text:
    LAKE CHARLES MEMORIAL HOSPITAL (Gregory Leday) v. AL COPELAND INVESTMENTS.
    No. 10-784.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      John V. Quaglino, Juge, Napolitano, Gu-ilbeau, Ruli, Frieman & Whiteley, Metair-ie, Louisiana, Judy Y. Barrasso, Edward R. Wicker, Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, Louisiana, for Defendant/Appellant, A Copeland Investments.
    Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, L.L.C., Lake Charles, Louisiana, for Plaintiff/Appellee, Lake Charles Memorial Hospital.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

_JjAl Copeland Investments (Copeland) appeals a workers’ compensation judgment in favor of Lake Charles Memorial Hospital (LCMH), awarding LCMH additional compensation for medical services rendered to one of Copeland’s injured employees, a statutory penalty, and an attorney fee. LCMH has answered the appeal, seeking additional attorney fees for work done on appeal. We affirm the judgment in all respects. Additionally, we render judgment in favor of LCMH and against Copeland, awarding an additional attorney fee for work performed on appeal.

FACTS

Gregory LeDay, an employee of Copeland, was injured in a work-related accident for which he sought treatment at LCMH. LCMH billed Copeland for the medical treatment it provided to Mr. Le-Day. Copeland forwarded the bill to CorVel Corporation (CorVel) for bill review services. CorVel adjusted the bill in accordance with the Louisiana Workers’ Compensation Act’s (LWCA) fee schedule and further reduced the amount charged by applying a preferred provider organization (PPO) discount per CorVel’s contract with LCMH. Copeland paid the bill as per CorVel’s recommendation.

LCMH filed the present action for what it alleged was an underpayment of its bill. The workers’ compensation judge (WCJ) ruled in favor of LCMH, finding that Copeland had not proven that there was a contract between Copeland and CorVel that entitled Copeland to take the additional discount under the PPO. The WCJ awarded |2LCMH $36.75 for the underpayment, a $2,000.00 statutory penalty, and an attorney fee of $3,500.00. Copeland appeals, and LCMH has answered the appeal.

ASSIGNMENTS OF ERROR

Copeland asserts on appeal that “[t]he trial court erred in finding that Copeland[ ] did not meet its burden of proving that it had an agreement with CorVel Corporation to access CorVel’s preferred provider network discounts.” Additionally, Copeland contends that “[t]he trial court erred in granting a penalty and an attorney[ ] fee in this matter.”

LCMH has answered the appeal, seeking an award of additional attorney fees for work performed on appeal.

LAW AND DISCUSSION

Copeland argues on appeal that the trial court erred in finding that it failed to prove the existence of an agreement between Copeland and CorVel. As set forth below, even if such an agreement had been proven, Copeland was still not entitled to reduce the amount of payment by applying a PPO discount due to lack of notice. Therefore, we pretermit a discussion of this assignment of error.

The issue of the legality, vel non, of PPO contracts whereby an employer pays a health care provider for services rendered to an injured employee at a negotiated amount below that statutorily provided by the LWCA’s reimbursement schedule has now been decided by our supreme court in its recent decision of Agilus Health v. Accor Lodging North American, 10-800 (La.11/30/10), 52 So.3d 68. In Agilus, our supreme court held that “the LWCA does not prohibit PPO agreements providing for discounted fees for workers’ compensation services to health care providers.” Id. at 79. However, that pronouncement does not resolve all of the issues set forth in the present appeal.

| sCognizant of the issue having been raised in other cases, the supreme court’s opinion in Agilus expressly notes the following:

The plaintiff in the instant case did not argue to this court that the defendants did not give proper notice pursuant to the requirements of La.R.S. 40:2203.1. The plaintiffs raised the issue in their pre-trial memorandum, but failed to argue this position in the court of appeal and to this court. While notice under La.R.S. 40:2203.1 is an issue in similar cases, because this issue was not raised in connection to this writ application, we will not reach it in this opinion.

Id. at 76, n. 4 (emphasis added).

In the instant matter, however, the notice provision in La.R.S. 40:2203.1 is at issue. It is, therefore, incumbent upon this court to consider this issue. We do so mindful of the recent jurisprudence. Gunderson v. F.A. Richard & Assocs., Inc., 09-1498 (La.App. 3 Cir. 6/30/10), 44 So.3d 779; Cent. La. Ambulatory Surgical Ctr., Inc. v. Payless Shoesource, Inc., 10-86, 10-91, 10-92, 10-96, 10-97, 10-99, 10-100, 10-115, 10-117, 10-118 (La.App. 3 Cir. 7/28/10), 46 So.3d 689, rev’d in part on reh’g, (La.App. 3 Cir. 10/20/10), 46 So.3d at 701. In each of these cases, just as in the matter before us, claims were brought by health care providers who asserted that they were improperly being paid in workers’ compensation cases at reduced rates pursuant to PPO agreements instead of the rates provided by the LWCA fee schedule. Additionally, in each of these cases, the health care provider argued that even if the PPO contracts were valid and held not to be violative of the LWCA, they were nonetheless unenforceable due to the failure of the employer to give the requisite notice under La.R.S. 40:2203.1 (Title 40 notice). To the contrary, 14the employer asserted that the notice provisions were inapplicable to workers’ compensation patients.

This court in Gunderson, 44 So.3d at 787 (footnote omitted), finding the notice provisions in La.R.S. 40:2203.1 to be applicable, reasoned that “when |aLa.R.S. 40:2203.1 states that it applies to ‘all preferred provider organization agreements that are applicable to medical services rendered in this state and to group purchasers as defined in this Part,’ it in fact, means all such agreements.” Consistent therewith, this court in Central Louisiana Ambulatory Surgical Center, Inc., 46 So.3d. at 696, opined as follows:

We conclude and hold that the specific notice provisions of La.R.S. 40:2203.1 apply to workers’ compensation patients in a PPO network.
Our decision on the necessity of notice is consistent with the very recent opinion of our court in Gunderson v. F.A. Richard & Associates, Inc., 09-1498 (La.App. 3 Cir. 6/30/10), [44 So.3d 779]. We agree entirely with Gunderson.

We agree with the reasoning in the foregoing opinions and find no reason to deviate from their holdings. Accordingly, we incorporate the analyses of these opinions as though set out herein in full. That being the case, even if an agreement, oral or otherwise, existed between Copeland and CorVel, because the record is clear that Title 40 notice was not given to LCMH nor was any benefit card issued, Copeland was not permitted to take advantage of the discounted rates to which it purports to be entitled to under the PPO agreement.

For the foregoing reasons, we conclude that Copeland failed to fully pay for the medical expenses of its injured employee as required by La.R.S. 23:1203. This underpayment of medical expenses subjects Copeland to the imposition of a penalty and attorney fee unless the claim was reasonably controverted or resulted from conditions over which the employer had no control. La.R.S. 23:1201(F)(2).

On the issue of the WCJ’s award of a statutory penalty, we agree with and choose to follow Central Louisiana Ambulatory Surgical Center, Inc., 646 So.3d at 701, wherein we stated on rehearing:

While Defendants may have a plausible argument on the impropriety of awarding penalties under La.R.S. 23:1201(F)(4) based on the validity of the PPO discount agreement, the argument is untenable with regard to the notice provisions of La.R.S. 40:2203.1. Gunderson v. F.A. Richard & Associates, Inc., 09-1498 (La.App. 3 Cir. 6/30/10), [44 So.3d 779], explained that La.R.S. 40:2203.1 was clear and unambiguous. When a statute refers to “all preferred provider organization agreements,” it means just that. Defendants in these consolidated cases were aware of these clear provisions and cannot escape their applicability with protestations of ambiguity.

Based on the failure to comply with the notice requirements of La.R.S. 40:2203.1, even if a contractual right to the PPO discount had been established by Copeland, we find no manifest error in the WCJ’s award of a $2,000.00 statutory penalty.

The WCJ also awarded LCMH a $3,500.00 attorney fee. On the issue of the attorney fee award, we likewise find no manifest error in the WCJ’s attorney fee award of $3,500.00.

We also find that LCMH is entitled to an additional attorney fee for work performed on appeal. We, therefore, render an attorney fee award of $2,500.00 in favor of LCMH for work performed on appeal.

DECREE

For the foregoing reasons, we affirm the judgment in all respects. Additionally, we render judgment in favor of Lake Charles Memorial Hospital and against Al Copeland Investments in the amount of $2,500.00 as an additional attorney fee 17necessitated by the present appeal. We assess all costs of this appeal to A Copeland Investments.

AFFIRMED AND RENDERED.

      . Pursuant to La.R.S. 23:1034.2, the director of the Office of Workers’ Compensation is charged with the responsibility of establishing a reimbursement schedule and with adopting the rules and regulations for the establishment and implementation of same.

      . The record contains a copy of CorVel’s Preferred Provider Organization "CorCare” Hospital Agreement with LCMH.

