author: PAUL A. BONIN, Judge. BELSOME, J.,

text:
    Joseph NARCISSE v. DEPARTMENT OF POLICE.
    No. 2012-CA-1267.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 6, 2013.

      Donovan A. Livaccari, Livaccari Villar-rubia Lemmon, LLC, New Orleans, LA, for Plaintiff/Appellant.
    Richard F. Cortizas, City of New Orleans, Sharonda R. Williams, Chief of Litigation, Isaka Rachell Williams, Shawn Lindsay, Assistant City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

| Joseph Narcisse, an officer in the New Orleans Police Department, appeals the decision of the New Orleans Civil Service Commission which upheld the discipline imposed upon by him by the Department. The Department demoted Officer Narcisse from Sergeant to Police Officer IV after it determined that on May 5, 2010, he failed to follow several verbal instructions from his supervisors. The Department also suspended Officer Narcisse for forty-five days after it determined that he made several untruthful statements regarding the events of May 5, 2010.

Officer Narcisse first argues on appeal that the Commission’s decision is arbitrary and capricious because there is no substantial evidence to support the requisite finding that his failure to perform his duty impaired the efficiency and orderly administration of the public service. Officer Narcisse further argues that the Commission’s decision should be reversed because it erred in determining that the discipline meted out by the Department was commensurate with the offense. Having reviewed this matter, we affirm the Commission’s decision and find that its Rruling that Mr. Narcisse’s actions impaired the efficiency of the service is supported by evidence in the record. We explain our decision in greater detail below.

I

In this Part we address the background facts and procedural history of this matter. The appellant, Joseph Narcisse, is employed as a policeman with the Department. He was first hired by the Department on October 28, 1990, subsequently promoted to Sergeant on March 15, 2002, and then later demoted to Police Officer IV effective October 6, 2010. The events that led to Officer Narcisse’s demotion form the factual basis underlying this appeal.

Specifically, the record indicates that Officer Narcisse suffers from migraine headaches and was forced by his medical condition to take an extended medical leave in order to seek treatment. Officer Narcisse returned to active duty on May 4, 2010, and was assigned to the Office of Compliance, although he had previously been assigned to the Public Integrity Bureau. Officer Narcisse first met with Major John Bryson, Commander of the Office of Compliance, as well as two supervisors — Captain Brian Weiss and Lieutenant Angelo Smith — to discuss his duties.

The record indicates that all three supervising officers knew of Officer Nar-cisse’s medical condition, and that Major Bryson, specifically, offered to accommodate Officer Narcisse’s medical needs if he needed help. At the meeting, Officer Nar-cisse learned that he would be assigned to Compliance, but detailed to lathe PIB in order to complete paperwork on a backlog of cases. Officer Narcisse’s work hours were to be between 8:25 am and 5:00 pm. Because Officer Narcisse had been out on sick leave for so long, and also because his pre-leave attendance had been erratic, Major Bryson informed Officer Narcisse that upon arriving at work he was to first report to Compliance, which is located in the Department’s headquarters, sign the payroll timesheet, and then relocate to PIB’s offices, which are situated at another location nearby.

Further, Major Bryson also conducted a Compliance staff meeting on May 4, 2010. At this meeting, Major Bryson announced that all Compliance personnel were instructed, because of budgetary constraints, to turn in their departmental cell phones the following day at Department headquarters. In light of this development, Major Bryson also instructed his subordinates to maintain police radio contact on the dedicated, Compliance channel when out of the office. The remainder of the May 4, 2010, workday proceeded without incident.

At approximately 9:00 am on May 5, 2010, Lieutenant Iris Carey, Officer Nar-cisse’s supervisor at PIB, called Lt. Smith to inquire as to Officer Narcisse’s whereabouts. Lt. Carey testified that her office in PIB is oriented such that she is able to see who arrives for work each day, but that Officer Narcisse never reported for duty on May 5, 2010. Lt. Smith testified that he told Lt. Carey that he had yet to see Officer Narcisse at Compliance. Shortly thereafter, Officer Narcisse called Lt. Smith, informed him that he was turning in his departmental cell phone, and asked to change his working hours. Lt. Smith declined Officer Narcisse’s request, Rnoting that he would need to get approval from Lt. Carey. Lt. Smith also ordered Officer Narcisse to report to the PIB for work after he had finished turning in his departmental cell phone.

Lt. Carey testified that, shortly after her initial conversation with Lt. Smith, she called Officer Narcisse to inquire as to his whereabouts. According to Lt. Carey, Officer Narcisse told her that he was then currently at Police Headquarters turning in his departmental cell phone. Lt. Carey noted that during this conversation, Officer Narcisse also told her that he had just then been speaking with Captain Weiss in the hallway. Lt. Carey then ordered Officer Narcisse to report to PIB once he was finished turning in his departmental cell phone.

Lt. Carey then called Lt. Smith, informed him of the substance of her conversation with Officer Narcisse, and learned from Lt. Smith that Captain Weiss was not at Police Headquarters on that day. Lt. Carey then called Officer Narcisse back and ordered him to come to work at the PIB. Lt. Carey testified that Officer Nar-cisse claimed, variously, that Major Bryson and Lt. Smith had given him permission to change his working hours. Lt. Carey then contacted Lt. Smith to confirm Officer Narcisse’s assertions. Lt. Smith told Lt. Carey that he had not authorized a change in Officer Narcisse’s working hours. Lt. Smith also spoke with Major Bryson and Captain Weiss, both of whom denied changing Officer Narcisse’s working hours. Subsequently, Lt. Smith attempted, unsuccessfully, to [ ^contact Officer Narcisse using the Compliance channel on the departmental radio system.

At approximately 11:00 am, Lt. Carey again called Officer Narcisse to inform him that he did not have authorization to alter his work schedule, inquired as to his whereabouts, and ordered him to report for duty at the PIB. According to Lt. Carey, Officer Narcisse told her that he was suffering from a migraine and needed to get a shot. Lt. Carey gave Officer Narcisse permission to seek medical attention and ordered him to report to PIB immediately thereafter.

At approximately 2:45 pm, Officer Nar-cisse called Lt. Smith, told him that he was at home suffering from a migraine, and asked to change his work hours. Lt. Smith denied the request. Officer Nar-cisse then asked Lt. Smith to “carry him sick” for the day. Lt. Smith approved the request, but subsequently contacted Captain Weiss for instructions. Captain Weiss told Lt. Carey to place Officer Narcisse on leave without pay from 8:25 am to 2:45 pm, and on sick leave from 2:45 pm to 5:00 pm.

Subsequently, Lieutenant Carl Perilloux was tasked with conducting an internal investigation into Officer Narcisse’s actions and statements. Lt. Perilloux concluded that Officer Narcisse committed seven violations of departmental rules. Specifically, Lt. Perilloux concluded that Officer Nar-cisse violated Rule 2, Moral Conduct, paragraph 3, Truthfulness, when he: 1) told Lt. Carey that he was speaking with Captain Weiss in the hallway at Department headquarters; 2) told Lt. Carey that he had permission from Major Bryson to change his working hours; 3) | fitold Lt. Carey that he had permission from Lt. Smith to change his working hours; and 4) made inaccurate and misleading statements in his administrative statement when he claimed that he reported for duty at the PIB, and logged into a PIB computer, on May 5, 2010. Lt. Perilloux also concluded that Officer Narcisse also violated Rule 4, Performance of Duty, paragraph 2, Instructions from an Authoritative Source, when he: 1) failed to comply -with Major Bryson’s order that he first report to Compliance; 2) failed to comply with Lt. Smith’s and Lt. Carey’s orders to report for duty at PIB on May 5, 2010, once he had turned in his departmental cell phone; and 3) failed to follow instructions from Captain Weiss to carry and monitor his police radio on the Compliance channel.

As noted, Officer Narcisse was issued a forty-five day suspension and demoted from Sergeant to Police Officer IV. Officer Narcisse appealed the punishment, and the matter was assigned to the Civil Service Commission. On February 10, 2011, an evidentiary hearing was conducted before a Hearing Examiner. Captain Weiss, Lt. Smith, Lt. Carey, and Lt. Perilloux testified for the Department. Officer Nar-cisse testified on his own behalf. The Hearing Examiner subsequently rendered a report wherein he recommended that the Commission overturn the Department’s suspension and demotion of Officer Nar-cisse. The Commission, on the other hand, rendered a decision on June 1, 2012, denying Officer Narcisse’s appeal. Officer Narcisse subsequently sought timely review of the Commission’s ruling with this Court.

Jil

We first address the precepts which control our appellate review of Mr. Narcisse’s appeal of the Commission’s decision to uphold the appointing authority’s disciplinary action. “No person who has gained permanent status in the classified ... city service shall be subjected to disciplinary action except for cause expressed in writing.” La. Const. art. X, § 8(A); La. Const, art. X, § 1(B). New Orleans police officers are included in the protection guaranteed by this provision. Walters v. Dep’t of Police of New Orleans, 454 So.2d 106, 112 (La.1984).

