author: PETERS, J.

text:
    Tim WAGNER v. INN OF LAKE CHARLES, et al.
    No. 10-0017.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Rehearing Denied Dec. 22, 2010.

      Todd M. Ammons, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Tim Wagner.
    B. Wesley Pitts, Kevin L. Cole, Galloway, Johnson, Tompkins, Burr & Smith, Mandeville, LA, for Defendant/Appellant, USF Insurance Company.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

| jThis litigation arises from criminal acts perpetrated by an assailant against Tim Wagner at the Inn of Lake Charles on June 24, 2007. The matter is now before us because USF Insurance Company has appealed the trial court’s grant of a summary judgment holding that a commercial liability insurance policy it issued to the owners of the Inn of Lake Charles provided liability coverage for Mr. Wagner’s claims for damages. For the following reasons, we reverse the trial court judgment; render summary judgment in favor of USF Insurance Company, dismissing Mr. Wagner’s claims against it; and remand the matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

The facts as they apply to the issues before us are not in dispute, and the issue to be determined on appeal is legal in nature. For the purposes of this appeal, we accept the trial court’s recitation of the relevant facts as set out in its written reasons for judgment:

During the early evening hours of June 24, 2007, Mr. Wagner answered a knock on the door of his hotel room at the Inn [of Lake Charles]. At the time, he was confronted by a male who, forcibly and without authorization, entered Mr. Wagner’s room and severely beat him. The perpetrator also took several items of Mr. Wagner’s personal property including a laptop computer, a wallet, several credit and debit cards, and a cellular phone.
Hotel personnel did not find Mr. Wagner until the morning of June 25, 2007. Mr. Wagner was badly beaten and severely injured when police and emergency medical personnel arrived at the scene on the morning of June 25, 2007. A man suspected to be the perpetrator was later apprehended and charged with armed robbery, vagrancy, and attempted first degree murder.

On February 21, 2008, Mr. Wagner filed suit against the Inn of Lake Charles; Choice Hotels International, Inc.; Shri Krishna, L.L.C.; Shri Krishna, Inc.; and Ramesh Patel (hereinafter referred to collectively as the hotel defendants) for personal injuries and for the loss of his personal property. In his petition, Mr. Wagner asserted | ¡¡that the hotel defendants filed to warn him of the dangers associated with the high crime rate on the premises, failed to protect him from or warn him of the known threat posed by the perpetrator’s presence on the premises earlier in the day, and failed to provide adequate security to insure the safety of its patrons, including Mr. Wagner.

On May 15, 2008, Mr. Wagner amended his petition to add USF Insurance Company (USF) as a party defendant based on the fact that, at the time of the incident, USF had a general commercial liability policy in full force and effect covering the hotel defendants. In its answer to the petition, USF denied that its policy provided coverage for Mr. Wagner’s claims.

The matter is now before us because Mr. Wagner filed a motion for summary judgment, asserting that the assault and battery exclusion found in USF’s insurance policy does not apply in this case and seeking a ruling that “the policy of insurance issued by USF to the Inn of Lake Charles provides coverage for any injuries sustained by him as a result of the incident made the basis of this claim.” USF responded to this motion by filing its own motion for summary judgment seeking to have Mr. Wagner’s claims against it dismissed on the basis that the policy at issue did not provide coverage for his claims.

The trial court heard both motions for summary judgment on April 14, 2009, and rendered judgment on August Bl, 2009, denying USF’s motion for summary judgment and granting Mr. Wagner’s motion for summary judgment, holding that USF’s policy provided coverage for Mr. Wagner’s claims against the hotel defendants.

USF perfected this appeal, asserting two assignments of error:

1. The trial court erred when it granted summary judgment on coverage in favor of plaintiff in spite of the clear, unambiguous ^language of the USF Insurance Company policy exclusions for (1) assault and battery, (2) intentional acts, and (3) damage to property of others exclusions.
2. The trial court erred when it denied USF Insurance Company’s motion for summary judgment on coverage when the Policy’s clear and unambiguous assault and battery exclusion, intentional act exclusion, and “property of others” exclusion preclude coverage for plaintiffs damages arising out of an alleged assault and battery at the Motel.
OPINION

This court reviews summary judgments de novo. Supreme Serv. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634. A motion for summary judgment is properly granted if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Taylor v. Rowell, 98-2895 (La.5/18/99), 736 So.2d 812. There are no factual disputes in this motion for summary judgment, so we need only review whether the trial court was correct in holding that the policy issued by USF provides coverage for Mr. Wagner’s claims against the hotel defendants.

Assignment of Error Number One

The assault and battery exclusion in USF’s insurance policy reads as follows:

X. ASSAULT AND BATTERY EXCLUSION
This insurance does not apply to Bodily Injury or Property Damage arising from:
1. Assault and Battery committed by any insured, any employee of any insured, or any other person;
2. The failure to suppress or prevent Assault and Battery by any person in A. above; or
3. Any Assault or Battery resulting from or allegedly related to the negligent hiring, supervision or training of any employee of the insured.

|4USF argues that the trial court erred when it found this language to be ambiguous and construed that ambiguity against USF. On the other hand, Mr. Wagner asserts that the language in this clause is ambiguous, arguing that the second and third paragraphs would not be necessary if the first paragraph were a broad, all-encompassing exclusion of any possible claims resulting from an assault and battery.