      . Louisiana Revised Statutes 40:2203.1 (emphasis added) provides, in pertinent part, as follows:
      A. Except as otherwise provided in this Subsection, the requirements of this Sec-, tion shall apply to all preferred provider organization agreements that are applicable to medical services rendered in this state and to group purchasers as defined in this Part. The provisions of this Section shall not apply to a group purchaser when providing health benefits through its own network or direct provider agreements or to such agreements of a group purchaser.
      B.A preferred provider organization's alternative rates of payment shall not be enforceable or binding upon any provider unless such organization is clearly identified on the benefit card issued by the group purchaser or other entity accessing a group purchaser’s contractual agreement or agreements and presented to the participating provider when medical care is provided. When more than one preferred provider organization is shown on the benefit card of a group purchaser or other entity, the applicable contractual agreement that shall be binding on a provider shall be determined as follows:
      (1) The first preferred provider organization domiciled in this state, listed on the benefit card, beginning on the front of the card, reading from left to right, line by line, from top to bottom, that is applicable to a provider on the date medical care is rendered, shall establish the contractual agreement for payment that shall apply.
      (2) If there is no preferred provider organization domiciled in this state listed on the benefit card, the first preferred provider organization domiciled outside this state listed on the benefit card, following the same process outlined in Paragraph (l) of this Subsection shall establish the contractual agreement for payment that shall apply-
      (3) The side of the benefit card that prominently identifies the name of the insurer, or plan sponsor and beneficiary shall be deemed to be the front of the card.
      (4) When no preferred provider organization is listed, the plan sponsor or insurer identified by the card shall be deemed to be the group purchaser for purposes of this Section.
      (5) When no benefit card is issued or utilized by a group purchaser or other entity, written notification shall be required of any entity accessing an existing group purchaser’s contractual agreement or agreements at least thirty days prior to accessing services through a participating provider under such agreement or agreements.
      C. A preferred provider organization agreement shall not be applied or used on a retroactive basis unless all providers of medical services that are affected by the application of alternative rates of payment receive written notification from the entity that seeks such an arrangement and agree in writing to be reimbursed at the alternative rates of payment.
      D. In no instance shall any provider be bound by the terms of a preferred provider organization agreement that is in violation of this Part.

      . Having found no prohibition in the taking of PPO discounts in workers’ compensation matters, our supreme court in Agilus did not reach the issues of penalties and attorney fees.

      . "The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact. Factual findings are subject to the manifest error or clearly wrong standard of review.” Authement v. Shappert Eng’g, 02-1631, p. 12 (La.2/25/03), 840 So.2d 1181, 1188-89 (citing Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551).


source: Caselaw Access Project

author: CHATELAIN, Judge.

license: Public Domain

text:
    Kenneth James MOUTON v. HEBERT’S SUPERETTE, INC.
    No. 10-787.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Andree Matherne Cullens, Dawn D. Bonnecaze Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, Louisiana, for Defendants/Appellees, Hebert’s Superette, Inc., Hebert’s of Henderson, Inc.
    Bart J. Hebert, Reneé Z. Berard, Boyer, Hebert & Abels, LLC, Breaux Bridge, Louisiana, for Plaintiff/Appellant, Kenneth James Mouton.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge.

_JjThe plaintiff appeals the trial court’s dismissal of his two suits on two promissory notes, utilizing the peremptory exception as the procedural vehicle to raise statutory immunity. Because we find that the defendants’ claims of immunity under federal tax law is an affirmative defense and that a peremptory exception is not the proper procedural vehicle for addressing this issue, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Kenneth Mouton (Mouton), is a shareholder in both of the defendant corporations, Hebert’s Superette, Inc. (Su-perette) and Hebert’s of Henderson, Inc. (Henderson), which are two closely held corporations formed to operate grocery stores. Mouton served as a manager of Superette until 1993, when he took over management of Henderson. It is undisputed that Mouton served as a director and as the secretary-treasurer of Henderson, but the record contains conflicting evidence regarding Mouton’s status as an officer and director of Superette.

This dispute arises more specifically from two promissory notes issued separately by Superette and Henderson, which obligated each company to pay $175,000.00 to the order of Mouton in ten yearly installments of $17,500.00, beginning on June 15, 2008. Both promissory notes were executed on January 31, 2008.

On or before June 15, 2008, both defendants paid the full $17,500.00 installment due under each note directly to Mouton. Thereafter, the defendants began withholding federal taxes from the payments tendered to Mouton. Accordingly, Super-ette sent Mouton a check for $9,628.95 as full payment of the $17,500.001 ^installment due on June 15, 2009, and Henderson sent Mouton a check for $86,342.35 as payment in full on the $157,500.00 still due under the promissory note. Mouton rejected both of these tendered payments and demanded payment of the full amounts owed under the notes directly to him.

Mouton filed separate suits against Su-perette and Henderson on their respective promissory notes, claiming that each company’s failure to tender payments of the entire 2009 installment constituted default and requesting immediate payment of the entire amounts left on the notes and attorney fees pursuant to the terms of the notes. These cases were consolidated in the trial court on August 31, 2009.

Shortly before consolidation, the defendants separately filed peremptory exceptions of no cause of action and immunity along with alternative motions for summary judgment. As the defendants presented identical arguments, the trial court considered these exceptions and motions together. Ultimately, the trial court agreed with the defendants’ utilization of the peremptory exception as the means to assert immunity; thereafter, it granted those peremptory exceptions, finding that Mouton’s suits were barred by 26 U.S.C. § 3403, which creates immunity for required tax withholdings by employers. It further declined to rule on “the sufficiency of the evidence to support the motions for summary judgment or no cause of action” and found that these motions and exceptions were rendered moot. Mouton has timely appealed the trial court’s judgments. We have consolidated the plaintiffs appeals.

DISCUSSION

Mouton assigns error to two aspects of the trial court’s judgment. First, he contends that a peremptory exception was not the appropriate procedural vehicle to address the defendants’ claims of immunity. Next, Mouton contends that the | ^immunity provided to employers under 26 U.S.C. § 3403 does not bar his claims for payments due under the promissory notes, regardless of the procedural vehicle, because the payments due are not wages. Finding merit in Mouton’s former contention, we pretermit discussion of his latter assignment of error.

Procedural Analysis

Article 923 of the Louisiana Code of Civil Procedure defines a peremptory exception as a request to “have the plaintiffs action declared legally nonexistent, or barred by effect of law.” As 26 U.S.C. § 3403 provides that “[t]he employer shall be liable for the payment of the tax required to be deducted and withheld under this chapter, and shall not be liable to any person for the amount of any such payment,” the immunity created by this statute could arguably function in a manner that fits within the description of a peremptory exception. Certainly, if such immunity applies in this case, it would have the legal effect of barring Mouton from obtaining relief.

However, the Louisiana Code of Civil Procedure places affirmative defenses into a separate category. See La.Code Civ.P. art. 1005 (creating an implicit distinction between affirmative defenses and issues appropriate for peremptory exceptions by allowing courts to treat either as properly pleaded if one is “mistakenly designated” as the other). “An affirmative defense raises [a] new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action Land will have the effect of defeating plaintiffs demand on its merits.” Webster v. Rushing, 316 So.2d 111, 114 (La.1975) (footnote omitted). Under this definition, the statutory immunity for federal income tax withholding is more appropriately categorized as an affirmative defense. At no point have the defendants contested Mouton’s allegations regarding the existence of the promissory notes or the amount of the payments thereon. Rather, the issue of immunity is a new matter that, if proven, will defeat Moutoris claims.

Our classification of the defendants’ claims of immunity is further supported by analogy to other types of statutory immunity, which the jurisprudence has consistently deemed affirmative defenses. In Rogers v. State, ex rel. Department of Public Safety and Corrections, 07-1060 (La.App. 3 Cir. 1/30/08), 974 So.2d 919, writ denied, 08-504 (La.4/25/08), 978 So.2d 367, we classified the tort immunity created by La.R.S. 9:2800.17 and 29:735 for the state, its agencies, and political subdivisions regarding homeland security activities and conduct during the aftermath of Hurricanes Katrina and Rita as affirmative defenses. Similarly, in Zulli v. Coregis Insurance Co., 05-155 (La.App. 5 Cir. 7/26/05), 910 So.2d 437, writ denied, 05-2226 (La.2/17/06), 924 So.2d 1017, our brethren of the fifth circuit found that the tort immunity created by Louisiana’s “Recreational Use Statutes,” La.R.S. 9:2791 and 9:2795, constituted an affirmative defense. Both cases primarily relied on a finding that the effect of the immunity was to defeat the plaintiffs claim on its merits. Finally, the Louisiana Supreme Court and this court have both explicitly stated that the tort immunity created by workers’ compensation law is an affirmative defense because “it is not a law evaluating conditions of legality of defendant’s conduct but, rather, serves as a vehicle for asserting a substantive defense that defeats an otherwise leviable claim.” Brown v. Adair, 02-2028, p. 5 (La.4/9/03), 846 So.2d 687, 690; see also Walls v. Am. Optical Corp., 98-455 (La.9/8/99), 740 So.2d 1262; Teasley v. Ates, 03-824 (La.App. 3 Cir. 12/10/03), 861 So.2d 778, writ denied, 04-92 (La.3/19/04), 869 So.2d 855. The statutory immunity at issue in the present case functions in an analogous manner, and we see no reason to classify it differently than the other types of statutory immunity recognized in Louisiana law.

The jurisprudence of this state has long held that an affirmative defense may not form the basis of a peremptory exception when the asserted defense goes to the merits of the case. Marquis v. Cantu, 371 So.2d 1292 (La.App. 3 Cir.1979); Alside Supply Co. v. Ramsey, 306 So.2d 762 (La.App. 4 Cir.1975); Weil v. State Farm Fire & Cas. Co., 323 So.2d 524 (La.App. 4 Cir.1975). Rather, as an affirmative defense, the issue should be referred to the merits, and a motion for summary judgment is, therefore, the proper procedure for addressing it prior to trial. See Deshotel v. Guichard Operating Co., Inc., 03-3511 (La.12/17/04), 916 So.2d 72.

In brief to this court, the defendants cite several cases which seemingly stand for the proposition that immunity may be asserted through a peremptory exception. For reasons that follow, we find these cases distinguishable.

The defendants cite Herrin v. Perry, 215 So.2d 177 (La.App. 3 Cir.1968), aff'd, 254 La. 933, 228 So.2d 649 (1969), for the proposition that this court has recognized a peremptory exception of immunity as a proper procedural device. However, the immunity at issue in Herrin was sovereign immunity under Article III, Section 35 of the Louisiana Constitution of 1921. At the time Herrin was decided, this constitutional provision prohibited tort claims against the state, its agencies, or political subdivisions without special authorization from the legislature. Thus, the [(¡exception in Herrin did not plead a new matter designed to defeat the cause of action on its merits; rather, it simply asserted that the plaintiff had no cause of action because it had not obtained authorization to file suit.

