author: ROSEMARY LEDET, Judge. LOBRANO, J., ROSEMARY LEDET, Judge. LOBRANO, J.,

text:
    Wardette DUCOTE v. Michael BOLEWARE, et al.
    No. 2015-CA-0764.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 17, 2016.
    Rehearing Granted for Clarification March 4, 2016.

      Richard Lynn Dueote, Pittsburgh, PA, Denis W. Barry, Jr., Livingston, LA, for Plaintiff/Appellant.
    Michael J. Madere, Metairie, LA, for Defendant/Appellee.

      (Court composed of Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   ROSEMARY LEDET, Judge.

11 This is a personal injury suit for injuries sustained by the plaintiff when she was bitten by a cat allegedly belonging to the defendant. From the trial court’s judgment granting the motion for summary judgment filed by the defendant and his homeowner’s insurer and dismissing the plaintiffs suit, the plaintiff appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 30, 2010, at about 7:30 p.m., Wardette Ducote went for a walk down the sidewalk near her house, which was located at 3547 Rue Colette in New Orleans, Louisiana. At that time, it was dark outside. When she was about ten feet from the nearest street light and twenty feet from her house, she was bitten by a cat. According to Ms. Ducote’s deposition testimony, the incident occurred as follows:

I was taking a walk and I had on a scarf because it was chilly. And as I was walking down the sidewalk a cat just ran up to me and jumped up against my left side. And his paw was pulling on my scarf, so I grabbed it and when I put my arm down he lunged and screamed, the way cats scream, and bit and his tooth sunk into my wrist. And then he ran off.

|aMs. Ducote identified the cat that bit her as belonging to her neighbor, Michael Boleware, who resided at 3534 Rue Colette Street.

At the time of the incident, Ms. Ducote’s sister and housemate, Sue Bordelon, was standing outside them house talking on her cell phone. In her affidavit, Ms. Bordelon described the incident as follows:

Dee [Ms. Ducote] was about 20 feet away from me on the sidewalk when I saw Buddy the cat [that belonged to Mr. Boleware] walking fast towards her....
⅜ ⅜⅞ *1» ⅜
[M]y sister continued walking on her stroll, then I saw Buddy leap up on her and he bit her left hand or wrist. Dee screamed in pain and then came running toward me; she had a lot of blood dripping from her wrist, from where Buddy had bitten her. I am 100% certain that it was Buddy, Mr. Boleware’s cat, who leaped onto Dee’s hand and bit her wrist, I have seen this cat often and am very familiar with his look.

Following the incident, Ms. Ducote returned to her house to clean the bite wound and to stop the bleeding, which took about twenty minutes. After doing so, Ms. Ducote and Ms. Bordelon went to Mr. Boleware’s house to inquire whether his cat was current on his rabies vaccination. Ms. Bordelon explained that the reason they did so was because the emergency room doctor would need to know if the cat was vaccinated for rabies. According to Ms. Bordelon’s affidavit, “Mr. Mike [Boleware] said he thought his cat had been vaccinated at one time, but he wasn’t sure, he thought his daughter may have brought Buddy to the Fire Station one day [to be vaccinated.]” According to Mr. Boleware’s deposition testimony, he informed Ms. Ducote and her sister that he did not know where his proof of vaccination was and that he would look for it. Mr. Boleware’s explanation as to |swhy he did not keep his cat inside was that he also had a dog that he kept inside, and his dog would eat the cat litter.

After leaving Mr. Boleware’s house, Ms. Ducote went to the emergency room where she was treated and released. The emergency room physician’s notes regarding Ms. Ducote’s treatment are as follow:

Patient is concerned about possible contraction of rabies. Mandible that attacked her belongs to a neighbor. However, the neighbor cannot produce evidence that the animal has been vaccinated and he lets the cat run loose. The patient is concerned because there are bats and raccoons in her neighborhood which could carry rabies and pass it on to the cat. The animal attacked her unprovoked and then the animal came up and sat next to the owner and then bit the owner when he tried to pick it up. I discussed with the patient that it is less likely that the animal has rabies, but I can not [sic] be 100% certain. The patient prefers the certainty of having the immunoglobulin and the vaccine while the animal is observed by the authorities.

After she returned from the emergency room, Ms. Ducote called the police and animal control to report the incident. Two days later, a LA/SPCA Animal Control officer came to the scene of the incident to investigate. According to the Animal Control officer’s incident report, Mr. Boleware was cited for violating the following two City of New Orleans ordinances: (i) § 18-14, roaming at large; and 14(ii) § 18-170, proof of rabies vaccination. The incident report states that the reason for the charges against Mr. Boleware were that the biting incident took place across the street from his property and that Mr. Boleware was unable to produce a current rabies vaccination certificate for his cat.

Because Mr. Boleware was unable to produce a current rabies vaccination certificate for his cat, the Animal Control officer informed Mr. Boleware that his cat was required to spend the ten-day quarantine period at the SPCA. Although the Animal Control officer was unable to capture the cat and take it into custody, Mr. Boleware surrendered the cat to the SPCA later that evening. According to the SPCA records, on December 2, 2010, the cat, Buddy, appeared to be a normal, healthy adult cat; and the cat’s temperament was noted as “friendly.” On December 9, 2010, the cat was released from quarantine with no sign of rabies. In |fithe meantime, Ms. Ducote underwent a series of anti-rabies treatments (vaccinations and inoculations).

On April 25, 2011, Ms. Ducote filed this suit against Mr. Boleware and his homeowner’s insurer. In her petition, Ms. Du-cote alleges the following:

• On November 30, 2010, Plaintiff, Defendant’s neighbor, was viciously, without provocation, and through no fault of Plaintiff, attacked in Orleans Parish, in Plaintiffs yard by a cat owned, housed, and cared for by Defendant Boleware. The cat bit deeply into Plaintiffs wrist, causing a painful and serious puncture wound.
• Defendant’s offending cat was allowed by Defendant Boleware to run freely in the neighborhood, and was not vaccinated against rabies.
• As a direct result of the cat bite, Plaintiff was required to undergo expensive, painful, and dangerous medical treatments, including the series of anti-rabies vaccine injections.
• Plaintiffs damages were caused solely by the negligence of Defendant Bole-ware in failing to confine his cat, failing to have his cat properly vaccinated against rabies, and/or failing to maintain records of any such vaccination, all in breach of his legal duty and in direct violation of New Orleans Code of Ordinances §§ 18-14, 18-168, 18-169, and 18-170.

Mr. Boleware answered the petition and filed a motion for summary judgment. Following a hearing, the trial court granted the motion for summary judgment and dismissed Ms. Ducote’s suit with prejudice. This appeal followed.

J^DISCUSSION

The well-settled standard of review of a trial court’s ruling granting a motion for summary judgment is as follows:

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.
The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish these ends. The code provides that where [as in the instant case] the party moving for summary judgment will not bear the burden of proof at trial, them burden does not require them to negate all essential elements of the adverse party’s claim, but rather to point out to the court that an absence of factual support exists for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. The adverse party cannot rest on the mere allegations or denials of his pleadings when a motion for summary judgment is made and supported by affidavits, but is required to present evidence establishing that material facts are still at issue.

Johnson v. Loyola Univ. of New Orleans, 11-1785, pp. 7-8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923-24; see also Mandina, Inc. v. O’Brien, 13-0085, p. 9 (La.App. 4 Cir. 7/31/13), 156 So.3d 99, 104-05, writ denied, 13-2104 (La.11/22/13), 126 So.3d 485 (collecting cases).

Because the applicable substantive law determines materiality, the determination of whether a fact is “material” for summary judgment purposes can only be made on the basis of the governing substantive law. Citron v. Gentilly Carnival Club, Inc., 14-1096, p. 13 (La.App. 4 Cir. 4/15/15), 165 So.3d 304, 313.

Cat Oumer’s Liability

In Louisiana, the liability of an animal’s owner is governed by La. C.C. art. 2321, which, as amended in 1996, provides as follows:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

The second sentence of Article 2321 abolishes strict liability for animal owners (except dogs); “the basis of liability for animal owners (except dogs) is now negligence.” Frank L. Maraist & Thomas C. Galligan, Jr., Burying Caesar: Civil Justice Reform and the Changing Face of Louisiana Tort Law, 71 Tul. L.Rev. 339, 353 (1996) (hereinafter “Burying Ceasar”); Pepper v. Triplet, 03-0619, p. 13 (La.1/21/04), 864 So.2d 181, 191 (noting that “the standard for owners of animals other than dogs is ordinary negligence” and citing Frank L. Maraist and Thomas C. Galligan, LOUISIANA TORT LAW, § 14-7 (1996) (hereinafter “Maraist & Galligan”); and Joseph F. Piacun, Comment, The Abolition of Strict Liability in IsLouisiana: A Return to a Fairer Standard or an Impossible Burden on Plaintiffs?, 43 Loy. L.Rev. 215 (1997) (hereinafter “Abolition of Strict Liability ”)).

