author: DREW, J.

text:
    Lateea TOSTON, Individually and as Curatrix of Syvella Toston, and as Tutrix of the Minors, Deidra Toston and Delia Toston, Cordney Toston, Landice Toston, and Jharon Toston, Plaintiff-Appellant v. ST. FRANCIS MEDICAL CENTER, INC., and State of Louisiana, through Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and/or through Louisiana State University Health Sciences Center-Shreveport (LSU-Monroe), Defendant-Appellee.
    No. 47,529-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 2012.

      Philip Thomas Deal, for Appellants.
    Hayes, Harkey, Smith & Cascio, Monroe, LA, by John Christopher Roa, for Appellee St. Francis Medical Center, Inc.
    Breithuapt, Dunn, DuBos, Shafto & Wolleson, LLC, Monroe, LA, by Michael L. DuBos, K. Lamar Walters III, for Ap-pellee State of Louisiana through Board of Supervisors of Louisiana State University and Agricultural and Mechanical College and/or through Louisiana State University Health Sciences Center-Shreveport (LSU Monroe).
    Before STEWART, CARAWAY and DREW, JJ.
   DREW, J.

| this action brought by a patient’s children against two hospitals, the treatment rendered at the hospitals is not at issue. Rather, it is the decision by one hospital to accept the patient for transfer and the decision by another hospital to accept the patient for transfer momentarily before denying the transfer that are at the core of this lawsuit. The children appeal summary judgments dismissing their claims. We reverse in part and affirm in part the summary judgment in favor of one hospital, and reverse the summary judgment in favor of the other hospital.

FACTS

Annette Toston went to the Emergency Room (“ER”) at West Carroll Hospital at 3:25 a.m. on Sunday, November 24, 2002, with complaints of left flank pain, fever, chills, nausea, and having vomited three times at home. Toston, 44 at the time and with no major health issues, was examined by Dr. Ruby Jean L. Toe Hio, an internal medicine physician.

Toston told Dr. Hio that she had the urge to urinate, but was unable to do so, although her urine output had been normal prior to that day. Dr. Hio noted that Toston was tender in the left lower quadrant of her abdomen and in her left flank. Toston’s vital signs upon entering the ER were blood pressure of 76/53, pulse of 129, temperature of 101.6°, and normal oxygen levels.

An abdominal X-ray taken at West Carroll showed large staghorn calculi throughout the collecting system of the right kidney, a calculus in the left kidney, and a calculus in the left ureter that was probably obstructing it.

bToston’s temperature climbed as high as 103.1° during the morning at West Carroll, but it had dropped to 98.2° by 8:40 a.m. Her blood pressure at that time had dropped to 70/50 from a high of 86/53 at 3:35 a.m. Her creatinine level measured in the high range at 3.1. Her BUN (blood urea nitrogen) was measured at 22, which while not elevated, was at the high end of the normal range. Dr. Hio’s diagnosis was acute pyelonephritis, kidney stones, possible sepsis, and low blood pressure. Toston received IV fluids at West Carroll, but she did not receive any antibiotics.

Dr. Hio recognized that Toston’s condition required a higher level of care than West Carroll could provide, so she contacted Conway, the LSU Hospital in Monroe, in order to transfer Toston there. She spoke with Dr. Patrick Flyte, a family practice resident at Conway. Dr. Hio told Dr. Flyte that Toston’s blood pressure was low, but she was awake and talking, and except for slight lightheadedness, was asymptomatic. She also informed Dr. Flyte of the lab results, and that urinalysis showed infection, and that X-rays showed kidney stones.

In addition to being told about the X-ray, lab, and urinalysis results, Dr. Flyte recalled being told by Dr. Hio that To-ston’s vital signs were blood pressure of 86/53, pulse of 129, temperature of 101.6°, and oxygen saturation of 99%. Dr. Flyte accepted Toston’s transfer, and the nursing supervisor at Conway informed West Carroll at 7:32 a.m. that the transfer had been accepted. Toston left West Carroll by ambulance at 8:40 a.m. She arrived at Conway at 11:00 a.m. on November 24.

IsToston’s vital signs initially taken at Conway were blood pressure of 58/34, pulse of 74, respiration of 18, and temperature of 97.7°. Toston’s BUN had increased to 81, and her creatinine level had gone up to 3.8. Dr. Flyte called Dr. Uma Rangaraj at 11:45 a.m. to give his report on Toston. Dr. Rangaraj, an internal medicine physician who supervised the family practice residents at Conway, instructed Dr. Flyte to call the Urology Department at LSU Hospital in Shreveport (“LSU”), explain that Toston was in acute renal failure with probable obstructive ne-phropathy sepsis, and request an immediate transfer for surgical intervention. Conway lacked the capability to provide dialysis or urological surgery.

Dr. Flyte placed the call to LSU at 2:00 p.m. Dr. Carico at LSU returned his call in 10-15 minutes and said he needed a CT of Toston’s pelvis and abdomen. Dr. Cari-co also said that he would not accept the transfer while Toston’s blood pressure and pulse remained low.

A CT of Toston’s abdomen and pelvis was interpreted by Dr. Boyette, a radiologist. He found renal stones bilaterally with hydronephrosis bilaterally, worse on the right than on the left, positive obstruction on the left side, stones in both ureters with obstruction and hypodensity in both kidneys.

Toston was given IV fluids in the ER at Conway to raise her blood pressure. Her vital signs at 5:00 p.m. were blood pressure of 110/78, pulse of 159, respiration of 18, and temperature of 102.2°. Her vital signs an hour later were blood pressure of 63/28, pulse of 139, and respiration of 25.

|4Pr. Flyte called Dr. Carico at 5:45 p.m. to relay the CT results. Dr. Carico asked for Toston’s vital signs. When told the vital signs read at 6:00 p.m., Dr. Carico again said that he could not accept the transfer since Toston’s blood pressure remained low. He recommended that Dr. Flyte treat Toston with antibiotics and fluid, and once she became stable, LSU would accept the transfer.

Dr. Flyte called Dr. Rangaraj about To-ston’s current condition and told her what Dr. Carico told him. Dr. Rangaraj realized that Toston was apparently in full septic shock with worsening renal failure. She told Dr. Flyte that she would call local hospitals for a transfer as she felt that Toston was in no condition at the time to make the long trip to Shreveport. Dr. Rangaraj did not think it was unreasonable for Dr. Carico to want Toston’s blood pressure raised before he would accept the transfer.

Dr. Rangaraj, who was not present at Conway, had assumed that the transfer to LSU had already taken place before Dr. Flyte called her. She said she became angry when Dr. Flyte told her that LSU wanted to see a CT report before approving the transfer. She stated that if she had known Dr. Carico wanted the CT, then she would have exerted authority to push him to accept the transfer or she would have started looking for a local hospital earlier.

Dr. Rangaraj called Dr. Herschel Har-ter, a nephrologist who was on call for St. Francis. Dr. Harter said that he would do dialysis at any facility, but he needed a surgeon to drain the kidney. Dr. John Michael Cage, a urologist, agreed to perform whatever urological surgery was needed by | /Toston. St. Francis Medical Center in Monroe accepted the transfer of Toston at some time prior to 8:00 p.m. Shortly after 8:00 p.m., the nursing supervisor from St. Francis informed Conway that it could not accept the transfer as no ICU bed was available at St. Francis.

Toston was admitted to the ICU at Conway with a diagnosis of septic shock, hy-dronephrosis, and acute renal failure. Dr. Rangaraj frantically tried to arrange a transfer to another hospital. Glenwood and North Monroe were called, but they did not have available bed space. Dr. Rangaraj was running out of options, so she was willing to send Toston to Shreveport even though Toston remained unstable. Willis-Knighton in Shreveport agreed to take Toston, but while Conway was preparing Toston for transfer, the doctor at Willis-Knighton called back at around 1:00 a.m. to say he had changed his mind. Dr. Rangaraj even called Dr. Boy-ette about assisting her in inserting a needle under CT guidance to drain Toston, but Dr. Boyette was uncomfortable in doing that procedure, so it never happened.

Dr. Rangaraj instructed Dr. Flyte at 11:00 p.m. to intubate Toston, who was in stable but guarded condition. Toston coded at 7:00 a.m. on Monday, November 25. Dr. Rangaraj went to Conway within an hour after learning of the code. She then called Dr. Harter to inquire about what had happened to the bed at St. Francis. Dr. Harter said he would contact Dr. Arthur Liles and get him to call her. According to Dr. Rangaraj, Dr. Liles was angry about what had happened and told her to send Toston to St. Francis.

|fiSt. Francis accepted the transfer of Toston on Monday morning, and she arrived there at 11:25 a.m. Dr. Rangaraj thought that Dr. Harter and Dr. Liles exerted pressure to have an ICU bed made available for Toston. Upon her arrival at St. Francis, Toston was unresponsive, as well as hypotensive with evidence of congestive heart failure and volume overload. Toston went into surgery for the placement of bilateral ureter stents by Dr. Cage, but put out only a small amount of urine following the procedure. Dr. Michael Hand, a nephrologist, attempted dialysis, but Toston was unable to tolerate dialysis because of her low blood pressure. Toston coded at 2:40 p.m. She subsequently coded a second time, which was essentially a continuous code until she died at 5:10 p.m. on November 25. The cause of her death was urosepsis.

Lateea Toston, who is Toston’s daughter, filed a request for a medical review panel (“MRP”) on behalf of herself and her six sisters for alleged malpractice by Conway. The MRP concluded that the evidence did not support the conclusion that Conway or any of its employees failed to meet the applicable standard of care in its treatment of Toston. The MRP reasoned that:

Based upon the information received by Dr. Flyte from Dr. Hio, it was appropriate for Dr. Flyte to have accepted transfer of Annette Toston from West Carroll Hospital to LSU Health Sciences Center in Monroe. Although the patient’s vital signs were abnormal with a low blood pressure, Dr. Flyte was informed that the patient was stable, awake and talking. Annette Toston needed a higher level of care than that able to be furnished at West Carroll Hospital and based upon the information provided at that time to Dr. Flyte, it appeared that LSU could deliver the needed level of care. Once the patient arrived at LSU, they correctly assessed the patient’s condition and further provided the appropriate care needed at that time 17until transferred. The staff at LSU made every effort to transfer the patient once it became apparent that the patient needed urological intervention.