As insurance policies are contracts, they are interpreted pursuant to the rules of contract interpretation found in the Louisiana Civil Code. Crabtree v. State Farm Ins. Co., 93-509 (La.2/28/94), 632 So.2d 736. Interpreting a contract requires that the common intent of the parties be determined. La.Civ.Code art. 2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046. As the trial court correctly noted, ambiguous insurance policy provisions generally are to be construed against the insurer and in favor of coverage. La.Civ.Code art. 2056, Carrier v. Reliance Ins. Co., 99-2573 (La.4/11/00), 759 So.2d 37. An insurance policy is said to be ambiguous when the relevant provision can be reasonably construed in two different ways. McCarthy v. Berman, 95-1456 (La.2/28/96), 668 So.2d 721. Our supreme court has held that “summary judgment may not be rendered declaring lack of coverage unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded.” Westerfield v. LaFleur, 493 So.2d 600, 605 (La.1986).

Louisiana Civil Code Article 2050 provides that “[e]aeh 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.” Thus, we must do more than consider only the first paragraph of the exclusion as suggested by Mr. Wagner.

We find that, when read in its entirety, the exclusion relied on by USF is not ambiguous. The first clause clearly establishes that USF is not obligating itself for any assault and battery by a non-owner or employee, as occurred in this case. The second clause precludes coverage for the insured’s failure to suppress or prevent such an assault and battery, i.e., failure to warn, as alleged in this case. Finally, the third clause excludes coverage for negligent hiring, supervision, or training by the insured. While they may overlap to some extent, each of these three clauses precludes coverage for specific action or inaction by the insured. Together, they encompass all of Mr. Wagner’s allegations against the hotel defendants.

We find that the trial court erred in rendering judgment finding that the USF policy provided insurance coverage for Mr. Wagner’s claims.

Assignment of Error Number Two

On appeal, USF also asserts that this court should reverse the trial court’s denial of its motion for summary judgment, grant summary judgment in its favor, and dismiss it from this litigation. We agree. Mr. Wagner’s only claims against USF are based on the commercial liability insurance policy it issued in favor of the hotel defendants. Because we have found that the assault and battery exclusion in this insurance policy specifically excludes all of Mr. Wagner’s claims against the hotel defendants, he has no claim against USF, and the trial court erred in not granting USF summary judgment relief.

Normally, “[a]n appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.” La.Code Civ.P. art. 968. However, |fithis court is both authorized and required to render a “judgment which is just, legal, and proper upon the record on appeal.” La. Code Civ.P. art. 2164. In circumstances similar to those before us, this court has granted an appellee’s motion for summary judgment that had been rejected by the trial court when the record before us warranted our doing so. See Boykin v. PPG Industries, Inc., 08-117 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, writ denied, 08-1635, 08-1640 (La.10/31/08), 994 So.2d 537; Rashall v. Pennington, 08-1 (La.App. 3 Cir. 4/30/08), 982 So.2d 301, writ denied, 08-1543 (La.10/10/08), 993 So.2d 1286. Accordingly, we grant USF’s motion for summary judgment and dismiss Mr. Wagner’s claims against it.

DISPOSITION

We reverse the trial court’s grant of summary judgment in favor of Tim Wagner finding that the policy issued by USF Insurance Company provided liability coverage for the injuries he sustained on June 24, 2007. Additionally, we reverse the trial court’s denial of the summary judgment filed by USF Insurance Company and render judgment dismissing Tim Wagner’s claims against USF Insurance Company. Finally, we assess all costs of this appeal to Tim Wagner. Because there remain unresolved claims before the trial court, we remand this matter to the trial court for further proceedings.

REVERSED, RENDERED, AND REMANDED.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    Catherine COBB v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 10-430.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.
    Michael Miller, Attorney at Law, Crowley, LA, for Plaintiff-Appellant, Catherine Cobb.

      Jeffery Riggs, Attorney at Law, Lafayette, LA, for Defendant-Appellee, Lafayette Parish School Board.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   PAINTER, Judge.

| j Plaintiff, Catherine Cobb, appeals the judgment of the workers’ compensation judge finding that the Lafayette Parish School Board was entitled to a modification of a stipulated judgment and that she was not entitled to any further benefits. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was employed by the Lafayette Parish School Board as a clerical worker at Northside High School. On September 12, 2000, she was attempting to locate a lost item of student clothing. The lost and found area was situated underneath a staircase. Plaintiff attempted to straighten up from a squatting position and bumped her head on the stairwell. She testified that she “saw stars.” She went to the walk-in clinic at the school and was given an ice pack and some Tylenol. On the same day she saw Dr. Chris Hayes, her treating physician, for a previously scheduled appointment and complained of hitting her head. Dr. Hayes’ records indicate a posterior tender spot. She continued to complain of pain and was seen several times at the Stafford Clinic before being referred to a neurologist, Dr. Leo deAlvare. She underwent continuous treatment and, except for three days in August of 2006, never returned to work.

On July 20, 2005, the parties stipulated that Plaintiff was injured on September 12, 2000, in the course and scope of her employment and that she was then entitled to temporary total disability benefits. In accordance with the stipulation, Defendant paid penalties and attorney’s fees. On or about August 30, 2006, Defendant terminated Plaintiffs benefits. On or about May 30, 2008, Defendant filed a motion to modify judgment. Following trial, the workers’ compensation judge found that a modification of the judgment was warranted but that said modification could only relate back to May 30, 2008. Accordingly, the workers’ compensation judge found that failure to pay continued benefits under the stipulation violated La.R.S. 23:1201(G) and that Defendant was liable for a penalty of $3,000.00, or twenty-four percent (24%) of the unpaid benefits from the time of termination to May 30, and ^attorney’s fees of $10,000.00. The workers’ compensation judge further found that Plaintiff was not entitled to any further benefits. Plaintiff appeals this finding. Defendant has answered the appeal, alleging that the award of penalties and attorney’s fees to Plaintiff was in error. For the following reasons, we affirm.

