, Mabry filed suit on April 5, 2007, in the trial court seeking a writ of mandamus, declaratory judgment, civil penalties, and attorney fees. She requested that the trial court nullify the action by the School Board, claiming that the School Board had circumvented La. R.S. 42:4.1 et seq., requiring public bodies to conduct public meetings (the “Open Meetings Law”). Mabry claimed that prior to the meeting and the vote on Mabry’s contract, various School Board members had privately discussed Mabry’s contract, and the “votes” not to renew her contract had been gathered. Thus, as alleged by Mabry, when the ^meeting was called on February 20th, there was no public deliberation by the School Board on the issue. Mabry maintains that she had inherited a financially failing school system, suggesting that she was made the scapegoat for the financial situation the school system was in. The action at the trial court proceeded in a summary proceeding, and the trial court issued its ruling and entered judgment in favor of the School Board on May 24, 2007. This appeal by Mabry ensued.

Discussion

On appeal, Mabry raises one assignment of error. She argues that the trial court erred in not finding that the School Board had violated the Open Meetings .Law. Despite the trial court’s findings, Mabry urges that the School Board members controverted the law by discussing and deciding the issue of her contract prior to the February 20th meeting. We disagree.

Louisiana’s Open Meetings Law is contained in La. R.S. 42:4.1, which provides:

A. It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through 10 shall be construed liberally.
B. . Further, to advance this policy, all public bodies shall post a copy of R.S. 42:4.1 through 13.

Section 4.2 of the statute contains several important definitions, most specifically, the definition of the word “meeting” as the:

... convening of a quorum of a public body to deliberate or act on a matter over which the public body has supervision, control, jurisdiction, or advisory-power. .It shall also mean the convening of a public body by a public body or by another | spublic official to receive information regarding a matter over which the public body has supervision, control, jurisdiction or advisory power.

Of direct relevance to the facts at hand, although not referred to by the trial court or the litigants, is Section 4.2(B), which provides that: “The provisions of R.S. 42:4.1 through R.S. 42:12 shall not apply to chance meetings or social gatherings of members of a public body at which there is no vote or other action taken, including formal or informal polling of the members.” As stated in Op.Atty.Gen. No. 77-224, Feb. 8, 1977, “every casual encounter at which members of a governing body discuss official business is not subject to the Open Meetings Law.”

Here, we have evidence of individual telephone conversations between some board members that may or may not have addressed the issue of Mabry’s contract renewal. Certainly there was no “walking quorum” scenario as suggested by Mabry. As described in Op.Atty.Gen. No. 90-349, July 26, 1990, a “walking quorum” is a meeting of a public body where different members leave the meeting and different members enter the meeting so that while an actual quorum is never physically present an actual quorum during the course of the meeting, participates in the discussion. Other than a casual pizza dinner shared by Johnson and Holley, there was no evidence of a physical gathering of any group of the board members, let alone a quorum of the School Board, where Ma-bry’s contract renewal was discussed and/or agreed upon; thus the potential for a “walking quorum” did not exist in this case.

14What occurred here was casual telephone encounters where several board members individually and separately discussed the situation regarding Mabry’s employment contract. Generally, in our view, informal discussions between public officials would have to reach a much more structured level with secretive binding force on at least a quorum of the membership before the Open Meetings Law would be implicated — there was no evidence of such in this case. Moreover, we find that the informal exchange of ideas and opinions preliminary to a meeting of elected officials is important for the issues of agenda setting and compromise that make a deliberative body function efficiently. For one member to have a phone conversation with another, wherein opinions and thoughts on a topic are expressed, does not mean or create a presumption that those two parties’ views will be fixed in stone in solidarity before the public meeting. In fact, that is what the testimony, as would be expected, shows in this case. As Allen testified, one board member cannot always count on how another board member might vote on any issue — it is obviously not unheard of for someone to change their mind. Further evidence of a wavering mind in this particular case is the lengthy pause after Johnson’s motion was made, until Hollis finally seconded the motion. Here, the evidence showed the possibility for open discussion, public input, and open political argument, even if some board members had informally considered the issue beforehand. Finally, a court cannot be in the business of measuring the length of time and content of the discussion of a proposal at a public meeting to somehow circumstantially divine a prior done deal.

| sIn the case sub judice, the trial court, in its written ruling, painstakingly reviewed in great detail the pertinent facts and circumstances. It correctly noted the burden of proof that Mabry carried in her case against the School Board — i.e., a preponderance of the evidence. Other than the meal between Johnson (who voted not to renew) and Holley (who did not), there was no evidence of a prior physical meeting including any group of board members. We conclude that the trial court was not in error in determining that Mabry’s evidence fell short of proving by a preponderance that the Open Meetings Law had been violated, primarily because the evidence showed only casual and separate conversations by individual board members, even if the conversations centered around an issue to be addressed ultimately by the entire School Board.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of the Union Parish School Board is affirmed. All costs of this matter are assessed to Judy Mabry.

AFFIRMED.


author: WILLIAMS, J.

text:
    BELLSOUTH TELECOMMUNICATIONS, INC., Plaintiff-Appellee, v. William FERGUSON, Defendant-Appellant.
    No. 42,742-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 2008.

      Evelyn Collins Kelly, for Appellant.
    Gregory J. Barro, for Appellee.
    Before BROWN, WILLIAMS and STEWART, JJ.
   WILLIAMS, J.

hThe defendant, William Ferguson, appeals a judgment in favor of the plaintiff, BellSouth Telecommunications, Inc. (“Bell-South”). The trial court awarded Bell-South court costs and judicial interest from the date of demand. For the following reasons, we affirm.