Lateea Toston, individually and on behalf of her six sisters, filed a survival and wrongful death action against St. Francis Medical Center and the State of Louisiana. The plaintiffs alleged that Conway had been negligent in accepting the transfer of Toston when Dr. Flyte knew Conway could not provide the urological services required to treat her properly and save her life, while also knowing that the transfer of Toston from Conway to a hospital that could offer those services might not be possible within the time available to save her life.

It was further alleged in the petition that St. Francis had available beds on the evening of November 24, and that lifesaving urological surgery could have been performed on Toston at St. Francis if the nursing supervisor had not canceled the transfer. The plaintiffs contended that the action of St. Francis in canceling Toston’s transfer cost Toston her life and was a violation of Louisiana’s antidumping laws, La. R.S. 40:2113.4, et seq., and other applicable standards and/or statutes.

St. Francis filed a motion for partial summary judgment in which it contended that there was no genuine issue of material fact regarding an alleged violation of La. R.S. 40:2118.4, et seq., and other applicable statutes. St. Francis sought a declaration that the state and federal antidumping statutes do not apply to the allegations against St. Francis, and that the allegations against it fall under the MMA. St. Francis argued that if it had a duty to accept Toston on November 24, then the issue is one of | «delay of treatment under the MMA and not patient dumping for lack of insurance or inability to pay.

Conway also filed a motion for summary judgment, contending that the plaintiffs had not produced an expert to establish they could meet their evidentiary burden at trial. Conway further contended that the plaintiffs had not produced any evidence that it failed to use reasonable care and diligence with respect to its acceptance and treatment of Toston, or that any of the conduct alleged in the petition caused any damage to Toston that would not have otherwise occurred.

St. Francis subsequently filed a full motion for summary judgment in which it contended there was no genuine issue of material fact that Toston had any chance of survival before an attempt was made to transfer her to St. Francis. St. Francis asserted that Dr. Cage testified in his deposition that Toston would not have survived even if he had been able to insert the stents when she first arrived at Conway as nothing he could have done would have changed the outcome. St. Francis argued that the Louisiana antidumping laws do not apply in this matter, Toston’s claims fall under the MMA, and Toston had not come forward with a medical expert with knowledge of all the treatment who could contradict Dr. Cage’s opinion that there would not have been any other outcome for Toston regardless of when she was transferred to St. Francis.

Conway then filed a supplemental memorandum in support of its motion for summary judgment to adopt St. Francis’s arguments and attach Dr. Cage’s deposition.

|flThe plaintiffs filed a supplemental memorandum in opposition to Conway’s and St. Francis’s motions for summary judgment in which they attached the deposition of Dr. Michael Hand. Plaintiffs argued that there was a genuine issue of material fact concerning whether Toston would have survived or had a chance of surviving but for the conduct of defendants.

The trial court granted Conway’s and St. Francis’s motions for summary judgment and dismissed plaintiffs’ claims. They have appealed.

DISCUSSION

Antidumping Law

Plaintiffs contend that St. Francis violated Louisiana’s antidumping law when it cancelled the transfer after initially accepting it and delayed providing emergency surgery. St. Francis argues that plaintiffs’ claims are more properly under the MMA regarding a delay in treatment. La. R.S. 40:1299.41(A)(13) includes the failure to render services timely within the definition of medical malpractice.

Once Dr. Cage agreed to perform the surgery, it was up to James Harrist, the nursing supervisor at St. Francis, to determine whether or not there was an ICU bed available. Toston’s name was written on the admission log on November 24 to signify that there had been a request for placement in a bed and that St. Francis was checking bed availability. That was the standard operating procedure for St. Francis. For some reason that Harrist could not remember, he later wrote “canceled” next to Toston’s name.

| mSix of eight beds in the St. Francis surgical ICU (“SICU”) were occupied on November 24. Harrist was unsure if he considered Toston for a SICU bed, and he did not have the staffing records to determine if the SICU was fully staffed that evening. Harrist did not know if Dr. Cage had asked for a SICU bed, or if a bed in regular ICU was needed. Harrist explained that the fact that Toston was going to surgery did not necessarily mean she would go to a SICU bed. Harrist added that having sepsis would have disqualified Toston from SICU.

Dr. Cage stated that he spoke to the ER staff at St. Francis on Sunday night and was told that the nursing supervisor had determined there was no available bed. Dr. Flyte noted in his report that the transfer to St. Francis had been canceled after St. Francis realized it did not have an ICU bed available.

Louisiana enacted La. R.S. 40:2113.4-2118.6 (“antidumping law”) to establish a statutory duty on the part of certain hospitals to provide emergency services to all persons residing in the territorial area regardless of whether they are insured or able to pay. Spradlin v. Acadia-St. Landry Medical Found., 1998-1977 (La.2/29/00), 758 So.2d 116. The anti-dumping law is the statutory counterpart to the federal law known as the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. § 1395dd.

Toston cites La. R.S. 40:2113.4, which provides, in relevant part:

A. Any general hospital ... shall make its emergency services available to all persons residing in the territorial area of the hospital regardless of whether the person is covered by private, federal Medicare or Medicaid, or other insurance. Each person | T1 shall receive these services free from discrimination based on race, religion, or national ancestry and from arbitrary, capricious, or unreasonable discrimination based on ... economic status. However, in no event shall emergency treatment be denied to anyone on account of inability to pay[.]
B. For purposes of this Section, “emergency” means a physical condition which places the person in imminent danger of death or permanent disability.... “Emergency services” means those services which are available in the emergency room and surgical units in order to sustain the person’s life and prevent disablement until the person is in condition to be able to travel to another appropriate facility without undue risk of serious harm to the person[.]

In addition, La. R.S. 40:2113.6 provides in part:

A. (1) No officer, employee, or member of the medical staff of a hospital licensed by the Department of Health and Hospitals shall deny emergency services available at the hospital to a person diagnosed by a licensed physician as requiring emergency services because the person is unable to establish his ability to pay for the services!!] In addition, the person needing the services shall not be subjected by any such person to arbitrary, capricious, or unreasonable discrimination based on ... economic status.
C. “Emergency services” means services that are usually and customarily available at the respective hospital and that must be provided immediately to stabilize a medical condition which, if not stabilized, could reasonably be expected to result in the loss of the person’s life, serious permanent disfigurement or loss or impairment of the function of a bodily member or organ[.]

The supreme court has recognized that the antidumping law does not contain an express private cause of action, and three times it has declined to decide whether our statutory scheme can form the basis for a private cause of action under general tort law. Coleman v. Deno, 2001-1517 (La.1/25/02), 813 So.2d 303. However, we pretermit a determination of |12whether the antidumping law provides a private cause of action because the law is not applicable to this matter.

The plaintiffs incorrectly argue that this case falls under the “emergency services” provisions of the antidumping law. Patient dumping had been defined as generally the “refusal to treat patients with emergency medical conditions who are uninsured and cannot pay for medical treatment or the transfer of such patients to a public hospital.” Spradlin, 1998-1977 at p. 1, n. 1, 758 So.2d at 117. Notably, the antidumping law does not contain a provision prohibiting the practice known as reverse-dumping, which is what occurred in this case. Such a provision is found in the EMTALA. 42 U.S.C.A. § 1395dd states in subsection (g):

A participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers as identified by the Secretary in regulation) shall not refuse to accept an appropriate transfer of an individual who requires such specialized capabilities or facilities if the hospital has the capacity to treat the individual.

Plaintiffs assert in their brief to this court that no claim is being brought under federal law.

There is no genuine issue of material fact that plaintiffs have no claim against St. Francis under the antidumping law as that law does not apply to the situation at hand where St. Francis canceled the transfer after originally accepting the transfer. Any cause of action that plaintiffs have against St. Francis sounds in medical malpractice.

11SMedical Malpractice

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) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794; Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Expert testimony is generally required 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. Pfiffner v. Correa, 94-0924, (La.10/17/94), 643 So.2d 1228; Samaha, supra.

St. Francis

While Dr. Cage thought Toston’s infection was acute, he felt that she had chronic renal failure and had been obstructed for a long period of time as evidenced by her creatinine and BUN levels. Dr. Cage did not think that Toston was completely blocked on both sides.

Dr. Cage believed that Toston had stopped putting out urine not because she was obstructed, but because the infection had caused a significant drop in blood pressure. Once the blood pressure dropped and became too low to profuse Toston’s kidneys, the kidneys stopped filtering and her urine output diminished greatly. Dr. Cage stated that the fact there was minimal urine output after he placed the stents showed that the kidneys had shut down because Toston was in shock from the infection. Dr. Cage Instated that even though he had told Dr. Rangaraj that he agreed that Toston needed stents to save her, he had not looked at her records when he said that.

Dr. Cage believed that Toston was already septic when she arrived at West Carroll because of her fever and low blood pressure. He thought the kidneys may have shut down before Toston went to West Carroll, but he did not know for certain. Dr. Cage testified that it was crucial that Toston’s blood pressure be increased, that she receive antibiotics, and that she become stabilized and brought out of shock. In that regard, he felt that the care at Conway was more critical to her survival than getting surgery at St. Francis.