The amendment to Article 2321 returns the law for animals (other than dogs) to the standard that was applied before Holland v. Buckley, 305 So.2d 113 (La.1974)— the scienter standard—i.e., the first bite rule. See Abolition of Strict Liability, 43 Loy. L.Rev. at 233 (noting that “[arguably, the new standard returns the law to the ‘first bite rule’ existing prior to Holland ”); see also Burying Ceasar, 71 Tul. L.Rev. at 353 (noting that “[t]he ‘first bite’ rule has returned”); Maraist & Galligan, supra (noting that “the ‘first bite’ rule does not apply to dog owners, while the ‘first scratch’ rule applies to cat owners”). Before Holland, “[t]he ‘first bite’ rule, a logical application of negligence principles, exonerated from liability the owner of an animal who neither knew nor should have known that the animal posed some danger, i.e., it might scratch, bite, gore, or maim. Because the dog had not bitten before, the owner could not foresee that ‘first bite’ and thus was not negligent when it first bit.” Burying Caesar, 71 Tul. L.Rev. at 352. According to the “first bite” rule, “if an animal has not been shown to be previously vicious, the animal (usually applied to dogs) gets the first bite free.” Abolition of Strict Liability, 43 Loy. L.Rev. at 233, n. 115 (citing Holland, 305 So.2d at 155).

In Losch v. Travelers Insurance Company, 264 So.2d 240 (La.App. 4th Cir.1972), which was overruled by Holland, this court stated the pre-Holland jurisprudential standard as follows:

loThe owner’s liability for an animal that causes injury is predicated upon LSA-C.C. Articles 2321, 2315, and 2316. These articles, taken in conjunction, have received uniform interpretation by the courts of this state regarding cases of a nature similar to the present one. Thus, for an owner of a domesticated animal (which is regarded as inherently safe) to be considered at fault and therefore liable for injuries caused by the animal, the animal must manifest a dangerous or vicious temperament, recognizable as such by a reasonable person, so that the owner knew, or through legal consequence should have known, from a prior occurrence or experience, that the animal evinces vicious or dangerous propensities.

Before Holland, the majority of Louisiana courts imposed on the plaintiff-victim the burden of proving the following two elements: (i) the existence of a dangerous propensity of the animal, and (ii) the defendant-owner’s knowledge of such propensity. Abolition of Strict Liability, 43 Loy. L.Rev. at 232; Rolen v. Maryland Cas. Co., 240 So.2d 42, 45 (La.App. 2d Cir.1970) (overruled by Holland, supra). The jurisprudence recognized that “there was no general duty to guard against harm to third persons until the animal had displayed dangerous propensities, i.e., the ‘first bite was free.’” Maraist & Galli-gan, supra, § 14-7. The effect of the amendment to Article 2321 is to return the law to this pre-Holland negligence standard. See Abolition of Strict Liability, 43 Loy. L.Rev. at 233 (noting that pursuant to Article 2321, “an owner of a domesticated animal must be shown to have known that the animal had a previous history of a vicious temperament, or that the owner knew or should have known of the dangerous propensity in the animal.”).

hoMr. Boleivare’s Liability

In connection with Mr. Boleware’s motion for summary judgment, the following three issues were identified: (i) the liability issue of whether Mr. Boleware’s cat was the cat that bit Ms. Ducote; (ii) the liability issue of whether Mr. Boleware knew or should have known that his cat’s behavior would cause danger—the scienter element or theory; and (iii) the damages issue of whether the anti-rabies treatments (vaccinations and inoculations) that Ms. Ducote underwent were medically unnecessary.

In granting Mr. Boleware’s motion, the trial court, in its oral reasons for judgment, addressed all three issues as follows:

[T]he cat wasn’t identified. The next thing is the cat was quarantined, cat came through the quarantine with flying colors, didn’t exhibit any rabies. So the rabies treatment that the plaintiff undertook was unnecessary if Mr. Bole-ware’s cat was indeed the perpetrator. But transcending that, the body of law in the State of Louisiana indicates dogs, cats, animals, possibly get one free bite, because unless they exhibit some dangerous propensity that requires the owner to warn or to make sure the animal is secured....
******
But based upon the fact that I don’t see any definitive evidence that this was indeed the defendant’s animal, and secondly, because of the law as I know ij;, that this animal there’s been no exhibit that there’s any dangerous propensities on the part of the animal, I don’t know how you prevail today.

The trial court thus granted Mr. Bole-ware’s motion for summary judgment.

|nOn appeal, Ms. Ducote contends that the trial court erred in granting Mr. Bole-ware’s motion for summary judgment. She contends there is a genuine issue of material fact as to Mr. Boleware’s ownership of the cat that bit her. In support, she cites Ms. Bordelon’s statement, in her affidavit, that she saw the attack and that she was sure it was Mr. Boleware’s cat that bit Ms. Ducote. Ms. Ducote further contends that the trial court, agreeing with Mr. Boleware, relied on an inapplicable scienter theory of liability. She points out that she never asserted the scienter theory of liability as a basis for her suit. Instead, she asserted, in her petition, that Mr. Boleware’s negligence was his violation of the applicable New Orleans Code of Ord-nances—allowing Buddy to roam the neighborhood freely, failing to have Buddy vaccinated for rabies, and being unable to provide proof of rabies vaccination when requested. Finally, Ms. Ducote contends that the issue of whether the medical treatment she received—the series of anti-rabies vaccines and inoculations—was medically necessary only becomes relevant on the issue of damages; hence, she contends this issue is not relevant in deciding whether Mr. Boleware was negligent.

We find it unnecessary to address either the liability issue of whether it was Mr. Boleware’s cat that bit Ms. Ducote or the damages issue of whether the medical treatment Ms. Ducote received was necessary. Instead, we confine our analysis to the issue of whether the trial court, as Ms. Ducote contends, erred in relying on a scienter theory of liability. Citing the scienter element or theory, the trial court, in its oral reasons for judgment, reasoned that Louisiana law requires a plaintiff to prove that the animal exhibited dangerous propensities before the 112attack. The trial court found that the record in this case was devoid of any evidence that Mr. Bole-ware’s cat had exhibited dangerous propensities before the incident in question. To the contrary, the trial court noted that “Mr. Ducote [Ms. Ducote’s attorney] indicated everyone knew the cat. The eat used to lay [sic] in the street and children used to pet it, for 12 years and never did anything.”

Mr. Boleware, as the mover for summary judgment, was only required to establish the lack of proof as to one element of Ms. Ducote’s theory of liability— negligence—to shift the burden of proof. Mr. Boleware contends that he did so by establishing the lack of proof as to the scienter element required under La. C.C. art. 2321 to establish a negligence claim against the owner of an animal (other than a dog). The record reflects that Mr. Bole-ware carried his initial burden on summary judgment of establishing that he did not know or have reason to know of any vicious propensities on the part of Buddy; thus, the scienter element could not be established. In support of his motion for summary judgment, Mr. Boleware presented evidence of the following facts establishing his lack of scienter:

• Buddy is a ten to twelve year old eat;
• Mr. Boleware adopted Buddy as a kitten from the SPCA and has owned him the entire time;
• During that time, Buddy has never bitten or scratched anyone;
• During that time, Buddy has never shown any signs of any type of aggression towards anyone; and
• Mr. Boleware testified that “[t]he little girls down the street came down to my house and up the driveway and played with the cat and never any incidents.”
• The SPCA, during Buddy’s internment there for observation, noted that he was “friendly” and never showed any signs of rabies or strange behavior.

| ^Thereafter, Ms. Ducote failed to present any evidence to establish that she would be able to meet her evidentiary burden at trial of establishing scienter.

On appeal, Ms. Ducote does not suggest that there is any evidence that Mr. Bole-ware knew or should have known that Buddy had dangerous propensities. The gist of Ms. Ducote’s position is that her theory of the case was not based on the scienter theory of liability; rather, as noted above, it was based on Mr. Boleware’s violation of certain city ordinances. She thus contends the scienter theory of liability is inapplicable.

