author: AMY, Judge.

text:
    Vernis S. HINCHEE. v. SOLOCO, L.L.C.
    No. 07-770.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Jack Derrick Miller, Crowley, LA, for Defendant/Appellee, Soloco, L.L.C.
    John A. Cangelosi, King, LeBlane & Bland, P.L.L.C., New Orleans, LA, for Defendant/Appellee, Soloco, L.L.C.
    Kevin E. Huddell, Jones, Verras & Frei-berg, L.L.C., New Orleans, LA, for Plain-tif&Appellant, Vernis S. Hinchee.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   AMY, Judge.

LThe defendant leased property from the plaintiff for use as a storage facility for vehicles and equipment related to its oilfield services operations. The plaintiff filed suit alleging that the property was contaminated upon its return and that the defendant failed to adequately remediate the condition as it was contractually required to do. The trial court entered judgment in favor of the defendant, finding that the plaintiff failed to satisfy her burden of proving contamination on the property. For these reasons, we affirm.

Factual and Procedural Background

The plaintiff, Vernis Hinchee, owns property in Jefferson Davis Parish, four acres of which were leased by the defendant, Soloco, LLC, beginning in 1992. So-loco, an oilfield service contractor, used the property as a storage and repair facility for board mats used in its business, as well as a meeting place for its work crews. At the end of the initial five-year lease, Soloco did not renew the lease due to its need for a larger property for its operations. At that time, the plaintiff had a Phase I Pre-acquisition / Due Diligence Environmental Site Assessment performed on the property. The assessment identified areas of potential concern. Soloco began investigating the areas of concern, having a Phase II Hazardous Materials Site | ^Investigation performed that same year. The investigation concluded, in part, that “the analytical results of the soil analyzed has not been impacted by the previous storage of board mats once stored at the site.” It also reported no “environmental threat” on the area where an above ground fuel storage tank was located during the lease. A subsequent, 1998 assessment reported the presence of certain hydrocarbons, and suggested further sampling and analysis, but concluded that the concentrations of hydrocarbons did not exceed the RECAP screening levels it found applicable. Given the findings of its assessment, Soloco notified DEQ of possible groundwater contamination.

The plaintiff filed an initial suit for damages, asserting that Soloco was liable for any contamination. Litigation of that suit was avoided when the parties entered into a new property lease in April 2000 whereby Soloco agreed to provide retroactive and prospective rental payments to the plaintiff while it continued its environmental work on the property. Soloco also agreed to satisfy the following conditions: laLessee further agrees during the term of this Lease to perform any and all cleanup, restoration, remediation and other activities at its sole cost and expense which are necessary to (i) eliminate or remediate Hazardous Materials (as hereinafter defined) upon, in or affecting the Premises in accordance with the requirements of, and in order to bring the Premises into compliance with federal, state and local laws, ordinances and regulations; (ii) obtain a “No-Action” Letter issued by the State of | ¿Louisiana, Department of Environmental Quality which shall indicate that the Premises have been remediated in a satisfactory manner with regard to Hazardous Materials and that no additional action will be required. to be taken or expenses incurred in connection with the aforesaid remediation of the Premises; and (in) restore the Premises to their same condition at commencement of the Initial Lease.

After the execution of this lease, Soloco engaged another firm to perform a RECAP Closure Report of the premises after collection of additional data. This phase proceeded with DEQ’s approval. The resulting report issued by Soloco’s consultant indicated that benzene and hydrocarbon concentrations on either the soils or groundwater did not exceed the RECAP standards. No further action was recommended by the consultant. Upon application by Soloco, DEQ issued a “No Further Action” letter in February 2001. The letter reported that “the Area of Investigation (AOI) was closed in accordance with RECAP using Management Option 1 standards, and there are no institutional controls on this property.” Soloco asserts that its obligations under the April 2000 lease were satisfied upon issuance of the letter.

Several months later, the plaintiff filed the present lawsuit, asserting that|ñSoloco failed to pay rent under the lease after April 2001 and failed to return the property to its pre-lease condition. She requested damages and contractual attorney fees. Thereafter, the plaintiff filed a motion for summary judgment, asserting that due to Soloco’s failure to make rental payments after April 2001, she terminated the lease in August 2001 and that she was entitled to rental payments associated with the period from April through August. The trial court granted the partial summary judgment, awarding payment of past due rentals, plus interest. Subsequently, the plaintiff amended her petition, seeking, not only a declaratory judgment and injunctive relief, but damages pursuant to La.Civ.Code art. 2315 as well. These latter tort claims were found prescribed by the trial court as they had occurred prior to the original lease in 1997, yet the claims were not filed until 2001.

The remaining claims proceeded to a bench trial where the parties presented evidence as to additional environmental testing performed and evaluated after the filing of the lawsuit. However, the trial court found the plaintiffs expert unqualified to testify as to RECAP standards. Ultimately, the trial court entered judgment in favor of Soloco, finding that the plaintiff lacked sufficient proof of contamination. 16The plaintiff appeals, assigning the following as error:

1. The evidence clearly shows that Hinchee’s property is contaminated and that remediation is necessary under the terms of the 2000 Lease and under LDEQ standards, and the trial court erred in holding otherwise.
2. Hinchee’s environmental expert was eminently qualified to testify as to all of the opinions contained in his expert reports, and the trial court erred in limiting his testimony.
3. The trial court erred in refusing to allow Hinchee’s rebuttal testimony to refute the new opinions of Solo-co’s expert which contradicted the expert’s written opinion.

Discussion

Limitation of Expert Testimony

In the trial court’s ruling that the plaintiff failed to meet the applicable burden of proof, it noted that the plaintiff failed to call an expert in RECAP standards. The plaintiff contests this assertion, arguing that the trial court abused its discretion in refusing to permit Ernest Franz, its expert in the field of site investigation and sampling, from offering expert testimony as to RECAP standards.

Mr. Franz explained that he is the owner of Environmental Sampling, Inc., a firm specializing in the investigation and remediation of contamination. The plaintiff engaged the firm to conduct additional sampling and testing on the property in 2002 and, in 2005, to review a RECAP investigation performed by the defendant’s consultant. Mr. Franz described his years of work and the licenses and certifications he holds in the remediation field. However, when asked of his educational background, Mr. Franz explained that he had no formal, higher educational degree and that he was self taught. As for the compilation of the data for RECAP analysis, |7Mr. Franz explained that the geologists, toxicologists, and engineers who work for him “crunch the numbers.” He explained that he oversees the process and reviews each project. Vicki Bourgeois, a geologist who Mr. Franz described as an environmental scientist performed the calculations necessary for the work.

Considering the traversal and qualification questioning, the trial court found Mr. Franz unqualified to testify as an expert with regard to RECAP standards. Thus, he was not permitted to offer his opinion as to whether contamination on the property required remediation under RECAP standards.

Louisiana Code of Evidence Article 702 governs the admissibility of expert testimony and provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

A trial court’s determination of whether an expert meets these qualifications and whether he or she is competent to testified in a specialized area is subject to the abuse of discretion standard of review. Cheairs v. State ex rel. DOTD, 03-680 (La.12/3/03), 861 So.2d 536. We find no such abuse of discretion.

[«Despite testimony regarding Mr. Franz’s years of experience working in the field, specific testimony regarding his ability to compile the data was general in nature. He stated only that, if he did compile the data, DEQ “would not deny [his] work.” Also, the trial court recognized the complexity of the RECAP standards. We do not opine whether the trial court could have permitted testimony in this regard. Instead, we find no abuse of discretion in the trial court’s refusal to broaden Mr. Franz’s areas of expertise given the limited information provided as to his abilities and qualifications.

Neither do we find merit in the plaintiffs assertion that La.Code Evid. arts. 703 and 705(A) permitted Mr. Franz to testify as to data compiled by Ms. Bourgeois. The trial court’s ruling does not indicate that it limited the testimony on this basis. Furthermore, the wording of these Articles and the jurisprudence relied upon by the plaintiff assume that the trial court previously found the witness qualified to be an expert in the field. There was no such preliminary finding in this case.

This assignment lacks merit.

Breach of Contract

The plaintiff chiefly contends that the trial court erred in finding that she failed to establish breach of contract. She argues that the evidence indicates that the | property was contaminated and that Solo-eo failed to remediate the condition in accordance -with the requirements of the April 2000 lease.

Paragraph 3 of the lease required that Soloco “perform any and all cleanup, restoration, remediation and other activities at its sole cost and expense which are necessary to:”

(i) eliminate or remediate Hazardous Materials (as hereinafter defined) upon, in or affecting the Premises in accordance with the requirements of, and in order to bring the Premises into compliance with federal, state and local laws, ordinances and regulations;
(ii) obtain a “No-Action” Letter issued by the State of Louisiana, Department of Environmental Quality which shall indicate that the Premises have been remediated in a satisfactory manner with regard to Hazardous Materials and that no additional action will be required to be taken or expenses incurred in connection with the aforesaid remediation of the Premises; and
(iii) restore the Premises to their same condition at commencement of the Initial Lease.

Soloco contends that it satisfied each of these requirements.

As defined in Louisiana Civil Code Article 1906, “[a] contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” Article 1983 provides that: “Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.” A party alleging a breach of contract bears the burden of proving that breach. Shirley v. Smith, 99-1281 (La.App. 3 Cir. 2/2/00), 758 So.2d 241, writ denied, 00-684 (La.4/20/00), 760 So.2d 1160.