Dr. Cage thought that Toston would have survived if doctors had been able to raise her blood pressure, eliminate the sepsis, and get her urine output going. Although Toston was not stable when he placed the stents, he did the procedure as a last-ditch effort to see if he could obtain some urine output. Dr. Cage, who thought Toston was going to die when he did the stent surgery, was hoping that by placing the stents and getting her urine flowing, the sepsis would be reduced because bacteria would leave the body in the urine instead of going back into her bloodstream.

Dr. Cage agreed that while Toston’s condition worsened from the time that St. Francis denied the transfer until the stents were placed, placing the stents earlier would not have improved her chances of survival because her blood pressure was too low for Toston to make urine in the first place. Dr. Cage noted that her blood pressure was 60/28 at 6:00 p.m. on Sunday, 115and it was not much different the next day when he placed the stents. The problem was not the obstruction, but the kidney failure caused by the infection and low blood pressure. According to Dr. Cage, the efforts to stabilize Toston at Conway were what would have been done at St. Francis had she gone there earlier.

Dr. Cage disagreed with Dr. Rangaraj’s assessment that Toston could have lived had the stents been placed earlier. He asserted that what he knew that Dr. Ran-garaj did not know was that the stents made no difference and did not work.

Dr. Hand thought that Toston had been transferred to St. Francis for dialysis to treat acute renal failure; he placed her on antibiotics. After Toston’s blood pressure and pulse dropped, Dr. Hand gave her medications that temporarily raised them.

Dr. Hand was unable to successfully dia-lyze Toston because her blood pressure was too low, and Toston coded when she was placed on the dialysis machine. Dr. Cage thought dialysis probably would have been more helpful to Toston than the stents. However, Dr. Cage did not think the delay in attempting dialysis had any effect because Toston could not handle the dialysis.

Dr. Cage stated that Toston’s chances for survival were slim and none if St. Francis had initially accepted the transfer. That was because Toston never responded to any of the efforts (pressor agents, transfusions, IV fluids, and antibiotics) used to bring her pressure up and stabilize her. Stents and dialysis would not have worked, if at all, until she was stabilized.

11fiDr. Hand thought that Toston developed a urinary tract infection when the stones blocked the flow of urine. As the infection spread from the urinary tract, the infection became sepsis, which ultimately killed Toston.

Dr. Hand estimated Toston’s chance of survival upon arrival at St. Francis as close to zero and less than 5%. The stents did not make a difference because she was already in renal failure from the low blood pressure. Dr. Hand did not know if To-ston’s death could have been prevented had she been transferred to St. Francis earlier because he did not have her medical records, and he was unsure of her condition at West Carroll. Nevertheless, he thought Toston’s chances of surviving would have been better with earlier intervention.

By the time Dr. Flyte received the radiology reports from Dr. Boyette, his diagnosis was urosepsis and acute renal failure, and he believed she needed emergency surgery to remove the blockages. He thought the sooner the surgery was performed, the better it would have been for Toston. Dr. Rangaraj thought that Toston would survive the first time St. Francis accepted the transfer because Conway had done all that it could for Toston, and St. Francis would provide the services that she needed.

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. Samaha v. Rau, supra. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is l ^appropriate, ie., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Id.

A genuine issue exists where reasonable persons, after considering the evidence, could disagree. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Property Ins. Ass’n of La. v. Theriot, 2009-1152 (La.3/16/10), 31 So.3d 1012.

As this court cannot weigh evidence on a motion for summary judgment, it cannot give more credence to Dr. Cage over Dr. Flyte or Dr. Rangaraj because he is a urologist and actually performed the surgery that the Conway doctors believed that Toston desperately needed. As such, a genuine issue of material fact remains as to whether the delay in treatment caused by St. Francis’s cancellation of the transfer after accepting the transfer diminished Toston’s chances of surviving her ordeal.

Conway

The issue is not whether the doctors at Conway committed medical malpractice in their treatment of Toston, but whether malpractice occurred when Dr. Flyte accepted the transfer. Dr. Cage stated that Toston needed to be stabilized and brought out of shock. Toston was given fluids, antibiotics, and pressor agents at Conway in an effort to stabilize her.

According to Dr. Cage, Toston still had a chance of survival when she went to West Carroll. However, the fluids she received at West Carroll and the fluids, pressor agents, and antibiotics that she received at Conway never helped get her out of shock.

118Pr. Hio, who generally worked in the ER, was not familiar with the services at area hospitals. She looked at the X-ray films before they were sent to the radiologist and saw kidney stones on both sides. Based upon the lab work, X-rays and clinical presentation, Dr. Hio thought Toston had a urinary tract infection with the kidney stones possibly being the source. Although Dr. Hio thought the stones could have been impairing Toston’s renal function, she did not think Toston was in renal failure.

Dr. Hio said that she did not start To-ston on antibiotics because Toston was not in any distress, her white count was normal, her fever was coming down, and Dr. Hio was focused on the infection being related to the stones and getting her transferred. Toston was given fluids, Tylenol, and Toradol while at West Carroll.

Toston felt better than when she had first arrived at West Carroll. Although her blood pressure had dropped and she felt slightly lightheaded, she was not in any distress or having shortness of breath. Dr. Hio was not overly concerned about the low blood pressure because Toston’s heart rate was high and she had been receiving fluids.

Dr. Hio thought Toston was clinically stable at the time of transfer. Dr. Hio sought the transfer because Toston had a urinary tract infection which was probably caused by the stones, and she needed a higher level of care than West Carroll could provide since it did not have a urologist on staff and could not provide surgical services. Dr. Hio thought Toston needed intervention to remove the stones, but whether it was going to be immediate intervention or later would be up to the specialist. Dr. Hio said l1flshe told Dr. Flyte that she thought the elevated creati-nine level was probably caused by the obstruction.

Dr. Flyte stated that although Toston’s blood pressure was very low, Dr. Hio assured him that Toston was clinically stable, alert, and oriented. Dr. Flyte testified in his deposition that he told Dr. Hio that it looked like Toston may need dialysis, but Dr. Hio indicated that the renal insufficiency appeared to be an acute onset from acute pyelonephritis. He wrote in his report that he explained to Dr. Hio that Conway did not provide dialysis. Conway contends that Dr. Flyte accepted the transfer based on Dr. Hio’s assurances about Toston’s condition.

Dr. Hio denied that anyone at Conway told her that dialysis could not be performed there. She was not sure if she even discussed dialysis with Dr. Flyte. She thought Toston was more likely to need surgery rather than dialysis at some point. Dr. Hio could not recall anyone at Conway telling her that the stones could not be surgically removed at Conway. She assumed that Conway could remove the stones if necessary since Dr. Flyte accepted the transfer. Dr. Hio had never been to Conway and was unfamiliar with its size. Dr. Hio testified that she probably thought when she made the transfer that Conway had the capability to remove the stones surgically or provide dialysis if needed, as otherwise she would not have transferred Toston there.

Dr. Flyte thought that Toston had been healthy before becoming acutely ill and needed to be put in an ICU, where she would be closely monitored and receive IV antibiotics and fluids to become stable. Dr. Flyte Rpwanted to give Dr. Hio the benefit of the doubt about Toston’s condition when he accepted the transfer because West Carroll did not have an ICU and Conway could provide the ICU services to treat Toston immediately. Dr. Flyte felt that Toston more likely would have survived if she could have undergone surgery within a few hours after he received Dr. Boyette’s report on Sunday.

Dr. Flyte wrote in his report that after Toston arrived at Conway and was examined, he realized that he had mistakenly accepted Toston in acute renal failure. Dr. Flyte explained in his deposition that he was not saying that he should have declined the transfer. He said what he meant was that even though Conway gave Toston a higher level of care than West Carroll could provide, she ultimately needed to be transferred to another facility for surgery.

According to Dr. Cage, Toston’s vital signs showed that she was in shock when she went to West Carroll, and she needed to go to a hospital where her condition could be stabilized. Dr. Cage felt that even though Dr. Flyte knew about the stones as well as the creatinine and BUN levels, it was appropriate for him to accept the transfer because Conway offered better care than West Carroll. A rural hospital like West Carroll could begin the stabilization process, but it was not equipped to handle severe sepsis. Even though Conway did not have a urologist and urological care was important, that concern was secondary to stabilization. Conway had what Toston needed to become stable and treat her sepsis.

121Pr. Cage did not think that it would have made a difference if Toston had gone straight to St. Francis from Conway to receive dialysis because she was still in shock. Dr. Rangaraj thought that Toston needed to have the stones removed to drain her kidneys because that was why she was septic and had low blood pressure. She thought that Toston would have likely survived if she had been transferred to St. Francis or a hospital that could provide urological surgery or dialysis instead of being sent to Conway.

Dr. Hand testified that someone with kidney stones does not automatically need dialysis or surgery. Dr. Hand thought it was rare that bilateral obstruction would occur and that dialysis would be required. Dr. Hand noted that if Dr. Hio had told Dr. Flyte that she had kidney stones, probable kidney infection, and her condition was unstable, then he should have known she probably had sepsis. However, that still would not have been enough information for Dr. Flyte to automatically think that Toston needed dialysis or surgery at that point, as someone with stones and sepsis may not necessarily have renal failure. Dr. Hand believed that there was no way for Dr. Flyte to predict that Toston was going to have kidney failure and need dialysis or surgery.

Dr. Rangaraj testified that the staghorn calculus, creatinine of 3.1 and BUN of 22 told her that Toston was in renal failure. Dr. Rangaraj felt that Conway had received a patient who should not have been at Conway, and that Toston should have been moved to a facility with an active genitourinary (“GU”) staff in house and a nephrologist because she was already in kidney failure when she arrived at Conway. She did not think |22that Dr. Flyte had received a full picture of Toston’s condition from Dr. Hio, and that Toston was not the stable patient that Dr. Hio had made her out to be. Dr. Rangaraj felt that even though Dr. Flyte had some concerns about accepting Toston, he deferred to Dr. Hio because she was running an ER and he was only a doctor in training. Dr. Flyte was apparently reassured by Dr. Hio that Toston looked okay and only needed some antibiotics. Dr. Rangaraj felt that a more senior doctor would have told Dr. Hio that he would not accept the transfer because Conway lacked dialysis and urological capabilities. She would have turned down the transfer because Toston’s condition had the potential to get bad and she would not have been able to give her the help that she needed. By the time she and Dr. Flyte realized Toston’s true condition, they were stuck with her and began looking for somewhere to send her.