DISCUSSION

In Hardee v. City of Jennings, 07-242, pp. 2-3 (La.App. 3 Cir. 5/30/07), 961 So.2d 531, 533, writ denied, 07-1779, 07-1799 (La.11/9/07), 967 So.2d 505, 509, this court recognized:

Pursuant to La.R.S. 23:1310.8(B), a party may re-open a workers’ compensation case [,] and the workers’ compensation judge may modify an award on the grounds of a change in condition. “A party who seeks a modification of a worker’s compensation judgment must prove by a preponderance of the evidence that the worker’s disability has increased or diminished.” Lormand v. Rossclaire Constr., 01-515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676. A claimant seeking total disability benefits must prove by clear and convincing objective medical evidence that she is physically unable to engage in any employment. La.R.S. 23:1221.

Furthermore:

In workers’ compensation cases, the factual findings of the workers’ compensation judge are subject to the manifest error or clearly wrong standard of appellate review. Seal v. Gaylord Container Corp., 97-0688 (La.12/02/97), 704 So.2d 1161. When applying this standard, we are not to determine whether the factfinder was right or wrong, but rather, whether the factfinder’s conclusion was a reasonable one. Id. Thus, if the judge’s findings are reasonable in light of the record reviewed in its entirety, we may not reverse even if we would have weighed the evidence differently. Romero v. Northrop-Grumman, 01-0024 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149.

Jackson v. Iberia Parish Gov., 01-925, p. 2 (La.App. 3 Cir. 3/20/02), 813 So.2d 589, 591, writ denied, 02-1075 (La.6/14/02), 817 So.2d 1159.

The workers’ compensation judge found that the stipulation entered into by the parties on July 20, 2005, was a binding, non-appealable judgment. Defendant asserts that this is incorrect but cites no legal authority in support thereof. Our law is clear that stipulations have the effect of judicial admissions or confessions and bind all parties and the court. Becht v. Morgan Bldg. & Spas, Inc., 02-2047 (La.4/23/03) 843 So.2d 1109; see Stelly v. Guy Scroggins, Inc., 682 So.2d 782 (La.App. 3 Cir.1996), writ denied, 688 So.2d 503 (La.1997).

^Furthermore, the transcript of the proceeding in which the stipulation entered of record reveals the following:

Mr. Miller: We can stipulate that Catherine Cobb was injured in the course and scope of her employment on September 12, 2000, while employed by the Lafayette Parish School Board; and that as a result of that injury, she is presently entitled to Temporary Total Disability benefits, the amount to be determined once we determine her average weekly wage, Judge.
The defendants have agreed to pay penalties of Eight Thousand Dollars and attorney’s fees of Eight Thousand Dollars.

Thus, we agree with the workers’ compensation judge that it was incumbent upon Defendant to obtain a modification of this stipulation prior to terminating benefits. We find no error in the workers’ compensation judge’s determination that benefits could only be terminated from the time of the filing of the motion to modify.

When treatment of Plaintiffs complaints of headaches was unsuccessful, Dr. deAl-vare referred Plaintiff to Dr. Deborah Elliott, also a neurologist, at the headache clinic at Tulane. Dr. Elliott treated Plaintiff from October 2003 to November 2005. Treatment again was unsuccessful, and Dr. Elliott found that Plaintiff was completely disabled from any type of work. Defendant then had Plaintiff examined by its choice of neurologist, Dr. Steven Zucker-man. Dr. Zuckerman reached the conclusion that there was no physical basis for Plaintiffs continued complaints but could not determine whether she had a conversion disorder or was malingering. The workers’ compensation judge then ordered an independent medical examination by Dr. Neil Smith, III, also a neurologist. Dr. Smith found no medical basis for Plaintiffs complaints and opined that the injury was trivial and that Plaintiff was able to work. Based on this opinion, Plaintiff attempted to return to work. She worked at Broussard Middle School from August 16 through August 18, 2006, when she requested that an ambulance be called due to her complaints of severe pain. The workers’ ^compensation judge noted that it was troubling that Plaintiff arrived to work on this date with all of her medical records.

The workers’ compensation judge doubted Plaintiffs veracity based on several factors, most notable was her finding that Plaintiffs assertion that prior to the accident, she had headaches only related to her menstrual cycle was contradicted by her medical records, which contained notations of daily headaches dating back to at least 1990. The workers’ compensation judge ultimately found that further treatment for Plaintiffs headaches was not medically necessary. The IME performed by Dr. Smith supports the finding of a change in condition such that Defendant was entitled to a modification of the stipulation.

It is clear that the burden is on Defendant to show, by a preponderance of the evidence, that it was entitled to a modification of the stipulation. However, we find the workers’ compensation judge’s discussion of Plaintiffs burden of proof from the inception of the claim was of no moment because there is ample evidence in the record to support her finding that there was a change in Plaintiff’s condition entitling Defendant to a modification of the stipulation. Thus, we find no manifest error in workers’ compensation judge’s finding.

The workers’ compensation judge awarded a penalty of $3,000.00, or twenty-four percent (24%) of the unpaid benefits from the time of termination to May 30, and attorney’s fees of $10,000.00. The decision to impose penalties and attorney’s fees is essentially a factual issue subject to the manifest error or clearly wrong standard of review. Authement v. Shappert Eng’g, 02-1631(La.2/25/03), 840 So.2d 1181. We find no manifest error in the workers’ compensation judge’s ruling in this regard.