After review of the record, we find no manifest error in the trial court’s determination that the plaintiff failed to meet her burden of proof on her breach of contract claim. In fact, much of the difficulty in the plaintiffs case is that her presentation of the evidence, questioning of the witnesses, and framing of the issues |into both the trial court and this court do not focus on what she proved with regard to breach. Rather, the focus appears to be on whether Soloco proved that it, in fact, satisfied the lease in light of her allegation of excessive contamination. This is an erroneous application of the burden of proof.

Eliminate or Remediate Hazardous Materials

The first contractual requirement in the April 2000 lease specified that Soloco was to “eliminate or remediate Hazardous Materials [ ] upon, in or affecting the Premises in accordance with the requirements of, and in order to bring the Premises into compliance with federal, state and local laws, ordinances and regulations.” Thus, the plaintiff was required to prove that hazardous materials existed and that Solo-co failed to eliminate or remediate these materials to the extent that they were in compliance with the above delineated laws. Considering the evidence presented, the trial court was not required to find she met this burden.

Even accepting the presence of hazardous materials, the plaintiff presented no expert testimony indicating that the contaminants on the property required further analysis or remediation. In fact, she lacked evidence that any condition violated federal, state, or local ordinances or regulations. Recall that the plaintiffs expert was not qualified to testify as to RECAP standards. Furthermore, the trial court’s reasons for ruling indicate that it accepted the testimony of Soloco’s expert who opined that pursuant to DEQ RECAP standards, not only was the property suitable for commercial or industrial purposes, but was suitable for nonindustrial purposes as well.

We note that the plaintiff asserts that Dr. Srinivasan’s report indicates that he personally proposed remediation due to levels of contamination and that his in-court | ^testimony differed. However, the trial court heard both Dr. Srinivasan’s testimony and was in possession of the subject report. The trial court was able to identify any conflicts and weigh the evidence accordingly. Additionally, the plaintiffs counsel subjected Dr. Srinivasan to rigorous cross-examination on any alleged disparities.

No Further Action Letter

Next, the contract of lease required So-loco to “obtain a “No-Action” Letter issued by the State of Louisiana, Department of Environmental Quality which shall indicate that the Premises have been remediated in a satisfactory manner with regard to Hazardous Materials and that no additional action will be required to be taken or expenses incurred in connection with the aforesaid remediation[.]” Thus, the plaintiff was required to prove that Soloco failed to obtain such a letter.

As explained in the factual background, DEQ issued a No Further Action letter in February 2001. The plaintiff argues that this letter was inadequate under the terms of the lease as she desires the property suitable for nonindustrial purposes and, she contends, the No Further Action letter does not provide for such use. However, the lease, which was written by an attorney retained by the plaintiff, does not address whether the property was to be returned in a condition suitable for industrial or nonindustrial purposes. Neither did the plaintiff provide extrinsic evidence that required the trial court to find that the contract reflected an intent for the No Further Action letter to specifically anticipate a return to a nonindustrial standard. Louisiana Civil Code Article 2056 provides that “[i]n case of doubt a provision in a contract must be interpreted against the party who furnished its text.” See also Campbell v. Melton, 01-2578 (La.5/14/02), 817 So.2d 69.

|12Moreover, the condition of the property prior to commencement of the initial lease with Soloco remains unclear from the record as the plaintiffs son testified that the acreage was leased by an oilfield company for the storage of its trucks for a two-and-a-half year period beginning in 1959.

Despite the record’s lack of clarity on the parties’ intentions as to the objective of the No Further Action letter, Soloco provided expert testimony indicating that, even assuming a nonindustrial standard, no remediation would be required. Given that the plaintiff was required to establish that the No Further Action letter obtained by Soloco was inadequate, and to do so with a preponderance of the evidence rather than mere arguments or assumptions, we find no manifest error in a determination that she failed to meet this burden of proof.

Restoration of the Premises

Finally, the contract of lease required that Soloco “restore the Premises to their same condition at commencement of the Initial Lease.” Again, the plaintiff was required to prove that Soloco failed to satisfy this element rather than Soloco proving that it, in fact, satisfied the element. In considering the plaintiffs evidence, the trial court could have considered that the plaintiff did not provide information regarding the condition of the soil or groundwater on the property at the beginning of the initial lease. The trial court was also aware that the property had a prior industrial use. In light of the vagueness of this background information, we do not find that the trial court was required to find that the plaintiff established that the return of the property was insufficient.

We also observe that, while the plaintiff asserts that this third requirement necessarily applies to environmental remediation and standards, we do not find that | iathe trial court was required to find this necessarily to be the case. Rather, the trial court could have considered this requirement to be one involving the condition of the surface area or remaining equipment or structures. Moreover, the first two delineated requirements anticipate that hazardous materials will be “eliminated or remediated” and then only to the level of compliance with various laws. Thus, the plaintiffs interpretation of the third requirement could be viewed as inconsistent since it would mandate a broader level of remediation, even elimination. Recall that, “[ijnterpretation of a contract is the determination of the common intent of the parties.” La.Civ.Code art.2045. See also La.Civ.Code art.2050. So, to the extent the third requirement may be ambiguous, it could be construed against the drafting party, the plaintiff. See La.Civ.Code art.2056; Campbell, 817 So.2d 69.

This assignment of error lacks merit. Rebuttal Testimony

At the close of the defendant’s case, the plaintiffs counsel argued that the defendant’s expert, who testified that no encumbrances on the property were required nor was remediation necessary under RECAP standards, contradicted a report he issued prior to trial. Counsel argued that, pursuant to La.Code Evid. art. 611(E) , he should have had the ability to present his own previously uncalled expert in rebuttal. The trial court denied the request and observed that the opinion asserted to be a change in testimony was elicited before the plaintiff rested her case in chief and not when the witness was recalled during the defendant’s presentation of evidence. The trial court concluded that any additional witnesses necessary to contravene the |14opinion should have been presented at that time. Our review reveals no abuse of the trial court’s discretion in this regard. See State ex rel. Guste v. Nicholls College Foundation, (La.App. 1 Cir.1991), 592 So.2d 419, writ denied, 593 So.2d 651 (La.1992), wherein the first circuit found no abuse of discretion where the trial court refused to allow the State to submit or develop new evidence on rebuttal where the intent of the evidence was not to rebut matters raised by the defendant in its defense, but to introduce new evidence.

This assignment lacks merit.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of this proceeding are assessed to the plaintiff, Vernis S. Hinchee.

AFFIRMED.

      . The Findings and Conclusions portion of the assessment reported "the following evidence of recognized environmental conditions in connection with this property:”
      • The previous construction and storage of sections of board mats for oil and gas exploration roads that may have been preserved with unidentified substances may be a concern in the surficial soils on the subject property. Sampling and analysis of the soils in the areas where boards were stored would be necessary to confirm the presence or absence of wood preservatives in the soil □ .
      • The potential for spills from the above ground storage tanks on the northern boundary of the property may be a concern. Sampling and analysis of the soils in the former bermed area would be necessary to confirm the presence or absence of petroleum hydrocarbons in the soil [ ].

      . The summary of the assessment, which was conducted by Gulf Coast Environmental Consultants, Inc., provided:
      It is the opinion of GCECI that the analytical results of the soil analyzed has not been impacted by the previous storage of board mats once stored at the site. The specific parameters analyzed for the presence or non presence of cresol were non detectable for soil composite samples JY # 1-JY # 4. Also, it appears that the results indicated for samples JYAGT# 1, JYAGT# 2, JGW# 1, and JGW# 2 does not pose an environmental threat to the vicinity of the previous location beneath the above ground fuel storage tanks or tank or its surrounding area.

      . As reported in the record, RECAP is an acronym for Risk Evaluation / Corrective Action Program. It is a program promulgated by DEQ to assess a site’s risks to human health and the environment.

      . Pertinent portions of the lease include:

        Background

        ... Under the terms of the Initial Lease, Lessee assumed liability for all damages and losses sustained by Lessor arising out of Lessee’s acts, omissions and use of the Premises, including but not limited to, contamination and environmental damage. The parties acknowledge that during the term of the Initial Lease, contamination and/or environmental damage occurred for which the Lessee bears full responsibility.
      In consideration of Lessee’s aforesaid liability under the Initial Lease for environmental and other damage to the Premises sustained by Lessor, and Lessee’s obligation to remediate the aforesaid damage and pay all expenses associated therewith, the parties hereby agree to enter into this Contract of Lease under the following terms and conditions:

      III
      Upon execution of this Contract of Lease (the “Lease”), Lessee agrees to pay to Lessor as back rent the sum of One Thousand Dollars ($1,000) per month from March 1, 1997 through December 31, 1999.... Lessee further agrees during the term of this Lease to perform any and all cleanup, restoration, remediation and other activities at its sole cost and expense which are necessary to (i) eliminate or remediate Hazardous Materials (as hereinafter defined) upon, in or affecting the Premises in accordance with the requirements of, and in order to bring the Premises into compliance with federal, state and local laws, ordinances and regulations; (ii) obtain a "No-Action” Letter issued by the State of Louisiana, Department of Environmental Quality which shall indicate that the Premises have been remediated in a satisfactory manner with regard to Hazardous Materials and that no additional action will be required to be taken or expenses incurred in connection with the aforesaid remediation of the Premises; and (iii) restore the Premises to their same condition at commencement of the Initial Lease. As used herein, the term "Hazardous Materials” shall include, without limitation, all substances defined as hazardous or toxic substances or materials, wastes and toxic or non-toxic pollutants and contaminants in the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), as amended; those substances listed in the United States Department of Transportation Table or by the Environmental Protection Agency; any material, waste or substance which is petroleum, asbestos, polychlorinat-ed biphenyls, or designated as a hazardous substance to the Clean Water Act; flammable explosives, radioactive materials and such other substances; and materials and waste which are or become regulated as hazardous or toxic under applicable local, state or federal or regulations....
      IV
      This Lease shall commence on the 1st day of January, 2000 (“Commencement Date”). The term of this Lease shall expire on the date of receipt by Lessor of a report by Department of Environmental Quality of the State of Louisiana (the "DEQ”) which states that the property meets the remediation standards of the DEQ.