FACTS

In June 2006, BellSouth mailed a demand letter via first class mail to William Ferguson (“Ferguson”) at his residence in Shreveport, seeking payment of $131.07, the amount allegedly due for telephone service. In August 2006, the plaintiff, BellSouth, filed a petition on open account against the defendant, Ferguson, seeking collection of the debt. On August 10, 2006, the defendant was personally served with notice of the petition and on August 18, 2006, the defendant paid the principal amount owed of $131.07 at a BellSouth payment location. In September 2006, the defendant filed an answer to plaintiffs petition alleging the affirmative defense of payment of the debt.

Subsequently, the plaintiff filed a motion for summary judgment seeking to recover court costs, judicial interest and attorney fees. After a hearing, the trial court ruled it would “deny plaintiffs motion for summary judgment and attorney fees,” concluding that defendant had paid the debt within the delay provided in LSA-R.S. 9:2781. The defendant’s attorney submitted a judgment to the trial court without first presenting the judgment to plaintiffs attorney for approval as to form. The trial court signed the judgment, which in addition to denying summary judgment, further stated that “plaintiffs suit as to this defendant is dismissed with prejudice at |2plaintiffs cost and with no attorney fees.” This judgment was not appealed.

In January 2007, plaintiff filed its “Motion for Rehearing Summary Judgment,” alleging that the court had misapplied LSA-R.S. 9:2781 in denying summary judgment. The defendant then filed peremptory exceptions of no cause of action, no right of action and res judicata. The defendant alleged that the motion for rehearing had been abolished in the trial courts and that the prior judgment dismissing plaintiffs claim was conclusive between the parties.

After a hearing, the trial court rendered judgment declining plaintiffs request for review of the denial of summary judgment as to attorney fees, but ordering defendant to pay all court costs and to pay judicial interest on the debt amount from the date of demand. Defendant appeals the judgment. This court denied plaintiffs motion to file a late answer. BellSouth v. Ferguson, 42,742 (La.App.2d Cir.8/23/07).

DISCUSSION

The defendant contends the trial court erred in considering plaintiffs motion for rehearing to assess him with court costs. In two assignments of error, defendant argues that he should not be liable for court costs since the court had previously rendered judgment denying plaintiffs motion for summary judgment.

Every pleading is construed so as to do substantial justice. LSA-C.C.P. art. 865. The caption, or heading, of the pleading does not control and the court is obligated to ascertain the substance of the pleading. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980); Ford Motor Credit Co. v. Brown, 32,995 (La.App.2d Cir.4/5/00), 756 So.2d 654.

Costs may be taxed by a rule to show cause and the court may render judgment for costs, or any part thereof, against any party as it may consider equitable. LSA-C.C.P. art.1920. The allocation of court costs among the parties is subject to the discretion of the trial court and its allocation of those costs will not be disturbed absent an abuse of that discretion. Street v. May, 35,589 (La.App.2d Cir.12/5/01), 803 So.2d 312.

In this case, the record shows that the trial court treated plaintiffs motion as a rule to tax costs. At the hearing on the motion, the trial court reiterated its decision that plaintiff was not entitled to recover attorney fees. However, the court assessed costs against the defendant finding that defendant’s nonpayment of the debt following written demand prompted plaintiff to file the petition. Based upon this record, we cannot say the trial court abused its discretion in assessing defendant with court costs. The assignments of error lack merit.

Peremptory Exceptions

The defendant contends the court should have considered the exception of res judicata and the exceptions of no right and no cause of action. The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law based on the facts alleged in the petition. Grocery Supply Co. v. Winterton Food Stores, 31,114 (La.App.2d Cir.12/9/98), 722 So.2d 94. The peremptory exception of no right of action is designed to test whether the plaintiff has a real and actual interest in judicially enforcing |4the right asserted. Downs v. Hammett Properties, Inc., 39,568 (La.App.2d Cir.4/6/05), 899 So.2d 792.

In this case, the plaintiffs petition adequately alleged facts to establish that there was a legal remedy available for its action to recover the debt allegedly owed by defendant. In addition, the record shows that the plaintiff possessed an actual interest in enforcing its claim to obtain payment for telephone services rendered. Thus, the defendant’s argument concerning the exceptions of no cause and no right of action lacks merit.

LSA-R.S. 13:4231(2) provides that if the judgment is in favor of the defendant, all causes of action existing at the time of the final judgment, and arising out of the transaction that is the subject matter of the litigation, are extinguished. A judgment in favor of either party is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined. LSA-R.S. 13:4231(3).

Initially, we note that the plaintiffs motion for costs was not a separate action, but was an incidental demand of the original action to recover payment of a debt on an open account. Thus, this is not a situation involving a subsequent action between the parties and res judicata is not applicable.

In addition, the record demonstrates that the issue of costs was not previously litigated. At the summary judgment hearing, the issue was the interpretation of LSA-R.S. 9:2781, which provides the procedure for collecting on open accounts and obtaining attorney fees. The statute does not address the allocation of court costs and the parties did not argue the | fissue of costs at the hearing. Based upon this record, the defendant has not shown that plaintiffs motion for costs and interest was precluded by res judicata. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, William Ferguson.

AFFIRMED.