“Legal cause exists whenever an employee’s conduct impairs the efficiency of the public service in which the employee is engaged.” Cittadino v. Dep’t of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir. 1990). The employee’s failure to perform the task must “affect the efficient operation of public service.” Fisher v. Dept. of Health and Human Resources, Office of Human Devp., 517 So.2d 318, 321 (La.App. 1st Cir.1987). Thus, “[t]he appointing authority must prove by a preponderance of the evidence the occurrence of the complained of activity and that the conduct impaired the efficient operation of the public service.” Barquet v. Dep’t of Welfare, 620 So.2d 501, 505 (La.App. 4th Cir. 1993) (emphasis added). See also Cure v. Dep’t of Police, 07-0166, p. 2 (La.App. 4 Cir. 8/1/07), 964 So.2d 1093, 1094, citing Marziale v. Dep’t of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767.

Mr. Nareisse timely exercised his constitutional right to an appeal from the appointing authority’s disciplinary action to the New Orleans Civil Service | ^Commission. La. Const. art. X, § 8(A). The Commission has “the exclusive power and authority to hear and decide all removal and disciplinary cases.” La. Const. art. X, § 12(B); Pope v. New Orleans Police Dep’t, 04-1888 (La.App. 4 Cir. 4/20/05), 903 So.2d 1. Before the Commission, “the burden of proof on appeal, as to the facts, shall be on the appointing authority.” La. Const. art. X, § 8(A) (emphasis added); Walters, 454 So.2d at 112-113.

The Commission’s duty is to decide independently from the facts presented to it whether the appointing authority has good or lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the infraction. Walters, 454 So.2d at 113-114. Although the Commission’s function is to effectuate the constitutional safeguards and protections for civil servants in the classified public service, equally important, according to the Louisiana Supreme Court, is “the appointing authority’s duty to undertake disciplinary action against an employee for legal cause that impairs the efficiency of the public service.” Mathieu v. New Orleans Public Library, 09-2746, p. 5 (La.10/19/10), 50 So.3d 1259, 1262.

The Commission assigned the appeal to its referee: “[The Commission] may appoint a referee to take testimony, with subpoena power and power to administer oaths to witnesses.” La. Const. Art. X, § 12(B). After hearing testimony and considering other evidence, the referee issued a written report. Other than the eviden-tiary proceeding before its referee, the Commission did not conduct any 19further evidentiary hearings. The Commission’s ruling indicates that all three of the reviewing Commissioners concurred in the denial of Mr. Narcisse’s appeal.

The Commission’s decision is subject to appellate review on any question of law or fact, determining if its order was arbitrary, capricious, or characterized by an abuse of discretion. La. Const. Art. X, § 12(B); Barquet, 620 So.2d at 505; Cure, 07-0166, p. 2, 964 So.2d at 1095; Walters, 454 So.2d at 114. When there is no rational basis for the Civil Service Commission’s action, its decision is arbitrary and capricious. Bannister v. Dep’t of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

The judicial review function in a matter appealed from a civil service commission is “multifaceted.” Walters, 454 So.2d at 113-114. We review the Commission’s procedural decisions and interpretations of law under our traditional plenary function of insuring procedural rectitude and reviewing questions of law de novo. Id. But, because of the constitutional implications arising from the distinct functions of the Commission and of us as a reviewing court, we are more circumspect in our review of other aspects of the Commission’s decision. Id. Thus, in reviewing the commission’s findings of fact, the court should not reverse or modify such a finding unless it is clearly wrong or manifestly erroneous. Id.

Specifically with respect to the issues raised by Mr. Narcisse in this appeal, “[i]n judging the commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, the court should not modify the commission’s order unless it is |inarbitrary, capricious, or characterized by abuse of discretion.” Id. In practice, we afford great deference to the Commission’s ruling supporting the decision of the appointing authority. See Serignet v. Dep’t of Health, 08-0469, p. 10 (La.App. 4 Cir. 5/20/09), 15 So.3d 1019, 1025. As we are recently reminded by the Louisiana Supreme Court, neither the Commission nor a reviewing court should “second-guess” an appointing authority’s decisions. See Lange v. Orleans Levee District, 10-0140, p. 17 (La.11/30/10), 56 So.3d 925, 936. The Commission and a reviewing court may intervene only when the appointing authority’s decisions are arbitrary and capricious or characterized by an abuse of discretion. Lange, 10-0140, p. 17, 56 So.3d at 936. Moreover, neither the Commission nor the reviewing court may serve as a de facto pardon board. Id. “[SJympathy is not a legal standard.” Id.

Ill

In this Part we apply these precepts to the Commission’s decision, which, as we have noted, fully upheld the Department’s actions when it found that there was legal cause for the discipline and that the punishments imposed were not arbitrarily excessive.

A

We first examine the Commission’s finding that the Department proved by a preponderance of the evidence that Officer Narcisse committed seven violations of applicable Department rules. We do not find the Commission’s conclusions to be arbitrary, capricious, or lacking rational bases in fact. As noted, the Commission | n affirmed the Department’s conclusion that Officer Narcisse committed four violations of Rule 2, Moral Conduct, paragraph 3, Truthfulness. The applicable departmental rule provides:

Employees are required to be truthful at all times, in their spoken, written, or electronic communications, whether under oath or not, in all matters and official investigations relating to the scope of their employment and operations of the Department, as follows:
a. employees shall truthfully state the facts in any oral, written, or electronic communications;
b. employees shall not willfully or negligently make any false, misleading, or incorrect oral, written, or electronic communications;
c. employees shall not willfully or negligently withhold relevant information of which they have knowledge, from any oral, written, or electronic communication;
d. employees shall truthfully answer all questions directed to them on the order of the Superintendent of Police, the Superintendent’s des-ignee, a superior officer, or any judicial, departmental, or other official investigative body.

First, the Commission concluded that the Department proved by a preponderance of the evidence that Officer Narcisse lied when he told Lt. Carey that he was speaking with Captain Weiss in the hallway at Department headquarters. Specifically, Lt. Carey testified that she called Officer Narcisse to inquire as to his whereabouts. During the course of their conversation, Officer Narcisse stated that he was at Department headquarters and had been in the hallway speaking with Captain Weiss. Shortly thereafter, Lt. Carey spoke with Lt. Smith, who informed her that Captain Weiss was not in the building on that day.

|12Officer Narcisse, on the other hand, denied making this statement to Lt. Carey, and instead testified that he merely mentioned to her, mistakenly, that he thought he saw Captain Weiss in the hallway. We note, however, that Officer Narcisse’s testimony at the administrative hearing contradicts the administrative statement he made to Lt. Perilloux. Specifically, Officer Narcisse denied making the statement, and told Lt. Perilloux that he could not have made that statement to Lt. Carey because this conversation with Lt. Carey occurred when he was at home where he could not have seen Captain Weiss. Having reviewed the record, we cannot say that the Commission’s finding that the Department proved this violation of Rule 2 by a preponderance of the evidence to be arbitrary, capricious, or lacking a rational basis in fact.

Second, the Commission also concluded that the Department proved by a preponderance of the evidence that Officer Nar-cisse lied when he told Lt. Carey that he had permission from Major Bryson to change his working hours. Third, the Commission likewise concluded that the Department also met its burden of proving that Officer Narcisse lied when he told Lt. Carey that he had permission from Lt. Smith to change his working hours. As noted, Officer Narcisse’s work schedule was established on May 4, 2010, when he met with Major Bryson, Captain Weiss, and Lt. Smith. However, Lt. Carey testified at the administrative hearing that Officer Narcisse told her on May 5, 2010, that Major Bryson authorized a change in his work schedule. Lt. Carey testified that she then contacted Lt. Smith, who spoke with Captain Weiss about the matter. Captain l1sWeiss called Major Bry-son, who was out of town on May 5, 2010. Lt. Smith testified that Major Bryson stated that he did not authorize a change in Officer Narcisse’s work schedule. Captain Weiss also denied authorizing a change in Officer Narcisse’s work schedule. Lt. Smith relayed this message to Lt. Carey, who, in turn, relayed this information to Officer Narcisse. Lt. Carey testified that Officer Narcisse then stated that Lt. Smith authorized a change in his work schedule. Lt. Carey again spoke with Lt. Smith, who denied authorizing such a change.

At the administrative hearing, Officer Narcisse denied telling Lt. Carey that either Major Bryson or Lt. Smith authorized a change to his work schedule. Rather, Officer Narcisse testified that Major Bry-son, knowing of his medical condition, stated at the May 4, 2010, meeting that he would be willing to do “anything to help” Officer Narcisse in his return to work. Officer Narcisse also testified that he merely informed Lt. Carey of this statement, noting to her that no change had been made because it would require further discussions.