      . The No Further Action Notification provides, in part:
      The Louisiana Department of Environmental Quality — Remediation Services Division (LDEQ-RSD) has reviewed your Risk Evaluation / Corrective Action Program submit-tal dated December 2000 for the above referenced area of investigation ... Based on this review we have determined that no further action is necessary at this time. This determination is based on the following considerations:
      The property was previously used to construct, repair, and store "board road” mats from 1982 to 1997. The potential sources on this site are a UST that was removed in 1994, and two AST’s that were removed in 1997. The constituents of concern (COC) detected on the property were TPH-DRO, TPH-GRO, and Benzene. The media impacted by these constituents were soil and groundwater for TPH-DRO and TPH-GRO, and soil only for Benzene. All COC concentrations were found to be below the MO-1 limiting RECAP Standard for a nonindustrial site.
      The Area of Investigation (AOI) was closed in accordance with RECAP using Management Option 1 standards, and there are no institutional controls on this property. This site was sampled vertically to a depth of 16 ft, such that the AOI is bounded by a series of borings that show no detectable contamination.

      . In reasons for ruling, the trial court explained:
      After reviewing the testimony, pre-trial memoranda, and the voluminous evidence offered by the parties, the Court must find that the plaintiffs have not sustained their burden of proving that the land in question is still contaminated as a result of SOLO-CO's activity. HINCHEE did not call any experts in RECAP regulations. One was a former employee of the Department of Environmental Quality who did not have authority to speak on behalf of the DEQ and the others worked for environmental testing companies. The plaintiff's "experts” testified as to their own experience in environmental sampling and soil contamination; however, there was no evidence offered at trial that HINCHEE’s property could not be used for any purpose the plaintiff wished. SOLOCO’s expert, Dr. Kiran Srinivasan, testified about RECAP and was accepted as an expert by the Court. Dr. Srinivasan stated at trial that he couldn't agree that there is contamination present on the property and that he believed that remediation was not necessary. He further testified that there was no reason that the property could not be leased or sold for non-industrial commercial business and/or residential structures. Consequently, after reading the exhibits offered by the parties and reviewing the testimony at trial, the Court finds that the plaintiff has not carried her burden of proving the contamination exists or that she is restricted in her use of the property as a result of SOLOCO's activities.

      . The trial court explained as follows in limiting the expert testimony:
      I think [Mr. Franz is] certainly a — a very successful business person or contractor, but I don’t think that makes him and [sic] expert in the scientific areas that he’s going to have — that I would think there that he’s going to have — that I would think there would have to be some testimony regarding to be able to — to be qualified to express those opinions. He has — he has no scientific background and training whatsoever. He certainly ... is experienced in — in the field of hard knocks and that goes far in — in helping him be qualified as a site evaluation and sampling expert, but the — the RECAP— and going over the RECAP cookbook, as it's been presented to the Court or described to the Court, I think is going to require some — some educational background in geology and chemistry, and I don’t see that in this witness. So I'm going to have to limit — I’m—I’m going to accept him as — as a site evaluation and sampling expert, but that is not going to include being able to express opinions on the RECAP cookbook and the standards that are set forth in that regulation.

      . Article 703 provides:
      The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

      . Article 705 provides, in part:
      A. Civil cases. In a civil case, the expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

      . Article 2050 provides: "Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.”

      . Article 611(E) provides that ‘‘[t]he plaintiff in a civil case and the state in a criminal prosecution shall have the right to rebut evidence adduced by their opponent.”


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    LAFAYETTE PROFESSION FIREFIGHTERS ASSOCIATION and its President Donald J. Chauvin v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT.
    No. 07-755.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    Rehearing Denied Jan. 16, 2008.

      Greg Guidry, Onebane Law Firm, Lafayette, LA, for Defendant-Appellant, Lafayette City-Parish Consolidated Government.
    Louis L. Robein, Jr., Robein, Urann & Lurye, P.L.C., Metairie, LA, for Plaintiff-Appellee, Lafayette Professional Firefighters.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

I,The Lafayette City-Parish Consolidated Government (LCPCG) appeals the ruling of the trial court that it reduce firefighter pay by implementing a “trigger clause” included in a 2003 ordinance providing for firefighter pay.

FACTS

In November 2002, a tax millage was approved by the voters of Lafayette Parish which supported a base pay rate for firefighters of $1833.00 per month. In 2003, individual firefighters and officials of the Lafayette Firefighters Association agreed to take voluntary step-up promotions in exchange for a pay increase above the $1833 base pay.

In a step-up promotion, a firefighter who was scheduled to work would take a temporary increase in rank to cover the absence of a person of that rank. Acceptance of step-up promotions allowed the LCPCG to save money normally expended in overtime pay for a firefighter not scheduled for work to fill in for an absent firefighter.

The Plaintiffs have stipulated that on September 4, 2003, in a budget meeting with the Lafayette City-Parish Council (the Council):

Jay Castille, an officer of the Plaintiff Union, made a separate presentation to the Council, explaining that the firefighters had agreed to the concept of a “trigger clause” that would revert the starting salary back to the $1,833 starting salary at a point where firefighters refused to accept step-ups. According to Castille, this concept was passed unanimously at meeting of union firefighters, and everyone was “OK” with the trigger clause.

On September 16, 2003, Ordinance 231-2003 was passed providing for a firefighter pay plan for the 2003-2004 fiscal year with a $1950.00 starting salary for firemen, conditioned on acceptance of voluntary step-up promotions. The ordinance | ¡¡included a trigger clause whereby the salary would revert to the base pay, “at any time,” if the LCPCG had to pay overtime as the result of refusal to take a step-up promotion. The parties have stipulated that the firefighters accepted step-up promotions during the 2003-2004 fiscal year.

In October 2004, the Council adopted Ordinance 249-2004 which adjusted the pay schedules to provide for a two percent pay increase for firefighters as required by La.R.S. 33:1992(B). The ordinance made no mention of the trigger clause.

The firefighters continued to accept step-up promotions until December 2004 when the Council passed Ordinance 290-2004 which substantially reduced the number of exchange days firefighters could use each year. It is undisputed that after that time, firefighters began refusing step-up promotions and that the LCPCG had to pay overtime for as many as 718 hours as a result of the refusals. On January 16, 2005, the LCPCG implemented the trigger clause of 231-2003 and began paying firefighters based on a starting salary of $1,833.00 per month adjusted for the two percent increase granted in 2004. In February 2005, the Council passed Ordinance 039-2005 in an attempt to ratify the implementation of the revised pay plan pursuant to the trigger clause.

In February 2005, the firefighters filed this suit seeking declaratory judgment affirming their right to receive pay at the higher rate and a mandatory injunction restoring the higher pay rate. The case was submitted to the trial court on stipulations of fact and exhibits. In written reasons for judgment, the trial court found that the 2003 pay ordinance sought to provide a higher base pay to firefighters. As a result, the court rendered judgment declaring that the reduction of base pay pursuant to the trigger clause was a violation of La.R.S. 33:1992(B) and found the LCPCG liable for | ^restoration of pay firefighters employed prior to the enactment of Ordinance 231-2003 to the level each would have received absent the implementation of the trigger clause. The LCPCG appeals.

DISCUSSION

Base Pay

LCPCG first argues that the trial court erred in finding that implementation of the trigger clause was in violation of the provisions of La.R.S. 33:1992(B). That statute provides for minimum pay and longevity-based pay increases for firefighters, as follows:

From and after the first day of August, 1962, each member of the fire department who has had three years continuous service shall receive an increase in salary of two percent and shall thereafter receive an increase in salary of two percent for each year of additional service up to and including twenty years. Both the base pay and accrued longevity shall be used in computing such longevity pay.

The first question which this court must consider is what constitutes base pay. After reviewing the exhibits and the stipulations of fact submitted in this case, we conclude that base pay for firefighters employed by the LCPCG is the $1833.00 funded by the passage of the voter approved tax millage. Although the parties chose to alter their pay scale contractually, the agreement did not alter base pay, rather it allowed the firefighters to receive pay at a rate in excess of that which would have been received using the $1833.00 base. However, the agreement reserved that amount as the base, making it clear that receipt of the excess amount was de-pendant on the firefighters’ complying with the agreement to accept step-up promotions. The Louisiana Supreme Court has explained that the Louisiana Civil Code establishes freedom to contract on all matters not forbidden by law:

I4LSA-C.C. art. 7 provides that “[pier-sons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity.” LSA-C.C. art.1968 pronounces “[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.” A contract is absolutely null “when it violates a rule of public order, as when the object of a contract is illicit or immoral.” LSA-C.C. art.2030; see Daigle[ v. Clemco Industries], 613 So.2d [619] at 624[ (1993) ]. “None of these provisions grants judges the prerogative to disregard public policy decisions underlying legislation or to reweigh balances of interests and policy considerations already struck by the legislature.” Id. Thus, the Civil Code establishes the freedom to contract on all matters not forbidden by law.

Travelers Ins. Co. v. Joseph, 95-0200, p. 10 (La.6/30/95), 656 So.2d 1000, 1004 (alterations in original).