Finally, we address Defendant’s argument that the trial court erred in awarding penalties and attorney’s fees because La. R.S. 23:1201(G) does not apply to public boards. This court has previously addressed this argument in Broussard v. Lafayette Parish Sch. Bd., 08-666, pp. 3-5 (La.App. 3 Cir. 12/10/08), 998 So.2d 1253, 1257, writ denied, 09-471 (La.4/17/09), 6. So.3d 794 (footnote omitted):

| ¡^Pursuant to La.R.S. 23:1201, our courts have imposed penalties and attorney fees on parish school boards for at least thirty years. E.g., Ranson v. Orleans Parish Sch. Bd., 365 So.2d 937 (La.App. 4 Cir.1978), writ denied, 367 So.2d 393 (La.1979). Given that the legislature is presumed to know these decisions, it is difficult for us to imagine that the legislature was not cognizant of this interpretation of the statute to persist in our jurisprudence, had it really meant the penalties provisions of La.R.S. 23:1201 not to apply to school boards.
Moreover, the legislature is certainly capable of including “school board” along with “public board” in a statute. For example, in La.R.S. 13:5102, located in Part XV and, incidentally, titled “Suits Against State, State Agencies, or Political Subdivisions,” the legislature did not hesitate to include both, “school board” and “public board” when it defined “political subdivision” for the purposes of Part XV. Thus, if the legislature really intended La.R.S. 23:1213 to cover school boards, it would and could have done so explicitly.

This argument lacks merit.

Thus, we conclude that a reasonable basis exists for the workers’ compensation judge’s findings and that those findings are not manifestly erroneous.

DECREE

For all of the foregoing reasons, the ruling the workers’ compensation judge is affirmed. All costs of this appeal are assessed to Plaintiff, Catherine Cobb.

AFFIRMED.

      . Defendant’s original choice of neurologist was Dr. James Domingue; however, Dr. Do-mingue refused to see Plaintiff, and the court allowed Defendant to change its choice of neurologist.


author: GENOVESE, Judge.

text:
    David Eugene GARCIA v. Michelle Rushing GARCIA.
    No. 10-446.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Michelle Rushing Garcia, In Proper Person, Lafayette, LA, Defendant/Appellant.
    Julia Autin, Susan L. Theall, The Theall Firm, LLC, Lafayette, LA, for Plaintiff/Appellee, David Eugene Garcia.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this domestic case, Michelle Rushing Garcia appeals the November 16, 2009 judgment of the trial court rendered as a result of hearings held pursuant to the filing of three contempt motions involving she and her former husband, David Eugene Garcia. For the following reasons, we affirm in part, reverse in part, and remand this matter to the trial court with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

David Eugene Garcia (David) and Michelle Rushing Garcia (Michelle) were married on January 25,1992. Their minor daughter, Kelsey, was born on July 3, 1994, and their minor son, Bryson, was born on April 22, 1999. The parties separated and divorced in 2004, at which time they entered into a Stipulated Consent Judgment wherein child support was agreed upon. The parties also adopted a Joint Custody Implementation Plan which designated Michelle as the domiciliary parent. In 2006, David filed a Rule to Change Custody and for Contempt of Court against Michelle. Michelle countered by filing a Rule to Modify Custody Implementation Plan, to Modify Child Support, and for Contempt against David. A plethora of cross-motions were filed thereafter. Ultimately, on July 18, 2008, the parties entered into a Consent Judgment, stipulating to child support, shared custody with David and Michelle being co-domiciliary parents of the minor children, and counseling for Kelsey.

The litigation giving rise to this appeal began on August 28, 2008, when David filed a Rule for Contempt, to Appoint a Counselor for the Minor Child, and to Modify Child Support. David alleged that Michelle violated the July 18, 2008 Consent Judgment by refusing to agree to a counselor for Kelsey, by “refusing] to communicate information regarding the children’s school and meetings and failing] to communicate via [e-mail] in a calm and businesslike manner[,]” by removing |2Bryson from day care without David’s consent, and by refusing to pay the children’s school fees and medical expenses.

On October 9, 2008, Michelle filed a Cross Rule for Contempt and to Make Past Due Child Support Executory. Michelle alleged that David was delinquent in paying child support and that he violated the July 18, 2008 Consent Judgment by “fail[ing] to discuss the selection of a counselor for” Kelsey, by making a unilateral decision to bring Kelsey to a counselor without first consulting her, and by allowing his current wife, Haley, to take “disciplinary actions against Kelsey by yelling and screaming at [her].”

David filed an Amended Rule for Contempt and to Modify Child Support on April 7, 2009. David alleged that Michelle had “failed to ensure that Kelsey receive eounseling[,]” had “continually failed and refused to communicate information regarding Kelsey ... via [e-mail],” had “undermined Bryson’s relationship with [him]” by making negative comments about him to Bryson, and had “failfed] to pay costs that should [have been] paid from the amount of child support she receives[.]” Further, David requested that Obligation Worksheet B be used, that he be allowed to pay for all of Bryson’s school and medical expenses, and that Michelle be ordered to pay for all of Kelsey’s school and medical expenses.

The trial court heard testimony and received evidence on September 30, 2009, October 2, 2009, October 13, 2009, and November 16, 2009. Following the last day of trial, the trial court rendered its judgment finding Michelle in contempt of court for “failing] to communicate via email, failing to ensure that Kelsey Garcia is placed in counseling, for removing Bry-son Garcia from day care and failing to pay day care Rand failing to pay Bryson Garcia’s school lunches, and by supporting the lack of relationship between Kelsey Garcia and her father.” The trial court judgment ordered that effective April 7, 2009, child support would be calculated using Obligation Worksheet B, that effective October 1, 2009, David would pay all school and medical expenses relative to Bryson, and that Michelle would pay all school and medical expenses relative to Kelsey. The trial court judgment ordered that “the visitation between [David] and his daughter, [Kelsey, be] reinstated as originally set forth in the Joint Custody Implementation Plan signed and filed on July 18, 2008.” Michelle appeals.