Mr. Boleware counters that Ms. Ducote fails to cite any specific ordinance that he violated. Regardless, he notes that the evidence reflects his cat was vaccinated for rabies and that there is no ordinance requiring a cat owner to confine his cat at all times. See City of New Orleans Ordinance § 18-14 (providing that “[cjommunity cats may be allowed outside so long as the cats do not prove to be a nuisance to neighbors.”). Moreover, he contends that despite Ms. Ducote’s contentions regarding her reliance solely on a negligence per se theory, the governing law in this case is the duty-risk analysis, in general, and La. C.C. art. 2321, in particular, which impose a negligence standard on animal owners (other than dogs). We agree.

Ms. Ducote’s position is based on two doctrines that have been rejected by the jurisprudence—theory of the case and negligence per se. “Louisiana utilizes a system of fact pleading. Accordingly, it is not necessary for a plaintiff to plead the | utheory of his case in the petition.” State, Div. of Admin., Office of Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 10-2264, p. 9 (La.5/10/11), 63 So.3d 940, 946. Ms. Ducote’s petition alleges a negligence cause of action against an animal owner. As discussed above, a negligence cause of action against an owner of a cat requires proof of scienter to prevail. See La. C.C. art. 2321. Contrary to Ms. Ducote’s contention, her failure to plead the scienter theory of liability does not render immaterial the scienter element of a negligence cause of action against an animal’s owner.

Although Ms. Ducote did not expressly plead negligence per se in her petition, her reliance on Mr. Boleware’s alleged violation of ordinances to establish liability is, in essence, premised on a negligence per se theory. Particularly, her argument on appeal is that “[i]n Louisiana, the violation of a statute gives rise to civil liability when the prohibition in the statute is designed to protect from the harm or damage which would occur if it is violated, and the violation was the legal cause of the damages sued upon.” In support of this position, she cites Burns v. CLK Investments, 10-0277 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152. Continuing, she contends that the ordinances that Mr, Boleware violated were designed to protect plaintiffs—such as her—from being bitten by roaming cats and then subjected to anti-rabies treatment because the cat’s rabies status was unknown.

As noted above, Louisiana does not recognize the negligence per se doctrine. Indeed, this court so held in the Bums case, which Ms. Ducote cites. In so holding, we reasoned in the Bums case as follows:

In a classic decision, the Louisiana Supreme Court ... held:

While statutory violations are not in and of themselves definitive of civil liability, they may be guidelines for the |1ficourt in determining standards of negligence by which civil liability is determined.
Smolinski v. Taulli, 276 So.2d 286, 289 (La.1973). One of the general principles applied by the Supreme Court in Smo-linski, which is highly pertinent to the Burnses’ arguments about so-called “negligence per se,” is that “[ajctionable negligence results from the creation or maintenance of an unreasonable risk of harm.” Smolinski, supra at 288. Thus, it is clear that even when the violation of a statute is proved, such is not a substitute for proving the existence of “an unreasonable risk of harm.”
Moreover, we consider the Burnses’ continued reliance upon a theory of “negligence per se” to be completely misplaced. “The doctrine of negligence per se has been rejected in Louisiana.... However, statutory violations provide guidelines for civil liability.” Galloway v. State, Dept. of Transp. and Development, 94-2747, p. 5 (La.5/22/95), 654 So.2d 1345, 1347; see also Bellsouth Telecommunications, Inc. v. Eustis Engineering Co., Inc., 07-0865, p. 5 (La. App. 4 Cir. 12/19/07), 974 So.2d 749, 752.

Burns, 10-0277 at p. 8, 45 So.3d at 1158.

Likewise, in Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292-93 (La.1993), the Supreme Court stated that “[tjhe violation of a statute or regulation does not automatically, in and of itself, impose civil liability. Civil responsibility is imposed only if the act in violation of the statute is the legal cause of damage to another.” Id. Hence, “a statutory violation must be determined as a legal cause of the accident,” and “the finding of a violation of a statute is only the beginning of a duty-risk analysis.” Bellsouth Telecommunications, Inc. v. Eustis Eng’g Co., 07-0865, p. 6 (La.App. 4 Cir. 12/19/07), 974 So.2d 749, 752.

Contrary to Ms. Ducote’s contentions, she was required, in order to establish liability of Mr. Boleware for his cat allegedly biting her, to establish negligence under the duty-risk analysis, in general, and La. C.C. art. 2321, in particular. Under the traditional duty-risk analysis applicable to negligence claims, a plaintiff must prove each following five elements: (1) the defendant had a duty to conform his | ] a conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 633. If a plaintiff fails to prove any one of the five elements, a defendant will not be held liable. Id.

“The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide.” Mathieu v. Imperial Toy Corp., 94-0952, p. 5 (La.11/30/94), 646 So.2d 318, 322 (citing Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984)). In answering this question, “the inquiry is whether the plaintiff has any law—statutory, jurisprudential, or arising from general principles of fault—to support his claim.” Faueheaux, 615 So.2d at 292 (citing Green, The Causal Relation Issue and Negligence Law, 60 Mich.L.Rev. 543, 562-63 (1962)).

Although it generally is inappropriate to resolve negligence cases on summary judgment, an exception has been recognized when there is a categorical rule of no liability. Cowan v. Jack, 05-0175, pp. 15-16 (La.App. 4 Cir. 12/21/05), 922 So.2d 559, 569-70. Such is the case here. The first bite rule is a categorical 117rule of no liability absent proof of scienter. Under the first bite rule, there is no general duty to guard against harm to third persons until the animal has displayed dangerous propensities, i.e., the “first bite is free.” See Maraist & Galligan, supra, § 14-7. As discussed above, Mr. Boleware presented proof of his lack of scienter. Ms. Du-cote failed to present any proof to establish that she would be able to meet her evidentiary burden at trial of establishing scienter. Instead, she relies solely on Mr. Boleware’s alleged violation of City ordinances,

As noted, statutory violations are not negligence per se; however, statutory violations are relevant evidence in determining whether a defendant owed the plaintiff a legal duty. As Mr. Boleware points out, Ms. Ducote does not reference particular ordinances; rather, her contention, as noted earlier, is that Mr. Bole-ware’s negligence was his violation of the applicable New Orleans Code of Ord-nances by (i) allowing Buddy to roam the neighborhood freely, (ii) failing to |1shave Buddy vaccinated for rabies, and (iii) being unable to provide proof of rabies vaccination when requested. We separately address each of these allegations.

First, as to the allegation that Mr. Bole-ware allowed Buddy to roam the neighborhood freely, the record contains no evidence to support a violation of the City ordinance requiring owners of a cat to prohibit them cat from roaming the neighborhood. See City of New Orleans Ordinance § 18-14. As Mr. Boleware points out, the ordinance contains an exception for cats—“[c]ommunity cats may be allowed outside so long as the cats do not prove to be a nuisance to neighbors.” Id. A “community cat” is defined as “a feral or free-roaming cat that is without visibly-discernible identification of any kind and has been sterilized, vaccinated, and ear-tipped.” City of New Orleans Ordinance § 18-1. For purposes of our analysis, we find it unnecessary to determine whether Buddy was a community cat. Regardless, as the court noted in Jackson v. Mateus, 70 P.3d 78, 83 (Utah 2003), “no other jurisdiction has recognized a duty on the part of a cat owner to restrain or muzzle a domestic cat that has demonstrated no previous propensity to cause harm.” Id. (collecting cases including Boyer v. Seal, 553 So.2d 827, 832 (La.1989)); see also Cheryl M. Bailey, Annot., Liabilities for Injuries Caused by Cat, 68 A.L.R.4th 823 (1989). Ms. Ducote’s reliance on this ordinance as creating a duty is thus misplaced.

Second, as to the allegation that Mr. Boleware failed to have Buddy vaccinated for rabies, Ms. Ducote testified that his cat was vaccinated; however, he was unable to locate proof of the vaccination. Ms. Ducote does not dispute Mr. Boleware’s testimony that his cat was vaccinated. Moreover, Mr. Boleware was not cited by Animal Control for violation of that ordinance; rather, he was cited for failure to provide proof of current vaccination status, which we address next.

| iflThird, as to Mr. Boleware’s inability to provide proof of rabies vaccination when requested, the result of this violation was that he was required to surrender his cat to Animal Control for observation. If he had proof of the vaccination, the observation could have been conducted in his own home. Ms. Ducote contends that another result of Mr. Boleware’s inability to provide proof of rabies vaccination when requested was that she was required to undergo a series of anti-rabies treatments (vaccinations and inoculations).