Once again, there is a difference of opinion among the physicians as to whether Conway should have accepted the transfer and as to whether it made a difference in the outcome. As a genuine issue of material fact remains regarding whether Dr. Flyte breached the standard of care in accepting the transfer and whether this action affected the outcome, the trial court erred in granting Conway’s motion for summary judgment.

CONCLUSION

The trial court erred in granting a full summary judgment in favor of St. Francis. However, the portion of the summary judgment dismissing the antidumping claims was properly granted. In that regard, we affirm the summary judgment in favor of St. Francis insofar as it dismissed the claim 123that St. Francis violated Louisiana’s antidumping law. In all other respects, the judgment granting summary judgment in favor of St. Francis is reversed. The judgment granting summary judgment in favor of Conway is also reversed.

DECREE

With St. Francis and plaintiffs to bear their own costs, the judgment granting summary judgment in favor of St. Francis is AFFIRMED IN PART and REVERSED IN PART. With Conway to pay appeal costs of $86.00, the judgment granting summary judgment in favor of Conway is REVERSED.

      . Dr. Flyte began his residency there in July of 2000.

      . This means not only is a bed literally available, but also there is enough staff available to care for the patient.

      . Dr. Cage thought the left side was probably totally blocked, but not the right.


source: Caselaw Access Project

author: BROWN, Chief Judge. STEWART, J.,

license: Public Domain

text:
    Donald L. ESSMEIER, et al., Plaintiffs-Appellees v. TOWN OF JONESBORO, et al., Defendants-Appellants.
    No. 47,225-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2012.
    Dissenting Opinion of Judge Stewart, Dec. 26, 2012.

      Louis G. Scott, Carol Powell Lexing, for Appellants.
    Culpepper & Carroll By Bobby L. Cul-pepper, for Appellees, Donald L. Essmeier and Dalton E. Cruse.
    Before BROWN, STEWART, CARAWAY, DREW and LOLLEY, JJ.
   BROWN, Chief Judge.

|, The Town of Jonesboro, Mayor Leslie Thompson, and Board of Aldermen members Lastevic Cottonham, Devin Flowers, and Charla Thompson (all referred to as “the Town”), appeal from a judgment granting a preliminary injunction enjoining any expenditures under Ordinance numbers 700 and 701. The trial court found that the mayor and board members violated provisions of the Louisiana Local Government Budget Act (“LLGBA”), La. R.S. 39:1301, et seq., as to the adoption of these Ordinances. The court imposed a preliminary injunction against the town, the may- or and the counsel members enjoining them from making any expenditures under Ordinance numbers 700 and 701. We affirm.

Facts and Procedure

La. R.S. 39:1305 provides:

A. Each political subdivision shall cause to be prepared a comprehensive budget presenting a complete financial plan for each fiscal year for the general fund and each special revenue fund.
B. The chief executive or administrative officer of the political subdivision or, in the absence of such positions, the equivalent thereof shall prepare the proposed budget.
C. The budget document setting forth the proposed financial plan for the general fund and each special revenue fund shall include the following:
(1) A budget message signed by the budget preparer which shall include a summary description of the proposed financial plan, policies, and objectives, assumptions, budgetary basis, and a discussion of the most important features.
(2)(a) A statement for the general fund and each special revenue fund showing the estimated fund balances at the beginning of the year; estimates of all receipts and revenues to be received; revenues itemized by source; recommended expenditures itemized by agency, department, function, and character; other financing sources and uses by source and use; and the estimated |2fund balance at the end of the fiscal year. Such statements shall also include a clearly presented side-by-side detailed comparison of such information for the current year, including the fund balances at the beginning of the year, year-to-date actual receipts and revenues received and estimates of all receipts and revenues to be received the remainder of the year; estimated and actual revenues itemized by source; year-to-date actual expenditures and estimates of all expenditures to be made the remainder of the year itemized by agency, department, function, and character; other financing sources and uses by source and use, both year-to-date actual and estimates for the remainder of the year; the year-to-date actual and estimated fund balances as of the end of the fiscal year; and the percentage change for each item of information. (2)(b) School boards shall itemize revenues and expenditures in accordance with guidance provided by the State Department of Education.
(2)(c) If, upon the request of the governing authority, the political subdivision fails to submit its budget document showing the information concerning revenue sources as mandated by this Subsection, the governing authority shall not appropriate any general funds to such political subdivision.
D.A budget proposed for consideration by the governing authority shall be accompanied by a proposed budget adoption instrument. The budget adoption instrument for independently elected parish offices shall consist of a letter from the independently elected official authorizing the implementation of the adopted budget. The budget adoption instrument for any municipality, parish, school board, or special district shall be an appropriation ordinance, adoption resolution, or other legal instrument necessary to adopt and implement the budget document. The adoption instrument shall define the authority of the chief executive and administrative officers of the political subdivision to make changes within various budget classifications without approval by the governing authority, as well as those powers reserved solely to the governing authority.
E. The total of proposed expenditures shall not exceed the total of estimated funds available for the ensuing fiscal year.

La. R.S. 39:1309(A) requires that action necessary to adopt and otherwise finalize and implement the budget for a fiscal year shall be taken in open meeting and completed before the end of the prior fiscal year. The ^adopted budget shall be balanced with approved expenditures not exceeding the total of estimated funds available and shall contain the same information as that required for the proposed budget according to La. R.S. 39:1305(0 for the proposed budget.

The Town did not timely adopt a budget for the fiscal year July 1, 2010, to June 30, 2011. Thus, the Town was noncompliant. In September 2010, the Town finally adopted Ordinance 575, a budget for the fiscal year ending June 30, 2011. As admitted by the mayor, this September 2010 budget was not balanced as expenditures exceeded revenues.

Later in the fall of 2010, Lastevic Cot-tonham, Devin Flowers, and Charla Thompson were elected to the Board of Aldermen. Following their taking office, in January 2011, the Town published a notice about a public meeting to be held on February 8,- 2011, to discuss amendments to the budget, which would be designated as Ordinance 700 and Ordinance 701, to increase the mayor’s salary. Ordinance 701 provided that the mayor’s salary “shall be $60,000 per year during his or her first term in office and $70,000 per year during his or her second and all subsequent consecutive terms of office.” The mayor first took office in 2007.

On February 11, 2011, plaintiffs, Donald Essmeier, Dalton Cruse, and James Schmidt, sued the Town to enjoin it from amending the budget or increasing the mayor’s pay. The parties agreed to delay the vote and that the Town would re-advertise the ordinances for a public hearing and meeting on March 8, 2011. Ordinance 700 was adopted at the March 8, 2011, meeting. The record shows that Ordinance 700 did not provided for a balanced |4budget. Total estimated revenues and other financing sources were $2,805,566, whereas total estimated expenditures were $3,039,702. Thus, an amendment to the ordinance was made which added expected revenues of $232,301. The three newly elected board members, Aldermen Cottonwood, Flowers and Thompson, voted for the Ordinance 700 as amended while Aldermen Samuel Lamkin and Renee Stringer voted against. There was nothing recorded concerning Ordinance 701; however, the minutes state that it was adopted.

Earline Knox, an assistant to the mayor, and Melba Holland, the town clerk, testified that they were expecting the added funds. The mayor said that the funds would primarily come from the state, money previously withheld because of the Town’s failure to obtain an unqualified audit report. These funds were stated to be $176,301. The mayor also testified that the last unqualified audit result was in 2007, and since he became mayor, the town had never received an unqualified audit opinion. The mayor testified that all audit reports since he became mayor contained a disclaimer.

On March 28, 2011, plaintiffs filed another suit against the Town to enjoin it from making any expenditures under the ordinances and to have the ordinances declared illegal, null, and of no effect. They alleged that the mayor and board members, by voting for Ordinance 700, had violated a number of provisions of the LLGBA. Plaintiffs complained of discrepancies between what was proposed and what passed as the amended budget, and they made numerous allegations about the unsound financial condition of Jonesboro. In addition to injunctive and declaratory relief, plaintiffs sought |sto have the mayor and three board members individually cast with attorney fees and court costs for voting for Ordinance 700, knowing that it violated the LLGBA.

Following a three-day trial conducted over several weeks, the trial court found that the mayor and board members violated La. R.S. 39:1305, 39:1308, 39:1309, 39:1310, and 39:1311 of the LLGBA and granted a preliminary injunction enjoining the Town from making any expenditures under the ordinances. The court ordered plaintiffs to post a bond in the amount of $1,000. It denied the request for attorney fees but ordered defendants to pay all court costs. Finally, the trial court denied exceptions of res judicata, no right of action, no cause of action and a motion to strike that had been filed by the Town.

In its written reasons for judgment, the trial court made the following findings in support of its decision to grant the preliminary injunction:

(1) Mayor Thompson violated La. R.S. 39:1309(A) because the 2010/2011 budget was not adopted until September 2010.
(2) Ordinance 701 was not available for public inspection prior to the March 8, 2011, meeting. Board members testified that they did not know what the proposed ordinance contained until they received a handwritten document by May- or Thompson in their packet at the meeting.
(3) Ordinance 700 was a budget rather than an amended budget. Thus, it violated La. R.S. 39:1305(A), which prohibits a town from having two budgets in a fiscal year.
(4) Ordinance 700 violated La. R.S. 39:1309(B) because it was not a balanced budget. The budget had a deficit of $204,136.
(5) Mayor Thompson violated La. R.S. 39:1305(E) by knowingly and intentionally preparing and presenting an unbalanced budget, and the three board members violated the same provision by passing the unbalanced budget.

|fiThe Town filed a writ, but because a judgment granting a preliminary injunction is an appealable judgment, it was converted to an appeal and remanded for perfection.