ISSUES

Michelle urges this court to consider:

(1) whether the trial court erred in finding Michelle in contempt of court for violating the July 18, 2008 Consent Judgment by: (a) failing to communicate via e-mail; (b) failing to ensure that Kelsey was placed in counseling; (c) removing Bryson from day care and failing to pay day care; (d) failing to pay , for Bryson’s school lunches; and (e) failing to support the relationship between Kelsey and her father, David;

(2) whether the trial court erred in ordering the use of Obligation Worksheet B to calculate the parties’ child support obligation;

(3) whether the trial court erred in ordering that David be responsible for 100% of Bryson’s school clothes and shoes, school supplies, school meals, school fees, medical expenses, and extracurricular expenses and that Michelle be responsible for 100% of Kelsey’s school clothes and shoes, school supplies, school meals, school fees, medical expenses, and extracurricular expenses;

14 (4) whether the trial court erred in ordering that the seven-and-seven visitation schedule relative to Kelsey be reinstated; and

(5) whether the trial court erred in ordering that Michelle and David attend parenting classes.

LAW AND DISCUSSION

Standard of Review

As set forth by this court in LeBlanc v. LeBlanc, 06-1307, p. 4 (La.App. 3 Cir. 3/7/07), 953 So.2d 115, 119-20, the applicable appellate standard of review is as follows:

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). This is especially applicable in a child custody dispute wherein appellate courts accord substantial deference to the trial judge’s conclusions. “The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse.” Deason v. Deason, 99-1811, p. 12 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (quoting State in the Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir.1988))(citing Bagents v. Bagents, 419 So.2d 460 (La.1982)).

(1) Contempt of Michelle

Michelle contends that the trial court erred in finding her in contempt of court for violating the July 18, 2008 Consent Judgment. Louisiana Code of Civil Procedure Article 221 defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. Contempts of court are of two kinds, direct and constructive[.]” Pursuant to La.Code Civ.P. art. 224(2), constructive contempt is “[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court.” Constructive contempt “must be based on a finding that the accused violated | san order of the court ‘intentionally, knowingly, and purposefully, without justifiable excuse.’” Lang v. Asten, Inc., 05-1119, p. 1 (La.1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 90-990 (La.5/29/98), 720 So.2d 343). “A trial court is vested with great discretion to determine whether a party should be held in contempt for wilfully disobeying a trial court judgment.” Barnes v. Barnes, 07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La.11/28/01), 801 So.2d 346).

(a) E-mail

At trial and in brief, Michelle admits that she stopped communicating with David via e-mail because she began receiving harassing and derogatory e-mails from him. Though Michelle claims that she did not believe David was the author of said emails, she unilaterally decided that she would no longer communicate with David via e-mail. Instead, Michelle either mailed or hand delivered information she deemed pertinent to David while she claims that she waited for her attorney to make arrangements with David on an alternate means of communication. We find no error in the trial court’s determination that Michelle is in contempt of court for failing to communicate with David via e-mail “concerning all factors affecting the health, education, and welfare of the children.”

(b) Counseling for Kelsey

Michelle asserts, in brief, that she originally requested that Kelsey have counseling; however, the July 18, 2008 Consent Judgment “stated [that] Kelsey should start counseling with no stipulations as to a time period and how a counselor was to be chosen.” She further contends that she made efforts as early as July 22, 1 ñ2008, via e-mail, to coordinate with David on the selection of a counselor; however, David never responded to her email.

David alleges that he made several attempts to enroll Kelsey in counseling; however, his efforts were thwarted by Michelle. In brief, David contends that “[t]he evidence supports a finding of wilful violation of a court order without justifiable excuse.” The trial court found that David was more credible than Michelle. That determination is within the discretion of the trial court. After reviewing the evidence in that regard, we cannot say that the trial court erred in its determination that Michelle is the party responsible for violating the July 18, 2008 Consent Judgment by failing to enroll Kelsey in counseling.

(c)Bryson’s day care

According to the terms of the July 18, 2008 Consent Judgment, Bryson was to be enrolled in day care unless and until both Michelle and David decided to remove him. Further, Michelle was responsible for paying the cost of Bryson’s day care. Admittedly, Michelle did not enroll Bryson in day care. According to Michelle, Bryson was not allowed enrollment in day care due to an outstanding balance occurring as a result of David not being current in paying his child support obligation.

David asserts that Michelle’s admission is inexcusable and unjustifiable, considering the fact that a specific sum for net child-care costs was included in the child support calculation. Consequently, Michelle was responsible for paying for day care out of the money she received from him as child support, and her failure to do so was a violation of the Consent Judgment. We agree. Considering Michelle’s clear understanding of her obligations under the Consent Judgment and her own admission, we find no abuse of discretion in the trial court’s decision to hold Michelle in 17contempt of court for failing to pay the costs of day care in order to keep Bryson enrolled therein.

(d) Bryson’s school meals

As the domiciliary parent, Michelle was also responsible for paying the expenses associated with the meals Bryson ate at school from the child support she received. David testified that Bryson’s school account ran out of money on more than one occasion and, though he would attempt to get Michelle to pay the expenses associated with Bryson’s meals at school, he ultimately sent money to Bry-son’s school because Michelle did not. David introduced into evidence an e-mail wherein he notified Michelle that Bryson’s account was out of money, to which he testified that Michelle did not respond. Though Michelle disputed David’s allegations that she allowed Bryson’s school account to become delinquent, she does, in brief, admit that “she was not aware that Bryson was also eating breakfast at school on the weeks that he was in [David’s] custody, [and] she was only providing enough money to the school to cover his lunches, this is why his account was depleted on occasion without [her] knowledge.” The trial court accepted the testimony and evidence offered by David. This determination was based upon the parties’ credibility and was within the discretion of the trial court. After reviewing the evidence in the record, we do not find that the trial court erred or abused its discretion in its determination that Michelle was in contempt of court for her failure to pay for Bryson’s meals at school.