In response, Mr. Boleware emphasizes that immediately after the incident Ms. Ducote sought to commence the anti-rabies treatments at the hospital; indeed, he contends that she demanded such treatments against medical advice. Moreover, he notes that she did so despite that his cat, Buddy, was captured and held for observation. On this issue, Mr. Boleware, in support of his motion for summary judgment, produced an affidavit and a report of Dr. Jeffrey Coco, an infectious disease expert, who opined that the anti-rabies treatments that Ms. Ducote underwent were medically unnecessary. Dr. Coco explained his opinion as follows:

[T]he risk of rabies from a cat bite in Orleans Parish approaches zero. IG [rabies immune globulin] is indicated for high risk exposures only, thus not indicated and represents poor decision making on the part of the ER staff. If the animal could not be located for observation, then rabies vaccine may be offered. The animal was domestic, captured, and quarantined and cleared of rabies. Most health care professionals] would have reassured the bite patient with facts, and waited to give vaccine only if the cat failed quarantine or could not be located.

In rebuttal, Ms. Ducote offered no medical evidence. Her only proof in rebuttal was her medical records, her deposition testimony, and the affidavit of her 12(lsister. Both she and her sister stated their belief that it was medically necessary for her to begin the anti-rabies treatments immediately. Although both Ms. Ducote and her sister testified that they were registered nurses, neither was qualified to opine on the issue of the medical necessity of the anti-rabies treatments. Moreover, the emergency room physician expressly noted that Ms. Ducote “prefers the certainty of having the immunoglobulin and the vaccine while the animal is observed by the authorities.”

The trial court found, agreeing with Mr. Boleware, that the anti-rabies treatments were unnecessary since the “cat came through the quarantine with flying colors, [and] didn’t exhibit any rabies. So the rabies treatment that the plaintiff undertook was unnecessary.” This finding is supported by Dr. Coco’s affidavit and report, which Ms. Ducote failed to rebut with competent expert evidence. Thus, even assuming the violation of the ordinance requiring an owner to provide proof of current rabies vaccination status supports a duty on the part of the owner to a plaintiff in Ms. Ducote’s position, the record does not support a finding that Mr. Boleware’s violation of that ordinance was the legal cause of Ms. Ducote undergoing the anti-rabies treatments. Accordingly, we find no error in the trial court’s judgment granting Mr. Boleware’s motion for summary judgment and dismissing Ms. Ducote’s suit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

LOBRANO, J.,

dissents with reasons.

hi respectfully dissent. I would reverse the district court’s grant of summary judgment and remand this case for trial on the merits.

Ms. Ducote alleges, inter alia, that Mr. Boleware had a duty to maintain proof of current rabies vaccination of his cat. I disagree with the majority’s opinion that this duty to maintain proof imposed on Mr. Boleware, as a cat owner, arises only after his cat’s first bite or scratch applying a “first bite” scienter element of a negligence cause of action against an animal’s owner under La. C.C. art. 2321. The majority’s opinion improperly found that Mr. Boleware’s cat “gets the first bite free.” A cat with proper and current rabies certification and proof does not ordinarily pose an unreasonable risk of harm and may be allowed to “get the first bite free.” However, the same cannot be said for a cat without proper documentation or tag evidencing current rabies vaccination.

I find that the majority’s opinion misapplied La. C.C. art. 2821 to this particular set of facts, improperly adopted a categorical rule of no liability/no duty defense in all such eases, and confused the duty requirement with the scope of liability or protection requirement under a negligence duty-risk analysis. ^Moreover, I find that genuine issues of material fact remain as to whether Mr. Boleware’s failure to properly tag his cat evidencing that his cat was current on its rabies vaccination and/or Mr. Boleware’s failure to adequately maintain records of his cat’s recent rabies vaccination, in violation of New Orleans Code of Ordinances §§ 18-169 and 18-170, were legal causes of Ms. Ducote undergoing anti-rabies treatment. “If a genuine issue of material fact exists, then summary judgment is inappropriate.” Jones v. Buck Kreihs Marine Repair, L.L.C., 2013-0083, p. 2 (La.App. 4 Cir. 8/21/13), 122 So.3d 1181, 1183, citing La. C.C.P. art. 966.

A party seeking a summary judgment is entitled to a favorable judgment only if there is no genuine issue as to a material fact and, thus, the mover is entitled to judgment as a matter of law. Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. Where the mover does not bear the burden of proof at trial on the matter before the court, the mover is not required to negate all essential elements of the adverse party’s claim, action, or defense; however, the mover must point out to the court that there is an absence of factual support for one or more essential elements of the claim. Smith v. Treadaway, 2013-0131, p. 4 (La.App. 4 Cir. 11/27/13), 129 So.3d 825, 828.

One of the essential elements a plaintiff must show in establishing a negligence claim is proof that “the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element).” Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p. 7 (La.3/10/06), 923 So.2d 627, 633. “The essence of the legal cause inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the duty.” Haydin v. Crescent Guardian, Inc., 2001-1986, p. 11 (La.App. 4 Cir. 5/15/02), 818 So.2d 1033, 1040.

The Louisiana Supreme Court explained that the “duty issue in the determination of liability in negligence cases is often confused with the scope of liability or scope of protection issue. The former usually questions the existence of a duty, while the latter (which assumes that a duty exists) usually questions whether the plaintiffs injury was one of the risks encompassed by the statute or rule of law which imposed the duty.” Fowler v. Roberts, 556 So.2d 1, 6 (La.1989). The Fowler court noted:

The following method has been suggested for distinguishing between the duty element and the scope of protection element in negligence cases:
“As is often the case with torts puzzles, a view through the prism of trial court procedure points toward a solution. Careful speakers will reserve the formulation, “defendant had no duty,” for situations controlled by a rule of law of enough breadth and clarity to permit the trial judge in most cases raising the problem to dismiss the complaint or award summary judgment for defendant on the basis of the rule. On the other hand, if the case is of a sort such that typically the judge will need to know the details of the occurrence before ruling for defendant—i.e., if the case is of a type that must normally reach the directed verdict (or later) stage before defendant can expect to prevail—then the appropriate formulation is in terms of [scope of protection].”
D. Robertson, W. Powers, Jr. & D. Anderson, Cases and Materials on Torts 161 (1989). The authors therefore submit that the duty element normally comes into question when there is a categorical rule excluding liability as to whole categories of claimants or of claims. See Donaca v. Curry County, 303 Or. 30, 734 P.2d 1339 (1987). On the other hand, the scope of protection element comes in question when there is a fact-sensitive case that may require limitation of the “but for” consequences of the defendant’s substandard conduct.

Fowler v. Roberts, 556 So.2d 1, 6 (La.1989)

[ 4This court has held that “[t]he specific risk issue [-did this defendant have a duty to protect this plaintiff from this risk that occurred in this manner-] is determined at the duty level only in those exceptional situations where there is a ‘categorical rule excluding liability as to whole categories of claimants or claims,’ such as claims for failure to act.” Cowan v. Jack, 2005-0175, p. 16 (La.App. 4 Cir. 12/21/05), 922 So.2d 559, 570 (citing Frank L. Maraist and Thomas Galligan, Louisiana Tort Law § 3-2, 5-2 (1996)). This case does not present a categorical rule of no liability and is not such an exceptional situation. “Determination of the scope of protection issue is not based on a categorical rule, but on a case-by-case decision whether liability should be imposed under the particular circumstances.” Fowler, 556 So.2d at 6 (citing D. Robertson, W. Powers, Jr. & D. Anderson, Cases and Materials on Torts 161 (1989)). When determining the scope of protection, a court “should consider a broad range of social, economic, and moral factors including the cost to the defendant of avoiding the risk and the social utility of the plaintiffs conduct at the time of the accident.” Oster v. Dep’t of Transp. and Dev., State of Louisiana, 582 So.2d 1285, 1289 (La.1991).