Discussion

The Mayor’s testimony

On April 28, 2011, Mayor Thompson testified that he had been the mayor for approximately 4½ years. He stated as follows:

Q. When was the last time the Town of Jonesboro had an unqualified audit?
A. The last audit we had was in '07 where there was not a disclaimer.

A disclaimer is a non opinion and in this case, specifically stated that “[T]he Town did not maintain adequate records of disbursements, reconciled bank accounts, or accounts receivables or payable, nor were all transactions entered into the accounting records. The Town’s records do not permit the application of adequate auditing procedures. Because of the limitations described above we are unable to express and do not express an opinion on the Town’s financial statements as listed in the table of contents.”

The mayor testified that the budget passed in September 2010 was not balanced. He further stated that in January 2011 he published and opened for public discussion on February 8, 2011, “a modified version of the budget.” Based on plaintiffs’ lawsuit, he agreed to re-advertise that budget, |7Ordinance 700, for a public hearing on March 8, 2011. He admitted that this proposed budget showed a deficit of $204,136. The Ordinance was adopted on March 8, 2001. Thereafter, Ordinance 700 was amended to add revenues of $232,000 to balance the budget.

Exceptions

Defendants complain that the trial court erred in overruling their exceptions of res judicata, no cause of action, and no right of action. The record does not disclose that defendants filed an exception of res judicata. Even so, the initial suit and settlement do not support a claim of res judicata as to the instant suit, which seeks relief from the adoption of Ordinances 700 and 701 at the March 8, 2011, meeting of the board. We also find no error in the denial of the exceptions of no cause of action and no right of action. Plaintiffs, all Jonesboro residents, filed suit as allowed under La. R.S. 39:1315(B), which provides that “any person” may commence a suit in a court of competent jurisdiction for the parish in which the political subdivision is domiciled for mandamus, injunctive, or declaratory relief to require compliance with the LLGBA. Plaintiffs have both a right of action and a cause of action under this provision.

Budget

The LLGBA sets forth the minimum standards which a political subdivision must satisfy in adopting its budget. La. R.S. 39:1303(A). Each political subdivision is required to prepare a comprehensive budget for each fiscal year. La. R.S. 39:1305(A). All action necessary to adopt, finalize, and | ^implement the annual budget is to be completed before the end of the prior fiscal year. La. R.S. 39:1309(A).

As noted previously, the Town adopted its budget for the 2010-2011 fiscal year on September 14, 2010. Thus, the Town was not in compliance.

Much of this trial focused on whether Ordinance 700 was a second budget, as alleged by plaintiffs, or an amended budget, as contended by defendants. The trial court states in its written reasons that La. R.S. 39:1305(A) prohibits a political subdivision from having two budgets in a fiscal year. However, nothing in La. R.S. 39:1305(A) addresses a “second budget;” it merely requires a political subdivision to prepare a budget for each fiscal year.

The record shows that Ordinance 700 amended Ordinance 575 to provide for a budget of expenditures and revenues. The caption reads:

AN ORDINANCE AMENDING ORDINANCE #575 TO ADJUST AND PROVIDE FOR A BUDGET OF REVENUE AND EXPENDITURES FOR THE TOWN OF JONESBORO FOR THE FISCAL YEAR 2010-2011.
SECTION 1. BE IT ORDAINED BY THE MAYOR AND BOARD OF ALDERMEN of the Town of Jonesboro, Louisiana in regular session on March 8, 2011, that the existing town’s budget adopted September 14, 2010, be and the same is hereby amended to reflect the following budget of estimated receipts and expenditures for the Town of Jonesboro, Louisiana for the fiscal year 2010-2011, be the same is hereby fixed and established by law. (Emphasis added).

Ordinance 700 was a complete budget. It did not amend specific items but set forth a list of all estimated revenues and expenditures. It was clearly a substitute budget and subject to the rules set forth in La. R.S. 39:1305.

Even if, as argued by defendants, we could consider this an amended budget, La. R.S. 39:1310(A) is applicable:

| flWhen the governing authority has received notification pursuant to R.S. 39:1311, or there has been a change in operations upon which the original adopted budget was developed, the governing authority shall adopt a budget amendment in an open meeting to reflect such change ... In no event shall a budget amendment be adopted proposing expenditures which exceed the total of estimated funds available for the físcal year. (Emphasis added).

In this case, Ordinance 700 contained a list of estimated revenues and estimated expenditures. This ordinance was drafted in January and March of 2011, seven and nine months into the fiscal year. This violated the LLGBA as follows: Such statements shall also include a clearly presented side-by-side detailed comparison of such information for the current year, including the fund balances at the beginning of the year, year-to-date actual receipts and revenues received and estimates of all receipts and revenues to be received the remainder of the year; estimated and actual revenues itemized by source; year-to-date actual expenditures and estimates of all expenditures to be made the remainder of the year.

Further, Ordinance 700 as first passed and as amended was not in balance. The amended part used expected revenues from the state that the Town knew it would not receive. As the mayor testified, the revenues were not paid because the Town could not receive an unqualified audit report; specifically, during his administration, the Town had always received disclaimers. It was inappropriate to count these funds as receivables.

La. R.S. 39:1315 provides:

A. Except as provided in R.S. 39:1314, any public official or officer that violates, either knowingly or intentionally, the provisions of R.S. 39:1305(E), either through the adoption of an original budget or through amendment to a legally adopted budget, shall be a violation of R.S. 14:134 and shall be subject to the penalties contained therein.
ImB. Any person may commence a suit in a court of competent jurisdiction for the parish in which the political subdivision is domiciled for mandamus, injunc-tive, or declaratory relief to require compliance with the provisions of this Chapter.

Thus, plaintiffs’ action for injunctive relief was proper, and we affirm the trial court’s grant of such relief.

AFFIRMED.

STEWART, J., dissents with written reasons.

LOLLEY, J., dissents.

STEWART, J.,

dissenting.

hThe plaintiffs made numerous allegations but the gist of their complaint is that Ordinances 700 and 701 were passed in violation of the Louisiana Local Government Budget Act (“LLGBA”). The majority wrongly agrees, and in doing so, relies on improper evidence, misinterprets the ordinance amending the budget, and misapplies the law.

First, the majority improperly refers to evidence about the disclaimer audits that was presented in another case. State of Louisiana through James D. “Buddy” Caldwell v. Town of Jonesboro, et al., 108 So.3d 217 (La.App. 2 Cir.2012) was consolidated for arguments only with this matter. They are separate suits with distinct issues brought by different plaintiffs. No evidence adduced in the State’s suit should have been considered in deciding this matter. As provided in U.R.C.A. Rule 2-1.7, no record of another case shall be included in the record unless it has been introduced into evidence at trial in the case on appeal. Other than the mayor’s admission regarding the disclaimer audits, there was no evidence presented about the disclaimers in this matter. Plaintiffs could have called an auditor to testify about the Town’s fiscal state or provided other evidence to support their allegations, but they did not. The majority improperly relies on evidence presented in the State’s suit against the Town for appointment of a fiscal administrator to bolster the plaintiffs’ case and support the trial court’s ruling in this matter.

Second, the majority wrongly interprets Ordinance 700 as a “complete budget” or a “substitute budget” in that it “did not amend specific items but set forth a list of all estimated revenues and expenditures.” The majority appears to require that a budget amendment ordinance set forth laonly the specific amendments without restating the budget. If so, the majority imposes a requirement not provided by the LLGBA or any other law. Only La. R.S. 39:1310 addresses budget amendments. It does not specify any particular form for such amendments or prohibit a restatement of the budget incorporating the amendments as was done here. The record leaves no doubt that Ordinance 700 is a budget amendment. The caption of Ordinance 700, which is quoted in the majority opinion, identifies the ordinance as an amendment of Ordinance 575, the budget for the fiscal year ending June 30, 2011. Ordinance 700 includes the amendments and purports to be a balanced budget with total estimated revenues equaling total estimated expenses. Nothing in the record shows that Ordinance 700 is anything other than a budget amendment. Both the trial court and the majority are clearly wrong in finding otherwise.

Third, upon finding that Ordinance 700 is a “substitute” or “complete” budget, the majority, like the trial court, then proceeds to misapply the law by imposing on budget amendments those LLGBA provisions (La. R.S. 39:1305, 39:1308, and 39:1309) that apply when adopting the original budget for the fiscal year. See Yenni v. Parish Council of Parish of Jefferson Through Evans, 625 So.2d 301 (La.App. 4th Cir.1993), writ denied, 627 So.2d 642 (La.1993), noting that the LLGBA is silent as to minimum requirements for amending a budget and that the responsibility for providing such requirements belongs not to the courts, but to the state legislature and people of the parish.

|sThe record shows Ordinance 700 to be in compliance with La. R.S. 39:1310, the only provision that addresses budget amendments. It was adopted in an open meeting and, as stated, purports to be a balanced budget. The majority states that the amendments were based on “expected revenues from the state that the Town knew it would not receive” and that it was “inappropriate to count these funds as receivables.” No evidence in this record supports these conclusions. The record does indicate that the state had withheld funds from the Town due to its noncompliance with the audit laws. However, both the mayor and town clerk testified that the Town was to receive funds that had been withheld. Plaintiffs offered no evidence to refute their testimony. The mayor testified that the budget was amended in part to take into account the additional revenue expected from the state. This could constitute a “change in operations” under La. R.S. S9:1S10(A). The statute does not define a “change in operations.” I would conclude that whether a change in operations necessitates amendment of the budget is a determination to be made by the governing authority for the political subdivision and that such determinations are to be afforded great discretion by the courts.