(e) Kelsey’s relationship with David

Michelle denied ever sabotaging the relationship between Kelsey and David. However, in October of 2008, after an argument between David and Kelsey culminated in Kelsey being asked to leave his home and not return until she could be | ^respectful, Michelle photographed Kelsey as she stood outside on the curb in front of David’s home. Kelsey did not return to David’s home until the trial court ordered Michelle to facilitate visitation after the hearing held October 13, 2009. David testified that Kelsey intimated that Michelle shared with her that David was delinquent in paying child support.

The trial court heard testimony over four days and even interviewed Kelsey on the final day of trial. After thoroughly reviewing the record and the divergent versions of events contained therein, we find no abuse of the trial court’s discretion in concluding that Michelle was in violation of the July 18, 2008 Consent Judgment by failing to foster the relationship between Kelsey and David.

(2) Obligation Worksheet B

The November 16, 2009 trial court judgment ordered that, effective April 7, 2009, David’s child support obligation be reduced from $1,347.00 per month to $877.50 per month and that, beginning September 30, 2009, David’s child support obligation be further reduced to $496.11 per month. In brief, Michelle complains that the trial court’s imposition of Obligation Worksheet B to calculate child support is an illegal punishment for her contempt of court. Having reviewed the record, we agree.

At the end of trial, during its oral reasons for judgment, the trial court was questioned whether its ruling was for child support to be calculated using Obligation Worksheet B, to which the trial court responded:

Worksheet B. And it’s Worksheet B, it’s part of the penalty for the [c]on-tempt, to tell you the truth. I’m not fining Mom. I’m not fining her, I’m not ordering her to go to jail or suspending it for any length of time or anything, but I am ordering the parties to follow Worksheet B, because I do not want to fine Mom and I don’t want to give her a jail sentence. And it’s not a gender thing. It’s just because there’s [sic] too 19many contempts and I need her to be available for Kelsey.

In Ezernack v. Ezernack, 04-1584 (La.App. 3 Cir. 4/6/05), 899 So.2d 198, the trial court allocated the balance due on an automobile as the husband’s contempt of court punishment. This court reversed the trial court stating:

The punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in La.R.S. 13:4611. It provides that a person who disobeys an order of the court may be punished “by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.” La.R.S. 13:4611(l)(d). “Proceedings for contempt must be strictly construed, and the law does not favor extending their scope.” George v. Nero, 02-1140, p. 4 (La.App. 3 Cir. 3/5/03), 839 So.2d 1085, 1087. A contempt proceeding is designed for vindication of the dignity of the court rather than for the benefit of a litigant. Davis v. Harmony House Nursing Home, 35,080 (La.App. 2 Cir. 10/31/01), 800 So.2d 92, writ denied, 01-3162 (La.2/22/02), 810 So.2d 1143.

Id. at 201.

Just as the punishment in Ezemack was “not authorized as a form of punishment which the court may mete out for the eontempt[,]” the imposition of Obligation Worksheet B is not an authorized punishment under La.R.S. 13:4611 for Michelle’s contempt. Id. As such, the trial court exceeded its authority. Accordingly, the portion of the November 16, 2009 judgment ordering the use of Obligation Worksheet B to calculate David’s child support is reversed, and we remand the contempt matter to the trial court for it to resen-tence Michelle in accordance with La.R.S. 13:4611.

(3) Kelsey and Bryson’s school and medical expenses

Based upon the foregoing finding that the trial court exceeded its authority in ordering the use of Obligation Worksheet B to calculate child support, we likewise find the trial court erred in requiring Michelle to pay for all of Kelsey’s school and medical expenses and David to pay for all of Bryson’s school and medical expenses. _|jSWe find it noteworthy that our review of the record reveals that in its oral ruling made in open court on the same day that the written judgment was signed, the trial court did not articulate a ruling on this issue; however, this ruling appears in the written judgment signed by the trial court. Regardless, the requirement that Michelle and David each pay for all of the school and medical expenses for Kelsey and Bryson, respectively, is couched in the ruling that Michelle and David share an equal child support obligation which utilizes Obligation Worksheet B to determine child support. Having reversed that determination, we likewise reverse the ruling requiring the parties’ payment of the children’s school and medical expenses.

Considering our reversal of the trial court’s judgment relative to child support, including Kelsey and Bryson’s school and medical expenses, we find it necessary to clarify our instructions to the trial court. The record reveals that pursuant to a Consent Judgment dated December 7, 2004, David paid $600.00 per month for child support. Pursuant to a Rule to Modify Custody Implementation Plan, to Modify Child Support, and for Contempt filed by Michelle on October 31, 2006, an Intake Conference was held on October 16, 2007, wherein the hearing officer recommended that David pay $1,297.00 in child support for November and December of 2006, and $1,397.00 in child support beginning on January 1, 2001. The parties entered into a Consent Judgment on July 18, 2008; however, this judgment is silent on the issue of child support and addresses the shared custody of the children.

On August 28, 2008, David filed a Rule for Contempt, to Appoint a Counselor for the Minor Child, and to Modify Child Support. Michelle filed a Cross Rule for Contempt and to Make Past Due Child Support Executory on October 9, 2008. David | nthen filed an Amended Rule for Contempt and to Modify Child Support on April 7, 2009.

Therefore, we remand this matter to the trial court with the instruction that it address the repetitive motions filed by the parties relative to child support which the record reveals have not been addressed by the trial court since the hearing officer made its recommendations on October 16, 2007.