The parties do not cite, and we have not found, any authority to support the conclusion that the law forbids these parties from agreeing to a pay schedule in excess of their ordinary base pay or to agree to forfeit certain rights, in this case the right to refuse step-up promotions, in exchange for being paid a salary in excess of a schedule derived from base pay.

Therefore, we find that the parties exercised their freedom of contract by entering into an agreement containing a resolutory condition. Upon occurrence of the condition in the form of the failure to voluntarily accept step-up promotions, the obligation to pay at the greater rate ended and pay reverted to the base implemented by the vote of the citizens of the parish. La.Civ.Code art. 1767.

Ordinance 219-2001

The firefighters assert that Ordinance 249-2004 repealed the previous pay plan and the trigger clause of Ordinance 231-2003 and instituted a higher base pay. That ordinance is as follows:

WHEREAS, the Lafayette City-Parish Council grants a 2% increase to be effective on the first pay period beginning in November, |s2004, to affect all positions in the Fire Department so that the pay schedules used to administer pay in that department must be adjusted to provide for this 2%, and said adjusted schedules are attached to this ordinance.
SECTION 4: All ordinances or resolutions or parts thereof in conflict herewith are hereby repealed.

Ordinance 249-2004 repeals only those ordinances which are in conflict with it, after reviewing Ordinance 249-2003 we find that it does not conflict with Ordinance 249-2004 since it too provides for longevity increases as required by La.R.S. 33:1992(B). Therefore, the firefighters’ assertions lack merit.

Ordinance 039-2005

On appeal, the LCPCG asserts that the trial court erred in finding Ordinance Ordinance 039-2005 in violation of La.R.S. 33:1992(B). However, having found that the implementation of the agreement reached between the firefighters and the LCPCG into Ordinance 231-2003 was proper as it did not violate La.R.S. 33:1992(B) nor did it conflict with Ordinance 249-2004, we need not address the validity of Ordinance 039-2005.

Two Percent Longevity Calculation

The firefighters have suggested that the LCPCG is attempting to apply the two-percent longevity pay raise required by La.R.S. 33:1992(B) to the $1833.00 base pay even for the time the firefighters were being paid at a higher rate. While we see no clear evidence that this is the case, we note that the firefighters are entitled to continue to receive two percent of the amount they were actually paid during the years of higher pay and that further longevity raises must be calculated on the amount actually received plus the amounts previously received as longevity pay increases. New Orleans Firefighters Ass’n, Local 632 v. City of New Orleans, 286 So.2d 674 (La.App. 4 Cir.1973), application denied, 289 So.2d 161.

CONCLUSION

For these reasons, the judgment of the trial court is reversed. Judgment is rendered in favor of the LCPCG. Costs of this appeal are to be paid by the firefighters.

REVERSED AND RENDERED.


author: SAUNDERS, Judge.

text:
    S & S COATING SPECIALTIES v. Brock DORE.
    Nos. WCA 07-745, WCA 07-746.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      William Michael Stemmans, Baton Rouge, LA, for PlaintifiyAppellee: S & S Coating Specialties.
    Harry Karl Burdette, The Glenn Ar-mentor Law Corp., Lafayette, LA, for Defendant/Appellant: Brock Dore.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

1 iThis is a workers’ compensation case. Claimant was injured in a work related accident. The employer filed a 1008 alleging that Claimant was using illicit drugs on the day of the accident. Claimant filed a 1008 alleging that the employer arbitrarily and capriciously denied workers’ compensation benefits. Their claims were consolidated.

After a two day trial and taking the matter under advisement, the workers’ compensation judge (hereinafter “WCJ”) found that Claimant was entitled to medical benefits for the initial emergency room visit and for four days of disability benefits. As the employer had already paid employee those benefits, the WCJ denied Claimant any penalties or attorney’s fees. Claimant has appealed alleging two assignments of error. We affirm the WCJ’s judgment.

FACTS AND PROCEDURAL HISTORY:

Claimant, Brock Dore (hereinafter “Dore”), was employed with S & S Coating Specialties, Inc. (hereinafter “the employer”) as a painter. Dore had suffered an injury prior to his employment. Dore’s prior injury resulted in a preexisting cervical condition that, according to Dore, had resolved. On December 22, 2003, while in the course and scope of his employment, Dore was injured by a falling box that hit him on the neck and shoulder. Dore reported the accident to his supervisor, then went home to rest. Thereafter, Dore went to the emergency room and presented with pain on the right side of his neck and right shoulder. The emergency room physician, Dr. Chester Dellanger, gave Dore a four-day work release.

On January 22, 2004, the employer filed a 1008 alleging that Dore was not allowed to receive benefits as he was under the influence of illicit drugs at the time of the accident. Approximately seven days after the initial 1008 filed by the employer, 12Pore filed a 1008 alleging that he was disabled from the December 22, 2003, accident and that the employer was arbitrarily and capriciously denying him workers’ compensation benefits. The cases were consolidated.

Dore continued to receive medical treatment, complaining of pain on the right side of his neck and radiating pain down his right arm. An MRI was conducted on May 18, 2004. The May 13, 2004, MRI was compared to Dore’s December 1, 1999, MRI that was conducted as a result of Dore’s prior injury. Minimal changes were shown to Dore’s C5-C6 disc on the left side, but no other changes were shown.

The matter was tried on June 2, 2005 and June 5, 2005. After the submission of testimony and evidence, the matter was taken under advisement. Judgment was rendered on October 13, 2006. The WCJ found that Dore had failed to carry his burden of proving that the disability he suffered as a result of the pain on his right side was causally related to the December 22, 2003, accident.

The WCJ, after listening to medical evidence, opined that Dore’s subjective complaints of pain on his right side were not typical of the protrusions that the May 13, 2004, MRI had shown on Dore’s left side. Therefore, the WCJ found that Dore had to prove that his condition was not typical. The WCJ ruled that Dore failed to carry this burden because he had supported his position with his own testimony, and that his testimony lacked credibility.

The WCJ made her decision on Dore’s credibility based upon inconsistencies in his testimony, a history of drug seeking behavior, and a prior judgment that found Dore had committed workers’ compensation fraud. Dore has appealed alleging first that the WCJ committed manifest error in finding that he was not entitled to any further indemnity or medical benefits beyond the emergency room visit and four days | sof disability. Second, Dore is alleging that the WCJ committed manifest error in finding that the employer was not arbitrary and capricious in its denial of his claim.

We find that the two assignments of error raised by Dore lack merit. As such, we affirm the WCJ’s judgment and assess all costs of this appeal to Dore.

ASSIGNMENTS OF ERROR:

1. Did the WCJ commit manifest error in finding that the employee, Brock Dore, was not entitled to any further indemnity or medical benefits beyond the emergency room visit and four days of disability?
2. Did the WCJ commit manifest error in finding that the employer, S & S Coating Specialties, Inc., was not arbitrary and capricious in its denial of the employee’s claim?

ASSIGNMENT OF ERROR # 1:

Dore contends that the WCJ committed manifest error in finding that he was not entitled to any further indemnity or medical benefits beyond the emergency room visit and four days of disability. This assignment of error lacks merit.

This court noted the following in Veazie v. Gilchrist Const. Co., 04-118, pp. 2-3 (LaApp. 3 Cir. 6/2/04), 878 So.2d 742, 744-745, writ denied, 04-1692 (La.10/8/04), 883 So.2d 1018:

Appellate review in workers’ compensation cases is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.[l/]14[/94]), 630 So.2d 733. The appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one in light of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). Deference is due to the factfinder’s determinations regarding the credibility of witnesses, “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.” Rosell, 549 at 844.

14In a workers’ compensation proceeding, much like that in most civil actions, the plaintiff'employee must prove by a preponderance of the evidence the cause of his or her workers’ compensation claim. Therefore, the evidence, when taken as a whole, must show that it is more probable than not that the employment accident caused the injury. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974).

In the case before us, the WCJ found that Dore was only entitled to disability and indemnity benefits for the emergency room visit on the day of the accident and for the following four days after the accident. In order for this court to reverse the WCJ’s findings, we must conclude, in light of the entire record, no reasonable person could have made the same findings as the WCJ. There is ample evidence in the record to support the WCJ’s findings.

Dr. Chester Dellanger, the emergency room doctor who saw Dore the day of the accident, gave Dore a four-day work release the day of the accident. Other than the emergency room records, the primary objective indication of Dore’s injury was the MRI performed on May 13, 2004. The MRI showed that the abnormal discs with protrusions were on Dore’s left side, while Dore’s subjective complaints of pain were on his right side. Dr. Dellanger and Dr. Gregory Gidman both testified that disc complaints typically correlate to the same side as the protrusion. Dr. Dellanger testified that Dore’s complaints were at the right side of the neck and upper shoulder. Dr. Kenneth L. Fournet, a general practitioner who treated Dore, consistently noted right-sided complaints. Finally, Dr. Cobb, an orthopaedic surgeon, noted that Dore was complaining of radiating pain into the right arm.

Given Dore’s atypical symptomology, it was his burden to prove, through his | ñown credible testimony or otherwise, that his medical condition was not one of the typical variety. The WCJ determined that Dore failed to carry that burden due to his lack of credibility. There is sufficient evidence to make this credibility determination reasonable.