The record shows clearly that the Commission was presented with two conflicting accounts of the conversations that took place on May 5, 2010. The Commission chose to accept the testimonies of Captain Weiss, Lt. Smith, and Lt. Carey over that of Officer Narcisse. Having reviewed the record, we cannot say that the Commission’s finding that the Department proved these violations of Rule 2 by a preponderance of the evidence to be arbitrary, capricious, or lacking rational bases in fact.

| i/The Commission further concluded that the Department proved by a preponderance of the evidence that Officer Nar-cisse made inaccurate and misleading comments in his administrative statement to Lt. Perilloux when he claimed that he reported for duty at the PIB, and logged into a PIB computer, on May 5, 2010. Specifically, Officer Narcisse told Lt. Peril-loux that, contrary to Lt. Carey’s claim, he did in fact report for duty at the PIB on May 5, 2010, after first turning in his departmental cell phone at police headquarters. Officer Narcisse told Lt. Peril-loux that he arrived at the PIB at some point between 8:25 am and 9:00 am. However, this statement is contradicted by the administrative hearing testimony of Lt. Smith and Lt. Carey, both of which testified to speaking to Officer Narcisse at approximately 9:00 am. Lt. Smith and Lt. Carey both testified that Officer Narcisse told them that he was at headquarters turning in his departmental cell phone. Further, Officer Narcisse himself testified at the administrative hearing that he spoke with Lt. Carey at approximately 9:00 am while he was at headquarters.

At the administrative hearing, Officer Narcisse testified that he reported for duty at the PIB and logged onto an unoccupied work computer to begin working on his files. As noted, Lt. Carey testified that her office in the PIB is oriented such that she is able to see who arrives for work each day, but that she never saw Officer Narcisse report for duty on May 5, 2010. Officer Narcisse testified at the administrative hearing that he did report for duty, but that Lt. Carey must not have seen him at the time. However, there is no indication that anyone saw Officer 11fiNarcisse at the PIB on the morning of May 5, 2010. Moreover, Lt. Carey testified that her various phone conversations with Officer Nar-cisse took place between approximately 9:00 am and 11:00 am. Officer Narcisse, while he did not deny that these phone conversations took place, nevertheless testified that he arrived at the PIB sometime between 9:30 am and 10:00 am and left for lunch at some point between 11:00 am and 11:30 am. The record, therefore, suggests that Lt. Carey and Officer Narcisse were on the phone discussing Officer Narcisse’s absence at times that Officer Narcisse later claimed to have been at work in the PIB.

Further, in his administrative statement, Officer Narcisse told Lt. Perilloux that he could confirm his presence at the PIB by checking the departmental computer’s log-in records. Lt. Perilloux checked the computer log-in records and found no indication of Officer Narcisse having logged onto a computer. At the administrative hearing, Officer Narcisse testified that he did not need to technically log onto a PIB computer on May 5, 2010, because he ended up using a computer that another officer had logged onto and left open for use.

The record, again, shows that the Commission was presented with two conflicting accounts of the events that took place on May 5, 2010. The Commission chose to accept the testimony of Lt. Carey and the findings and testimony of Lt. Perilloux over that of Officer Narcisse. Having reviewed the record, we cannot say that the Commission’s findings that the Department proved these violations of Rule 2 by a preponderance of the evidence to be arbitrary, capricious, or lacking rational bases in fact.

1 Additionally, the Commission affirmed the Department’s conclusion that Officer Narcisse committed three violations of Rule 4, Performance of Duty, paragraph 2, Instructions from an Authoritative Source. The applicable departmental rule provides:

An employee shall professionally, promptly, and fully abide by or execute instructions issued from any authoritative source, including any order relayed from a superior by an employee of the same or lesser rank. If the instructions are reasonably believed to be in conflict with the Rules and Procedures of the Department or other issued instructions, this fact shall respectfully be made known to the issuing authority. If the issuing authority elects to insist upon execution of the instructions which are reasonably believed to be in conflict with Department Rules and Procedures, the employee receiving the instructions shall have the right to request and is entitled to receive, IMMEDIATELY, said instructions in writing, except in cases of emergency as determined by the supervisor. The issuing authority shall be held responsible should any conflict materialize; however, no instructions shall be issued or executed which are in violation of law.

Specifically, the Commission concluded that Officer Narcisse violated this rule when he: 1) failed to comply with Major Bryson’s May 4, 2010, order that he report to work at PIB on the morning of May 5, 2010; 2) failed to comply with Lt. Smith’s and Lt. Carey’s orders to report for duty at PIB on May 5, 2010, after he had turned in his departmental cell phone; and 3) failed to follow instructions from Captain Weiss to carry and monitor his police radio on the Compliance channel.

We have already discussed the facts surrounding Officer Narcisse’s failure to report for duty at the PIB on May 5, 2010, and we find no fault in the Commission’s determination with respect to these violations. With respect to the allegation that Officer Narcisse failed to carry and monitor his police radio on the Compliance channel, the record indicates that at the May 4, 2010 staff meeting ] 17Major Bryson ordered Compliance personnel to turn in their departmental cell phones on May 5, 2010. Major Bryson also ordered all compliance officers to carry and monitor their police radios on the Compliance channel. At the administrative hearing, Lt. Smith testified that on May 5, 2010, he attempted, to no avail, to contact Officer Narcisse on several occasions via the Compliance channel. Lt. Perilloux testified that he recalled hearing Lt. Smith’s fruitless calls to Officer Narcisse.

Lt. Perilloux also testified that as part of his investigation he asked Mr. Terry Wag-uespack, of the Louisiana Department of Public Safety, to ascertain whether Officer Narcisse’s radio was on or off on May 5, 2010. Lt. Perilloux stated that Mr. Wag-uespack’s records confirmed Lt. Smith’s calls to Officer Narcisse and the fact that Officer Narcisse’s radio remained inactive, but they could not reveal whether Officer Narcisse’s police radio had been on or off on May 5, 2010. Officer Narcisse testified that his radio was active on May 5, 2010, but that it did not receive Lt. Smith’s calls due to the fact that he was in his apartment, which interfered with the police radio signal. Clearly, the Commission was presented with two conflicting accounts of the events that took place on May 5, 2010. The Commission chose to accept the testimony of Lt. Smith and the findings and testimony of Lt. Perilloux over that of Officer Narcisse. Having reviewed the record, we cannot say that the Commission’s findings that the Department proved | isthese violations of Rule 4 by a preponderance of the evidence to be arbitrary, capricious, or lacking rational bases in fact.

Moreover, we observe that the Department concluded that these proven violations impaired the efficiency of the public service in which Officer Narcisse was engaged. See Newman v. Dep’t of Fire, 425 So.2d 758, 754 (La.1983); Cornelius v. Dep’t of Police, 07-1257, p. 6 (La.App. 4 Cir. 3/19/08), 981 So.2d 720, 724; Cittadino, 558 So.2d at 1315. The Department established that Officer Narcisse’s dishonesty and failure to follow orders resulted in violations of core departmental values. We cannot say that these violations did not bear a real and substantial relationship to the efficient operation of the appointing authority. See Cure, 07-0166, p. 2, 964 So.2d at 1094.

B

We next address Officer Nar-cisse’s contention that the Commission’s ruling should be reversed because it erred in determining that the discipline meted out by the Department was commensurate with the offense. In order to determine whether the appointing authority properly imposed disciplinary action against Officer Narcisse, we must determine whether the punishment imposed was commensurate with the offenses. Staehle v. Department of Police, 98-0216 (La.App. 4 Cir. 11/18/98), 723 So.2d 1031, 1034.

The Commission affirmed the Department’s conclusion that Officer Narcisse’s seven infringements of departmental rules resulted in a violation of Rule |inIX, Section 1, paragraph 1.1, of the Rules of the Civil Service Commission for the City of New Orleans. This rule provides as follows:

1.1 When an employee in the classified service is unable or unwilling to perform the duties of his/her position in a satisfactory manner, or has committed any act to the prejudice of the services, or has omitted to perform any act it was his/her duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may include one or more of the following:
(1) removal from the service.
(2) involuntary retirement.
(3) reduction in pay within the salary range for the employee’s classification, subject to the provisions of Rule IV, Section 8.
(4) demotion to any position of a lower classification that the employee is deemed by the appointing authority and the Director to be competent to fill, accompanied by a reduction in pay, which is within the salary range for the lower classification, subject to the provisions of Rule IV, Section 8.
(5) suspension without pay not exceeding one hundred twenty (120) calendar days.
(6) fine.

Considering the nature, and multiplicity, of the charges sustained against Officer Narcisse, we find that the record establishes a rational basis for the Commission’s finding that the punishment imposed was commensurate with the offense. Accordingly, we conclude that Officer Narcisse’s forty-five day suspension and demotion from Sergeant to Police Officer IV was warranted.

l?nDECREE

Accordingly, we affirm the Commission’s denial of Officer Narcisse’s appeal of his forty-five day suspension and demotion from Sergeant to Police Officer IV. All costs of this appeal are assessed to Joseph Narcisse. See La. C.C.P. art. 2164.