(4) Kelsey’s visitation with David

In October of 2008, an argument between David and Kelsey culminated in Kelsey being asked to leave and not return until she could be respectful. Very divergent testimony was heard about the facts and reasoning behind why David did not have visitation with Kelsey for over a year following this incident. On appeal, Michelle argues that the trial court erred in ordering a reinstatement of the seven-and-seven visitation schedule relative to Kelsey. David asserts that this issue is not properly before this court on appeal. We agree.

On July 18, 2008, the parties entered into a Consent Judgment wherein David and Michelle agreed to the seven-and-seven shared custody visitation schedule relative to Kelsey and Bryson. Presently before this court is the November 16, 2009 judgment. Therefore, we will not address the complaints raised by Michelle relative to this issue.

(5) Parenting Classes

On October 13, 2009, the trial court ordered Michelle and David to see a parenting coordinator in order to learn “how to parent [Kelsey] and Bryson [and] on 112how to communicate.” A Temporary Order incorporating same was signed October 22, 2009. Further, the November 16, 2009 judgment incorporated the ruling that “Connie LeBlane shall continue in her position as parenting co-ordinator and render periodic reports to the [c]ourt as she deems necessary or as requested by the [c]ourt.”

Michelle argues in brief that “with the reduction in child support[,]” she cannot afford to continue attending parenting classes because the expense of doing so “is putting an even bigger financial burden on already strained household finances.” David asserts this argument “should be ignored” because it “is an improper attempt to present additional evidence ... which was not presented to the trial court.” While this court concurs with David’s assertions, we also find it necessary to point out that the parties’ tumultuous relationship necessitated the trial court’s order that they attend parenting classes. Louisiana Revised Statutes 13:4611(l)(e)(iii) states that “when a parent has violated a visitation order, the court may order ... one or both parents to attend counseling or mediation.” Thus, there was no abuse of discretion by the trial court in this regard.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court in all respects, except as to the punishment for Michelle’s contempt of court in ordering that Obligation Worksheet B be used to calculate David’s child support obligation. In reversing that aspect of the judgment, we remand this matter to the trial court for resentencing relative to Michelle’s contempt of court and for consideration of the issue of child support. We assess costs of this appeal equally between the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

      . Louisiana Revised Statutes 9:315.20 contains Obligation Worksheets A & B. Obligation Worksheet B is implemented when parents share custody.

      . Both Michelle and David filed Objections to the recommendations made by the hearing officer on October 19, 2007.

      . Notably, this is the first request for the utilization of Obligation Worksheet B to calculate child support since the parties began sharing custody in July of 2008; however, also noteworthy is the fact that when this request was made, Kelsey was not abiding by the seven-and-seven visitation schedule with David.


author: SAUNDERS, Judge.

text:
    Jeannie HEITMAN, et al. v. CHRISTUS HEALTH CENTRAL d/b/a Christus St. Frances Cabrini Hospital, et al.
    No. 10-458.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Eugene A. Ledet, Jr., Joseph Texada Dalrymple, Dalrymple & Ledet, Alexandria, LA, for Plaintiffs/Appellants, Jeannie Heitman and Daniel Heitman, O. D.
    David Richard Sobel, Jeremy C. Cedars Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Ap-pellee, Christus Health Central and Chris-tas St. Frances Cabrini Hospital.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

11 Herein, we address whether the trial court erred in allowing Courtney Robinson, an out-of-state pediatric nurse practitioner, to testify as an expert witness at trial in this medical malpractice case. For the following reasons, we find that it did not err.

FACTS AND PROCEDURAL HISTORY:

On December 25, 2004, Callie Heitman (Callie), an infant, was admitted to Chris-tus St. Francis Cabrini Hospital (Cabrini) after experiencing a syncopal episode (fainting) at home. She was diagnosed as suffering from a severe case of anemia (iron deficiency).

Callie was initially treated in the Cabrini emergency room, where the staff attempted to initiate an IV to the patient. After several unsuccessful attempts at placing the IV, Curt Fuqua, RN, was able to establish the IV in the patient’s foot at 6:05 p.m. Thereafter, the Cabrini staff started Callie on a drip and drew blood through the IV. No immobilization device was used by Fuqua on the patient’s foot in order to secure the IV.

Unfortunately, IV access was lost at 11:14 p.m. due to kinking in the tubing. The Cabrini staff was unable to reestablish an IV at any peripheral site, and Dr. Stuart Head was called in to establish a central line in the patient’s right femoral vein.

Callie’s parents (the Appellants) filed the instant suit against Cabrini, alleging that it was negligent in failing to secure the IV access site with an armboard. The matter was initially submitted to a medical review panel, which unanimously held that Cabrini did not deviate from the standard of care.

The case was then presented before Judge Donald T. Johnson of the Ninth Judicial District Court in Rapides Parish. The trial court ultimately dismissed the | ^Appellants’ action against Cabrini. However, in making its decision, the trial court took into consideration testimony offered by nurse Courtney Robinson-accepting Robinson as an expert witness in pediatric nursing. It is on this issue that the Appellants bring their appeal.

APPELLANTS’ ASSIGNMENT OF ERROR:

The trial court committed legal error in failing to exclude the testimony of nurse Courtney Robinson, pursuant to [La.R.S.] 40:1299.41(A)(7).

LAW AND DISCUSSION ON THE MERITS:

The sole issue before this court is the propriety of the trial court allowing Courtney Robinson to testify as an expert witness in this case.

It is well-settled law that trial courts are given great discretion in determining if a potential expert witness is adequately qualified.

Trial Courts are vested with great discretion in determining the competence of expert witnesses, and rulings on the qualifications of an expert witness will not be disturbed unless there was an abuse of that discretion. A combination of specialized training, work experience, and practical application of the expert’s knowledge can combine to demonstrate that the person is an expert; a person may qualify as an expert based upon experience alone.