Dore had a prior judgment against him for workers’ compensation fraud and a pri- or drug conviction. Further, Dore’s testimony is inconsistent. The testimony of Mark Hebert, the yard foreman and Dore’s supervisor, was in direct contradiction to Dore’s regarding the time he went to the emergency room. The WCJ found that Dore lied to his work supervisor in order to avoid answering questions regarding the taking of a drug test. Further, Dore’s testimony is contradicted by the medical records from his emergency room visit. Dore testified that he told the emergency room staff that his accident was work related. Those records show Dore to be a self paying patient rather than a workers’ compensation patient. The WCJ believed that Dore failed to disclose the origin of his injury in order to avoid a drug test. The WCJ based her belief on the fact that it was explained to every employee of the employer that when a person presents to an emergency room for a work related injury, he would be subjected to a drug test.

Moreover, after learning that drug use was an issue in the case, Dore took a drug test. The results of that test where found to be tainted, or “too clean,” as the specimen was nearly tap water. Finally, the testimony of Dr. G. Douglas Sagrera, a family and general practice physician who treated Dore, indicated that once Dore’s previous injury had resolved, he attempted to obtain prescription for medications which he did not need.

Dore attempts to show that the WCJ was unreasonable in her findings by | (jpointing to medical records from Dr. John Cobb and Dr. Ilyas Munchi. While those records could have potentially helped Dore carry his burden of proving that his work accident caused further disability, we shall not consider those records. Louisiana Code of Civil Procedure Article 2164, in pertinent part, states, “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

The medical records referenced by Dore were generated after the judgment issued by the WCJ and were not admitted into evidence at trial. As this court is a court of review, it is not this court’s proper function to admit evidence for the first time without any consideration of that evidence at a lower level. As such, it would be improper for this court to consider evidence not first weighed and ruled upon at the trial level.

As stated above, Dore had the burden of proving that his atypical symptomology was due to the work related accident. The only evidence offered to carry that burden was his own testimony. Given that Dore’s testimony was reasonably found to lack credibility, we cannot say that the WCJ’s ruling on Dore’s disability was in error. Moreover, there was evidence in the record which would support a finding that Dore was disabled for only a four day period following his injury. As such, we affirm the WCJ’s ruling that Dore was not entitled to any further indemnity or medical benefits beyond the emergency room visit and four days of disability.

ASSIGNMENT OF ERROR # 2:

Dore contends the WCJ committed manifest error in finding the employer was not arbitrary and capricious in its denial of his claim. This assignment of error also lacks merit.

The rule is well settled that a worker’s compensation claimant is entitled to 17penalties and attorney’s fees if benefits are withheld or terminated arbitrarily, capriciously, or without probable cause. La. R.S. 23:1201 et seq.

In assignment of error # 1, we upheld the WCJ’s finding that Dore was not entitled to any further indemnity or medical benefits beyond the emergency room visit and four days of disability. The record indicates that the employer paid the medical bills associated with Dore’s initial emergency room visit and for four days of indemnity benefits following the injury. Even though there is evidence of serious employer misconduct, there is no evidence that the employer denied any benefits to Dore arbitrarily, capriciously or without probable cause. As such, this assignment of error also lacks merit.

CONCLUSION:

Dore raised two assignments of error. We found that both assignments of error raised are without merit. All costs of this appeal are to be paid by Dore.

AFFIRMED.

      . There is evidence in the record that S & S Coating Specialties, Inc. is a company where on-site drug use was common and encouraged by the yard foreman, and whose manager/vice president is accused of soliciting false statements against the injured worker and other illicit conduct. Neither the WCJ nor this court were influenced by these allegations as the false statements made by the injured worker's co-employee were later recanted, and the other illicit activities are irrelevant to the issues raised at trial or on appeal.


author: GENOVESE, JUDGE.

text:
    STATE in the Interest of C.D.
    No. 07-1001.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    Samuel H. Thomas, Tallulah, LA, for Defendant/Appellant, C.D.
    John F. Johnson, District Attorney, Seventh Judicial District, ADA Bradley R. Burget, Vidalia, LA, for Appellee, State of Louisiana.
    Court composed ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, JUDGE.

Lin this juvenile delinquency case, the juvenile Defendant, C.D., was adjudicated a delinquent child pursuant to an adjudication hearing on the offense of oral sexual battery. At the dispositional hearing, the trial court committed C.D. to the custody of the Louisiana Department of Public Safety and Corrections, Office of Youth Development (OYD), for a period of four years. C.D. appeals his delinquency adjudication. For the following reasons, we reverse and vacate the delinquency adjudication and disposition.

FACTS AND PROCEDURAL HISTORY

In October of 2006, the juvenile (C.D.), then sixteen years of age, was living with his grandmother, L.D., in Ferriday, Louisiana. On October 18, 2006, two other grandchildren, T.D., twelve years of age, and Z.D., four years of age, were visiting their grandmother at her home while their parents were attending a high school football game.

On October 21, 2006, Z.D. informed her eight-year-old brother, D.D., that C.D. had placed his penis in her mouth on the previous Friday, October 18, 2006, while she was at her grandmother’s house. Z.D. then informed her mother, M.D., who contacted other family members and the police. A juvenile delinquency petition was filed, alleging that C.D. had committed oral sexual battery upon Z.D. An adjudication hearing was conducted by the trial court, and C.D. was adjudicated a delinquent and committed to OYD for four years. C.D. appeals his delinquency adjudication, alleging two assignments of error.

| ^ASSIGNMENTS OF ERROR

In his brief to this court, C.D. presents the following two assignments of error:

1. The trial court erred when the court allowed the state to call [a] witness after the defendant requested [that] all witnesses be sequestered.

2. The trial court erred when the court allowed the state to introduce doctors [sic] and medical records denying defendant the right to cross examination.

ERRORS PATENT

Although the Louisiana Children’s Code is silent as to whether a juvenile criminal proceeding warrants an error patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. After conducting an error patent review, we find that there is one error patent relative to post conviction relief; however, based on our decision herein, we need not address said error patent.

ASSIGNMENT OF ERROR NO. 2:

Because of its effect on Defendant’s first assignment of error, we will first address Defendant’s second assignment of error. In his second assignment of error, Defendant argues that the trial court erred by allowing the State to introduce uncertified medical records of the treatment a doctor provided to a two-year-old minor, K.E. K:E. is an alleged victim of a separate crime in a separate case allegedly perpetrated by this Defendant. Though subpoenaed, the doctor in question, Dr. Danita Weary, was not present at the adjudication hearing, and, consequently, Defendant was unable to cross-examine her. Defendant concedes that Dr. Weary was “unavailable as a witness”; however, we note that Dr. Weary’s office is located in pNatchez, Mississippi and that she refused to honor her subpoena and testify. There is nothing in the record establishing the fact that Dr. Weary was a domiciliary of the state of Louisiana and thereby subject to the subpoena power of the state of Louisiana. The medical records in question contain statements by K.E. to the doctor, which the State contends are admissible.

At trial, the following colloquy occurred:

MR. THOMAS:
Your Honor, note my objection. I don’t see where these records are certified and I don’t have the right to cross-examine them.
MR. BURGET:
Your Honor, actually these records are certified per a letter from-let me back up. These are medical records wherein Ms. [D.] took the child, [K.E.], to the doctor; she just testified to that [sic] Dr. Weary’s office. I have a letter of certification from the business manager who is the regular custodian of those records at the Natchez Pediatric Clinic over in Natchez, Mississippi. A person by the name of Monty Mayo and also a one page, these records are just one page long. I’ll show you those.
MR. THOMAS:
Your Honor, a letter is not certification. Certification means that it’s been certified by a notary that those are records from the hospital and that’s not what we have. We just have a letter. I believe the Code clearly states that if you’re going to introduce evidence where I don’t have a right to cross-examine and they are records that it should be certified. A mere statement from somebody that it’s a record is not a certification.
THE COURT:
Well, we have a statement from the business manager of the Natchez Pediatric Clinic that this, that they’re certifying the medical records of [K.E.],.... They’re a copy of the records from the Natchez Pediatric Clinic, Dr. Danita Weary. I’m going to accept them as being certified based on this letter.
MR. BURGET:
Your Honor, for the record, what the exception that you’re trying to get over in the introduction of medical records is the hearsay exception.
J¡THE COURT:
Right.
MR. BURGET:
Of course, these are business records. They don’t have to be certified by a notary, but certified as the Court has properly turned out, by a person, the regular keeper of those records and that’s in 803(7), excuse me, yeah 803(7). Also in the matter, I subpoenaed Dr. Weary. She is unable to be with us today, therefore, she is unavailable and these records come in through an exception to the hearsay statute as well under 804. Further than that, the Legislature is kind of redundant in 803 when they define hearsay, they talk about consistent with the declarant’s testimony and is one of the initial complaint of sexual assaultive behavior. Therefore, they’re not even hearsay per the definition of what hearsay is under 801. I just want to make that clarified for the record.
THE COURT:
Let it be noted for the record. My ruling’s been issued.
MR. THOMAS:
Note my objection, your Honor.
THE COURT:
Note Mr. Thomas’ objection.

The controlling statute is La.R.S. 13:3714(A), which states:

Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any other state health care provider, as defined by R.S. 40:1299.39(A)(1) and any other health care provider as defined in R.S. 40:1299.41(A)(1), certified or attested to by the state health care provider or the private health care provider, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart, or record as witnesses under cross-examination.

|BThe supreme court has explained as follows:

The purpose of the statute is to save a litigant the difficulty and expense of producing as a -witness each person who assisted in the treatment of the patient. Judd v. State, Dept. of Transportation and Development, 95-1052, p. 3 (La.11/27/95), 663 So.2d 690, 693. It provides that the opposing party may defend against the record by calling those who made the record as witnesses under cross-examination. Id.