Under the facts of this case and in applying La. C.C. art. 2321, the relevant analysis is whether the risk, and harm caused, were within the scope of protection afforded by the applicable City Ordinances. Whether Ms. Ducote’s injury of undergoing anti-rabies treatment was one of the risks encompassed by the local ordinances which imposed the duty to maintain proof of current rabies vaccination and whether Mr. Boleware should have known that his failure to maintain proof could cause such injury are pertinent issues for trial. Thus, whether it was reasonable for Ms. Ducote to undergo anti-rabies treatment before Mr. Boleware’s cat completed quarantine is at issue and disputed in this case.

|aMr. Boleware admits that he could not produce any evidence that his cat was current on its vaccination against rabies. In support of summary judgment, he submits an affidavit of a physician attacking the reasonableness of Ms. Ducote’s actions seeking anti-rabies treatment. Ms. Du-cote, a nurse, attests that she would not have incurred damages for anti-rabies treatment, had Mr. Boleware not failed to furnish evidence of his cat’s current rabies vaccination. Ms. Ducote’s sister, also a nurse, makes similar attestations in an affidavit.

Mr. Boleware has not established, with undisputed facts, an essential lack of factual support for Ms. Ducote’s claim that Mr. Boleware’s conduct, in failing to follow the City Ordinances requiring maintaining proof of current rabies vaccination, was the legal cause of her injuries. Accordingly, Mr. Boleware failed to meet his burden of proof and is not entitled to summary judgment.

The reasonableness of Ms. Dueote’s actions, in undergoing anti-rabies treatment before Mr. Boleware’s cat completed quarantine, should be an issue for trial. See Smith, 2013-0131 at p. 4, 129 So.3d at 828 (“[a]ny doubt as to a dispute over material facts must be resolved against granting the summary judgment and in favor of trial on the merits.”).

REHEARING GRANTED FOR CLARIFICATION

(Court composed of Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).

ROSEMARY LEDET, Judge.

|TWe grant the application for rehearing for clarification purposes only. As War-dette Ducote correctly points out in her application for rehearing, the New Orleans ordinances cited in our original opinion are not the ordinances in effect on the date of the accident. Nonetheless, even under the ordinances in effect on the date of the accident, the result in this case remains the same. Therefore, our original opinion remains unchanged.

REHEARING GRANTED FOR CLARIFICATION; JUDGMENT UNCHANGED

LOBRANO, J., dissents with reasons.

LOBRANO, J.,

dissents with reasons.

14 respectfully dissent. For the reasons ascribed in my original dissent, I would grant the rehearing to reverse the district court’s grant of summary judgment and remand this case for trial on the merits.

      . Section 18-14 provides as follows:
      (a) Except as provided herein below, all cats and dogs are to be confined within a secure, enclosed fence that is a minimum of four feet tall and shelter as outlined in section 18-2.1(a)(1) or properly tethered as outlined in section 182.1(b) at all times, unless accompanied by an owner, driver or keeper.
      (b) Dogs which are properly licensed and vaccinated as stipulated in this chapter may be allowed outside of an enclosure if under a secure leash and accompanied by their owner or keeper but are not to be allowed to trespass upon any public property, if so prohibited by another ordinance, or upon private property. Designated dog parks or ''off-leash” areas are exempt from the provisions of this section. The area of City Park known as NOLA Bark generally bounded by Zachary Taylor Drive, Diagonal Drive, and Magnolia Drive is such an exempted area.
      (c) All indoor/outdoor cats that are privately owned must be microchipped or ear tipped.
      (d) Community cats may be allowed outside so long as the cats do not prove to be a nuisance to neighbors. Any ear-tipped cat collected under the provisions of this section shall be released on-site unless suffering from an obvious injury or illness. Any non-ear-tipped cat collected under the provisions of this section shall not be returned to its owner until such time as said owner shall have the cat spayed or neutered, ear tipped or microchipped, and vaccinated against rabies, and all nuisance complaints are resolved. Repairing damage caused to private property as well as any required modifications required to abate the nuisance shall be the responsibility of the registered caregiver.
      (e)Notwithstanding the provisions of this section allowing otherwise, no dogs other than dogs in parades in which dogs are the main attraction or sole participants, dogs confined on the property of their owners, dogs assigned to law enforcement canine units, seeing-eye dogs and/or dogs assisting physically challenged individuals, are allowed within 200 yards of any parade route one hour before, during, or one hour after a scheduled parade.

      . Section 18-170 provides as follows:
      Upon request of the director or the agency, the owner, or keeper of any dog or cat must furnish evidence as required in section 18-230 that such dog or cat has been vaccinated by a licensed Louisiana veterinarian and is current on its vaccination against rabies as required in section 18-168.

      . If Mr. Boleware had the proof of vaccination, the cat could have been quarantined in his house.

      . According to Ms. Ducote’s medical records, she returned to the hospital to commence the anti-rabies treatments on the day after the incident, December 1, 2010. On that date, the hospital did not have the rabies immuno-globulin; it had to be special ordered. Thus, Ms. Ducote returned to the hospital on the following day and was given the rabies immu-noglobulin. Thereafter, she underwent the remainder of the series of anti-rabies treatments.

      .The petition also named as a defendant "ABC Insurance Company,” in its capacity as Mr. Boleware’s homeowner’s insurer. Although The Hanover Insurance Company is cited as a defendant in the motion for summary judgment, the record does not contain any indication that the petition was amended to substitute Hanover for ABC as Mr. Bole-ware's homeowner’s insurer. Regardless, for ease of reference, we refer in this opinion to the defendants collectively as "Mr. Bole-ware.”

      . Although the summary judgment law-La. C.C.P. art. 966-has been amended multiple times in the past few years and substantially amended this past year, the amendments are not material to our analysis in this case.

      . The first bite rule is a corollary to the scien-ter theory, which is that “[a] person injured by a domestic animal such as a cat may recover from the animal's possessor or keeper for injuries inflicted only by proving (1) that the animal had a vicious propensity, and (2) the cat’s keeper had knowledge of the vicious propensity.” 7 Stuart M. Speiser, Charles F. Krause, & Alfred W. Gans, THE AMERICAN LAW OF TORTS § 21:48 (2011).

      . Although negligence generally is based on the owner’s knowledge of the peculiarities of a specific domestic animal, "the owner also is bound to take notice of the general propensities of the class of animal to which it belongs, as well as of the propensities of that particular animal, and of the generally known or likely behavior of animals of that class which might cause injury. Owners must take reasonable care to prevent injuries which are reasonably to be anticipated from such an animal.” Walker v. LeBlanc, 12-0764, p. 9 (La.App. 1 Cir. 12/21/12), 111 So.3d 1069, 1075, writ denied, 13-0539 (La.4/12/13), 110 So.3d 1080, 1081 (citing Granger v. U.S. Fidelity & Guaranty Co., 266 So.2d 526, 530 (La. App. 3d Cir. 1972)), The animal in this case is a cat. "Cats are generally regarded as domestic animals—pets—and, as a consequence, the subject to liability of their owners ... is quite limited.” 7 Stuart M. Speiser, Charles F. Krause, & Alfred W. Gans, THE AMERICAN LAW OF TORTS § 21:48 (2011); 12 La. Civ. L. Treatise, TORT LAW § 9:13 (2d ed.) (citing Boyer v. Seal, 553 So.2d 827 (La.1989)) (noting that "[cjats are dealt with more gently [than dogs]” and that "[t]he [Louisiana] Supreme Court showed a willingness in accordance with their unpredictable feline character, saying that the best rule of law for cat-inflicted injuries would be found in T.S. Eliot’s Old Possum's Book of Practical Cats outlining their unpredictable but innocuous behavior,”).

      . We, however, do find it necessary to address the necessity of the medical treatment to the extent it overlaps with Ms. Ducote’s negligence per se argument—a liability issue.

      . In his deposition, Mr. Boleware testified that his cat was vaccinated. He explained that after Ms. Ducote informed him of the incident, he made efforts to obtain the vaccination records from the SPCA. He further explained that he had his cat vaccinated by the SPCA for free at the local fire station. The SPCA informed him that they did not keep records but maybe the veterinarian who did the vaccinations did; however, the SPCA could not tell him who the veterinarian was that did the vaccinations that year. He thus tried to find the records but was unsuccessful.