State v. Jarrell, 07-1720, p. 16 (La.App. 1 Cir. 9/12/08), 994 So.2d 620, 683 (quoting State v. Berry, 95-1610, p. 20 (La.App. 1 Cir. 11/8/96), 684 So.2d 439, 456, writ denied, 97-278 (La.10/10/97), 703 So.2d 603).

Moreover, “[t]he trial court is allowed much discretion in determining whether to allow a witness to testify as an expert under La.Code Evid. art. 702, and its judgment will remain undisturbed unless that discretion was abused.” Benton Specialties, Inc. v. Cajun Well Serv., Inc., 09-506, p. 10 (La.App. 3 Cir. 2/10/10), 31 So.3d 1155, 1162, writ denied, 10-951 (La.6/25/10), 38 So.3d 343 (citing Cheairs v. State ex rel. Dep’t of Transp. & Dev., 03-680 (La.12/2/03), 861 So.2d 536).

In the present matter, the Appellants do not dispute Robinson’s impressive credentials in the field of pediatric nursing. Robinson holds a Master’s degree from the University of Texas and a Post Master’s certificate from Rush University in Chicago. She has held nursing licences in five different states and Washington D.C., and is certified by the Pediatric Nurse Credentialing Board. She is also a professor at Rush University in the field of clinical nursing, and she has been employed as a nurse practitioner at Texas Children’s Hospital Emergency Room.

The Appellants’ lone objection to the admission of Robinson’s testimony is that it violates the locality rule as contemplated by La.R.S. 40:1299.41(A)(22). In a malpractice suit against a health care provider, the plaintiff must prove the applicable standard of care and the breach of that standard.

The standard of care required of every health care provider, except a hospital, in rendering professional services or health care to a patient, shall be to exercise that degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along -with his best judgment, in the application of his skill.

Id.

Our state’s jurisprudence has dictated that an expert witness testifying as to a health care professional’s performance in relation to the applicable standard of care is constrained by the need to have practiced in a similar community or locale and under similar circumstances. Leyva v. Iberia Gen. Hosp., 94-795 (La.10/17/94), 643 So.2d 1236; Piazza v. Behrman Chiropractic Clinic, Inc., 601 So.2d 1378 (La.1992); and Donaldson v. Sanders, 94-1366 (La.App. 3 Cir. 7/19/95), 661 So.2d 1010. However, “[wjhere there is a uniform nationwide method for performing a particular |4medical procedure, an expert having knowledge of such method is qualified to testify, and ... the testifying expert in this circumstance is not constrained by the need to have practiced in a similar community or locale and under similar circumstances.” Roberts v. Warren, 01-1342, pp. 1-2 (La.6/29/01), 791 So.2d 1278, 1279 (quoting Leyva, 643 So.2d at 1239)(second alteration added).

Here, the Appellants urge that Robinson, despite her list of credentials, is unfit to testify as to the standard of care required of pediatric nurses in Alexandria, Louisiana, because her relevant experience was obtained in cities such as Houston, San Diego, Indianapolis, Chicago, and Omaha. They argue that because she has only worked in. pediatric hospitals in large cities, Robinson is “clueless” as to the standards exercised in smaller community hospitals such as Cabrini.

Cabrini counters by arguing that the locality rule should not apply. It contends that, as a result of her teaching position, Robinson has taught numerous students who went on to work in communities similar to Alexandria. It also argues that the record is devoid of evidence suggesting that the local standard of care differs in any respect from the national standard and that the Appellants bear the burden of establishing the relevant standard.

If, indeed, it is determined that Robinson had no experience practicing in a similar community or locale, or under similar circumstances, then the appropriate question would be whether her testimony was given on a “uniform nationwide method for performing a particular medical procedure.” Roberts, 791 So.2d at 1279. Inasmuch as we find the answer to be clear and compelling on the national standard issue, we will advance our discussion to the uniform nature of the procedure on which Robinson was called to testify. We note that the two issues are largely intertwined.

15The Appellants’ claim against Cabrini is that the nursing staff failed to adequately place and secure an IV in the foot of the infant patient. Nurse Robinson was brought in to testify as to the standard of care in placing and securing an IV in a small child. Virtually all of Robinson’s testimony addressed IV placement and whether there is a need to further secure an IV that has been placed in the foot of a pediatric patient. She testified that these are universal issues that are tested on the National Certification Exam for nurses and that this is an exam that all nurses must pass, regardless of location, in order to obtain a nursing licence. Furthermore, Frances Trahant, the nurse called as an expert witness on behalf of the Appellants, testified that “[t]he basic principles of IV therapy are the same across the population.” When questioned on whether the use of an armboard would have been appropriate on a patient in Callie’s condition, Robinson responded that it was dependant on the judgment of the nurse. This testimony was consistent with the testimony of the local medical experts that were called to testify in this case.

Upon our examination of the record before us, it is clear to this court that IV placement and the subsequent securing of the IV are uniform procedures, the practice of which would vary little at hospitals across the nation. For this reason, we find that Robinson’s testimony was addressed toward a “uniform nationwide method for performing a particular medical procedure,” such that it would amount to an exception to the locality rule as contemplated in Roberts, 791 So.2d at 1279. Accordingly, we find that the trial court did not abuse its considerable discretion, and its ruling is affirmed.

This court also notes that there was sufficient evidence in the record to support the trial court’s judgment even without the use of Nurse Robinson’s testimony.

^CONCLUSION:

For the foregoing reasons, we find that the trial court did not abuse its considerable discretion in allowing Courtney Robinson to testify as an expert witness at trial. The judgment of the trial court is affirmed, and all costs of this appeal are assessed to the Appellants.

AFFIRMED.