Similarly, in Corley v. Village of Florien, 04-853 (La.App. 3 Cir. 12/08/04), 889 So.2d 364, we reviewed an exception of no cause of action based on the doctrines of judicial and prosecutorial immunity. Therein, we stated that plaintiffs could not state a cause of action against a judicial officer or prosecutor for conduct in his official capacity without proving certain additional elements beyond those required for a traditional negligence claim. Id. This discussion clearly establishes that the doctrines of judicial and prosecutorial immunity do not function as affirmative defenses because they contribute to the definition of a cause of action rather than exempting certain persons from liability under a particular set of circumstances. In both Herrin and Corley, the immunity at issue required the plaintiffs to prove additional facts to obtain relief, whereas the statutes considered in Rogers, Zulli, and Teasley allow the defendant to avoid liability by proving factual elements that do not negate the plaintiffs cause of action.

In the present case, the law of obligations and negotiable instruments clearly creates a cause of action under the circumstances described by Mouton’s petitions, and the immunity created by 26 U.S.C. § 3403 can only function to exempt the defendants from liability if they are able to prove additional facts to satisfy the requirements for immunity. Therefore, under the facts of this case, we find that the immunity provided by 26 U.S.C. § 3403 functions as an affirmative defense. Neither the peremptory exception of immunity nor the exception of no cause of action were proeedurally proper, and the trial court should have overruled both. Instead, the trial 17court should have considered the defendants’ assertion of immunity as a motion for summary judgment and evaluated their claim that there is no genuine issue of material fact regarding the availability of their affirmative defense.

Motions for Summary Judgment

From the plain language of 26 U.S.C. § 3403, two elements are necessary for immunity thereunder. First, the party claiming immunity must be an employer. Title 26 of the Code of Federal Regulations § 31.3401(c) — 1(f) states that for purposes of income tax withholding, directors of corporations are not employees, but corporate officers may be considered employees if they perform services for the corporation and receive or become entitled to remuneration. Second, the party claiming immunity must have made a required deduction of taxes. In this case, the defendants contend that the amounts withheld were required by 26 U.S.C. § 3102, which instructs employers to withhold employees’ income taxes directly from the wages they pay.

Mouton contests both of these elements. While he admits that he served as its officer of Henderson and was therefore an employee, Mouton argues that Superette has not produced sufficient evidence to prove he ever served as an officer. This issue seems to require factual determinations regarding what actions were taken by Superette, the services performed by Mouton, and the remuneration involved. Additionally, it may require a legal determination regarding Mouton’s status as an officer of Henderson. If Mouton and Henderson never formed an employer-employee relationship, then 26 U.S.C. § 3403 cannot apply.

Mouton also contends that there is at least a genuine issue of material fact regarding whether payments on the promissory notes at issue constitute wages. Title 26 of the United States Code § 3401(a) defines wages, for income tax purposes, as | s“all remuneration (other than fees paid to a public official) for services performed by an employee for his employer.” Mouton bases this argument on his claim that the promissory notes were executed as part of his deal with the president of Superette and Henderson for the redemption of his stock in both corporations. Thus, Mouton reasons that payments on the promissory notes are not remuneration for services Mouton performed as an employee. If Mouton’s assertions about the nature of these promissory notes are correct, the payments at issue are not wages, and neither defendant was required to withhold taxes.

On the other hand, the defendants assert that the promissory notes were executed as a bonus in consideration of Mouton’s past service to Henderson and Superette, respectively. Title 26 of the Code of Federal Regulations § 31.3401(a) specifically states that remuneration constitutes wages — regardless of its name, the medium used, or the fact that the person receiving it is no longer an employee — as long as the remuneration is made for services the employee performed for his employer. Thus, to succeed on their affirmative defense, each defendant must prove that Mouton performed services for them as an officer or other employee and that the promissory note was issued as compensation for those services. Clearly, this issue involves mixed questions of fact and law.

Typically, appellate review of a motion for summary judgment is de novo. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). However, an appellate court may decline to perform a review of issues that include questions of fact when a legal or procedural error has prevented the trier of fact from reaching those questions. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502. To preserve the proper allocation of functions between trial and appellate courts, an |flappellate court may remand to the trial court instead of conducting a de novo review. Id. Remand is particularly appropriate when the evidence concerning the issue on appeal has not been fully developed. Id.

In the present case, the trial court specifically declined to reach the substantive issues the defendants’ motions for summary judgment presented, instead finding that the defendants were immune from liability seemingly because of the undisputed fact that the defendants withheld income taxes from payments on the promissory notes and remitted those amounts to the federal government. Not only did the trial court err when it applied an improper procedural mechanism, but it also failed to determine whether the evidence regarding the factual elements of the defendants’ affirmative defense was sufficient to merit dismissal by summary judgment. Furthermore, at least at this juncture, we are not convinced that the evidence regarding Mouton’s status as an officer of Superette and the relationship between the promissory notes and the defendants’ redemption of Mouton’s stock has been fully fleshed out. Therefore, we decline to conduct a de novo review of the motions for summary judgment because the trial court has not properly considered them and because we are not certain that our decision would be based on a fully-developed record.

DECREE

For the reasons discussed above, we reverse the trial court’s judgments dismissing Mouton’s claims on peremptory exceptions of immunity and remand to the trial court for consideration of the affirmative defenses asserted through the motions for summary judgment. Costs are assessed to the defendants, Hebert’s Super-ette, Inc. and Hebert’s of Henderson, Inc.

REVERSED AND REMANDED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . Louisiana Code of Civil Procedure Article 1005 provides:
      The answer shall set forth affirmatively negligence, or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as a peremptory exception or as an incidental demand, or a peremptory exception as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.


text:
    Kenneth James MOUTON v. HEBERT’S OF HENDERSON, INC.
    No. 10-788.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Andree Matherne Cullens, Dawn D. Bonnecaze, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendants/Appellees, Hebert’s Superette, Inc. Hebert’s of Henderson, Inc.
    Bart J. Hebert, Reneé Z. Berard, Boyer, Hebert & Abels, LLC, Breaux Bridge, LA, for Plaintiff/Appellant, Kenneth James Mouton.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge.

For the reasons set forth in the companion case in this consolidated matter, Kenneth James Mouton v. Hebert’s Superette, Inc., 10-787 (La.App. 3 Cir. 12/8/10), 53 So.3d 561, 2010 WL 4967927, we reverse the trial court’s judgments dismissing Mouton’s claims on peremptory exceptions of immunity and remand to the trial court for consideration of the affirmative defenses asserted through the motions for summary judgment. Costs are assessed to the defendants, Hebert’s Superette, Inc. and Hebert’s of Henderson, Inc.

REVERSED AND REMANDED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


text:
    Pamela SKINNER, et al. v. CHRISTUS ST. FRANCES CABRINI HOSPITAL, et al.
    No. 10-817.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.

      Scott H. Frugé, DeGravelles, Palmintier, Holthaus & Frugé, L.L.P., Baton Rouge, Louisiana, for Plaintiffs/Appellees, Pamela Skinner, Individually and on Behalf of the Estate of Robert W. Skinner and as Natural Tutrix of her minor child, Kelli Skinner, and Chance Skinner.
    David R. Sobel, Jeremy C. Cedars, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, APC, Alexandria, Louisiana, for Defendants/Appellants, Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital, Stephen T. Ford, LPN.
    Robert L. Bussey, Kimmie Leyser-Vercher, Bussey & Lauve, LLC, Alexandria, Louisiana, for Defendants/Appellants, The Louisiana Patient’s Compensation Fund, Louisiana Patient’s Compensation Fund Oversight Board.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge.

l,In this medical malpractice case, the defendants, Christus St. Frances Cabrini Hospital (Christus Hospital), Stephen T. Ford, LPN (Nurse Ford), and the Louisiana Patient’s Compensation Fund/Louisiana Patient’s Compensation Fund Oversight Board (hereafter collectively referred to as the PCF), appeal a jury verdict in favor of the plaintiffs, the widow and two children of Robert W. Skinner (Mr. Skinner), finding that Christus Hospital/Nurse Ford deviated from the appropriate standard of care in the medical treatment of Mr. Skinner resulting in a lost chance of survival for Mr. Skinner and awarding the plaintiffs $250,000. The plaintiffs answer the appeal to request that the judgment be modified to reflect that the defendants’ breach of the standard of care caused the death of Mr. Skinner and to increase the amount of damages awarded to reflect wrongful death damages. For the following reasons, we conclude that the jury manifestly erred in finding that Christus Hospital/Nurse Ford’s deviation from the standard of care resulted in a lost chance of survival for Mr. Skinner. Nevertheless, finding no manifest error, we affirm that aspect of the judgment in which the jury determined that Christus Hospital/Nurse Ford’s deviation from the standard of care did not cause Mr. Skinner’s death. Accordingly, we affirm in part, reverse in part, vacate, and render.

PROCEDURAL HISTORY

On August 18, 2000, Mr. Skinner died the day after he underwent a hemorrhoid-ectomy and partial sphincterotomy at Christus Hospital in Alexandria, Louisiana. Pamela Skinner, widow of the decedent, individually and on behalf of the estate of the decedent and as tutrix of Chance and Kelli Skinner, minor children of Pamela and the decedent (collectively referred to as the plaintiffs), filed a medical 12malpractice complaint with the Commissioner of Administration on August 15, 2001, requesting the formation of a Medical Review Panel (MRP) pursuant to La. R.S. 40:1299.47. The original complaint alleged that six medical providers, including Christus Hospital and Nurse Ford, had breached the applicable standard of care in their treatment of the decedent. A MRP was formed and rendered an unanimous opinion on February 9, 2005, finding that “[t]he evidence does not support the conclusion that the defendants, ... Mr. Stephen T. Ford, and St. Frane[e]s Cabrini Hospital, failed to meet the applicable standard of care as charged in the complaint” and that “[t]he conduct complained of was not a factor of the asserted resultant damages.”