      . In Zimko v. Am. Cyanamid, 03-0658, pp. 22-23 (La.App. 4 Cir. 6/8/05), 905 So.2d 465, 482-83, we explained this exception as follows:
      A “no duty” defense in a negligence case is seldom appropriate. As former Justice Lemmon explained:[A] "no duty” defense generally applies when there is a categorical rule excluding liability as to whole categories of claimants or of claims under any circumstances. In the usual case where the duty owed depends upon the circumstances of the particular case, analysis of the defendant’s conduct should be done in terms of “no liability” or "no breach of duty.” Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585, 597 (Lemmon, J., concurring) .Thus, resolution of a negligence case based on a finding that a defendant has "no duty” should be reserved for the exceptional situation in which there is "a rule of law of enough breadth and clarity to permit the trial judge in most cases raising the problem to dismiss the complaint or award summary judgment for defendant on the basis of the rule.” ' Id. (quoting Professor David W. Robertson, et al,, Cases and Materials on Torts 161 (1989)). Providing examples of "no-duty” rules, Professor Robertson enumerates the following: "rules of law limiting landowners’ responsibilities for premises defects, rules of law to the effect that no one has a cause of action for prenatal injury to an embryo or fetus unless the child survives birth, restrictions on recovery for economic loss unaccompanied by physical injury to person or property, and limits on liability for emotional harm.” David W. Robertson, Allocating Authority Among Institutional Decision Makers in Louisiana State-Court Negligence and Strict Liability Cases, 57 La. L.Rev. 1079, 1094 (1997).

      . See Julianna Passe, Resisting Putting the Cat in the Bag: The Case Against Extending Minnesota's Dog Attack Strict Liability Statute to Cats, 37 Hamline L.Rev. 381, 391-92 (2014) (noting that ”[t]he One Bite Rule also allows- the defendant to succeed more easily on a summary judgment motion.... [Wjhen the plaintiff cannot successfully rebut the owner’s affidavits denying any knowledge of the dangerous propensity of the dog, the defendant succeeds on the summary judgment motion and the plaintiff is denied any recovery.”).

      . Although Mr. Boleware submitted Dr. Coco’s affidavit late, the trial court allowed him to do so. Dr. Coco's affidavit and his report are thus part of the record on appeal. See Brown v. State, 06-709, p. 6 (La.App. 3 Cir. 11/2/06), 942 So.2d 721, 725 (noting that "once the trial court accepted the late-filed affidavits, it was bound to consider them, as are we, in conducting our de novo review of the record.”).

      . In Zimko v. Am. Cyanamid, 2003-0658 (La. App. 4 Cir. 6/8/05), 905 So.2d 465, 482-83, this Court noted that a "no duty” defense in a negligence case is seldom appropriate and should only be applied "when there is a categorical rule excluding liability as to whole categories of claimants or of claims under any circumstances.” Id. (quoting Pitre v. Louisiana Tech. Univ., 95-1466 (La.5/10/96), 673 So.2d 585, 597) (Lemmon, J. concurring).

      . New Orleans Code of Ordinances § 18-169 provides, in pertinent part: "It shall be unlawful for any person to own, keep, maintain, harbor or possess any dog or cat in the city unless such dog or cat, if it is over four months old, is vaccinated with rabies vaccine by a licensed veterinarian and a tag evidencing such vaccination is affixed to the collar or harness as provided in section 18-228.,..” New Orleans Code of Ordinances § 18-18(a) provides, in pertinent part: "Violation of this chapter shall be deemed to be violations of a public health and environmental ordinance

      .New Orleans Code of Ordinances § 18-170 provides: "Upon request of the director or the agency, the owner, or keeper of any dog or cat must furnish evidence as required in section 18230 that such dog or cat has been vaccinated by a licensed Louisiana veterinarian and is current on its vaccination against rabies as required in section 18-168.”

      . See supra notes 2 & 3. New Orleans Code of Ordinances §§ 18-168 provides: "The owner or keeper of every dog or cat between three and four months old shall, at his expense, have such dog or cat vaccinated by a Louisiana licensed veterinarian with rabies vaccine. Twelve months later, the animal shall be revaccinated. Thereafter, such dog or cat shall be revaccinated every 36 months by a licensed Louisiana veterinarian, under rules and regulations to be prescribed by the director. The veterinarian must provide to the owner the date when tire dog or cat must be revaccinated.”


source: Caselaw Access Project

author: TERRI F. LOVE, Judge. TOBIAS, J.,

license: Public Domain

text:
    In re Interdiction of Thomas Milton BENSON, Jr.
    No. 2015-CA-0874.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2016.

      Randall A. Smith, Stephen M. Gele’, Sara E. Porter, Smith & Fawer, L.L.C., New Orleans, LA, and James A. Brown, Liskow & Lewis, PLC, New Orleans, LA, for Plaintiffs/Appellants, Renee Benson, Rita LeBlanc, and Ryan LeBlane.
    Phillip A. Wittmann, James C. Gulotta, Jr., Andrew D. Mendez, Matthew S. Al-mon, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for Defendant/Appellee, Thomas Milton Benson, Jr.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.).
   TERRI F. LOVE, Judge.

b This appeal arises from the interdiction proceedings of Thomas Milton Benson, Jr. During an eight-day bench trial, the trial court was presented with voluminous amounts of conflicting lay and medical witness testimony. The trial court found that Mr. Benson should not be interdicted, but denied his request for a new trial to award attorneys’ fees. For the following reasons, we find that the trial court did not err by ruling that Mr. Benson had a right not to testify. The trial court also did not err by admitting out-of-court statements of Mr. Benson and excluding the transcript of his medical examination. We find that the trial court applied the correct legal standard for interdiction. Lastly, the trial court did not abuse its discretion by refusing to award attorneys’ fees. Accordingly, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 22, 2015, Renee Benson, Rita LeBlanc, and Ryan LeBlanc (collectively “Petitioners”) filed a verified petition for interdiction, seeking a full interdiction of Thomas Milton Benson, Jr. In lieu of a full interdiction, Petitioners sought a partial interdiction as to Mr. Benson’s property. As the trial court stated, Petitioners alleged Mr. Benson “sustained an infirmity that renders him unable to consistently make reasoned decisions regarding the care of his person and his | ^property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.”

The following is a synopsis of events leading to Petitioners filing for interdiction taken from the trial court’s reasons for judgment:

Petitioners alleged that Tom Benson, who is currently eighty-seven years old, experienced a decline in his health over the last two years, particularly in 2014. Starting in May 2014, Tom Benson had several surgical procedures to repair a torn meniscus in his left knee. The last one was performed on November 21, 2014. Tom Benson was not his usual self after these procedures. The procedure in September 2014 was particularly debilitating, rendering him immobile, relegating him to a wheelchair, and requiring twenty-four hour nursing assistance for his care. Additionally, he was prescribed a number of medications for his various maladies, including narcotic pain medication,
Besides his health issues, there were ever changing [sic] dynamics in his familial relationships. The decisions he undertook between December 2, 2014 and January 7, 2015, coupled with his health issues, precipitated the filing of this petition and the allegations made that defendant had evidently lost his •ability to make reasoned decisions and was subjected to undue influence by his current spouse, Gayle Benson.

- Mr. Benson filed a motion to exclude his own. testimony, while Petitioners filed a motion to compel his testimony. The trial court held that Mr. Benson possessed the right not to testify. Mr. Benson was examined by three psychiatric professionals, who then submitted their findings to the trial court. After conducting an eight-day bench trial, the trial court adjudged in favor of Mr. Benson, and denied Petitioners’ request for an interdiction.

Petitioners filed a motion for appeal contending that the trial court erred by not compelling Mr. Benson to testify, by admitting out-of-court statements of Mr. IsBenson, and by applying the incorrect legal standard for interdiction. Mr. Benson subsequently filed a Motion for New Trial regarding attorneys’ fees. The present appeal became timely once the trial court denied Mr. Benson’s Motion for New Trial. See La. C.C.P. art. 2123(C).

TESTIMONY

The trial court appointed three physicians to examine Mr. Benson following the procedures Contained in Louisiana Medical Malpractice statutes. Dr. Ted Bloch III, was chosen by Petitioners as their expert in geriatric psychiatry. Dr. John Thompson, Jr. was selected by Mr. Benson as an expert in general and forensic psychiatry. As instructed by the trial court, Drs. Bloch and Thompson chose Dr. Kenneth Sa-kauye, an expert in geriatric psychiatry, to be the third physician appointed by the court. All three experts examined Mr. Benson in furtherance of preparing expert medical reports for trial.

Dr. Bloch testified that Mr. Benson is “unable to consistently make reasoned decisions about his person and his property,” and believed that Mr. Benson should be fully interdicted. Conversely, Drs. Thompson and Sakauye testified that while Mr. Benson sustained mild cognitive impairment impacting his short-term memory, he should not be interdicted.