The record further shows that Ordinance 701, which increases the mayor’s salary, is not a budget amendment, though treated as such by the majority. Because it is not a budget amendment, it is not subject to the provisions of the LLGBA. Plaintiffs neither alleged nor proved that injunctive relief was warranted to enjoin enforcement of Ordinance 701.

[/The trial of this matter was mostly a “fishing expedition” by the plaintiffs for information about the town’s fiscal situation and the mayor’s administration. The trial court afforded plaintiffs great leeway in questioning witnesses beyond the alleged violations of the LLGBA that would entitle them to injunctive relief as prayed for in the petition. The plaintiffs produced no evidence to substantiate their many allegations. Nevertheless, the majority, as detailed above, relies on improper evidence, misinterprets the ordinances, and misapplies the law all in order to affirm the trial court’s wrongful judgment. No reasonable objective reading of this record would lead to the conclusions reached in the majority opinion.

For these reasons, I dissent.

      . The mayor testified that since he became mayor, the Town received disclaimers on all its audits. The disclaimer quoted above came from the companion and consolidated case of State of Louisiana through James D. "Buddy” Caldwell v. Town of Jonesboro, et al., 108 So.3d 217 (La.App. 2 Cir.2012), wherein a fiscal administrator was appointed for the Town and preliminary injunctions were issued.


text:
    STATE of Louisiana through James D. “Buddy” CALDWELL, Plaintiffs-Appellees v. TOWN OF JONESBORO, Defendant-Appellant.
    No. 47,896-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 19, 2012.
    Concurring and Dissenting Opinion of Judge Stewart Dec. 26, 2012.

      Carol Powell Lexing, for Appellant, Town of Jonesboro.
    Patricia Hill Wilton, Michael J. Vallan, Assistant Attorney Generals, for Appel-lees, State of Louisiana and James D. Caldwell.
    Before BROWN, STEWART, CARAWAY, DREW and LOLLEY, JJ.
   BROWN, Chief Judge.

| ]The State of Louisiana through the attorney general filed this action against the Town of Jonesboro seeking the appointment of a fiscal administrator for the Town and the issuance of injunctive relief to prevent the Town, its agents, employees, or others acting on its behalf from incurring debts or obligations, paying debts or obligations, and hiring or contracting without the express approval of the fiscal administrator. Judgment was rendered by the trial court granting the preliminary injunction against the Town and appointing a fiscal administrator, William J. Ryder, C.P.A. The Town of Jones-boro through its attorneys has appealed. We affirm.

Discussion

Municipalities, being creatures of the legislature, possess only such powers as are granted to them by the legislature in express words, or those that are necessarily or fairly implied in or are incidental to the powers so expressly conferred. Town of Pineville v. Vandersypen, 212 La. 521, 33 So.2d 56 (La.1947), Higginbotham v. Flood 45,328 (La.App.2d Cir.05/07/10), 36 So.3d 444.

The Louisiana Legislature enacted several laws in 1990 that enable state intervention if a municipality’s fiscal stability is in jeopardy. The state legislative auditor, attorney general, and treasurer will publicly convene to review the struggling municipality’s financial situation. If the three decide that revenues are insufficient to meet outstanding debts, the attorney general will file a rule to appoint a fiscal administrator to take over the local government’s finances. If the court finds that the local government is ^“reasonably certain to fail to make a debt service payment or reasonably certain to not have sufficient revenue to pay current expenditures,” it will appoint a fiscal administrator. La. R.S. 39:1351.

La. R.S. 39:1352 provides that the newly appointed fiscal administrator will investigate the financial situation of the municipality and report his findings to the state treasurer, attorney general, and legislative auditor. This written report will contain the expected revenue and obligations for the remainder of the fiscal year, recommended amendments to the budget to ensure payment of the debt, the estimated deficit in the budget, and a recommendation of whether the local government should be allowed to file for Chapter 9 bankruptcy. La. R.S. 39:1353 provides that within seven days after the local government receives the report, it must vote on the fiscal administrator’s recommended budget changes. If it fails to adopt the recommended changes, the attorney general must ask the court to compel the local government to accept them. Once the new budget is enacted, the fiscal administrator monitors the municipality until he determines that it is fiscally healthy enough to meet its obligations for the current and upcoming years. At that point, the attorney general, local government officials, or the fiscal administrator himself can move to terminate his appointment. La. R.S. 39:1354.

In this case, a fiscal review committee, as authorized by La. R.S. 39:1351, met on March 26, 2012, and unanimously agreed to have the attorney general file a petition for appointment of a fiscal administrator to investigate and manage the Town’s affairs until fiscal stability is restored. |SA Petition For The Appointment Of Fiscal Administrator and For Preliminary and Permanent Injunction was filed by the attorney general on June 28, 2012.

The State prayed for an order appointing a fiscal administrator with all powers and duties as provided in La. R.S. 39:1351-1354, including power to investigate, oversee, and manage the Town’s fiscal affairs. Attached to the petition was an affidavit by Eric Sloan, an assistant legislative auditor. Upon the filing of the petition, the district court ordered the Town to show cause why relief should not be granted.

On July 13, 2012, the Town filed an exception of no cause of action asserting that the petition was based on prior audits and not on any evidence that the Town now lacked sufficient revenues to pay its current expenditures. The Town asserted that it had corrected its past deficiencies and is now operating in a fiscally sound manner.

On July 16, 2012, the Town filed exceptions of prescription, no right of action, and no cause of action. The Town asserted that the petition was untimely because it was filed more than three months after the fiscal review committee met on March 26, 2012, and decided to request appointment of a fiscal administrator.

The exceptions were tried in open court on July 16, 2012. The rule to show cause hearing commenced and was completed on July 17, 2012. The trial court took the matter under advisement. The exceptions were then denied.

l4On July 20, 2012, the Town filed a notice of intent to seek writs from the denial of its exceptions. On July 24, 2012, the trial court denied the request as premature pending a decision on the merits of the case and then rendered judgment with written reasons granting the preliminary injunction against the Town and appointing a fiscal administrator, William J. Ryder, C.P.A.

In its written reasons for judgment, the trial court found that the State proved by a preponderance of the evidence that it was reasonably certain that the Town lacks sufficient revenues to pay its current expenditures. This finding was based on the following:

1. Four consecutive years in which auditors could not render an opinion on the Town’s financial statements and issued disclaimers;
2. Expert testimony, including the Town’s expert (Jonald Walker), that they had a “going concern” relative to the Town’s ability to meet its obligations in light of the state of its debts and revenue;
3. Testimony that the Town had to cash a certificate of deposit (“C.D.”) and access its reserves in order to pay its expenditures and all agreed that CDs are not “revenues” under La. R.S. 39:1351;
4. Testimony that the Town voted to “do away with” the police department due to insufficient funding;
5. Testimony from the Town’s former accountant, Sharetha Houston, regarding the Town’s lack of financial management and its inability to pay it obligations without cashing the C.D.; and
6. The trial court’s concern that exhibits introduced by the Town purported to show revenue and expenses for May 2012 but had no documentation, such as receipts or invoices, to support the numbers on the reports.

| ¡¡The trial court found that “it is abundantly clear that it is reasonably certain that the Town of Jonesboro does not have sufficient revenue to pay its expenditures; therefore, it is this Court’s opinion that an independent fiscal administrator should be appointed for the Town of Jonesboro, in-stanta [sic], otherwise the Town of Jones-boro and its citizens will suffer significant irreparable harm.”

A judgment was rendered on July 24, 2012, appointing William J. Ryder as fiscal administrator and granting a preliminary injunction enjoining the Town or anyone acting on its behalf from incurring or paying debts or obligations and from hiring or contracting without express approval of the fiscal administrator. The fiscal administrator was vested with authority to administer, manage, and oversee the fiscal affairs of the Town and to employ or terminate Town employees to prevent or curtail a deficit. The judgment ordered the Town to provide the fiscal administrator with all information required by law and/or requested by him, with office space, furnishings, equipment, and assistance. Among other things, the judgment authorized the fiscal administrator to institute a system of cash management to maximize investment of idle funds and minimize interest payments and to furnish, if warranted, an amended budget for the 2011-2012 fiscal year and subsequent years. It ordered him to prepare a written proposal for the court, the attorney general, and the legislative auditor concerning the revenues and expenditures of the Town.

The Town filed a writ application after rendition of the judgment. By order of August 30, 2012, this court remanded for perfection as an appeal |fiand then subsequently determined by order on September 21, 2012, that this matter should be considered for consolidation with a related lawsuit for argument.

There are two issues in this case: (1) the trial court’s appointment of a fiscal administrator; and (2) the trial court’s granting of a preliminary injunction.

We note that there is precedent for both the appointment of a fiscal administrator and the preliminary injunction. In State v. Mayor and Bd. of Aldermen of City of Tallulah, 549 So.2d 891, 892-3 (La.App. 2d Cir.1989), writ denied, 556 So.2d 39 (La.1990), this court wrote:

In 1986, the State of Louisiana acting through the attorney general filed a petition in district court against the mayor and board of aldermen of the City of Tallulah seeking the appointment of a special city fiscal administrator and an injunction against the mayor and board of aldermen from incurring any debts or paying any debts without the express approval of the fiscal administrator. It was alleged that a state of financial and fiscal emergency existed in that the city could not meet its obligations or provide essential services because of mismanagement and other deficiencies in the operation of city government. A consent judgment was rendered pursuant to an agreement between the state and the city providing for the appointment by the court of a fiscal administrator to administer the fiscal affairs of the city under contract with the city, and granting the injunctive relief, with the court to retain jurisdiction of all matters arising out of the judgment and the related agreement between the city and the fiscal administrator. Myles Hopkins was appointed fiscal administrator under contract with the city.

|7In that case, a citizen/taxpayer filed a petition of intervention, alleging that the fiscal administrator, mayor and board failed to comply with the consent judgment and contract with the fiscal administrator and seeking to compel performance of various governmental actions. Implicitly recognizing the legitimacy of the appointment and injunctions this court affirmed the trial court’s dismissal of the interve-nor’s claim.