AFFIRMED

BELSOME, J., dissents and assigns reasons.

BELSOME, J.,

dissents and assigns reasons.

[TI respectfully dissent from the majority’s opinion. I would find that the Commission abused its discretion in ruling against Narcisse.

Here, the evidence was taken before a hearing examiner, who submitted a recommendation with reasons explaining his apportionment of credibility in favor of Narcisse. However, in ruling against Narcisse, the Commission offered no reasons for disregarding the Commissioner’s credibility assessment.

With regard to the standard of review, this Court has held that where testimony is taken by a hearing officer or referee, the Commission has no advantage over the reviewing court in evaluating the credibility of the witnesses as does the usual trier of fact. Gant v. Department of Police, 99-1351, pp. 3-4 (La.App. 4 Cir. 1/5/00), 750 So.2d 382, 384, writ denied, 760 So.2d 1161, (La.4/20/00) (citing Tobias v. Department of Streets, 454 So.2d 835 (La.App. 4 Cir.1984)). Under these circumstances, the reviewing court need not defer to the Commission’s determination of the credibility issue. Id. However, in judging the Commission’s exercise of its discretion in determining whether the disciplinary action is based on legal cause and the punishment is commensurate with the infraction, this Court should not modify the Commission’s order unless it is | ¡.arbitrary, capricious or characterized by abuse of discretion. Walters v. Department of Police of the City of New Orleans, 454 So.2d 106, 114 (La.1984).

I would find that the Commission arbitrarily discredited Narcisse’s testimony without the benefit of personal observing the witnesses, their demeanor on the stand, and the manner in which they responded to the examination. Thus, I would defer to the hearing examiner’s credibility assessment in favor of Narcisse. Accordingly, I would reverse the Commission’s ruling.

      . Officer Narcisse has had only one other disciplinary issue since becoming a police officer, which resulted in a brief suspension for working one hour of unauthorized overtime in the aftermath of Hurricane Katrina.

      . Lt. Smith also testified that on May 5, 2010, Officer Narcisse also stated to him that Major Bryson authorized a change in his work hours. However, it is not clear from the record when this statement was made.

      . Lt. Perilloux testified that the Louisiana Department Public Safety and Corrections maintains the state law enforcement radio system.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge. BAGNERIS, J.,

license: Public Domain

text:
    Faith BROOKS, et al. v. ZULU SOCIAL AID AND PLEASURE CLUB, INC., et al.
    No. 2012-CA-1307.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 6, 2013.

      Ammon L. Miller, Jr., Law Office of Ammon L. Miller, Jr., New Orleans, LA, for Defendant/Appellant.
    James M. Garner, Martha Y. Curtis, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, H. Alston Johnson, III, Daina Bray, Marshall M. Redmon, Phelps Dunbar LLP, Baton Rouge, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hln this appeal, the Zulu Social Aid and Pleasure Club, Inc. (Zulu), seeks review of the judgment of the trial court granting the motion for summary judgment filed by Certain Underwriters at Lloyd’s, London (Lloyd’s). For the following reasons, we reverse the trial court’s granting of the motion for summary judgment and remand this matter to the trial court for further proceedings.

STATEMENT OF FACTS/PROCEDURAL HISTORY

Faith Brooks, her husband, and their minor child, filed suit on October 6, 2011, alleging that Mrs. Brooks sustained injuries when a coconut thrown by a rider in the Zulu parade hit her in the face. Specifically, the petition for damages alleged that her injuries were caused by:

The deliberate and wanton act or gross negligence of the Zulu Krewe and organization, its officers, directors and members, in the following non-exclusive particulars, to-wit:
a. Throwing a coconut from the float directly at Faith Brooks, striking her in the face;
b. Failing to enforce the mandatory rules and regulations adopted by the Zulu Krewe and organization, the Mardi Gras Association and the City of New Orleans barring any member |2or float rider from throwing a coconut or other inherently dangerous hard object from the float at the spectators;
c. Throwing a coconut when Zulu, its members and float riders, knew or certainly should have known, that injury to one or more spectators was substantially certain, if not inevitable;
d. Failing to bar its members and float riders from throwing coconuts from the floats;
e. Failing to provide emergency and first aide assistance to the victim, Faith Brooks, when Zulu and its members and float riders knew that she was struck directly in the face by the coconut; and
f. Any and all other deliberate and wanton acts and/or gross negligence of the Krewe, the organization, officers and directors, members and float riders which become known during the course of discovery and/or trial on the merits.

The record suggests that Zulu’s insurer, Lloyd’s, appointed counsel to represent Zulu pursuant to a reservation of rights, although the plaintiffs had yet to name Lloyd’s as a defendant.

Plaintiffs amended their petition on May 5, 2011, by adding the following allegations against Zulu: “[o]n the part of the drivers of the tow vehicles, failing to properly and safely secure its load, including the personnel and material on the float before and during the parade itself’ and “[flailing to train the drivers of the motor vehicles towing the floats to make sure that they barred any Zulu member or rider from violating the mandatory rules and regulations adopted by the Zulu Krewe and organization, the New Orleans Mardi Gras Association, the City of New Orleans and others including, but not limited to, the throwing of hard objects from the floats.”

Additionally, plaintiffs’ first amending and supplemental petition also added Lloyd’s, and others, as additional defendants. The plaintiffs’ alleged that Lloyd’s | ..¡provided a policy of insurance that provided coverage for the “subject damages and losses sustained by Faith Brooks.”

Lloyd’s answered the plaintiffs’ petitions on June 27, 2011, and denied coverage, among other things. Likewise, Lloyd’s filed a motion for summary judgment on June 27, 2011, alleging that the policies that it issued to Zulu contained an endorsement which specifically excluded coverage for any coconut thrown in any fashion from anywhere on the float. The trial court granted the motion for summary judgment on September 20, 2011.

On October 6, 2011, Zulu filed a petition to annul the judgment, establishing that it did not receive proper notice of the motion for summary judgment. The trial court annulled the judgment granting the motion for summary judgment on November 14, 2011.

Lloyd’s renewed its motion for summary judgment, alleging that the policies that it issued to Zulu contained an endorsement excluding coverage for the injuries claimed by the plaintiffs. Both Zulu and the plaintiffs filed opposition memoranda to the motion for summary judgment. After a January 20, 2012 hearing on the motion, the trial court granted the motion for summary judgment filed by Lloyd’s, dismissing the plaintiffs’ claims against Lloyd’s with prejudice. From the February 27, 2012 judgment, Zulu (but not the plaintiffs) filed the instant motion for appeal.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether the summary judgment is appropriate. Martinez v. American Steelway Industries, L.L. C., 09-0389, p. 3 (La.App. 4 Cir. 9/2/09), 20 So.3d 526, 528, citing Reynolds v. Select Props., Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1183. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Martinez, 09-0339, p. 3, 20 So.3d at 528, citing Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing summary judgment until the moving party presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted. Martinez, 09-0339, p. 4, 20 So.3d at 528, citing Lomax v. Ernest Morial Convention Center, 07-0092, pp. 2-3 (La.App. 4 Cir. 7/11/07), 963 So.2d 463, 465.

DISCUSSION

Zulu argued that the trial court erred in granting summary judgment to Lloyd’s because of the policy exclusion. In discussing contracts of insurance, this Court has noted:

An insurance policy is a contract between the parties and should be interpreted using the general rules of contracts as provided in the Civil Code. Huggins v. Gerry Lane Enterprises, Inc., 06-2816, 06-2843, p. 3 (La.5/22/07), 957 So.2d 127, 129 (citing Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763). The plain, ordinary and generally prevailing meanings should be given to words and phrases used in an insurance policy, unless the words have acquired a | .^technical meaning. Id. (Citing La. C.C. art. 2047; Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439). If the language of the insurance policy is clear and unambiguous, this Court must refrain from enlarging or restricting the provisions beyond the reasonably contemplated terms. Id. (Citing Carrier v. Reliance Ins., Co., 99-2573, pp. 11-12 (La.4/11/00), 759 So.2d 37, 43).

Johnson v. First Nat. Ins. Co. of Am., 10-1335, p. 3 (La.App. 4 Cir. 4/27/11), 65 So.3d 693, 695.

Mrs. Brooks alleged that she was injured when a member of Zulu threw a coconut from a float, which struck her face. Mrs. Brooks’ petition averred that she sustained injuries, including a broken nose. In her January 3, 2012, answers to interrogatories propounded by Blaine Kern, Mrs. Brooks again stated that she was injured when a Zulu member threw a coconut, from the float, which struck her in the face. In her amending and supplemental petition, Mrs. Brooks alleged that Lloyd’s provided coverage to Zulu for the damages sustained by her.