The trial court permitted each party to testify, as well as three collateral witnesses per side. Petitioners all testified, as well as Tom Roddy, Takiyah Daniels, and Teresa Trent. Dennis Lauseha, Gayle Benson, and Paul Cordes testified on behalf of Mr. Benson.

In addition, the trial court conducted a “Watermeier hearing” with Mr. Benson, wherein the trial court judge questioned Mr. Benson in the presence of counsel. Other than participation in this hearing, Mr. Benson did not testify.

\ ¿STANDARD OF REVIEW

Appellate courts review findings of fact utilizing the manifest error or clearly wrong standard of review. Hall v. Folger Coffee Co., 03-1734, p. 9 (La.4/14/04), 874 So.2d 90, 98. “Thus, a reviewing court may not merely decide if it would have found the facts of the case differently.” Id. “The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous.” Id.

To reverse a trial court’s findings, the reviewing court ‘must find from the record that a reasonable factual basis does not exist for the finding of the trial court’ and “ ‘must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).”’ Stobart v. State through Dep’t of Tramp. & Dev., 617 So.2d 880, 882 (La.1993), quoting Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one.” Stobart, 617 So.2d at 882. “Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.” Id.

“Moreover, when findings of fact are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings.” Duhon v. Briley, 12-1137, p. 3 (La.App. 4 Cir. 5/23/13), 117 So.3d 253, 257. “Only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id.

However, “if the decision of the trial court, is based upon an erroneous | supplication of law rather than on a valid exercise of discretion, the decision is not entitled to deference by the reviewing court.” Id. “A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial.” Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. “Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.” Id. “When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.” Id.

INTERDICTION

“The determination of whether to order interdiction is a factual finding, which cannot be set aside in the absence of manifest error or a clearly wrong determination.” In re Interdiction of DeMarco, 09-1791, p. 11 (La.App. 1 Cir. 4/7/10), 38 So.3d 417, 426.

“It is well established that interdiction is a harsh remedy and should be pronounced only where there is clear and convincing proof.” In re Salzer, 482 So.2d 166, 167 (La.App. 4th Cir.1986). La. C.C. art. 389 provides that:

[a] court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.

The person seeking to interdict a defendant bears the burden of proof by clear and convincing evidence. La. C.C.P. art. 4548. “A judgment of interdiction is, in the final analysis, a pronouncement of civil death without the dubious advantage of an | ¿inscription thereof on a tombstone.” Doll v. Doll, 156 So.2d 275, 278 (La.App. 4th Cir.1963). Thus, “interdiction cannot be used as a matter of convenience.” Interdiction of Lemmons, 511 So.2d 57, 59 (La. App. 3rd Cir.1987).

LEGAL STANDARD FOR INTERDICTION

Petitioners assert that the trial court erred by applying the incorrect legal standard for interdiction. Petitioners contend that the trial court “merely found” that Mr. Benson is only “sometimes” able to make reasoned decisions. Further, Petitioners assert that the trial court “confuse[d] the standard for interdiction with the standard for testamentary capacity, which permits decedents to make wills during a lucid interval.” Lastly, Petitioners aver that the trial court should have examined how Mr. Benson “functions on his worst day, at his baseline level of confusion and forgetfulness.”

La. C.C. art. 389 provides that a court may order the interdiction of a person who is unable “consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.” Comment (d) to La. C.C. art. 389 states that:

A person is unable consistently to make reasoned decisions if, for example, he suffers from an infirmity which intermittently deprives him of reason. A person who experiences periodic deprivations of reason can inflict substantial harm to himself or his property during such bouts and is a candidate for full interdiction. In short, that a person suffering from an infirmity may experience lucid intervals does not render him ineligible for full interdiction.

Contrary to Petitioners’ assertions, the trial court recited the law of La. C.C. art. 389, and the key word “consistently,” nu-mei’ous times in its reasons for judgment. Additionally, the trial court considered Mr. Benson’s “worst day,” as |7Pecember 19, 2014, the date of the conversation with Mr. Benson that Rita LeBlanc recorded. The trial court did not state that Mr. Benson is “sometimes” able to make reasoned decisions. The trial court weighed the testimony of the witnesses, as well as the opinions of three medical experts, and concluded that “Thomas Milton Benson, Jr., is able to make reasoned decisions as to his person and his property.” Therefore, this Court does not find that the trial court applied the incorrect standard for interdiction because “consistently” is not contained within the trial court’s final statement in the reasons for judgment.

COMPELLING MR. BENSON’S TESTIMONY

Petitioners assert that the trial court erred as a matter of law by not compelling Mr. Benson’s testimony and by refusing to allow cross-examination at the Watermeier hearing.

Watermeier Hearing

The trial court conducted a Watermeier hearing with Mr. Benson prior to trial in an attempt to “have a complete perspective of the case.” See Watermeier v. Watermeier, 462 So.2d 1272, 1275 (La.App. 5th Cir.1985) (the court discusses the usage of a hearing in chambers to determine if a child is competent to testify regarding custody). The trial court “conducted the questioning solely, with counsel for both petitioners and defendant present.” Petitioners’ counsel was not permitted to cross-examine Mr. Benson because the trial court reasoned that: “[h]ow much [Mr. Benson] chooses to subject himself in a court hearing on the record in the defense of himself is his decision. If he chooses to take the stand, as indicated, he will be subject to cross-examination.”

La. C.C.P. art. 4547

Petitioners contend that the trial court “overreached by making a blanket landing that a proposed interdict has the right not to testify.”

La. C.C.P. art. 4547 provides that a proposed interdict “has a right to be present at the hearing and the court shall not conduct the hearing in his absence, unless the court determines that good cause exists to do so.” Further, “[t]he defendant has the right to present evidence, to testify, to cross-examine witnesses, and to otherwise participate at the hearing.” La. C.C.P. art. 4547. The codal article does not contain an explicitly defined right not to testify. Accordingly, we must interpret La. C.C.P. art. 4547 to examine the rights of a proposed interdict.

“When statutes are clear and unambiguous, no further inquiry may be made into legislative intent.” Abuan ex rel. Valdez v. Smedvig Tankships, Ltd., 00-1120, p. 4 (La.App. 4 Cir. 4/11/01), 786 So.2d 827, 831. See also La. C.C. art. 9. “Courts must apply the law as written, unless the application would lead to absurd consequences.” Id.

While La. C.C.P. art. 4547 does not explicitly include the right of a proposed interdict not to testify, the statute does provide that the proposed interdict has a right to testify. As opposed to stating that the proposed interdict shall testify, there is an indication that the proposed interdict has a choice of whether to testify. This statutory interpretation also coincides with the intent of the entire interdiction process: the protection of the proposed interdict. An interpretation of La. C.C.P. art. 4547, which would require a proposed interdict to testify if requested by the parties seeking the interdiction, would result in the absurd consequence of a proposed interdict possibly testifying against himself or herself. Again, the concept belies the intent behind the interdiction statutes, which is to protect the proposed interdict.

Whether a proposed interdict must testify at the trial on his interdiction has | ¡¡yet to be addressed in Louisiana. However, New York courts have addressed this issue. In In re Allers, 37 Misc.3d 418, 948 N.Y.S.2d 902, 906 (N.Y.Sup.Ct.2012), the court held that an alleged incapacitated person (“AIP”) was not required to testify against himself. Quoting 1 Abrams, Guardianship Practice in New York State, Ch. 12, § VI, at 588, the court reiterated that: “Simply put, the burden is on the petitioner to prove incapacity, not on the AIP to disprove it.” Id. Likening the proceedings against an AIP to criminal proceedings, another New York court found that if an AIP has the right to counsel, then “he or she should also have the right to remain silent on the advice of that counsel.” In re United Health Servs. Hosps., Inc., 6 Misc.3d 447, 785 N.Y.S.2d 313, 316 (N.Y.Sup.Ct.2004). Further, the court stated that “[t]he potential deprivation of liberty in Article 81 mental hygiene proceedings is potentially the same as or even more severe than the deprivation of liberty in juvenile eases.” United Health, 785 N.Y.S.2d at 316. “In both situations the respondent can be placed in an institution against his or her will.” Id. The court reasoned that due process comports with the extension of the Fifth Amendment to “proceedings where a person’s life and liberty is at risk due to allegations of mental illness or incapacity.” United Health, 785 N.Y.S.2d at 317. Holding that the petitioner could not shift the burden of proof to the AIP by forcing the AIP to testify, the court found that due process requires nothing less than granting AIPs the right to remain silent and refuse to testify. Id.