The plaintiffs fax-filed suit in the Ninth Judicial District Court on April 29, 2005, against Christus Hospital and Nurse Ford, and the matter proceeded to jury trial from March 28 to 26, 2010. According to the verdict form, the jury determined from a preponderance of the evidence that Nurse Ford and Christus Hospital deviated from the appropriate standard of care in the medical treatment of Mr. Skinner. However, the jury further determined that the deviation from the standard of care by Nurse Ford and the hospital was not a proximate cause of Mr. Skinner’s death. On the other hand, the jury found that the negligence of Nurse Ford and Christus Hospital caused Mr. Skinner a loss of a chance of survival, and they awarded the plaintiffs $250,000 in general damages as a result of that loss. The trial court rendered a judgment on May 13, 2010, in conformity with the jury verdict as follows: judgment was rendered in favor of the plaintiffs and against the defendants, Christus Hospital and Nurse Ford, in the sum of $100,000, with legal interest from the date of filing of the request |sto establish a medical review panel until paid; judgment was further rendered in favor of the plaintiffs and against the PCF, on behalf of Christus Hospital and Nurse Ford, in the sum of $150,000, with legal interest from the date of filing of the request to establish a medical review panel until paid. All costs of the proceedings were cast against the defendants, Christus Hospital and Nurse Ford.

On June 3, 2010, two attorneys enrolled into this matter as counsel of record for the PCF. Thereafter, Christus Hospital, Nurse Ford, and the PCF filed a timely motion for suspensive appeal. The plaintiffs answered the appeal.

The PCF is now before this court asserting three errors: (1) the jury erred in finding that the plaintiffs proved that the negligence of Christus Hospital and Nurse Ford caused a lost chance of survival for the decedent; (2) the trial court erred in not having a jury interrogatory and jury-charge concerning the comparative fault of the decedent and other parties or third parties; and (3) the damage award is excessive. In their appeal, Christus Hospital and Nurse Ford allege that the jury erred in finding that the decedent lost a chance of survival; alternatively, they allege that the trial court erred in failing to allow the application of comparative fault to the plaintiffs’ lost chance of survival claim. The plaintiffs assert that the jury manifestly erred in concluding that the defendants’ breach of the standard of care did not cause Mr. Skinner’s death and in awarding them an amount of damages that does not adequately compensate them for their losses.

FACTS

On August 7, 2000, after consulting with Dr. Joseph Marrazzo, a colon-rectal surgeon, Mr. Skinner decided to undergo a hemorrhoidectomy and anal fissure repair in an effort to alleviate his painful hemor-rhoidal symptoms. As part of the Lpreoperative screening process, Mr. Skinner was asked on five different occasions to list all of the medications that he was taking as well as the dosages of those medications.

Mr. Skinner had not worked since 1985. He had been declared disabled by the Social Security Administration due to several severe psychiatric disorders, including depression, manic depression, anxiety disorder, and paranoia. Mr. Skinner had suicidal thoughts, and he suffered anxiety regarding healthcare-related issues, specifically that of pain control. Since May of 1994, he had been under the care of Dr. Lyn Goodin, a psychiatrist, and had been prescribed Celexa and Remeron, both anti-anxiety drugs. Mr. Skinner also suffered from high blood pressure, high cholesterol, heartburn, and hypothyroidism, for which he took additional medications. During the preoperative process leading up to his surgery, Mr. Skinner properly and consistently listed all of the medications he was taking except for Celexa, a drug that he had been taking daily for months.

Mr. Skinner’s surgery was scheduled for August 17, 2000. His body temperature was noted to be 96.5 degrees Fahrenheit shortly after his admission to Christus Hospital. The surgery began at 8:12 a.m. and lasted approximately one hour, with no complications. Although most patients who have the same surgery as Mr. Skinner go home the day of the surgery, Dr. Mar-razzo agreed to keep Mr. Skinner in the hospital overnight due to Mr. Skinner’s significant anxiety about postoperative pain. Dr. Marrazzo directed that Mr. Skinner’s vital signs be monitored as per hospital policy, and he authorized the nursing staff to administer 0.15-0.3 milligrams of Buprenex intravenously for pain every two hours.

|sThe nurses’ notes in Mr. Skinner’s chart reflect that he complained of severe pain at the operative sight at 3:30 p.m. but that by 8:00 p.m. he was suffering from only moderate pain. The notes indicate that he received pain medication three times, with the last dose given at midnight. In addition, Mr. Skinner received a thirty milligram dose of Remeron at 11:00 p.m.

Nurse Ford first saw Mr. Skinner at about 8:00 p.m. on the date of his surgery. According to a note Nurse Ford made, Mr. Skinner was sleeping when he checked on him just after midnight, and Mr. Skinner’s wife was sleeping in the room. Nurse Ford last saw Mr. Skinner at 5:30 a.m. on August 18, 2000; his nursing shift ended at 7:00 a.m. At 7:45 a.m., Mr. Skinner was discovered to be unresponsive, with no pulse or respirations. A heart code was called, and efforts were made to resuscitate him, but those efforts were unsuccessful, and Mr. Skinner was pronounced dead at 8:12 a.m. on August 18, 2000. At that time, his core body temperature was 94 degrees Fahrenheit.

An autopsy performed on August 21, 2000, noted that Mr. Skinner’s death was the result of acute cardio-respiratory failure resulting from polypharmacy with markedly elevated levels of mirtazapine (Remeron) and citalopram (Celexa). The toxicology section of the autopsy listed Mr. Skinner’s blood Remeron level at 262.2 nanograms per milliliter; the therapeutic range of Remeron was listed as 4.0-40.0 nanograms per milliliter. Mr. Skinner’s blood Celexa level was 701.0 nanograms per milliliter, and the blood level of the metabolite of Celexa, desmethycitalopram, was L62.7 nanograms per milliliter; the toxicology report listed, with regard to Celexa, a “steady state in recommended dosage up to 120 [nanograms per milliliter].”

DISCUSSION

In Hypolite v. Columbia Dauterive Hospital, 07-357, pp. 5-7 (La.App. 3 Cir. 10/3/07), 968 So.2d 239, 243 (alteration in original), this court laid out the following principles which are relevant to the case before us:

Louisiana Revised Statutes 9:2794(A) sets forth the plaintiffs burden of proof against a physician licensed by the State Board of Medical Examiners ... in a medical malpractice action. The plaintiff must establish:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
Id. In summary, “[t]he plaintiff must establish the standard of care applicable to the charged physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiffs injuries resulting therefrom.” Pfiffner v. Correa, 94-924, p. 7 (La.10/17/94), 643 So.2d 1228, 1233.
Nurses performing medical services are subject to the same standards of care and liability as physicians. Pommier v. ABC Ins. Co., 797 — 1342 (La.App. 3 Cir. 7/15/98), 715 So.2d 1270, writs denied, 98-2455, 98-2456 (La.11/20/98), 729 So.2d 562. The hospital is responsible for the negligence of its employees, including nurses, under the doctrine of respondeat superior. Id. Consequently, in a medical malpractice action such as this one against a hospital, this plaintiff must prove that the hospital, acting through its nurses, owed this plaintiff a duty to protect against the risks involved, that it breached that duty, that the plaintiff suffered injury, and that the purported negligent action was a substantial cause in fact of injury. Id. (citing Farmer v. Reyes, 95-0734, 95-0735 (La.App. 4 Cir. 11/16/95), 665 So.2d 129; Seal v. Bogalusa Cmty. Med. Ctr., 94-1363 (La.App. 1 Cir. 11/9/95), 665 So.2d 52).
The question of whether conduct fell below the applicable standard of care is a factual determination subject to the manifest error standard of review. Curtis v. Columbia Doctors’ Hosp. of Opelousas, 03-916 (La.App. 3 Cir. 12/17/03), 862 So.2d 1125. In order to determine whether a standard of care was breached, opinions of medical experts are usually necessary to determine the applicable standard of care under the circumstances and whether there has, in fact, been a breach. Pfiffner, 643 So.2d 1228; see also, Herpin v. Witherspoon, 95-370 (La.App. 3 Cir. 11/2/95), 664 So.2d 515.

In an earlier medical malpractice case against a hospital, the second circuit, in Gordon v. Willis Knighton Medical Center, 27,044 (La.App. 2 Cir. 6/21/95), 661 So.2d 991, 997, writs denied, 95-2776, 95-2783 (La.1/26/96), 666 So.2d 679, noted the following:

[A] hospital is bound to exercise the degree of care toward a patient that his or her condition requires, which must be determined under the particular facts and circumstances. Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986).
A determination of whether a hospital has breached those duties depends upon the facts and circumstances of each particular case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974). We are cognizant of the standard of appellate review used to review findings of fact. A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). Thus to reverse a trial court, the appellate court must find from the record that a reasonable factual basis does not exist for the finding, and further that the finding is clearly | ¿¡wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Although the standard of review is high it does not require this court to abdicate its responsibility to review the trial court’s findings, nor does it require this court to rubber stamp a jury’s answers to interrogatories which are manifestly erroneous.

I. LOSS OF A CHANCE OF SURVIVAL

The plaintiffs alleged in their petition that the defendants caused Mr. Skinner the loss of a chance of survival due to their negligence in: failing to properly monitor Mr. Skinner postoperatively; prescribing and administering medications which caused Mr. Skinner acute cardio-respiratory failure; failing to monitor Mr. Skinner’s reaction to medication administered to him; failing to properly monitor Mr. Skinner’s vital signs during the night; overdosing Mr. Skinner on Remeron; and in otherwise failing to act with the required degree of care commensurate with the existing situation.