The policy issued by Lloyd’s to Zulu contained a General Change Endorsement (referred to by the parties as the “Coconut Exclusion”) providing, “[i]t is hereby agreed and understood that there will be no coverage for any coconut thrown in any fashion from anywhere on the float. Coconuts may be handed from the first layer of the float only.” Relying on the Coconut Exclusion, Lloyd’s filed the motion for summary judgment.

Zulu argued that summary judgment was inappropriate because the petition stated that the claims presented were non-exclusive, and created the possibility of liability pending further, adequate discovery. Thus, Zulu concluded that it was impossible to say that the Lloyd’s policy excluded coverage pending adequate discovery. This argument has merit. A defendant may file a motion for summary judgment “at any time” and the motion is properly granted (if the mover is so | ^entitled) after “adequate discovery or after a case is set for trial.” La. C.C.P. art. 966 A(l) and C(l). There is no requirement that discovery be completed before a motion for summary judgment is filed or heard. Bourgeois v. Curry, 05-0211, p. 10 (La.App. 4 Cir. 12/14/05), 921 So.2d 1001, 1008. The Bourgeois Court observed, however, that courts can, under the right circumstances, “be receptive to an argument that discovery has been hindered by some circumstance beyond the [opponent’s] control.” Id. The trial court has the discretion to issue a summary judgment or to require further discovery. Eason v. Finch, 32,157, p. 7 (La.App. 2 Cir. 8/18/99), 738 So.2d 1205, 1210.

Addressing the “adequate discovery” claim, we note that the original petition for damages was filed on May 6, 2010, while the amended petition was filed on May 5, 2011. The record indicates that Lloyd’s provided counsel to Zulu, but it does not appear that this counsel conducted any discovery on Zulu’s behalf. It is not clear from the record when Lloyd’s appointed counsel ceased representing Zulu, although it appears that Zulu was utilizing its own paid counsel after it filed the petition to annul on October 6, 2011. The trial court granted the petition to annul, and reversed the September 20, 2011, summary judgment, on November 14, 2011. The trial court granted Lloyd’s renewed motion for summary judgment on January 20, 2012. It, therefore, does not appear from the record that Zulu’s current counsel has had much more than three months to conduct discovery in this case.

In making this observation, we do not mean to suggest or imply that Lloyd’s appointed counsel rendered anything less than adequate representation to Zulu. Instead, it merely appears from the record that no discovery was conducted on Zulu’s behalf during the time that it was represented by Lloyd’s appointed counsel. Given the circumstances of the instant case, we find that the trial court abused its 17discretion in ruling on the motion for summary judgment before allowing Zulu a meaningful opportunity to conduct discovery. Because there is the possibility that additional discovery could reveal a material issue of fact, the granting of summary judgment at this stage of the case was premature.

In light of our disposition, we need not address Zulu’s further argument regarding Lloyd’s duty to defend. Zulu further argued that Lloyd’s possessed a duty to defend.

CONCLUSION

Accordingly, the judgment of the trial court granting the motion for summary judgment filed by Lloyd’s and dismissing plaintiffs’ suit with prejudice is reversed. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

BAGNERIS, J., dissents with reasons.

BELSOME, J., dissents for the reasons assigned by J. BAGNERIS.

BAGNERIS, J.,

dissents with reasons.

LI respectfully dissent and would affirm the trial court’s granting of summary judgment.

Notwithstanding the majority’s finding that summary judgment was premature because Zulu needs time to conduct additional discovery, I find nothing in my examination of the petition for damages, the amending and supplemental petition for damages, the answers to interrogatories, the allegations raised in plaintiffs’ petitions, and the language of the exclusion by which coverage might be found in Lloyd’s policy. The Coconut Exclusion provides, “[i]t is agreed and understood that there will be no coverage for any coconut thrown in any fashion from anywhere on the float. Coconuts may be handed from the first layer of the float only.”

The Coconut Exclusion unambiguously excludes coverage for the allegations raised in the petitions and in the answers to interrogatories. Lloyd’s properly supported its motion for summary judgment. In contrast, Zulu failed to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial. There is no genuine issue of material fact; hence, Lloyd’s is entitled to summary judgment as a matter of law.


author: GREMILLION, Judge.

text:
    Denise E. GRONLUND v. MIKE DONNER, LLC, et al.
    No. 12-1169.
    Court of Appeal of Louisiana, Third Circuit.
    March 18, 2013.

      William S. Bordelon, Bordelon & Shea, LLP, Houma, LA, for Defendant/Appellee, Blazer Boats, Inc.
    James L. Bullen, Lauren L. Gardner, Dennis, Bates & Bullen, LLP, Lafayette, LA, for Defendant/Appellee, Mike Donner, LLC.
    Kevin R. Duck, Duck Law Firm, LLC, Lafayette, LA for Plaintiff/Appellant, Denise E. Gronlund.
    Richard C. Dalton, Richard C. Dalton, LLC, Scott, LA, for Plaintiff/Appellant, Denise E. Gronlund.
    Court composed of MARC T. AMY, SHANNON J. GREMILLION, and JOHN E. CONERY, Judges.
   GREMILLION, Judge.

hln this redhibition action, the plaintiff/appellant, Denise E. Gronlund Blanchard (Gronlund), appeals the judgment in her favor against Blazer Boats, Inc. For the reasons that follow, we affirm.

FACTS

Gronlund ordered a 2008 Blazer 2220 boat and Mercury motor from Mike Donner, LLC (Donner), an authorized dealer of Blazer boats, which was delivered on Friday, June 13, 2008. The total price of the boat, motor, and trailer was $40,764.00. The boat was a gift to her fiancé, now husband, Christopher Blanchard (Blanchard). When Gronlund took delivery of the boat, it was missing a seat, a swim platform, and a cover. Gronlund and Blanchard were upset that the bimini top was scratched, but they were assured by Mike Donner that it would be replaced. Donner attempted to start the boat, but had difficulty getting the engine primed with fuel because a check valve on the fuel tank was sticking. Donner rectified the problem by replacing the parts before the boat left its lot. Gronlund and Blanchard wanted to use the boat over the weekend. Mike Donner urged them to take the boat and use it over the weekend. He asked them to note any other problems and return it Monday morning for those to be addressed.

On Monday, June 16, 2008, Blanchard returned the boat to Donner with some issues that needed addressing. A service advisor wrote a repair ticket that noted the following problems: a scratch on the forward port hull section that needed fiberglass repair; a bad crack in the bottom side of the runner; bubbling under the rub rail; cracking at the starboard aft shell; cuts to the rub rail; a sticking fuel tank check valve; the fuel bulb diaphragm was not working properly; the speedometer was not working; the key would spin when the ignition switch was turned; the boat cavitated; the aforementioned scratches to the bimini top; the |2missing swim platform, seat, and boat cover. Warranty claims were submitted on all these items by Donner, and the boat was returned to Blazer.

Donner returned the boat to Blanchard in time for him to take it to Austin, Texas over the July 4 weekend. However, Blanchard returned to Donner on July 11, 2008, for the boat’s twenty-hour service interval. He also pointed to some cracking around the boat’s transom. Mike Donner thought this was cracking to the gel-coat finish, a purely cosmetic flaw, but told Blanchard he would return the boat to Blazer to address the issue. Blanchard was not satisfied with having the boat repaired, and, in an e-mail to Donner and Butch Borrel of Blazer, demanded that Blazer replace the hull. On July 21, 2008, Blanchard returned the boat for repair of a pull-off rigging tube and issues with the trolling motor and ignition switch.

On October 20, 2008, Blanchard brought the boat back to Donner. The boat had struck an unmarked oyster reef in the Gulf of Mexico. Donner sent the boat for fiberglass repair to A-l Fiberglass.

According to Blanchard, a number of problems were not repaired properly. These included problems with rivets or fasteners becoming unfastened on the wind shield, various cracks including at the transom, and peeling under the hull. Blanchard testified that he was deprived of possession of the boat for around forty-five days in 2008. He last used the boat in June 2010.

On April 26, 2010, Gronlund filed suit in redhibition against Donner, Blazer, and Brunswick Corporation, manufacturer of the Mercury motor. Brunswick filed a motion for summary judgment. That motion was not opposed, and Brunswick was dismissed from the suit on December 13, 2010. Donner denied Gronlund’s allegations and filed a third-party demand against Blanchard alleging his negligent operation of the boat resulted in much of the damage to the boat that Gronlund asserted was the result of latent defects.

|sThe matter was tried before the bench. The trial court found that the defects in the boat did not render it so useless, inconvenient, or imperfect that Gronlund would not have purchased the boat had she known of them. Accordingly, the trial court awarded Gronlund reduction of the purchase price in the amount of $1,000 plus interest against Blazer. The trial court refused to award attorney fees. Each of the parties was ordered to pay the costs of court she or it had incurred. Gronlund then perfected this appeal.