Appointment of a fiscal administrator

Exceptions filed by the Town

There is no merit to the exception of no right of action filed by the Town. The State has a real and actual interest in ensuring the financial stability of its political subdivisions. Moreover, La. R.S. 39:1351 provides specific authority for the attorney general at the request of the fiscal review committee to file a rule for appointment of a fiscal administrator.

Likewise there is no merit to the Town’s exception of no cause of action. The cause of action asserted in the petition is specifically provided for under La. R.S. 39:1351. The State alleged in its petition that the conditions for the appointment of a fiscal administrator existed. Taking the allegations of the petition as true, as required on an exception of no cause of action, it is clear that the law provides a remedy and that a cause of action was stated.

Citing La. R.S. 39:1351(A)(3), the Town claims that the petition was untimely because it was filed more than three months after the fiscal review 18committee met on March 26, 2012, and decided to request appointment of a fiscal administrator.

There is no merit to the Town’s exception of prescription. La. R.S. 39:1351(A)(3) does not provide a time period for the attorney general to file the rule for appointment of a fiscal administrator. Under La. R.S. 39:1351, the fiscal review committee can meet as often as necessary to review the financial stability of the state’s political subdivisions. The statute does not limit how often or when the committee can request that the attorney general institute proceedings for appointment of a fiscal administrator. Rather, the time period set forth in the statute refers to when the rule must be heard by the trial court after it is filed. La. R.S. 39:1351(A)(3) states:

Upon the making of such decision, the attorney general shall, on motion in the district court of the domicile of the political subdivision, take a rule on the political subdivision to show cause in not less than ten nor more than twenty days why a fiscal administrator should not be appointed[.]

The period of “not less than ten nor more than twenty days” serves the purpose of protecting the political subdivision’s fisc by having the show cause hearing in a timely fashion once the petition for appointment of a fiscal administrator is filed. The time period does not modify or reference the timing for the filing of the petition by the attorney general. There is no merit to the Town’s claim that the State’s petition was untimely.

Merits

La. R.S. 39:1351(B) provides that the court shall appoint a fiscal administrator for a political subdivision if it finds from the facts and evidence deduced at the hearing of the rule that the political subdivision is | treasonably certain to fail to make a debt service payment or reasonably certain not to have sufficient revenue to pay current expenditures.

Assistant legislative auditor Eric Sloan, Jonesboro Chief of Police Wesley Horton, Jackson Parish Sheriff Andy Brown, and Sharetha Houston, a former accountant for the Town, testified for the State. Witnesses for the Town included Mayor Thompson, Tonya Wade, a C.P.A. who worked with the Town to correct its deficiencies, Melba Holland, the Town Clerk, and Jonald J. Walker, III, a C.P.A. who audited the Town.

Mayor Leslie Thompson testified that he had been the mayor of Jonesboro since 2007. He agreed with the audit reports but stated that the Town had corrected the deficiencies listed in the reports. He stated that the Town had started a payment plan to pay a workers’ compensation coverage debt of more than $100,000. Thus, this was not included in his report. He stated that the Town had sufficient revenues to pay their bills.

The evidence, however, does not support this position.

Audits for the fiscal years ending June 30, 2008, 2009, 2010, and 2011 were seriously delinquent and all contained disclaimers. The last audit for the fiscal year ending June 30, 2011, had a going concern comment as follows: “Increasing demand[s] upon the cash flow of the town have caused the withdrawal of fund reserves to meet ongoing expenditures. The lack of financial statements provided by the mayor and town aldermen in recent preceding years has not allowed adequate planning and monitoring of fiscal activities. Revenue increases would be modest at best. Therefore | ^expenditure reduction is critical for the town to continue as a going concern.”

The last audit for the fiscal year ending June 30, 2011, was prepared by Jonald J. Walker, III, C.P.A. Mr. Walker’s report was issued June 2012. Mr. Walker was called by the Town as a witness. Under direct examination, he testified that, “[T]he going concern, we’re required under our standards to evaluate the ability of the entity to continue as a going concern. Basically, we’re looking at debt obligations, revenues, different items that are brought to our attention that may have a pedding [sic] effect on the entity to meet its obligations.”

Following Mr. Walker’s explanation, the Town’s attorney then asked:

Q. And that would have been for the year ending in June 30, 2011, correct? A. Yes and No. One of the requirements we’re suppose[d] to look at what we refer to subsequent events. Basically any event that occurs from the time period that the ending date of the report to the time that we end our findings and so forth. So in this particular case we will look at subsequent events from June 30, 2011, through whenever we issue our audit report which I think was in early June of this year (2012).

Mr. Walker did review the Town’s budget for the fiscal year 2011-2012, and found that the Town had projected an increase in revenues when for the past two years revenues were actually going down. The Town had to cash in a CD to pay a federal tax hen. He stated that the Town’s overall financial condition was not good, that sales tax revenues were decreasing and there were no rainy day funds.

On cross-examination Mr. Walker testified that a prudent financial manager would not use CDs to pay recurring obligations, that the town was [^delinquent on debts and that he could not verify the reliability or credibility of the documents given to him by the Town. The state’s attorney asked:

Q. And if I used the words reasonably certain that revenue will not meet expenses, does that legal description that we’re talking about here today fairly describe your opinion in this, as I realize you didn’t render an opinion?
A. Right.
Q. Does that fairly describe the import of your disclaimer relative to the Town?
A. Uh-yes, ma’am.

The State’s chief witness was Eric Sloan, a C.P.A. employed by the legislative auditor. Sloan’s involvement with the Town began in August 2009, when the legislative auditor learned that the June 30, 2008, audit would be delinquent and have a disclaimer, which is a “no opinion.”

Sloan’s testimony established that a fiscal emergency existed. In his professional opinion, the Town did not have sufficient revenue to pay its expenditures. Evidence showed that auditors had issued disclaimers for four consecutive years. The most recent audit for the fiscal year ending June 30, 2011, included a “going concern” note.

Sloan testified that he participated in the Compliance Audit, which found significant deficiencies in the Town’s financial management and little progress in resolving the problems noted in the prior audits. According to Sloan, the Town’s accounting records were in disarray. Bank accounts had not been properly reconciled since June 2007. There were discrepancies between the Town’s records and actual account balances. There was no 112clear accounting of dedicated taxes. The Town had stacks of bills and did not know the full extent of its obligations. To address these and the other deficiencies detailed in the Compliance Audit, the legislative auditor and the Town contracted the services of Tonya Wade, a C.P.A., to act as C.F.O. for the Town. Wade served in this capacity from April 14, 2011, until November 2011.

Sloan testified that problems were ongoing when Wade’s contract expired. Once again, the 2011 audit was going to be delinquent. The legislative auditor got information that the Town had cashed a certificate of deposit to pay some bills. It extended Wade’s contract through March 2012 to help the Town complete the 2011 audit. This was done to keep the Town off the noncompliance list that would result in state funds being withheld from it.

Sloan testified that in February 2012 the Town’s sales taxes were not meeting the projected revenues and that expenditures appeared elevated. At a meeting in March 2012, the mayor seemed surprised and indicated that the Town had additional certificates of deposit and was looking at ways to cut expenses. Soon after, the fiscal review committee authorized by La. R.S. 89:1351 met to address the Town’s cash flow concerns. Sloan testified that he obtained information on the Town’s outstanding obligations. As of April 25, 2012, the Town owed over $38,000 in employee withholding taxes to the State and over $3,000 in state sales taxes as verified by affidavits by the Director of Tax Administration for the Department of Revenue. The Town also had unpaid insurance premiums. It owed $15,684.57 for its liability | lsinsurance coverages; this amount had been delinquent since October 31, 2011. Also, it owed $108,132.88 for its 2011 workers’ compensation coverage and monthly payments of $12,328.92 for its 2012 coverage. This information was verified by a letter and affidavit from Stacey Parker, a manager with Risk Management, Inc. The legislative auditor’s office reconciled the Town’s water meter deposits as of March 31, 2012, and found a discrepancy of $85,000 between what the utility system showed had been paid by customers ($136,-000) and what the Town had in its accounts designated for meter deposits ($51,000).

Sloan believed that all of these factors showed the Town to be in a fiscal emergency. He testified that he had “very little” faith in the Town’s financial records and that a reasonably prudent C.P.A. would believe that the Town lacked sufficient revenue to meet its expenses.

Sheretha Houston, an accountant for the Town from March 9, 2011, through June 5, 2012, testified that she worked on reconciling the bank accounts and found numerous errors in the records, such as missing checks and check numbers on the bank statements not matching what was in the Town’s accounting system. In September 2011 the mayor made her responsible for paying bills and doing the payroll. She stated that the Town was late on paying its workers’ compensation and liability insurance premiums, its tax withholdings for employees, and its health insurance premiums. Houston explained that she paid bills if money was available, but there was not money available to pay all that the Town owed. She testified that the Town cashed a certificate of deposit to pay federal | ^withholding taxes. Houston explained that she was terminated when she refused to comply with the mayor’s order to give holiday pay to certain employees who were not eligible for it under the Town’s policy.

Chief Horton testified that the police department’s budget had been cut to the point where there remains funding for only one employee. He testified that he cannot adequately perform law enforcement duties for the Town and that this situation poses a serious threat to the public’s safety and welfare. Sheriff Brown testified that his department was providing law enforcement for the Town, but he indicated that there is no agreement with the Town for payment for such services, and he did not know how long his office could continue to provide services without compensation.

The trial court exercised its sound discretion in weighing the evidence, determining that the conditions of La. R.S. 39:1351(B) were satisfied, and in appointing a fiscal administrator.