The defendants counter that even assuming that they did breach the standard of care, the plaintiffs failed to prove that Mr. Skinner had a chance of survival on the morning of August 18, 2000, and that Nurse Ford’s actions or inaction caused Mr. Skinner to lose a chance of survival.

In Benefield v. Sibley, 43,317, p. 13 (La.App. 2 Cir. 7/9/08), 988 So.2d 279, 289, writs denied, 08-2162, 08-2210 (La.11/21/08), 996 So.2d 1107, writ denied, 08-2247 (La.11/21/08), 996 So.2d 1108, the second circuit wrote:

Once a breach of duty constituting malpractice is established, the question of whether the malpractice contributed to the death, i.e., lessened the chance of survival, is a question of fact for the jury. A substantial factor need not be the only causative factor; it need only increase the risk of harm. Hastings v. Baton Rouge General Hospital, 498 So.2d 713 (La.1986).
The plaintiff does not have to shoulder the unreasonable burden of proving that the patient would have lived had proper treatment been given. Smith v. State through Department of Health and Human Resources Administration, 523 So.2d 815 (La.1988). However, the plaintiff does have the burden of establishing by a preponderance of the |3evidence that the defendant’s conduct denied the patient a chance of survival. Even if the destruction of less than a 50 percent chance of survival is compensa-ble, the plaintiff must in the first instance prove by a preponderance of the evidence that such a chance existed and that it was lost as the result of the defendant’s negligence. [M]

A. TESTIMONY

1. Ernest Lykissa, Ph.D.

As part of the plaintiffs’ case in chief, the jury was shown the video deposition of Dr. Ernest Lykissa, a practicing pharmacologist and clinical and forensic toxicologist in Texas. While he does have privileges at several hospitals, Dr. Lykissa acknowledged that he is not licensed to practice medicine anywhere in the United States and that he cannot prescribe medicine.

Dr. Lykissa opined that due to “some inordinate amount of drugs being introduced into [Mr. Skinner’s] system” in the twenty-three hours following his hemor-rhoidectomy, “he ended up suffering from a polypharmaceutical complication that resulted in his severe cardiopulmonary failure and his demise.” He believed that it was the antidepressant Remeron that resulted in Mr. Skinner’s death. Although the autopsy revealed that Mr. Skinner had toxic levels of Celexa and Remeron in his body, Dr. Lykissa’s opinion that Remeron was the cause of death was based upon the fact that Remeron was given to Mr. Skinner in the hospital. Dr. Lykissa admitted on questioning by the defense attorney that at the time he gave a prior deposition, he erroneously believed that Nurse Ford had given Mr. Skinner a second dose of Remeron, in injection form, at 4:00 a.m. on August 18, 2000.

|inDr. Lykissa explained that Celexa has a half-life of twenty to forty hours. Because there was no evidence that Mr. Skinner was given any Celexa in the hospital and because the metabolite of Celexa was found in Mr. Skinner’s postmortem blood sample, Dr. Lykissa believed that Mr. Skinner last took Celexa before his surgery and hospitalization. Nevertheless, he disputed the notion that Mr. Skinner might have taken a lethal dose of Celexa at that time because he survived the surgery and anesthesia without any problems. He agreed, however, that the level of Celexa reported in Mr. Skinner’s autopsy was enough to cause “big distress” or death in most people.

Dr. Lykissa found fault with Nurse Ford’s documentation of his care of Mr. Skinner, especially with late entries that Nurse Ford admitted to entering after Mr. Skinner’s death, characterizing the late entries as “highly suspect ... of having been put there after the facts in order to cover somebody’s back.” Although Dr. Lykissa had read Nurse Ford’s deposition wherein he stated that the vital signs charted at 8:00 p.m. on August 17, 2000, were actually taken at midnight, Dr. Lyk-issa refused to accept Nurse Ford’s explanation about the discrepancy.

Based on the generally accepted notion that a dead person’s temperature drops approximately one and one-half degrees per hour from death until it reaches the temperature of the environment that it is in and his belief that Mr. Skinner’s temperature was 99.6 degrees Fahrenheit at 8:00 p.m. on the evening before he died, along with the fact that Mr. Skinner’s core temperature at the time of death was noted at 94 degrees Fahrenheit, Dr. Lykissa opined that Mr. Skinner was either already dead or in great distress when Nurse Ford allegedly checked on him at 5:30 a.m. on August [n18, 2000. Nevertheless, Dr. Lykissa acknowledged that people with hypothyroidism often have colder temperatures in the morning. Moreover, he admitted on questioning by the defense attorney that when he calculated Mr. Skinner’s time of death, he did not realize that Mr. Skinner’s temperature had been recorded as being 96.5 degrees Fahrenheit on the morning of his surgery. He also admitted that his calculations as to Mr. Skinner’s time of death were based on his belief that Mr. Skinner had been given his thyroid medicine in the hospital the night before his death.

2. Steven Ford, LPN

Nurse Ford testified that he was working the 7:00 p.m. to 7:00 a.m. shift on the date of Mr. Skinner’s surgery. He first saw Mr. Skinner at 8:00 p.m., which was approximately ten hours after the surgery. Nurse Ford charted that Mr. Skinner was alert and oriented and that his lungs were clear and did not have any congestion or fluid. Mr. Skinner’s respirations were regular and moderate in depth, and his pulse was regular and loud. His color was normal, and his skin was warm and dry. Mr. Skinner reported that he had walked to the bathroom to urinate and void and that he was passing gas. Nurse Ford noted that Mr. Skinner’s stomach was soft and that he could hear bowel sounds. Mr. Skinner was complaining of moderate pain at the surgical site. Nevertheless, Nurse Ford’s notes indicated that Mr. Skinner was calm and cooperative.

Nurse Ford next saw Mr. Skinner at 9:00 p.m. At that time, he was given Bu-prenex for pain, along with Zocor for his high cholesterol, Prilosec for his heartburn, Metamucil to help him go to the bathroom, Labetalol for his high blood pressure, and Remeron for his anxiety. Nurse Ford testified the dosage of Remer-on |iathat he gave to Mr. Skinner at that time was in pill form, was thirty milligrams, as per doctor’s orders, and that it was the only dosage of Remeron that he gave Mr. Skinner.

According to Nurse Ford, he next saw Mr. Skinner at midnight, at which time Mr. Skinner was given Buprenex for moderate pain. At 2:00 a.m., Nurse Ford charted that Mr. Skinner was sleeping and appeared pain free. Nurse Ford explained that when he checks on patients in the middle of the night, especially when they have a family member with them who is sleeping as well, he leaves the lights off and uses a pen light to assess the patient rather than waking them up.

Nurse Ford next saw Mr. Skinner at 4:00 a.m. at which time he checked Mr. Skinner’s IV. He noted that Mr. Skinner was “sleeping, snoring, with wife @ bedside.” When he last checked on Mr. Skinner at 5:30 a.m., Nurse Ford noted that Mr. Skinner was sleeping on his right side, snoring, and his wife was at his bedside.

Nurse Ford testified that although he completed all of the charting checklists contemporaneously with his assessments of Mr. Skinner, he left the hospital when his shift ended at 7:00 a.m. and later realized that he had not entered all of the narrative notes for his 4:00 and 5:30 a.m. checks on Mr. Skinner. Thereafter, he made the late entries into Mr. Skinner’s chart, clearly marking them as such by writing “LATE ENTRY” in all capital letters. Nurse Ford explained that although it is acceptable to make late entries, he tries to avoid the practice. He stressed that all of the information contained in the late entries that he made in Mr. Skinner’s chart were true and that he was not trying to hide anything.

Nurse Ford testified that Christus Hospital’s policy at the time of Mr. Skinner’s hospitalization required that a patient’s vital signs be taken at least every eight hours unless specified to be more frequent by the patient’s physician. Dr. Marrazzo had |1sordered that Mr. Skinner’s vital signs be taken routinely. After Mr. Skinner’s death, Nurse Ford’s supervisor questioned him about why Mr. Skinner’s vital signs had not been charted at midnight. Nurse Ford later discovered that although Ms. Betty Rivers, a nurse’s aid, had taken Mr. Skinner’s vital signs at midnight, she had incorrectly charted them in the 8:00 p.m. slot. Nurse Ford commented that Ms. Rivers could not have taken Mr. Skinner’s vital signs at 8:00 p.m. because she worked the 11:00 p.m. to 7:00 a.m. shift. The vital signs taken by Ms. Rivers at midnight indicated that Mr. Skinner’s blood pressure was 142/84, his temperature was 99.6, his respirations were twenty, and his heart rate was eighty-six, which indicated to Nurse Ford that Mr. Skinner was doing fíne.

3. Jeffery Rapp, M.D.

As part of the defendants’ case, the jury was shown the video deposition of Dr. Jeffery Rapp, the anesthesiologist for Mr. Skinner’s surgery. He stated that anesthesiologists want to have a complete picture of their patient’s health status, including “what disease processes are being treated by medications.” Because many medications can impact anesthesia management, anesthesiologists need to know what medications a patient is taking. He explained that although it seems redundant, both doctors and nurses question a patient about the medications that they are taking to get a complete list so that the doctors can address any issue as early as possible. Dr. Rapp remarked that normal doses of prescription drugs typically do not cause problems with anesthesia. He added, however, that he would be very reluctant to undertake giving anesthesia for an elective surgery if he knew that the patient had taken a toxic dose of any drug. Dr. Rapp stated that he was not informed at any time post-surgery that Mr. Skinner had suffered any complication related to the anesthesia.

| ^According to the pre-anesthesia evaluation, Mr. Skinner listed his current medications as Remeron, Lebatalol, Levothy-roxin, Zocor, Prilosec, Thioradazene, and Clonazepam; he did not mention Celexa (Citalapram). Dr. Rapp noted that this list matched one made by Nurse Vasquez on August 17, 2000.