ASSIGNMENTS OF ERROR

Gronlund asserts the following assignments of error:

1. The Trial Court committed manifest error and abused its discretion in failing to award a full rescission of sale to Denise E. Gronlund.
2. In the alternative, if a reduction in price is appropriate, the Trial Court committed manifest error and abused its discretion in awarding only $1,000 as a reduction in price for a boat with multiple manufacturing defects that rendered the vessel imperfect and inconvenient.
3. The Trial Court committed manifest error and abused its discretion in failing to find the seller, Mike Donner, LLC, liable for their negligent repairs and failing to award Denise E. Gronlund damages for same.
4. The Trial Court abused its discretion in failing to award attorney fees where the Trial Court found that redhi-bitory defects existed at the time of sale.
5. The Trial Court abused its discretion in ordering the plaintiff to pay her own court costs where the Trial Court found that redhibitory defects existed at the time of sale and rendered judgment in favor of the plaintiff.

Blazer did not appeal the judgment.

ANALYSIS

Redhibition

In Louisiana, a seller warrants the buyer against redhibitory vices or defects in the thing sold. La.Civ.Code art. 2520.

14A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

Id. Only defects that exist at the time of delivery are warranted, but a defect is presumed to have existed at the time of delivery if it appears within three days of delivery. La.Civ.Code art. 2530.

No warranty is extended to the buyer who knows of a defect at the time of sale, or for defects that should have been discovered by a reasonably prudent buyer. La.Civ.Code art. 2521. Thus, an action in redhibition only lies for defects that are not readily apparent or are hidden. The buyer must notify the seller of the defects in such a time as to allow the seller the opportunity to make the required repairs, unless the seller knows of the defects. La.Civ.Code art. 2522.

The remedies available against sellers depends upon the seller’s knowledge of the defects:

A seller who did not know that the thing he sold had a defect is only bound to repair, remedy, or correct the defect. If he is unable or fails so to do, he is then bound to return the price to the buyer with interest from the time it was paid, and to reimburse him for the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, less the credit to which the seller is entitled if the use made of the thing, or the fruits it has yielded, were of some value to the buyer.

La.Civ.Code art. 2531. But:

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those incurred for the preservation of the thing, and also for damages and reasonable attorney fees. If the use made of the thing, or the fruits it might have | ¡^yielded, were of some value to the buyer, such a seller may be allowed credit for such use or fruits.
A seller is deemed to know that the thing he sells has a redhibitory defect when he is a manufacturer of that thing.

La.Civ.Code art. 2545. The presumption of knowledge on the part of the manufacturer is conclusive. Dickerson v. Begnaud Motors, Inc., 446 So.2d 536 (La.App. 3 Cir.1984).

A trial court’s determination of the existence of a redhibitory defect is a question of fact that may not be disturbed absent manifest error. Malmay v. Western Star Trucks, 05-193 (La.App. 3 Cir. 6/1/05), 903 So.2d 1208. When the buyer seeks rescission of the sale, the trial court may limit the buyer’s remedy to reduction of the purchase price. La.Civ.Code art. 2541. The trial court’s decision to limit the buyer’s remedy to reduction of the purchase price is only reversible when it constitutes an abuse of discretion. Hanley v. Regency Olds GMC, Inc., 509 So.2d 1027 (La.App. 3 Cir.1987). Further, the amount awarded is reviewed under the abuse-of-discretion standard. Harper v. Coleman Chrysler-Plymouth-Dodge, Inc., 510 So.2d 1366 (La.App. 3 Cir.1987).

Rescission of sale and reduction of the purchase price

The trial court’s ruling can be distilled to a statement that Gronlund failed to carry her burden of proof. For instance, the trial court noted that while Blanchard testified that there were cracks in the hull between August 2008 and the October incident in which it struck the oyster reef, no photographs memorialized such damage. Also, while Blanchard testified that the transom was cracked even after August 2008, the trial court noted that Blanchard used the boat prior to and including the oyster reef incident without complaining to Donner about any transom cracking. The trial court found the fact that evidence of a cracked transom was lacking before the oyster reef incident troubling. Lastly, Gronlund failed to [^establish any valuation of either the costs of repairing the damage or of the diminished value of the boat. Indeed, the only evidence adduced at trial about the cost of any repair was given by Mike Donner on direct examination after plaintiff had rested her case. Mike Donner testified about the cost of repairing the issues with the windshield, which he estimated would be about $250.00.

Under these circumstances, we cannot conclude that the trial court abused its discretion in failing to rescind the sale or in the amount it awarded in reduction of the purchase price. Gronlund’s assignments of error one and two are without merit.

Liability of Donner

Gronlund also complains that the trial court manifestly erred in failing to award damages against Donner for negligent repairs. The only non-warranty repair performed on the boat occurred after Blanchard grounded the boat on the oyster reef. That repair totaled $3,580.01 and was turned over to A-l Fiberglass by Donner. Blanchard was aware that Donner intended to have the work performed by a third party. Blanchard testified at trial that he inspected the repair when he picked it up. He thought that the cracking was the result of a manufacturing defect because the cracks appeared both before and after the oyster reef incident. And after the repair by A-l, Blanchard did not complain of problems with the repair. Given these facts, we cannot conclude that the trial court manifestly erred in finding Donner free from fault.

Attorney fees

Gronlund maintains that the trial court abused its discretion in refusing to award attorney fees. Under La.Civ.Code art. 2545, a seller who knows of a defect and fails to disclose it “is liable to the buyer ... for damages and reasonable attorney fees.” A manufacturer is deemed to have knowledge of a redhibitory 17defect. Id. The trial court erred in failing to award attorney fees. We amend the judgment to award Gronlund $1,000.00 in attorney fees.

Court cost allocation

Lastly, Gronlund complains that the trial court abused its discretion in its allocation of costs of court. Louisiana Code of Civil Procedure article 1920 governs the assessment of costs of court, and establishes a “default rule” assessing costs in favor of the prevalent party in the litigation. Davis v. State ex rel. DOTD, 11-1386, p. 2 (La.App. 3 Cir. 4/11/12), 87 So.3d 396, 397. However, the law also recognizes that the trial court is vested “with vast, but not unbounded, discretion in assessing costs.” Id. at 398. Gronlund maintains that there is no equitable basis for the trial court allocating costs against her. The trial court’s reasons for judgment do not address the taxation of costs. The judgment that was submitted to the trial court left a blank space for the trial judge to allocate costs, and the trial judge hand-wrote, “Each party bear their own costs.” We are left to speculate why the trial court chose to allocate costs as it did, but note that in its reasons for judgment the trial court expressed its concern that the failure of Gronlund to carry her burden of proof made it difficult to parse out any redhibitory defects from the damage that resulted from the grounding. Under these circumstances, we cannot conclude that the trial court abused its vast discretion in allocating costs.

CONCLUSION

There is no doubt that some defects were found in the Blazer boat when it was delivered. Other problems surfaced after delivery. Ultimately, Gronlund failed to prove what defects continued to plague her ownership and enjoyment of the boat outside a small group. She also failed to prove what it would cost to repair the boat or the degree to which the boat’s value has been diminished. We |8affirm the trial court’s ruling. All costs of this appeal are taxed to plaintiff/appellant, Denise E. Gronlund.

AFFIRMED AS AMENDED.


author: KEATY, Judge. PAINTER, Judge,

text:
    Dione W. DAVID v. Richard G. DAVID.
    No. 12-1260.
    Court of Appeal of Louisiana, Third Circuit.
    March 13, 2013.

      Ed W. Bankston, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Richard G. David.
    Tony Morrow, Annik L. Morgan, Attorneys at Law, Lafayette, LA, for Plaintiff Appellee, Dione W. David.
    Court composed of ELIZABETH A. PICKETT, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

I,Richard G. David appeals from the trial court’s judgment finding him in contempt of court. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Richard G. David (Appellant) and Dione W. David (David) were divorced on November 6, 2009. After a trial on the partition of the community property, the trial court issued its judgment on December 12, 2011. Meanwhile, on August 25, 2011, the trial court entered judgment directing the parties as follows:

A. The properties located at 110 Glaser Drive, in Lafayette, Louisiana, and 4208 Northside Road, in New Iberia, Louisiana, shall be placed on the market for sale.
The parties shall each submit to the Court, within five (5) days, the names and contact information for three (3) realtors. The Court shall determine to whom the listings will be assigned.

Lori Aucoin (Aucoin), a real estate broker, was nominated by the trial court as the real estate agent for sale of the properties. She contacted David who signed papers authorizing her as agent to sell the properties in accordance with the court order. She then contacted Appellant who failed to sign the papers authorizing Au-coin as agent to sell the properties.