State v. Juniors, 03-2425, p. 42 (La.6/29/05), 915 So.2d 291, 324, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006).

It is, at the very least, questionable whether the certification by the business manager of the clinic complies with La. R.S. 13:3714. The statute clearly differentiates between hospital records and those of other health care providers. Since this provision acts as an exception to normal hearsay rules, the jurisprudence states that it should be read strictly. State v. Trahan, 332 So.2d 218 (La.1976).

In State v. Miller, 06-595 (La.App. 3 Cir. 9/27/06), 940 So.2d 864, writ denied, 06-2577 (La.5/11/07), 955 So.2d 1278, this court analyzed a defendant’s argument that the lower court erred by accepting into evidence medical records from the LSU hospital in Shreveport. The defendant alleged that the records were not properly certified by a librarian as required by La.R.S. 13:3715, a sister-statute to La.R.S. 13:3714. Discussing Trahan, and a subsequent decision of the supreme court, State v. Spooner, 368 So.2d 1086 (La.1979), this court, in Miller, explained:

The Spooner court’s conclusion that a “superintendent” and an “administrator” accord with the common understanding of those terms. Our survey of current statutes has not revealed a clear statutory correlation between the terms “librarian” and “health information manager.” However, at trial Dr. Conrad, the attending physician, testified that at LSU Health Sciences Center the librarian for medical records holds the title “Director of Health Information Management.” Defendant indicated he would cross-examine the doctor on this point, but did not do so.
As the Spooner court correlated the terms “administrator” and “superintendent” based upon a review of the statutes, we find, based | f;upon Dr. Conrad’s testimony, that a “health information manager” or “director of health information management” is a librarian, for purposes of La.R.S. 13:3715. The strict reading advocated by Defendant would place any number of legitimate, authentic medical records beyond the parameters of the statute. Under his interpretation, whenever a medical facility used a term other than “librarian” for its custodian of records, neither La.R.S. 13:3714 nor 13:3715 would apply. Spooner shows this would not be a proper result. Trahan has never been overruled, and its call for procedural caution in applying La.R.S. 13:3714 is sound. However, Spooner tempers Trahan, by demonstrating that the application of the statute is not limited to the exact job titles that appear in its language. Further, the same reasoning would apply to both La.R.S. 13:3714 and 13:3715.

Id. at 872-73.

Miller and Spooner merely recognized a reality of modern business practice in that a person who functions as a superintendent or librarian may have a job title other than “superintendent” or “librarian.” In the present case, it is likewise questionable whether the record-keeper for a clinic can validly certify records. The statute, La. R.S. 13:3714, differentiates between medical records kept by hospitals and those kept by other health care providers. Nonetheless, we note that in Trueman v. City of Alexandria, 01-1130 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021, writ granted, 02-2166 (La.11/15/02), 829 So.2d 410, in discussing the medical records rule, this court appeared to treat a clinic’s records as hospital records for purposes of the statute. Another civil case, Brasseaux v. Stand-By Corp., 402 So.2d 140 (La.App. 1 Cir.), writ denied, 409 So.2d 617 (La.1981), also treated clinic records as hospital records under La.R.S. 13:3714, without specifically discussing the issue.

Even assuming arguendo that these medical records in question were duly certified, the statute requires that the opposing party have an opportunity to call and cross-examine the person who made the record. In the colloquy cited above, Defendant complained that he had not had the opportunity to cross-examine anyone regarding the records. Although the State had subpoenaed Dr. Weary, she did not 17appear. Moreover, it is questionable as to whether the State could even enforce its subpoena of Dr. Weary due to the doctor’s apparent domiciliary status in the state of Mississippi. We observe that La.R.S. 13:3714 gave Defendant an opportunity to subpoena Dr. Weary himself, but that is meaningless if the state of Louisiana does not have the jurisdiction to enforce such a subpoena on an apparent out-of-state witness.

We also note the following supreme court’s detailed discussion on the same issue in an analogous case:

This court is called upon to determine the propriety of the judgment of the trial court appellate division holding LSA-R.S. 15:499-501 unconstitutional. At issue is whether the statutes in question, which allow a certificate of analysis to be accepted by the trial court as prima facie proof of the substance tested without live testimony of the person performing the analysis, deprive the defendant of the right to confront and cross-examine the witness and impermissibly shift the burden of proof to the defendant.
The State contends that the statutes in question neither violate the Confrontation Clause of the state or federal constitutions nor impermissibly shift the burden of proof to the defendant. The State argues the challenged statutes provide very specific procedures to be followed in order to introduce reports or “certificates of analysis” from criminalis-tics laboratories. As such, the statutes protect the defendant’s right to confront the authors of certificates of analysis and do not shift the burden of proof to the defendant.
The defendant argues the statutes violate both the United States Constitution and the Louisiana Constitution. A criminal defendant is guaranteed the right to confront and cross-examine witnesses against him. Defendant argues the case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), bars the use at trial of testimonial out-of-court statements unless the witness is unavailable and defendant had an opportunity to cross-examine that witness. Defendant contends certificates of scientific analysis are testimonial scientific testimony which are not immune to the Crawford analysis.
In enacting the above statutes, the legislature sought to establish a procedure to relieve the party desiring to introduce a certificate of the burden of having to produce the person who performed tests on the evidence. State v. Davis, 438 So.2d 1288, 1290 (La.App. 3 Cir.1983), writ denied, 445 So.2d 455 (1984). This procedure allows a party to submit a document in place of a witness’s direct examination and ^requires a court to accept such a document as prima facie proof of the facts shown and of proper custody of the physical evidence, provided the certificate is in accordance with LSA-R.S. 15:499 and subject to the conditions contained in LSA-R.S. 15:500-501. See LSA-R.S. 15:500. If, at least five days prior to commencement of the trial, the party against whom such certificate is offered requests a subpoena be issued to the person who performed the examination or the person subpoenaed responds to the subpoena, the certificate shall not be prima facie proof of its contents or of proper custody. LSA-R.S 14:501(B)(1). Prima facie evidence is defined in BLACK’S LAW DICTIONARY, 579 (7th ed.1999), as “[ejvidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.” Prima facie evidence is not conclusive proof. Thus, even if admitted, the defendant can attack the certificate of analysis. See LSA-C.E. art. 806.
In State v. Powdrill, 95-2307, pp. 11-12 (La.11/25/96), 684 So.2d 350, 358, this court had the opportunity to address a defendant’s right of confrontation as affected by a portion of the state securities law, LSA-R.S. 51:721(B), a statute similar in effect to the procedure set forth in LSA-R.S. 15:499-501. The trial court reasoned the introduction into evidence of a certificate of non-compliance would deny defendants their right to confront the commissioner about the finding. Consequently, the trial court found the statute unconstitutional.
This court reversed, noting the subsection in question can be utilized by either party. Further, the statute does not preclude the defense from calling the commissioner as a witness and cross-examining him because defendant is entitled to subpoena the commissioner to question him about the preparation of the certificate and the information on which it is based....
In State v. Matthews, 632 So.2d 294, (La.App. 1 Cir.1993), defendant asserted that LSA-R.S. 15:499-501 were unconstitutional because the statutes shift the burden of proof from the State to the defendant. The court noted defendant had not requested a subpoena issue to the person performing the tests to appear at trial. The statute provides that if the subpoena is requested at least five days prior to commencement of the trial or the person subpoenaed responds, the certificate shall not be prima facie proof of its contents or of proper custody. The court did not find “the requirement that defendant request the preparer of the certificate to testify is tantamount to requiring the defendant to put on the proof[. The] requirement is not an onerous burden that deprives defendant of any constitutional rights.” State v. Matthews, 632 So.2d at 301.
lain State v. Landry, 583 So.2d 911 (La.App. 1 Cir.1991), the defendant had timely requested issuance of the subpoena. During the trial, the State offered the report of the criminalistics laboratory into evidence over defendant’s objection. The State argued that although he had timely requested the subpoena, defendant waived his rights by not objecting until the State sought to introduce the report rather than prior to commencement of the trial. Defendant argued his constitutional rights of confrontation and cross-examination were denied. The appellate court agreed, relying on the language of LSA-R.S. 15:501(B) and the holding in City of Shreveport v. Burroughs, 511 So.2d 782, (La.App. 2 Cir.1987), and reversed defendant’s conviction and sentence for distribution of ecstasy. The court quoted from City of Shreveport v. Burroughs:
When the defendant subpoenas the person who made the certificate more than five days prior to trial, the state is made aware that the certificate will not be admissible into evidence in lieu of the testimony of the person who made the certificate, and it is incumbent upon the state to procure the attendance of the person who made the certificate at trial and to offer his or her testimony to establish the results of the examination as proof of an element of the offense charged. It is the state’s burden, not the defendant’s, to go forward with proof of the elements of the crime and there is no reason why the defendant should ask for continuance when the subpoenaed witness fails to appear at trial.
City of Shreveport v. Burroughs, 511 So.2d at 783.
The court in State v. Mims, [524 So.2d 526 (La.App. 2 Cir.), writ denied, 531 So.2d 267 (La.1988)], addressed defendant’s objection to the admission of the crime laboratory’s certificate claiming improper notice, improper form, and failure to comply with LSA-R.S. 15:499. The court found notice had been properly given of the State’s intent to introduce the certificate prior to the first trial which ended in a mistrial. The court concluded there was no requirement that the State send a renewal of the notice. In doing so, the court found the “purpose of the statute is to inform defendant that such a certificate exists and that it will be used against him. It prevents confusion or surprise, and it aids defendant in preparing an adequate defense.” State v. Mims, 524 So.2d at 536.
In this case defendant relies on the recent ruling by the United States Supreme Court in Crawford, supra. ...
In Crawford, the Supreme Court held out-of-court statements by witnesses that are testimonial are barred under the Confrontation Clause unless the witnesses are unavailable and the defendant had prior opportunity to cross-examine the witnesses, regardless of whether such statements are deemed reliable by the court. In Crawford, the lower court allowed the use of a spouse’s recorded statement to be used in lieu of live testimony because the defendant invoked the marital privilege. | inThe Supreme Court granted certiorari to determine whether the State’s use of the spouse’s statement violated the Confrontation Clause.
Upon careful review of the Crawford opinion, we find that Crawford is not controlling, believing the statutes at issue provide a party with notice that a certificate of analysis will be offered into evidence absent an objection. These statutes are a formalized means of effectuating a stipulation to the admissibility of matters which often are not in dispute. See State v. Hancock, 317 Or. 5, 854 P.2d 926, 929 (7/1/93), where the court indicated a defendant is advised the State will allow the defendant to select the manner in which the State must prove the nature of the controlled substance. After the State has put the defendant on notice, the statute provides the defendant with a small procedural step which must be taken to exercise the right to confrontation. In essence, it is the defendant’s decision which dictates whether the State must produce the individual who prepared the report or whether the defendant will agree to use of the criminalist’s report. The court analogized this evidence to other kinds of hearsay evidence which are admissible and raise no constitutional problems if the defendant does not object or if the defendant stipulates to admissibility. The report does not come into evidence if a subpoena is issued for the appearance of the criminalist. This construction protects the defendant’s rights of confrontation and avoids confrontation problems. Id.
Although there is no statistical data available before this court as to the number of cases that would be involved in Louisiana, we note the Oregon Supreme Court in considering a similar statute reported “the Oregon Crime Laboratory received approximately 8,800 subpoenas, but criminalists actually testified in only 10 percent of the cases.” State v. Hancock, 854 P.2d at 929. In Hancock, the defendant claimed the statute violated the state and federal Confrontation Clauses. The Oregon Supreme Court thoroughly examined the statute and found it provided a “ ‘reasonable procedure’ that must be followed in order for a defendant to exercise a constitutional right-in this case, the confrontation right.” State v. Hancock, 854 P.2d at 928. All a defendant had to do to compel the State to prove its case through live testimony was to put the State on notice by subpoenaing the crim-inalist. The court found the procedure of having the defendant subpoena the criminalist was neither unreasonable nor unfair. State v. Hancock, 854 P.2d at 980. Thus, the court affirmed the lower court rulings that the statute did not violate a defendant’s constitutional right of confrontation by providing a means for the defendant to subpoena the crimi-nalist.
It has long been recognized that a defendant may voluntarily waive the right to confront when the situation proves advantageous. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912).
Inin another case concerning a so-called “notice and demand” statute, similar to LSA-R.S. 15:499-501, that provides a procedure whereby a laboratory certificate may be admitted into evidence without the presence of the laboratory employee, the New Jersey Supreme Court determined that it did not violate a defendant’s right to confrontation to require the defendant to request the presence of the person who prepared the laboratory report within a given time frame. State v. Miller, 170 N.J. 417, 790 A.2d 144 (1/23/02). In Miller, the State notified defense counsel of its intent to proffer the laboratory certificate at trial pursuant to New Jersey’s statute. The defendant timely objected; however, the State never received notice of the objection. Under the New Jersey statute, once an objection is filed, admissibility of the certificate shall be determined no later than two days before trial. Failure to comply with the time limitations regarding notice of objection shall constitute a waiver to admission of the certificate. In Miller, there was no hearing prior to trial. The trial court admitted the certificate over defendant’s objection. The appellate court affirmed. The New Jersey Supreme Court granted certification limited to the issue of the trial court’s admission of the laboratory certificate into evidence. The court, citing Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990), noted “‘[t]he central concern of the Confrontation Clause is to ensure reliability of the evidence against a criminal defendant by subjecting it to rigorous testing’ in an adversarial proceeding.” State v. Miller, 170 N.J. at 425, 790 A.2d 144.
Following a thorough analysis, the New Jersey Supreme Court found the statute “require[d] only that a defendant object to the lab certifícate and assert that the composition, quality, or quantity of the tested substance will be contested at trial.” State v. Miller, 170 N.J. at 436, 790 A.2d 144. The matter was remanded to the trial court for a hearing at which the State would bear the burden of proving the reliability of the scientific methodology underlying the report. State v. Miller, 170 N.J. at 438, 790 A.2d 144.
We acknowledge that other courts have evaluated similar statutes with varying degrees of skepticism depending on the manner in which the statutes were written. See City of Las Vegas v. Walsh, 120 Nev. 392, 91 P.3d 591 (6/11/04); People v. McClanahan, 191 Ill.2d 127, 246 Ill.Dec. 97, 729 N.E.2d 470 (4/20/2000); Miller v. State, 266 Ga. 850, 472 S.E.2d 74 (7/1/96); Barnette v. State, 481 So.2d 788 (Miss.1985); State v. Christianson, 404 A.2d 999 (Me.1979).
From a practical standpoint, these statutes are no different from a situation in which the State offers hearsay evidence at trial. If defendant does not contemporaneously object, the hearsay is allowed into evidence. In State v. Hancock, 854 P.2d [at] 928, the Oregon Supreme Court found the statute provided a “reasonable procedure” which must be followed for the defendant to exercise a constitutional right to confrontation. That | ^finding was premised on the principle that it is permissible to establish reasonable procedures to be followed in order to exercise a right guaranteed by the constitution. Poulos v. New Hampshire, 345 U.S. 395, 405, 73 S.Ct. 760, 766, 97 L.Ed. 1105 (1953).

State v. Cunningham, 04-2200, pp. 4-18 (La.6/13/05), 903 So.2d 1110, 1113-21 (footnotes omitted).

The reasoning of Cunningham suggests that pursuant to La.R.S. 13:3714, Defendant was responsible for summoning Dr. Weary for examination. The State subpoenaed Dr. Weary, who did not appear. However, Cunningham’s reasoning indicates that it was Defendant’s responsibility to subpoena the doctor, regardless of the State’s actions. On the other hand, Cunningham also indicates that Defendant should have had notice that the medical records were going to be introduced so that he would know that he needed to subpoena Dr. Weary for examination. There is no indication in the record that Defendant had notice that these medical records were going to be introduced. Therefore, Defendant had no responsibility to subpoena Dr. Weary. Moreover, neither the State nor the Defendant could enforce an apparent out-of-state subpoena. Under the facts of this case, Defendant’s statutory and constitutional rights to confrontation were violated. Thus, the court erred by allowing the medical records to be admitted into evidence.

The State also argued at trial that the “business records exception” to the hearsay rules and the “initial complaint” (of sexual assault) exception applied. The State repeats these arguments in its brief on appeal. The trial court did not rule on the State’s arguments, and we find that the record does not establish that either exception would apply. The “business records exception” requires live testimony from the records custodian or other qualified witness to lay a foundation for admissibility. La.Code Evid. art. 803(6). There was no such testimony in this case; likewise, there was no opportunity for cross examination. As for the “initial complaint” exception, 11sthe record does not establish that the information in the medical records was derived from the initial complaint, nor does it establish that the declarant was unavailable. Therefore, La.Code Evid. art. 804(A) and 804(B)(5) are inapplicable.

On appeal, the State also argues that La.Code Evid. art. 803(4) codifies a “medical records” exception to the hearsay rule. However, the Louisiana Supreme Court has indicated that La.Code Evid. art. 803(4) applies to statements made for the purpose of medical treatment, while admissibility of medical records is governed by La.R.S. 13:3714. See Juniors, 915 So.2d 291.

We find that the trial court erred in admitting the medical records of Dr. Weary’s treatment of K.E. This was not harmless error. An error is harmless if the verdict actually rendered in this case “was surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Johnson, 94-1379, p. 14 (La.11/27/95), 664 So.2d 94, 100.

We find that the adjudication in this juvenile case by the trial court was not “surely unattributable to the error,” as K.E.’s medical records provided the only physical evidence in a case contingent upon credibility, and the trial court specifically relied on those medical records in its oral reasons for judgment. In rendering its adjudication, the trial court stated:

THE COURT:
All right. The matter’s submitted. As typical in a matter involving witnesses of tender age, things are not totally clear. The Court finds that the — there’s one piece of physical evidence involving the two-year-old. There was some physical evidence that she had suffered injuries to the interior of her vagina [and] that she [w]as in discomfort for a few days.
The Court did not detect any animosity or any reason for these children to make up this story on [C.D.]. The Court finds that the State |14has carried its burden of proof beyond a reasonable doubt. The Court adjudicates [C.D.] to be guilty in this matter.

Defendant testified and denied committing the offense. His grandmother also testified, stating that she was in the house on the night the offense allegedly took place. She further stated that she saw nothing unusual and that the victim did not report anything to her. However, she acknowledged that from her location in her home that night, she could not see into Defendant’s room. There were no eye-witnesses to the incident.

We find the error of the trial court in allowing the medical records into evidence was not harmless error. There was no physical evidence regarding the crime charged; thus, the inadmissible physical evidence of an offense against the witness, K.E., as set forth in the trial court’s oral reasons for judgment, affected the trial court’s credibility assessment. Therefore, the trial court’s delinquency adjudication must be reversed and the matter remanded for a new adjudication hearing.