4. Joseph Marrazzo, III, M.D.

The jury viewed the video deposition of Dr. Marrazzo, the board certified colon-rectal physician who performed surgery on Mr. Skinner, as part of the defendants’ case. He stated that as a surgeon, he would want to know all of the medications a patient like Mr. Skinner was taking before operating on him. Likewise, he would want to know if a patient was taking too much of any prescribed medication. Dr. Marrazzo stated that his patients generally fill out an information form listing their medications and allergies. He later goes over the form with the patient and asks whether they are taking any other medications not listed.

Dr. Marrazzo’s chart for Mr. Skinner noted that he had a history of depression, anxiety, and hypothyroidism and listed his medications as Remeron, Lebatalol, Levo-thyroxin, Zocor, Prilosec, Thioradazene, and Clonazepam. Dr. Marrazzo indicated that he would have listed Celexa if Mr. Skinner had informed him that he was taking it.

Dr. Marrazzo stated that although patients undergoing a hemorrhoidectomy formerly stayed in the hospital for one day prior and two days following the procedure, in 1986 there was a shift to performing the procedure on an outpatient basis, with the patient going home the same day as the procedure. He was unsure |iawhat the norm was in 2000, when Mr. Skinner’s procedure was done. Dr. Marrazzo noted that Mr. Skinner’s procedure was straightforward and that there were no complications. He remembered speaking with Mr. and Mrs. Skinner after the procedure about their concerns regarding postoperative pain and that the decision was made for Mr. Skinner to stay in the hospital overnight because of those concerns. Dr. Marrazzo explained that everyone who has a hemorrhoidectomy has severe pain afterward.

Mr. Skinner’s surgery ended at 9:10 a.m., and Dr. Marrazzo prescribed a .15 to .30 milligram dosage of Buprenex intravenously every two hours as needed for pain. He was never informed that Mr. Skinner’s pain was not controlled. Postoperatively, Dr. Marrazzo ordered Mr. Skinner’s vital signs to be taken routinely per hospital policy.

Initially, upon hearing that Mr. Skinner had died, Dr. Marrazzo suspected that his death was caused by a heart attack or pulmonary embolus. He explained that he had no reason to consider Celexa toxicity at that time because he had no knowledge that Mr. Skinner was taking Celexa.

5. Betty Rivers, CNA

Betty Rivers is a Certified Nursing Assistant. She provided care for Mr. Skinner on the evening of August 17, 2000, during her shift that lasted from 11:00 p.m. until 7:00 a.m. the next day. She took Mr. Skinner’s vital signs at midnight and asked if he needed anything, to which he responded in the negative.

6. Ronald DeKeyzer

Ronald DeKeyzer testified that he is the Regional Information Management Executive at Christus Hospital. Defense counsel had asked him to perform research 11Rto determine the quantity of Celexa and Remeron charged to Mr. Skinner during his August 17-18, 2000 hospitalization. He stated that Mr. Skinner was charged for two fifteen milligram tablets of Remeron and no charges for Celexa were found. Mr. DeKeyzer explained that the pharmacy department enters the drug charges into the database and that nurses cannot access the pharmacy system.

7.Terrell Hicks, M.D.

A video deposition of Dr. Terrell Hicks, the colon-rectal surgeon selected by the plaintiffs to serve on the MRP, was shown to the jury as part of the defendants’ case. Dr. Hicks stated that most patients who have a hemorrhoidectomy and anal fissure repair have the procedure performed on an outpatient basis; however, on rare occasions, patients are admitted into the hospital for pain control issues. Although Mr. Skinner had, what he termed, “multiple medical problems,” there was no reason why Dr. Hicks would not have sent Mr. Skinner home after the procedure “had he not complained about the anxiety of the procedure or the pain.” If he was to perform surgery on a patient who was taking Celexa, Dr. Hicks opined that he would want to know before the operation that the patient was taking the medicine and whether the patient was taking a normal dose, as opposed to too much or too little. With regard to the late entries Nurse Ford made, Dr. Hicks did not think that Nurse Ford was trying to conceal that the entries were entered late. Dr. Hicks opined that because Mr. Skinner had concerns about pain control, it was better to not wake him, as long as his vital signs had already been taken during Nurse Ford’s eight-hour shift, in order to reduce the amount of pain medication that he would need.

Dr. Hicks had many concerns about Dr. Lykissa’s opinion as to the cause and time of Mr. Skinner’s death because Dr. Lykis-sa made a lot of assumptions and |17missed a lot of the facts. His chief concern was that Dr. Lykissa had impugned the nursing staff in his discovery deposition by suggesting that they might have injected him with the wrong dose of Remeron, despite the fact that Remeron can only be given orally. Dr. Lykissa was also wrong in his belief that Mr. Skinner was given Synthroid and two doses of Remeron in the hospital. Dr. Hicks said that it was unfair for Dr. Lykissa to have stated that Mr. Skinner’s surgeon or anesthesiologist should have run blood tests when he entered the hospital to test “his levels” because Mr. Skinner never told them that he was taking Celexa, thus, they would not have known what to test.

Dr. Hicks believed that the most likely cause of Mr. Skinner’s death was an arrhythmia or heart failure, which Celexa is known to cause, and that his death was sudden and abrupt. Dr. Hicks stated that if he had personally examined Mr. Skinner fifteen minutes before the sudden arrhythmia, he would most likely not have found anything out of the ordinary because people suffering that type of death look great before it occurs, likening Mr. Skinner’s death to that of Pete Maravich, the pro-basketball player who died suddenly during a pickup basketball game. He opined that Mr. Skinner may not have survived even if a doctor had been standing at his bedside when the sudden arrhythmia occurred, particularly since no one knew that he had excessive levels of Celexa in his blood.

8. William George, PhD.

Dr. William George testified at trial on behalf of the defendants as an expert in toxicology and pharmacology. Defense counsel had asked him to review |lsMr. Skinner’s records to determine whether Celexa or Remeron were responsible for his death, and he concluded that Celexa was responsible for Mr. Skinner’s death.

Dr. George stated that his review of the records indicated that Mr. Skinner was only given one dose of Remeron while in the hospital. He noted that because Rem-eron cannot be injected, Dr. Lykissa was mistaken in his belief that Mr. Skinner had been given a second dose of Remeron via injection. Dr. George explained that drugs like Celexa and Remeron have therapeutic and toxic ranges in the bloodstream and that the metabolite of Celexa remains active as an antidepressant. In this case, Mr. Skinner had a blood Remer-on level of 262 nanograms per milliliter and a blood Celexa level of 701 nanograms per milliliter. Dr. George believed that Mr. Skinner’s blood level of Remeron did not fit the dosage that Mr. Skinner told the doctors and nurses that he was taking and that the thirty milligrams of Remeron given to Mr. Skinner in the hospital would not have caused his blood level to be that high. Nevertheless, Dr. George said that the research indicates that a person would need to have about 2700 nanograms per milliliter of Remeron to kill him, much greater than the 262 nanograms per milliliter level in Mr. Skinner’s blood at the time of his death. On the other hand, persons have been known to die with Celexa levels as low as 300-400 nanograms per milliliter, but “700 is a level that has been reported to kill.” Mr. Skinner had 701 nanograms of Celexa in his blood at the time of his death. He opined that Mr. Skinner was not given Celexa in the hospital but instead took the medicine at home. Dr. George noted that although both Celexa and Remeron work on the nervous system, there is no specific contraindication for the use of them together, and he did not think that the Remeron had much of an impact in this case. Nevertheless, the literature indicates that Celexa is not nearly as safe as Remeron.

|19Pr. George confirmed that people with hypothyroidism have low body temperatures in the mornings and that Mr. Skinner had been told to not take Synthroid, his hypothyroidism medication, on the day of his surgery. Given the fact that Mr. Skinner had a temperature of 96.5 degrees Fahrenheit on the morning of his surgery and the likelihood that the temperature of his hospital room was between seventy-two and seventy-four degrees, Dr. George opined that Mr. Skinner likely died only a very short matter of minutes before the code was called at 7:47 a.m. He stated that he was “very confident” that Dr. Lykissa was incorrect in assuming that Mr. Skinner’s temperature was 98.6 degrees Fahrenheit when he died.

9. Alan Kaye, M.D.

Dr. Alan Kaye, a board certified anesthesiologist with a Ph.D. in pharmacology, testified at trial on behalf of the defendants. He stated that persons with hypothyroidism have low morning body temperatures. Dr. Kaye explained that because Mr. Skinner’s temperature was 96.5 degrees Fahrenheit at 6:00 a.m. on the day of his surgery and because the record showed that Mr. Skinner had not taken any thyroid medication in the hospital, his temperature would have been 96.5 degrees Fahrenheit or lower the next morning before he died. Based on the foregoing and the fact that Mr. Skinner’s temperature was 94 degrees Fahrenheit at 7:47 a.m. when the code was called, Dr. Kaye opined that Mr. Skinner died between 6:00 and 6:30 a.m. Dr. Kaye admitted on cross-examination that when he previously wrote a report in this matter, he mistakenly thought that Mr. Skinner’s core temperature at the time of his death was 94.5 rather than 94 degrees Fahrenheit. Nevertheless, Dr. Kaye explained that the discrepancy would have resulted in a twenty-minute change to his estimate of the time of death that was within the half hour range that he had given. 120Pr. Kaye stated that based on the codes that he ran during his career, if someone had been dead beyond five to ten minutes, it is very difficult to resuscitate them.