Thereafter, David filed a motion for contempt and reimbursement based upon Appellant’s alleged failure to obey the August 25, 2011 court order. After a hearing on David’s motion on December 12, 2011, the trial court granted the motion and found that:

Mr. David is in contempt for failing to reasonably execute the documents that he agreed to, to sell the properties.... I do find that he should pay all of the court costs in the petition. I do find that he should pay attorney fees for costs and attorney fees for these proceedings, for the contempt proceedings. Court will set the attorney fees at $1,500.00. Court will sign a Judgment upon presentation.

| Judgment was signed on January 18, 2012. Thereafter, the trial court issued an amended judgment dated February 6, 2012, wherein it ordered:

Richard G. David shall pay to Dione W. David attorney fees in the amount of Fifteen Hundred Dollars and 00/100 ($1,500.00). Richard G. David shall pay this amount to Dione W. David, through her attorney, within 30 days, as set by the Court.

Appellant has paid the $1,500.00 fine for contempt and now appeals the judgment of contempt.

DISCUSSION

Appellant contends the trial court erred by finding him in contempt. Appellant prays for the contempt charge to be rescinded and for the return of his $1,500.00, plus interest, and for David to be charged with costs of the trial court proceeding, as well as those of the appellate court, and for reasonable attorney fees associated with this appeal.

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). “A trial court is vested with great discretion to determine whether a party should be held in contempt for willfully disobeying a trial court judgment.” Barnes v. Barnes, 07-27, p. 9 (La.App. 3 Cir. 5/2/07), 957 So.2d 251, 257 (citing Fink v. Bryant, 01-987 (La.11/28/01), 801 So.2d 346).

CONTEMPT OF COURT

Appellant contends the contempt charge is improper as he exercised sound judgment with respect to the properties. Appellant sold the Northside Road property to Louis Pitman (Pitman) without a listing agreement in open court on December 12, 2011. Aucoin refused to list the Glaser Drive property due to water supply problems. Despite the foregoing, the trial court faulted Appellant for | failing to sign a listing agreement regarding both properties as ordered on August 25, 2011. Appellant contends his failure is excusable as there was no listing agreement to be signed. Notably, however, Appellant’s counsel fails to list any jurisprudential or statutory authority in support of the foregoing argument.

David has filed neither an answer nor an opposition in the present matter. Nevertheless, we find the trial court was not manifestly erroneous in finding Appellant in contempt of court for the following reasons. First, as mentioned above, the August 25, 2011 order directed that both properties be sold pursuant to a listing agreement by a real estate agent. In that regard, the record contains the following testimony of Aucoin:

Q To this date, Mr. David has never signed the documents?
A No. I’ve never seen the documents again.
Q Okay. After you left them with Mr. David?
A Correct.

Similarly, Appellant testified as follows:

BY MR. MORROW:
Q Mr. David, did you ever sign the documents that Ms. Aucoin presented to you?
BY MR. DAVID:
A No.

The foregoing testimony shows that Appellant failed to sign a listing agreement as ordered by the court.

Second, Aucoin testified that Appellant advised that he wanted to fix outstanding water issues at the Glaser Drive property prior to listing the property. Aucoin, however, stated that she could have listed the Glaser Drive property Rdespite the water issues as she would have been required by law to note same on the property disclosure form. Importantly, her testimony indicates:

Q So the property, as I understand what you’re telling me, contracts could have been signed by Mr. David in proceeding in accordance with the Court’s order.
A Right. You just had to put that, yeah, there’s a problem.

The foregoing testimony once again shows that Appellant failed to sign a listing agreement as ordered by the court.

Third, Appellant’s argument that the selling of the Northside Road property without a real estate listing contract in open court on December 12, 2011, somehow absolves.him of his failure to abide by the August 25, 2011 court order is likewise without merit. Despite the sale in open court, the Northside Road property was sold without a listing agreement in violation of the court’s order. Moreover, while Appellant did sell the Northside Road property without a listing agreement, over sixty days had elapsed between the time that David signed the agreement to sell on October 10, 2011, and the December 12, 2011 contempt hearing at which the sale of the Northside property was completed. Additionally, the Glaser Drive property remained unlisted at that same time in further violation of the court order.

For the foregoing reasons, the trial court’s judgment is affirmed.

DECREE

This trial court’s judgment is affirmed. All costs of this appeal are assessed against Richard G. David.

AFFIRMED.

PAINTER, J., dissents and assigns written reasons.

PAINTER, Judge,

dissenting.

hi respectfully dissent from the majority herein. I would reverse the trial court’s ruling with regard to the listing of the Northside Road property. The point of the order to list the property was that the property be sold. This property was, in fact, sold. To find Mr. David in contempt in connection with the failure to list this property is to disregard the purpose of the original order in favor of a hyper-technical interpretation of the law.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Carl GABRIEL v. Dr. Rashid J. TAMIMIE and Dr. Donald Faust.
    No. 12-CA-584.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.
    Rehearing Denied April 22, 2013.
    See 106 So.3d 1285.
    Carl Gabriel, New Orleans, LA, for Plaintiff/Appellant In Proper Person.

      Dwight C. Paulsen, III, Michael C. Mims, Attorneys at Law, New Orleans, LA, Deborah I. Schroeder, Attorney at Law, Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this medical malpractice action, plaintiff appeals the trial court’s granting of summary judgments in favor of defendants. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, Carl Gabriel, injured his foot while working in the course and scope of his employment with Delta Airlines. On April 19, 2011, plaintiff, in proper person, filed this medical malpractice action against defendants herein, Drs. Faust and Tamimie, claiming that they breached the standard of care in treating his foot injury. A medical review panel had convened, but expired without an opinion rendered in December 2010.

|3In Count I of his petition, plaintiff alleged that Dr. Tamimie failed to follow the standard practice for treating his “crush injury” and misread his x-rays, leading to an improper diagnosis. Additionally, in Count I of his petition, plaintiff alleged that Dr. Faust misread x-rays and an MRI, failed to properly diagnose his foot fracture, and failed to provide adequate medical treatment for his injury. In Count II of his petition, plaintiff alleged that Dr. Faust fraudulently misrepresented that plaintiffs injury had healed when x-rays revealed otherwise and inaccurately documented plaintiffs behavior and symptoms in his medical records.

On May 17, 2011, Dr. Faust filed exceptions of prescription, prematurity, vagueness and ambiguity, and a motion to strike Count II of plaintiffs petition. Dr. Faust asserted that the allegations in Count II of plaintiffs petition were premature because they had not first been properly presented to the medical review panel. On June 21, 2011, the trial court denied Dr. Faust’s exception of prescription but granted his exceptions of prematurity and vagueness and his motion to strike Count II of the petition, thereby dismissing Count II of plaintiffs petition.

In December of 2011, defendants both filed Motions for Summary Judgment, asserting that plaintiff had failed to produce any expert medical opinion to support his medical malpractice claims against defendants. The trial court set the hearing on defendants’ motions for summary judgment for January 23, 2012. On that date, plaintiff requested an additional sixty days to obtain an expert to support his claim. The trial court continued the hearing and reset it for March 19, 2012. On March 19, 2012, the trial court found that plaintiff failed to produce any medical expert testimony to support his claims and granted defendants’ motions for summary judgment, dismissing plaintiffs suit against them. On the same day, ^plaintiff filed a motion for leave to amend his original petition to add allegations of fraud against both Drs. Faust and Tamimie, which the trial court denied on March 22, 2012. On March 28, 2012, plaintiff filed a Motion for New Trial, which the trial court denied on April 3, 2012. This timely appeal follows.

In this appeal, plaintiff challenges the trial court’s granting of defendants’ motions for summary judgment and the trial court’s denial of his motion for leave to amend his original petition. For the following reasons, we affirm.

Motions for Summary Judgment

Plaintiff claims that the trial court erred in granting defendants’ summary judgment and in finding that defendants-movers met their burden of proof by simply “pointing out” that plaintiff did not have a qualified medical expert. Plaintiff asserts that defendants put forth no evidence to support their motions and therefore the trial court erred in shifting the burden of proof to plaintiff to establish that he could meet his evidentiary burden of proof at trial.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., 06-363 (La.11/29/06), 950 So.2d 544, 546; La. C.C.P. art. 966. Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Matthews v. Banner, 08-339 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163. The summary judgment procedure is favored and shall be construed, as it was intended, to secure the just, speedy, and inexpensive determination of most actions. La. C.C.P. art. 966(A)(2).

A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that |smover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). On a motion for summary judgment, the burden of proof remains with the movant. “However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

The Louisiana Supreme Court has interpreted the burden-shifting language of La. C.C.P. art. 966(C)(2) and found that the article “first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.” Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058, 1070 (emphasis added). Once the motion for summary judgment has been properly supported by the moving party, the failure of the adverse party to produce evidence of a material factual dispute mandates the granting of the motion. Garrison v. Tanenbaum, 02-1181 (La.App. 5 Cir. 4/8/03), 846 So.2d 40, 43; Foster v. Consolidated Employ- merit Systems, Inc., 98-948 (La.App. 5 Cir. 1/26/99), 726 So.2d 49.

lfiThe motions for summary judgment in this case arise out of a medical malpractice claim. To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794.