Preliminary Injunction

An injunction proceeding is an ordinary proceeding in which the plaintiff seeks a permanent injunction compelling the defendant to do an act or barring him from acting. It invariably includes summary proceedings-the temporary restraining order (TRO) and the preliminary injunction-to compel or bar the disputed act pending a determination on the merits of the ordinary proceeding. Thus the TRO and the preliminary injunction may only be obtained as adjuncts to a suit for permanent injunction. Injunctive relief may be granted in cases where irreparable injury, loss or damage may otherwise result to the applicant, and in other cases specifically provided by |1filaw. La. C.C.P. art. 3601; Frank L. Maraist, 1A La. Civ. L. Treatise, Civil Procedure-Special Proceedings, § 1.2 (2012 ed.)

A preliminary injunction is an interlocutory procedural device designed to preserve the existing status pending a trial of the issues on the merits of the case. Lake Bistineau Preservation Soc., Inc. v. Seales, 40,583 (La.App.2d Cir.02/10/06), 922 So.2d 768, writ denied, 06-0620 (La.05/26/06), 930 So.2d 27. The courts have generally held that a preliminary injunction is designed to preserve the status quo pending a trial of the issues on the merits of the case. Lake Bistineau, supra; Silliman Private School Corp. v. Shareholder Group, 00-0065 (La.App.1st Cir.02/16/01), 789 So.2d 20, writ denied, 01-0594 (La.03/30/01), 788 So.2d 1194. Generally, a party seeking the issuance of a preliminary injunction must show that he will suffer irreparable injury if the injunction does not issue; this is accomplished by a prima facie showing that the party will prevail on the merits of the case. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 04-0270 (La.App.1st Cir.03/24/05), 906 So.2d 660. A showing of irreparable injury is not necessary, however, when the conduct sought to be restrained is unconstitutional or unlawful, i.e., when the conduct sought to be enjoined constitutes a direct violation of a prohibitory law and/or violation of a constitutional right. Jurisich v. Jenkins, 99-0076 (La.10/19/99), 749 So.2d 597.

La. R.S. 39:1352 provides that a fiscal administrator shall perform such investigation of the financial affairs of the political subdivision as he deems necessary. He shall have access to all papers, books, records, |1fidocuments, films, tapes, and other forms of recordation of the political subdivision or, as they relate to such political subdivision, of the state. After his investigation, the fiscal administrator shall file a written report with the court, the governing authority of the political subdivision, the state treasurer, the attorney general, and the legislative auditor.

The report shall contain the following: an estimate of the revenues and expenditures of the political subdivision for the remainder of its current fiscal year and the fiscal year following; amendments to the comprehensive budget of the political subdivision adopted pursuant to La. R.S. 39:1309, or a proposed comprehensive budget if such budget has not been previously adopted, which will insure that payments of debt service are a priority budget item and that they will be timely made by the political subdivision during the remainder of the current fiscal year and the fiscal year following or such amendments which will insure having sufficient revenue to pay current expenditures, excluding civil judgments; and, a recommendation as to whether the political subdivision should be permitted to file a petition in a court of bankruptcy of the United States in order to provide for a readjustment of its debts.

La. R.S. 39:1353 requires that within seven days after receipt of the report, the governing authority of the political subdivision shall adopt in an open meeting an appropriate budget adoption instrument which contains the comprehensive budget, or amendments to the original comprehensive budget of the political subdivision, as proposed in the fiscal administrator’s report. If the governing authority of the political subdivision fails to adopt |17such budget or budget amendments, or if the revisions made by the governing authority of the political subdivision do not meet the approval of the fiscal administrator, the attorney general shall take a rule against the political subdivision in the manner provided for in La. R.S. 39:1351 to show cause why the court should not order the adoption and the implementation of the budget without the revisions disapproved by the fiscal administrator. The court shall order the adoption and implementation of the budget proposed by the fiscal administrator as revised by the governing authority of the political subdivision, except for those revisions which the court finds will make it reasonably certain that the political subdivision will fail to make timely debt service payments or reasonably certain to fail to have sufficient revenue to pay current expenditures, excluding civil judgments.

The trial court specifically found an immediate need for the appointment of a fiscal administrator, otherwise “the Town of Jonesboro and its citizens will suffer significant irreparable harm.” In the instant case the Town wants to overrule the fiscal administrator and spend money that it does not have. The conduct sought to be restrained constitutes a direct violation of the duties required of the fiscal administrator.

A fiscal emergency exists. The Town has been monitored by the legislative auditor since 2008; however, its fiscal condition has consistently deteriorated. The preliminary injunction was issued to allow the fiscal administrator to perform his duties. Without the injunction, the fiscal administrator would be useless.

| iSFor the reason explained herein, we agree with the necessity for the issuance of the preliminary injunction; otherwise, the Town and its citizens will suffer significant irreparable harm.

The fiscal administrator has certain time restraint duties, and this preliminary injunction is in place to allow him to com-píete his responsibilities as set forth in La. R.S. 39:1352.

Conclusion

The decision of the trial court is affirmed in all respects.

STEWART, J., concurs in part and dissents in part with written reasons to follow.

STEWART, J.,

concurring in part and dissenting in part.

11While I concur with the majority in affirming that part of the judgment appointing the fiscal administrator, I dissent from that part which affirms the injunctive relief granted by the trial court. By enjoining the town from incurring or paying debts or obligations and hiring or contracting without the express approval of the fiscal administrator, the trial court granted the fiscal administrator powers not provided by law.

Though referred to as a preliminary injunction by the state, the trial court’s judgment, and the majority, I would find the relief granted to be in the nature of a permanent injunction. A permanent injunction is one issued after a trial on the merits where entitlement to relief must be proved by a preponderance of the evidence. Here, the injunction was granted after a trial on the merits, not as a preliminary or interlocutory matter.

The majority refers to State v. Mayor and Bd. Of Aldermen of City of Tallulah, 549 So.2d 891 (La.App. 2d Cir.1989), writ denied, 556 So.2d 39 (La.1990), as precedent for the injunction here. In that case, the facts merely relate that a fiscal administrator was appointed and injunctive powers were granted pursuant to a consent judgment. However, the propriety of enjoining the mayor and board of aldermen from incurring or paying debts was not put before the court for review as in this matter.

The provisions governing the appointment of a fiscal administrator, La. R.S. 39:1351 et seq., confer the specific powers to investigate, report, and propose budgetary changes for implementation by the political subdivision. If the political subdivision refuses to implement the proposed budgetary changes, the fiscal administrator is authorized to seek 12implementation by court order. Finally, the fiscal administrator has the power to monitor the revenues and expenditures under the budgetary changes until such time that it is determined by a reasonable certainty that the political subdivision is operating with sufficient revenue to meet current expenditures. These are the specific powers granted the fiscal administrator under the law. Pursuant to these powers, the fiscal administrator can ensure that a political subdivision has the proper budgetary framework from which it can operate on a sound financial basis. As provided by La. R.S. 39:1311, the budget and budget amendments provide the framework from which the governing authority, administrative, and executive officers of a political subdivision must monitor the revenues and control expenses.

The legislature in drafting the fiscal administrator provisions could have seen fit to give greater powers to the appointee, such as those sought by the state in requesting injunctive relief. It did not. Because the fiscal administrator provisions infringe the powers granted political subdivisions and its executive and legislative officials, I believe they should be construed with strictness to ensure that the appointee’s authority does not infringe beyond what is specifically for by law.

The fiscal administrator provisions do not allow the appointee to usurp the authority granted by law to the mayor and aldermen. Municipalities are vested with all powers, rights, privileges, immunities, authorities and duties in accordance with our state constitution and statutes and are authorized to exercise any power and perform any function necessary and proper for the management of its affairs. La. R.S. 33:361(A). This includes the power to assume indebtedness, which is specifically granted to the board of alderman. |sgee La. R.S. 33:361(B). As well, the mayor is granted the powers of signing contracts on behalf of the municipality and of hiring and firing municipal employees. See La. R.S. 33:404. I agree with the Town’s argument that the injunctive relief granted by the trial court does indeed invade upon the province of its legislative and executive officers.

Ordinarily, the judicial branch may not enjoin a municipal body from acting under the guise of its legislative powers, unless the threatened action would be a direct violation of prohibitory law. Broadmoor, L.L.C. v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2004-0211 (La.3/18/04), 867 So.2d 651; La. Associated Gen. Contr., Inc. v. Calcasieu Parish School Bd., 586 So.2d 1354 (La.1991). This record does not support the injunctive relief granted by the trial court. It is not for the purpose of preventing some violation of prohibitory law. It is not authorized by the fiscal administrator provisions. It is not based on a showing of irreparable harm. At most, the State made conclusory allegations of irreparable harm; it did not prove such and certainly not by a preponderance of the evidence.

For these reasons, I dissent from that part of the majority opinion affirming the “preliminary injunction” granted by the trial court.

STEWART, J., concurs in part and dissents in part with written reasons.

      . Donald. L. Essmeier, et al. v. Town of Jonesboro, et al., 108 So.3d 209 (La.App. 2 Cir.2012). This case arises from a suit by citizens against the Town of Jonesboro, Mayor Leslie Thompson, and Aldermen Lastevic Cotton-ham, Devin Flowers, and Charla Thompson concerning the passage of ordinances amending the budget for the 2010-2011 fiscal year which increased the mayor’s salary from $35,000 to $70,000. At issue was whether the actions of the defendants violated the Louisiana Local Government Budget Act ("LLGBA”), La. R.S. 39:1301 et seq. The Town appealed the trial court's ruling in favor of plaintiffs.

      . The year after this decision, the legislature enacted La. R.S. 39:1351, etseq.

      . La. R.S. 24:513(A)(5)(a)(i) requires audits to be completed within six months of the close of the entity's fiscal year.