Dr. Kaye attributed Mr. Skinner’s death to a drug-induced cardiac arrhythmia or cardiac collapse caused by either a Celexa toxicity or a Celexa and Remeron induced toxicity. He stated that the single thirty milligram dose of Remeron given to Mr. Skinner in the hospital would not have produced the elevated levels shown postmortem. Dr. Kaye believed that Mr. Skinner’s death would have been very sudden and abrupt. He explained that Celexa is a serotonin selective reuptake inhibitor that can affect the cardiac conduction system and cause seizures and lethal arrhythmias that are very difficult, if not impossible, to treat. Dr. Kaye opined that Mr. Skinner would have looked absolutely fine five minutes before he died.

Dr. Kaye said that the most likely scenario in this case was that Mr. Skinner was anxious about his surgery and took too much Celexa, failed to tell his surgeon that he was taking Celexa, and suffered from a toxic overdose the next day, within the known twenty to forty hour half-life of the drug. He expressed his strong belief that Nurse Ford and the other healthcare providers at Christus Hospital did nothing wrong and did not cause Mr. Skinner to die. In addition, Dr. Kaye testified that while pharmacologists like Dr. Lykissa and Dr. George can determine a cause of death, because they are not physicians, they are not qualified to determine a patient’s chance of survival if they code.

B. CONCLUSION: LOSS CHANCE OF SURVIVAL

In this case, the plaintiffs bore the burden of proving that Mr. Skinner had a chance of surviving and that the defendants’ negligence denied him that chance. Quite simply, our careful review of the record shows that the plaintiffs failed to _[Siproduce a scintilla of evidence regarding this issue. To the contrary, the defendants presented unrefuted testimony that cardiac arrhythmia or cardiac collapse caused Mr. Skinner’s death and that his death would have been sudden and abrupt; even had doctors personally examined Mr. Skinner fifteen minutes before the arrhythmia, they would have found nothing extraordinary in Mr. Skinner’s medical condition. After meticulously examining this record in its entirety, we are convinced that the jury manifestly erred in its determination that Christus Hospital/Nurse Ford’s negligence caused Mr. Skinner a lost chance of survival. Accordingly, we vacate and set aside that part of the trial court judgment that awarded the plaintiffs $250,000 in general damages for the lost chance of survival.

II. WRONGFUL DEATH

The plaintiffs contend that the jury committed manifest error in its finding that the negligence of Christus Hospital/Nurse Ford was a proximate cause of Mr. Skinner’s death. They claim that Nurse Ford was not credible, that he was not in Mr. Skinner’s room when he claimed to be there, and that he caused Mr. Skinner’s death by giving him too high a dosage of Remeron.

The defendants submit that the jury was correct in concluding that the plaintiffs failed to prove by a preponderance of the evidence that Christus Hospital/Nurse Ford’s deviation from the standard of care was not a proximate cause of Mr. Skinner’s death. They further submit that this court should not reverse the jury’s conclusion unless we conclude that there was no reasonable factual basis to support that conclusion.

Dr. Hicks concluded that the most likely cause of Mr. Skinner’s death was sudden arrhythmia or heart failure, known risks of having excessive Celexa in the |2ablood. Likewise, Dr. Kaye opined that the most likely scenario in this case is that Mr. Skinner was anxious about his surgery, took too much Celexa, failed to tell his doctors that he was even taking Celexa, and suffered from a toxic overdose the day following his surgery. He firmly believed that Nurse Ford and the other healthcare providers at Christus Hospital did nothing wrong and that they did not cause Mr. Skinner to die. On the other hand, while Dr. Lykissa opined that Nurse Ford gave Mr. Skinner too much Remeron, thereby causing his death, Dr. Lykissa’s conclusions were heavily criticized by Dr. Hicks, Dr. George, and Dr. Kaye. Given the foregoing, we conclude that the jury had ample evidence, including expert testimony, to support its finding that Christus Hospital/Nurse Ford’s deviation from the standard of care was not a proximate cause of Mr. Skinner’s death.

CONCLUSION

The jury erred in concluding that Chris-tus Hospital/Nurse Ford’s deviation from the standard of care caused Mr. Skinner a lost chance of survival. As a result, the general damage award made to compensate the plaintiffs for that lost chance is vacated and set aside. On the other hand, there is ample evidence to support the jury’s finding that Christus Hospital/Nurse Ford’s deviation from the standard of care was not a proximate cause of Mr. Skinner’s death. Because of these findings, we need not determine whether the trial court erred in failing to provide the jury with an interrogatory and charge concerning the comparative fault of Mr. Skinner or any other party. In addition, all assignments of error concerning the appropriateness of any damage award have become moot.

⅛,DECREE

For the foregoing reasons, the judgment of the trial court awarding the plaintiffs $250,000 in general damages for the lost chance of survival and casting all costs against the defendants, Christus St. Frances Cabrini Hospital and Stephen T. Ford, LPN is vacated and set aside. In all other respects, the judgment is affirmed. All costs of the trial and this appeal are assessed against the plaintiffs, Pamela Skinner, widow of the decedent, individually and on behalf of the estate of the decedent and as tutrix of Kelli Skinner, and Chance Skinner.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND RENDERED.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . On March 16, 2010, after reaching the age of majority, Chance Skinner filed a motion to substitute party plaintiff on the grounds that he was now entitled to represent himself in this matter.

      . According to Mr. Skinner’s pharmacy records, he began filling prescriptions for Rem-eron in April 1998 and Celexa in April 2000.

      . According to answers.com, a person’s core temperature is the "[tjemperature in the part of the body that contains the vital organs.... The core temperature is taken internally (e.g. in the rectum or oesophagus) and it usually remains within a narrow range....” The report of the physician responding to the code called for Mr. Skinner indicated that his core temperature was taken rectally.

      . Because the published opinion fails to give the public domain page breaks, we are unable to cite the opinion as directed by rule 10.3.3 of The Bluebook.

      . Because the defendants have not appealed the jury’s finding that Nurse Ford/Christus Hospital deviated from the applicable standard of care, the testimonies of Carol Starns, LPN, and Judy Kreideweis, RN, regarding nursing standards, are irrelevant to this appeal. Additionally, because we have determined that any deviations from the appropriate standard of care Nurse Ford/Christus Hospital committed did not cause Mr. Skinner's wrongful death or a lost chance of survival, the damage award made to the plaintiffs has been reversed, and the testimonies of Mrs. Skinner and Chance Skinner are irrelevant to this appeal.

      . Nurse Ford’s explanation regarding these late entries is explained later in this opinion where his testimony is discussed.

      . According to Mr. Skinner’s records from Christus Hospital, Nurse Vasquez was the admitting RN when he arrived at the hospital on August 17, 2000, for his surgery. The Patient Medication History that she filled out with information supplied by Mr. Skinner appears on page 47 of Joint Exhibit 3.

      . Defense counsel made it known to the jury that Dr. George was not a physician.


author: GENOVESE, Judge.

text:
    AMERICAN MOVING AND STORAGE OF LEESVILLE, INC. v. Cynthia BRIDGES, Secretary, Department of Revenue.
    No. 10-825.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 2010.
    Miranda Y. Conner, Shone T. Pierre, Frederick Mulhearn, Donald Bowman, Antonio Ferachi, Baton Rouge, Louisiana, for Defendant/Appellant, Department of Revenue, State of Louisiana.
    Robert R. Casey, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, L.L.P., Baton Rouge, Louisiana, for Plaintiff/Appellee, American Moving and Storage of Leesville, Inc.
    Court composed of JIMMIE C. PETERS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

[,The Department of Revenue, State of Louisiana (Department), appeals the trial court’s affirmation of a decision of the Board of Tax Appeals which concluded that no tax was due by American Moving and Storage of Leesville, Inc. (American). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

American is engaged in the business of packing the personal goods of military personnel for shipment and shipping them to other bases from Fort Polk, Louisiana. American purchases raw materials, such as corrugated cardboard, lumber, nails, and tape, to construct the crates and boxes that it uses to ship the goods.

The Department conducted an audit of American’s financial records for the tax period of January 1, 2004, through December 31, 2006. In May of 2007, the Department sent a notice to American stating that it owed sales tax in the amount of $23,999.00, plus interest. American contested the Department’s assessment of the tax owed by filing a petition with the Board of Tax Appeals (Board).

A hearing was held on August 11, 2009, after which the Board took the matter under advisement. On September 9, 2009, the Board issued a written judgment wherein it declared:

It is the ruling of the Board that all of the purchases made by [American] of corrugated cardboard, lumber, nails, tape[,] and other materials used by [American] to construct boxes and crates to ship articles outside of, the state were articles of tangible personal property produced or manufactured in this state for export and/or are in interstate |2commerce as contemplated by [La.]R.S. 47:305(E) and are therefore excluded from the Louisiana sales tax.

The Board found in favor of American and vacated the Department’s tax assessment.

The Department filed a Petition for Judicial Review of a Decision of the Louisiana Board of Tax Appeals with the trial court pursuant to the provisions of La.R.S. 47:1434. The Department’s petition to the trial court asserted:

1. The Board erred in ruling that all of the purchases made by [American] of corrugated cardboard, lumber, nails, tape[,] and other materials used by [American] to construct boxes and crates to ship articles outside the state were tangible personal property purchased or manufactured in this state for export and/or are in interstate commerce as contemplated by [La.]R.S. 47:305(E) and are therefore excluded from the Louisiana sales tax.
2. The Board erred in not applying the correct principal [sic] of law to the fact[s] of the case.
|.c,3. The Board erred in vacating and setting aside the assessment issued by the Department.