Having determined that Defendant’s second assignment of error has merit and warrants a reversal of the adjudication in this case, we need not address Defendant’s first assignment of error or the error patent set forth herein.

CONCLUSION

We reverse and vacate the trial court’s delinquency adjudication and disposition in this juvenile case and remand the case for further proceedings.

ADJUDICATION VACATED AND MATTER REMANDED.

      . All initials used throughout this opinion are used in accordance with La.R.S. 46:1844(W).

      . We find this statute applies to juvenile proceedings, pursuant to La.Ch.Code arts. 104 and 105.

      . We note that if La.Code Evid. art. 803(4) functioned as a "medical records exception,” then La.R.S. 13:3714 would have no reason to exist. The State mentions statements allegedly made by K.E. to the doctor. The exhibit in the record does not contain any such statements. Further, Defendant’s brief does not place such statements at issue.


author: THIBODEAUX, Chief Judge.

text:
    JENNINGS GUEST HOUSE v. Jayme GIBSON.
    No. 07-912.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Harry P. Fontenot, Jr., Harry P. Fonte-not, Jr., APLC, Sulphur, LA, for Defendant/Appellant, Jayme Gibson.
    Kevin D. Millican, Kevin D. Millican, APLC, Jennings, LA, for Plaintiff/Appel-lee, Jennings Guest House.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

_JjThis case involves the issuance of a temporary restraining order (TRO) obtained by a retirement home, plaintiff-ap-pellee Jennings Guest House, against a terminated employee, defendant-appellant Jayme Gibson (Gibson). Gibson filed a rule to dissolve the TRO and for damages. Prior to the hearing on Gibson’s rule, Jennings Guest House voluntarily dismissed the TRO. The hearing on damages went forward, and damages were denied. Gibson appeals. For the following reasons, we affirm the denial of damages and attorney fees but reverse in part and award costs.

I.

ISSUES

We must decide:

(1) whether the trial court erred in granting the plaintiffs TRO; and
(2) whether the trial court erred in failing to award damages, court costs, and attorney fees to the defendant for wrongful issuance of a TRO.
II.

FACTS AND PROCEDURAL HISTORY

On April 5, 2007, Jennings Guest House filed a Petition for Preliminary and Permanent Injunction and/or a Temporary Restraining Order. The petition alleged that Jayme Gibson, a former employee, was accused of taking many of the residents’ medications for illegal sale, distribution, and/or consumption. It further alleged that she had become violent on several occasions during her employment and that she continued to harass the staff and residents after her termination. The petition sought to have Gibson “refrain from the property and business of Jennings Guest House for any reason, to refrain calling the Jennings Guest House, and to refrain from ^harassing the staff and residents of the Jennings Guest House.” Attached to the petition was the affidavit of George Dorr, III, the Guest House’s Administrator, averring to the harassment and violence and all allegations as stated in the petition. Also attached to the petition was the affidavit of Kevin D. Millican, attorney for Jennings Guest House, stating that prior notice had not been given to Gibson as it “may cause irreparable harm to the plaintiff and/or his staff because of the defendant’s known violent temper.” The affidavit then asked for service of the TRO by the Jefferson Davis Parish Sheriffs Office.

The trial court issued a TRO on the date of filing, April 5, 2007, without a bond. Gibson filed a Rule to Dissolve Temporary Restraining Order and for Damages. Therein, she alleged that the TRO was wrongfully issued and asked for damages including attorney fees, court costs, and damages for mental anguish and inconvenience. All requests were denied.

III.

LAW AND DISCUSSION

Standard of Review

The trial court has great discretion in granting or denying injunctive relief; thus, the appellate court will not disturb its determination without proof that the trial court manifestly abused its discretion. El Paso Field Serv., Inc. v. Minvielle, 03-1293 (La.App. 3 Cir. 3/3/04), 867 So.2d 120. An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier |sof fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts. See Rosell, 549 So.2d 840.

Wrongful Issuance of TRO

Gibson contends that the trial court erred in issuing the TRO against her because Jennings Guest House: (1) failed to present specific facts by supporting affidavit that immediate and irreparable injury would occur before a hearing on the matter; (2) failed to meet the burden of proof on the face of the petition; (3) failed to give Gibson notice; (4) failed to exhaust all legal remedies before seeking an injunction; and (5) failed to furnish bond. Gibson further assigns as error that the trial court erred in not awarding damages for the wrongful issuance of a TRO.

Louisiana Code of Civil Procedure Article 3601 provides in pertinent part as follows:

A. An injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant. ...
C. During the pendency of an action for an injunction the court may issue a temporary restraining order, a preliminary injunction, or both, except in cases where prohibited, in accordance with the provisions of this Chapter.

Irreparable harm or injury generally refers to a loss that cannot be adequately compensated in money damages or measured by a pecuniary standard. Robbins v. State, Through State Land Office, 97-671 (La.App. 3 Cir. 12/17/97), 704 So.2d 961, writ denied, 98-176 (La.3/20/98), 715 So.2d 1214. In the present case, lithe petition and the administrator’s affidavit stated that Gibson was accused of taking the residents’ drugs, that she had been violent, that she had been terminated, and that she continued to harass the residents and staff. While the petition and affidavit of plaintiffs representative do not use the terminology “irreparable injury,” they allege facts showing past violence, past loss, and continuing harassment sufficient to show that irreparable injury, loss, or damage might result if the TRO were not issued. Therefore, the face of the petition and the affidavit of plaintiffs representative meet the burden of proof of irreparable harm, and Gibson’s first two assertions are without merit.

With regard to advance notice of a TRO before service is delivered, La.Code Civ.P. art. 3603 provides in pertinent part as follows:

A. A temporary restraining order shall be granted without notice when:
(1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and
(2) The applicant’s attorney certifies to the court in writing the efforts which have been made to give the notice or the reasons supporting his claim that notice should not be required.
B. The verification or the affidavit may be made by the plaintiff, or by his counsel, or by his agent.

In the present case, the attorney for Jennings Guest House, Mr. Millican, attached his affidavit to the petition specifically stating that Gibson had not been notified because “prior notice may cause irreparable harm to the plaintiff and/or his staff because of the defendant’s known violent temper.” Accordingly, Gibson’s third assertion is without merit.

We have interpreted La.Code Civ.P. art. 3601 to mean that the party seeking injunctive relief must be without any other adequate legal remedy. El Paso Field Serv., Inc., 867 So.2d 120. Gibson asserts that Jennings Guest House did not avail itself of the other available legal remedies, such as having her arrested for trespass. She even suggests that having her arrested for simple battery or simple assault would have been remedies if she had truly been violent in the past. In the first place, we think that it is ludicrous to suggest a remedy more invasive and more inconvenient than a restraining order, which incarceration would surely be. This is not a case of restraining Gibson from making a living or selling her property. The restraining order in this case simply required her to stay away from a business where she no longer worked. Moreover, we note that under remedies requiring an arrest, once Gibson obtained her release while awaiting trial on such criminal charges, she would once again be available to harass elderly residents and employees at Jennings Guest House.

Gibson has suggested no other appropriate or adequate legal remedy, and we can think of none, that would compensate elderly residents who have been robbed of their medications or upset by violent behavior or outbursts, which could cause serious injury in the elderly. This assertion is equally without merit.

Gibson next asserts that it was error to grant the restraining order without a requirement of bond. Louisiana Code of Civil Procedure Article 3610 provides in pertinent part as follows:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained. However, no security is required when the applicant for a temporary restraining order or preliminary or permanent | injunction is seeking protection from domestic abuse, dating violence, stalking, or sexual assault. ,

In the present case, the trial judge stated at the hearing that she thought about this issue but could think of no financial loss involved in simply staying away from a certain place. Such may be true in this case. However, the posting of security is a statutory requirement, and the trial court erred in not requiring security in some amount. Because we find that the trial court should have required Jennings Guest House to post a security bond in some amount, we will award court costs to Gibson, even though the TRO was voluntarily dismissed, and the judge signed the dismissal two days before the hearing on the matter.

However, having said that, we find no error in the trial court’s denial of damages in this case, which is Gibson’s final assertion. An award of damages and attorney fees is discretionary under La. Code Civ.P. art. 3608, which provides:

The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.

In the present case, Gibson cited cases from the 1800’s for the proposition that she was entitled to the highest exemplary damages, stating that her reputation had been “massacred” and her standing in her profession jeopardized. However, the record reveals that after leaving Jennings Guest House, Gibson was given additional hours at the other nursing home that simultaneously employed her. Accordingly, we fail to see anything in the record that indicates an abuse of discretion on the trial court’s part in denying damages and attorney fees. In the present case, the restraining order simply required Gibson to stay away from the nursing home where |7she was no longer employed. The record reveals no property rights or any other stated rights that needed protecting.

When Gibson’s attorney contended that his client had been defamed, the court stated that that was another lawsuit. We agree. With regard to Gibson’s claim that she was entitled to damages for mental anguish, the Louisiana Supreme Court stated in Arco Oil & Gas Co., A Div. of Atlantic Richfield Co. v. DeShazer, 98-1487 (La.1/20/99), 728 So.2d 841, that damages for mental anguish are recoverable based on the wrongful issuance of injunc-tive relief only in the presence of special circumstances involving outrageous or egregious conduct. Such is not the case herein.

IV.

CONCLUSION

We affirm the trial court’s denial of damages and attorney fees under the facts of this case, but reverse on the issue of costs. We, therefore, award costs of the trial and appellate proceedings to Jayme Gibson.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

GENOVESE, J., concurs in the result.