Expert testimony is generally required in a medical malpractice case to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Schultz v. Guoth, 10-0343 (La.1/19/11), 57 So.3d 1002, 1006-07. The Louisiana Supreme Court has recognized that expert testimony is not always required but that, in most cases, the plaintiff will be unable to sustain his burden of proof without such evidence. Id. The Court has found that in cases of “obvious negligence that could be inferred by a lay person,” expert testimony may not be required. Pfiffner v. Corea, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228,1234. The Louisiana Supreme Court has provided examples of acts of obvious negligence in a medical malpractice action that would not require the plaintiff to present expert testimony, such as “where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body.” Id.

In this case, plaintiff alleges that defendants misread x-rays and MRIs, misdiagnosed a “crush injury” and foot fracture, and failed to follow the standard practice for treatment of his injury. We find that whether defendants breached the standard of care and whether such breach caused plaintiffs damages will require the consideration of expert testimony on the “standard practice” for treatment of a crush injury and the interpretation of x-rays and other medical imaging. Therefore, |7we conclude that this case is one which will require expert testimony and is “simply beyond the province of a lay person to assess without the aid of expert testimony.” Schultz v. Guoth, 57 So.3d at 1009.

In support of their motions, defendants attached discovery propounded to plaintiff, to which he never responded, and pointed out that plaintiff had not presented any qualified medical expert opinion to support his claims. At the January 23, 2012, hearing, plaintiff requested additional time to obtain an expert. Plaintiff indicated to the court that he had difficulty obtaining counsel to represent him in this matter and that he had financial difficulty in obtaining an expert to support his claims. Plaintiff also informed the trial court that his family had committed to helping him financially so that he could retain an expert in this case. The trial court continued the hearing to March 19, 2012, and instructed plaintiff that he would need to find an expert to support his claims.

On March 1, 2012, plaintiff filed an amended response to defendants’ motions for summary judgment, attaching no additional evidence, deposition testimony, or affidavits in support of his claims. At the March 19, 2012 hearing, | ¡¡plaintiff informed the court that he had an expert, Ms. Elam, present in court ready to testify. Defendants objected to the testimony, claiming that they had not been provided notice of Ms. Elam’s qualifications as an expert and in fact claimed that Ms. Elam was not a licensed physician. Plaintiff did not present Ms. Elam’s C.V. or proffer any documentation to prove her qualifications. The trial judge specifically questioned plaintiff about Ms. Elam’s qualifications and, in response, plaintiff continued his argument and intentionally never responded to the trial judge’s inquiries concerning Ms. Elam’s qualifications. We find the trial judge did not abuse his discretion in not allowing Ms. Elam to testify at the hearing and in finding that plaintiff failed to present a qualified medical expert in support of his claims.

Upon review of the record, we find that defendants properly pointed out an absence of support for plaintiffs medical malpractice claim, ie., that plaintiff did not put forth any expert medical testimony to prove that defendants breached the standard of care in rendering treatment to plaintiff. Despite a continuance granted by the trial court to afford plaintiff additional time to retain an expert, plaintiff produced no medical expert testimony to support his claims. As such, we find summary judgment in this case to be proper.

Plaintiff additionally argues that the March 9, 2012 summary judgment at issue in favor of defendants is void because it contains a misrepresentation of which counsel was present at the summary judgment hearing. The judgment submitted to the court by counsel for Dr. Faust and subsequently signed by the trial judge reflects that Mr. Dwight Paulsen, counsel of record for Dr. Tamimie, was ^present at the summary judgment hearing when in fact he was not present. The record reflects that no counsel made an appearance on behalf of Dr. Tamimie at the March 19, 2012, hearing. In brief to this Court, the parties assert that Mr. Michael Sims, who is also counsel of record for Dr. Tamimie, was present to represent Dr. Tamimie at the March 19, 2012 hearing. Plaintiff argues that this misrepresentation in the judgment results in the voiding of the judgment. We find that this clerical, non-substantive error does not affect the validity of the judgment rendered in favor of defendants. Plaintiffs argument in this regard has no merit.

Motion for Leave to Amend Original Petition

On March 19, 2012, the same date of the granting of defendants’ motions for summary judgment, plaintiff filed a Motion for Leave to Amend Original Petition. In his motion, plaintiff sought to amend his original petition to add allegations of fraud against Drs. Faust and Tamimie. On March 22, 2012, the trial court denied plaintiffs motion to amend.

Article 1151 of the Louisiana Code of Civil Procedure provides that, after an answer has been filed, a party may request to amend a petition only by leave of court or with consent of the adverse party. The decision to permit amendment of the petition after the answer has been filed lies within the sound discretion of the trial judge “who is in the best position to determine the matter.” See La. C.C.P. art. 1151 Official Revision Comments. In this case, where the motion for leave to amend was filed on the same date as the granting of defendants’ motions for summary judgment and where the trial court had previously granted an exception 110of prematurity and a motion to strike plaintiffs prior fraud allegations, we find the trial court did not abuse his discretion in denying plaintiffs motion for leave to amend.

The judgments of the trial court are hereby affirmed.

AFFIRMED

      . See Gabriel v. Delta Air Lines, Inc., 12-428 (La.App. 5 Cir. 1/30/13), 2013 WL 336148.

      . Plaintiff did not seek review of that judgment from this Court and has not assigned any error from that judgment in this appeal.

      . Plaintiff argues that the trial court improperly considered discovery propounded upon plaintiff during the medical review panel stage of the proceedings. Dr. Tamimie filed a Petition to Institute Discovery in the 24th Judicial District Court and subsequently propounded Interrogatories, Request for Production of Documents, and Requests for Admissions upon plaintiff, to which he never responded. On September 30, 2010, the trial judge in that case, Judge Ellen Kovach, signed a judgment finding that the requests for admissions were deemed admitted as a result of plaintiff's failure to respond. A copy of the September 30, 2010, judgment and Requests for Admissions were attached to Dr. Tamimie’s Motion for Summary Judgment and properly offered and introduced into evidence. Plaintiff asks this Court to consider whether the Requests for Admissions were properly propounded during the medical review panel stage of the proceedings under La. R.S. 40:1299.39 if we find that the trial judge considered said admissions in rendering his judgment. We need not consider this issue because we find that the trial court did not consider or rely upon the Requests for Admissions or the September 30, 2010 judgment in rendering his decision. Rather, the record clearly reflects that the trial judge based his decision to grant summary judgment on plaintiffs lack of expert medical testimony or opinion to support his medical malpractice claims. Nothing in the transcript, judgment, or reasons for judgment reflects that the trial court considered the previously propounded requests for admissions or the September 30, 2010 judgment. The record does reflect, however, that on June 21, 2011, after the filing of plaintiff’s instant suit and the dissolution of the medical review panel, Dr. Faust propounded a subsequent set of Interrogatories and Requests for Production of Documents upon plaintiff, to which he never responded. Those documents were also attached to Dr. Faust’s Motion for Summary Judgment and properly introduced into evidence.

      . In opposition to defendants' motions for summary judgment, plaintiff attached an excerpt of Dr. Faust’s deposition, which does not provide any expert medical opinion to support a claim of medical malpractice. Plaintiff also attached medical records from his treatment with Drs. Faust, Tamimie, and Nutick. These medical records were simply attached to plaintiff's opposition and were not formally offered and introduced into evidence. The trial court did not consider these medical records in granting defendants' motions for summary judgment and this Court is prohibited from considering evidence not first properly introduced in the trial court. Documents simply attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84, 88. See also La. C.C.P. art. 966(E)(2) and Sheffie v. Wal-Mart Louisiana, LLC, 11-1038 (La.App. 5 Cir. 5/31/12), 92 So.3d 625, 629.

      . Defendants argue that Ms. Elam is plaintiff's girlfriend, who was a medical student at the time of his worker’s compensation appeal. See Gabriel v. Delta Air Lines, Inc., 12-428 (La.App. 5 Cir. 1/30/13), 106 So.3d 1285.

      . In brief to this Court, plaintiff argues that he did in fact fax-file his motion for leave to amend his original petition days before the signing of the defendants’ summary judgment. Plaintiff asks this Court to permit him to produce a receipt to prove that his motion was filed prior to the granting of summary judgment. The record on appeal reflects that plaintiff’s motion was filed on the same date as the granting of the motion. The alleged fax-file receipt was not presented to the trial court and this court may not accept or consider evidence not first properly presented to the trial court. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence. La. C.C.P. art. 2164; Denoux v. Vessel Mgmt. Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84, 88. Regardless, we find that, even had the motion been filed days prior to the granting of summary judgment, the trial judge did not abuse his discretion in denying plaintiff’s motion for leave to amend under the facts of this case.