The trial court affirmed the decision of the Board. In its Written Reasons, the trial court stated:

This review is limited to a review of the facts in the record and to the question of whether the Board correctly applied ... Louisiana law to these facts. This [e]ourt can only set aside the Board’s ruling if it is manifestly erroneous based on the facts of the entire record or if the Board has incorrectly applied the existing relevant law concerning this issue.
A review of the record in this matter reveals that the facts of this matter are not in question. All of the materials in question were purchased by American Moving for their use in building crates to ship goods out of the State of Louisiana. The Board’s factual findings are supported by the evidence in the record, accordingly there [is] no error in the Board’s application of the facts.

The Board, further, correctly, [sic] applied the Louisiana Revised Statutes 47:305(E) which provides [in pertinent part]:

It is not the intention of [any taxing authority] to levy a tax upon articles of tangible personal property imported into this state, or produced or manufactured in this state, for export; nor is it the intention of [any taxing authority] to levy a tax on bona fide interstate commerce ... [.]
This application followed the ruling in a similar factual case, [International Export Packers of Louisiana, Inc. v. Louisiana, 422 So.2d 1361 (La.App. 1 Cir.1982) ]. Therein[,] tangible personal property used to build crates for exporting items outside of Louisiana were excluded from Louisiana sale taxes. The Board found no distinction between that case and the activities of American Moving [and] Storage of Leesville, Inc.

The trial court signed a judgment to this effect on April 14, 2010. It is from this judgment that the Department appeals.

ASSIGNMENTS OF ERROR

On appeal, the Department raises the following assignments of error:

The Board of Tax Appeals and the [trial court] erred by failing to rule that a use tax is due on American Moving’s storage, use and ^consumption of the corrugated cardboard, lumber, nails[,] and tape within this state as required under La.R.S. 47:301(19).
The Board of Tax Appeals erred by ruling that all of the purchases made by American Moving of corrugated cardboard, lumber, nails, tape, and other materials used by American Moving to construct boxes and crates to ship articles outside of the state were articles of tangible personal property produced or manufactured in this state for export and/or are in interstate commerce as contemplated by [LaJR.S. 47:305(E) and are therefore excluded from the Louisiana sales tax.
The [trial court] erred by upholding a judgment of the Board of Tax Appeals, which is clearly contrary to law and evidence and[,] therefore[,] manifestly erroneous.

STANDARD OF REVIEW

In reviewing the trial court’s affirmation of the Board’s decision, we are mindful of the standard of review as explained by this court in Hanover Compressor Co. v. Department of Revenue, State of Louisiana, 02-925, pp. 5-6 (La.App. 3 Cir. 2/5/03), 838 So.2d 876, 879-80:

The scope of the judicial review of the Board of Tax Appeals is not controlled by the administrative procedure law found at La.R.S. 49:951, el seq. Instead, it is exempted from those provisions by La.R.S. 49:967. In Collector of Revenue v. Murphy Oil Co., 351 So.2d 1234 (La.App. 4 Cir.1977), the Board of Tax Appeals was described as acting as a trial court. A trial court’s jurisdiction to review a decision of the Board is provided by La.R.S. 47:1435, as follows:
The district courts shall have exclusive jurisdiction to review the decisions or judgments of the board, and the judgment of any such court shall be subject to further appeal, suspen-sive only, in accordance with law. If a suspensive appeal is taken from a judgment' of the district court[,] no further bond need be posted and the bond originally posted remains in full force and effect to guarantee the payment of any tax, interest, and penalty until final decision of the court.
Upon such review, such courts shall have the power to affirm or, if the decision of the judgment of the board is not in accordance with law, to modify, or to reverse the decision or judgment of the board, with or without | sremanding the case for further proceedings as justice may require.
The trial court is required to conduct its review upon the record that was before the Board. Crawford v. American Nat. Petroleum Co., 00-1063 (La.App. 1 Cir. 12/28/01); 805 So.2d 371. It considers only facts on the Board’s record and questions of law. Id. The Louisiana Supreme Court observed in St. Pierre’s Fabrication and Welding, Inc. v. McNamara, 495 So.2d 1295 (La.1986), that the Board’s findings of fact are to be accepted by the reviewing trial court where there is substantial evidence in the record to support them. These findings of fact are not to “be set aside unless they are manifestly erroneous in view of the evidence on the entire record.” Id. at 1298. The Board’s decision must be affirmed absent legal error or a failure to follow the correct procedural standards. Murphy Oil Co., 351 So.2d 1234. See also Crawford, 00-1063; 805 So.2d 371.

LAW AND DISCUSSION

The Department asserts that American purchases and imports the materials it uses to construct the boxes and crates, i.e., corrugated cardboard, lumber, nails, and tape, from a company in Mississippi; thereafter, it consumes those materials when it constructs the boxes and crates that it uses to pack its customer’s belongings. In brief, the Department argues that “a use tax is due on [American’s] storage, use[,] and consumption of the corrugated cardboard, lumber, nails[,] and tape within this state as required under La.R.S. 47:301(19).”

Louisiana Revised Statutes 47:301(19) provides:

“Use tax” includes the use, the consumption, the distribution, and the storage as herein defined. No use tax shall be due to or collected by:
(a) The state on tangible personal property used, consumed, distributed, or stored for use or consumption in the state if the sale of such property would have been exempted or excluded from sales tax at the time such property became subject to the taxing jurisdiction of the state.
(b) Any political subdivision on tangible personal property used, consumed, distributed, or stored for use or consumption in such political subdivision if the sale of such property would have been exempted or | f,excluded from sales tax at the time such property became subject to the taxing jurisdiction of the political subdivision.

American counters by asserting that “none of the items in question were purchased for ‘use’ in Louisiana[;]” instead, “[a]ll of [the items] were purchased for shipment of goods, and, therefore, for resale of those items to customers.” Therefore, American argues that it is exempt from the state sales and use tax pursuant to the terms of La.R.S. 47:301(18)(a)(i). Louisiana Revised Statutes 47:301(18)(a)(i) provides, in pertinent part:

Solely for purposes of the imposition of the state sales and use tax, “use” means and includes the exercise of any right or power over tangible personal property incident to the ownership thereof, except that it shall not include the sale at retail of that property in the regular course of business.

The Department also argues, in brief:

[T]he corrugated cardboard, nails, lumber, and tape American ... uses are taxable because they are not used to manufacture and produce the crates and boxes to be used in this state to pack its customer’s possessions. [Instead,] the corrugated cardboard, nails, lumber, and tape American ... uses are taxable because they are not in bona fide interstate commerce, but instead, they are brought into the state, stored, used, and consumed in the state of Louisiana by American ... so that the company could provide the non-taxable services to its customers.

American counters that the purchase for export exclusion found in La.R.S. 47:305(E) applies because its “activities during the period in question were identical in all material respects to the activities of the taxpayer in [International Exports.]” Louisiana Revised Statutes 47:305(E) provides:

It is not the intention of any taxing authority to levy a tax upon articles of tangible personal property imported into this state, or produced or manufactured in this state, for export; nor is it the intention of any taxing authority to levy a tax on bona fide interstate commerce; however, nothing herein shall prevent the collection of the taxes due on sales of tangible personal property into this state which are promoted through the use of catalogs and other means of sales promotion and for 17which federal legislation or federal jurisprudence enables the enforcement of the sales tax of a taxing authority upon the conduct of such business. It is, however, the intention of the taxing authorities to levy a tax on the sale at retail, the use, the consumption, the distribution, and the storage to be used or consumed in this state, of tangible personal property after it has come to rest in this state and has become a part of the mass of property in this state. At such time as federal legislation or federal jurisprudence as to sales in interstate commerce promoted through the use of catalogs and other means of sales promotions enables the enforcement of this Chapter or any other law or local ordinance imposing a sales tax against vendors that have no other nexus with the taxing jurisdiction, the following provisions shall apply to such sales on which sales and use tax would not otherwise be collected.

Having reviewed the factual determinations made by the trial court and its reliance upon the appellate decision in International Export, we find no manifest error in the trial court’s judgment.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assessed to the Appellant, the Department of Revenue, State of Louisiana, in the amount of $1,133.76.

AFFIRMED.

      . Louisiana Revised Statutes 47:1401 provides:
      In order to provide a board that will act as an appeal board to hear and decide, at a minimum of expense to the taxpayer, questions of law and fact arising from disputes or controversies between a taxpayer and the collector of revenue of the State of Louisiana in the enforcement of any tax, excise, license, permit or any other tax law administered by the collector, the Board of Tax Appeals, hereinafter referred to as the board, is created as an independent agency in the executive department of the state government, and for the purposes of this Chapter.

      . Louisiana Revised Statutes 47:1434 provides:
      After a decision or judgment of the board, the collector or the taxpayer may, within thirty calendar days after such decision or judgment has been rendered and signed, file a petition with the district court in accordance with the provisions hereinafter set out, for review of the said decision or judgment of the board. The party filing such petition shall before the filing of same, either at open hearing or by motion, notify the board of his intention to file such petition for review. Provided that when the board has found any tax to be due, a taxpayer must, when giving the notice of intention to file a petition for review, post bond, with surety approved by the board conditioned upon the payment of the tax as finally determined, together with any interest, additional amounts or additions to the tax provided for by law, payable to the collector, in an amount not to exceed one and one-half times the said tax, interest, and penalty found to be due in said decision or judgment of the board, and the posting of such bond shall be a condition precedent to the filing of any petition for review in any district court.
      Thereafter, and within the thirty calendar days from the date of the rendering and signing of such decision or judgment of the board, the taxpayer may file his petition for review with the proper district court, setting forth specifically any errors which may have been committed by the board in reaching its decision or judgment.
      When the district judge has ordered the review, a copy of the order and petition shall be mailed to the secretary-clerk of the board, and the opposing party or counsel representing him, and the order shall command the secretary-clerk of the board to send up within twenty days from the date thereof the original transcript of the record, together with all exhibits and evidence thereto attached; which record shall be the basis for any action on review and the decision of the district court shall be rendered upon the said record as made up before the board.