The New York jurisprudence is well-reasoned and comports with our statutory interpretation of La. C.C.P. art. 4547. Accordingly, based on our | minterpretation of La. C.C.P. art. 4547 and the intent of the codal articles on interdiction, we find that the right not to testify is implicitly included in La. C.C.P. art. 4547.

Due Process

Petitioners also contend that their due process rights were violated because they were not permitted to cross-examine Mr. Benson even though the trial court questioned him during the Watermeier hearing.

La. C.E. art. 614 provides that “[t]he court, at the request of a party or if otherwise authorized by legislation, may call witnesses, and all parties are entitled to examine witnesses thus called.” La. C.E. art. 614(A). The trial court has the discretion to limit testimony. “[T]he trial court’s discretionary authority to disallow testimony at trial should be exercised only when the ends of justice dictate exclusion of the witness.” Richardson v. Amos, 42,948, p. 7 (La.App. 2 Cir. 3/19/08), 978 So.2d 1184, 1188.

The trial court examined Mr. Benson, on the record, and in the presence of counsel for both sides. However, we note that the trial court did not call Mr. Benson as a witness at trial. Petitioners were permitted to put on evidence to prove that Mr. Benson should be interdicted. Additionally, the interdiction articles were created for the protection of the proposed interdict, not the petitioner. Given the trial court’s broad discretion in limiting testimony in a bench trial, and that Mr. Benson was not called as a witness pursuant to La. C.E. art. 614(A), we do not find that the trial court erred.

Uncalled Witness Presumption

Petitioners also assert that the trial court erred by not applying an adverse presumption.

hiThis Court noted that:

the purpose of the adverse presumption is that “a court may consider the fact that a party did not call a witness, available only to that party, with knowledge of facts not testified to by any other witness, which are pertinent to the case. Once a party makes a showing of this, and the other party does not produce a reasonable explanation for its failure to call that witness, the court may presume that the witness’ testimony would have been unfavorable.”

Roth v. New Hotel Monteleone, L.L.C., 07-0549, p. 6 (La.App. 4 Cir. 1/30/08), 978 So.2d 1008, 1012, quoting Gurley v. Schwegmann Supermarkets, 617 So.2d 41, 44 (La.App. 4th Cir.1993). This Court further found that “the application of an adverse presumption against the party who does not produce a witness is discretionary on the part of the district court.” Roth, 07-0549, p. 6, 978 So.2d at 1012. This Court also held that a trial court’s refusal to apply the adverse presumption is not an abuse of discretion “where the witness’s testimony would be cumulative; where the party seeking to avail itself of the negative inference has the burden of proof on the issue that would be addressed by the witness’s testimony; and where the witness is equally available to the opposing party.” Moretco, Inc. v. Plaquemines Par. Council, 12-0430, p. 18 (La.App. 4 Cir. 3/6/13), 112 So.3d 287, 296-97. Two of the three situations enumerated above are present in the matter sub judice. Mr. Benson’s testimony would have been cumulative of the lay and expert witnesses who testified that Mr. Benson has some difficulty with his short-term memory. Also, Petitioners bore the burden of proof regarding Mr. Benson’s alleged need for an interdiction.

Given our discussion above regarding the right of a proposed interdict not to testify, it would be contradicatory to hold that any proposed interdict who does not take the stand in his defense would be subject to an adverse presumption. Additionally, the adverse presumption is a discretionary tool. Therefore, we do not [ 12fmd that the trial court abused its vast discretion by refusing to apply the adverse presumption because Mr. Benson did not take the stand.

Burden of Clear and Convincing Evidence

Dr. Bloch, Petitioners’ medical expert, testified in his deposition that he was convinced Mr. Benson should be interdicted, but that he “wasn’t clear” because he did not have clear and convincing evidence. However, after listening to the other witnesses for Petitioners, Dr. Bloch stated that he now had clear and convincing evidence to support the interdiction of Mr. Benson based on their testimony.

Conversely, Dr. Sakauye disagreed with Dr. Bloch’s conclusions and testified that Mr. Benson should not be interdicted. Dr. Sakauye found that Mr. Benson suffered from a mild functional impairment of the thought process, but that did not prevent him from consistently making reasoned decisions. Further, Dr. Sakauye testified that Mr. Benson’s level of impairment is “very common” in elderly persons. Similarly, Dr. Thompson testified that Mr. Benson should not be interdicted. Dr. Thompson stated that Mr. Benson’s “mild cognitive impairment” is common in the elderly. Dr. Thompson found that Mr. Benson was “capable of making consistent reasoned decisions.”

Pursuant to La. C.C.P. art. 4548, Petitioners bore the burden of proving by clear and convincing evidence that Mr. Benson should be interdicted. Mr. Benson was not required to take the stand to disprove Petitioners’ claims. The trial court was presented with vast amounts of conflicting medical and lay testimony supporting the trial court’s ruling not to interdict Mr. Benson.

Harmless Error

Even if the trial court erred by refusing to permit Petitioners to cross-examine Mr. Benson, the error was harmless because the trial court judge was the 1 i.qfactfmder. “The effect of an erroneous evidentiary ruling is governed by La. C.E. art. 103, which provides that ‘[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.’” Arceneaux v. Amstar Corp., 06-1592, pp. 36-37 (La.App. 4 Cir. 10/31/07), 969 So.2d 755, 779, quoting La. C.E. art. 103. “The concept of ‘substantial right’ as used in Article 103 is ‘a kin to the familiar ‘harmless error’ doctrine applicable in both civil and criminal matters.’ ” Arceneaux, 06-1592, p. 37, 969 So.2d at 779, quoting George Pugh, Robert Force, Gerald Rault, Jr. and Kerry Triche, Handbook on Louisiana Evidence Law, p. 300 (2006 Ed.). “The jurisprudence has ‘properly taken the view that the risk of prejudice is often less likely in a bench trial than in a jury trial.’ ” Id.

We do not find that a substantial right of Petitioners was violated because the trial court prevented the cross-examination of Mr. Benson. The trial court judge heard the competing testimony of fact and expert witnesses on both sides, and conducted the Watermeier hearing of Mr. Benson prior to issuing judgment. Accordingly, we find that even if the trial court erred by preventing the cross-examination of Mr. Benson, the error was harmless when viewed in light of the facts and circumstances of the present matter, which was a bench trial.

OUT-OF-COURT STATEMENTS

Petitioners assert that the trial court erred by admitting out-of-court statements of Mr. Benson and excluding the transcript of Mr. Benson’s medical examination.

Statements

We hold that the trial court did not err by admitting out-of-court statements of Mr. Benson for the following reasons.

114“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). “Hearsay is not admissible except as otherwise provided by this Code or other legislation.” La. C.E. art. 802. However, there are exceptions to the hearsay rules.

The Louisiana Supreme Court held that statements “to illustrate the impact and consequent effect that the out-of-court statement had upon the state of mind of the listener or to illustrate the state of mind of the speaker” are nonhear-say and admissible. Buckbee v. United Gas Pipe Line Co., Inc., 561 So.2d 76, 80 (La.1990). “The exception is based on the belief that a spontaneous expression of a declarant’s condition at the time the statement is made is generally a reliable indicator of the declarant’s state of mind.” State v. Magee, 11-0574, p. 43 (La.9/28/12), 103 So.3d 285, 316. “[Wjhether the declaration is a direct assertion of the speaker’s state of mind (hearsay) or, whether the declaration tends to indirectly establish the declarant’s state of mind (non-hearsay), Louisiana jurisprudence admits.the declaration if the declarant’s state of mind is at issue or is relevant to prove a fact at issue.” State v. Brown, 562 So.2d 868, 878 (La.1990). “A state of mind declaration is relevant if it has a tendency to make the existence of any consequential fact more or less probative than it would otherwise be without the evidence.” Id. “Nevertheless, relevant declarations may be legally inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misapplication by the jury.” Id.

Upon our review of the record, the majority of the statements are not hearsay because they were not admitted to prove the truth of the matter asserted, but rather to demonstrate Mr. Benson’s state of mind. Further, many of the statements 11fiadmitted go to evidence of Mr. Benson’s “[t]hen existing mental, emotional, or physical condition.” La. C.E. art, 803(3). However, any hearsay statements that were admitted resulted in a harmless error, “The admissibility of evidence in a judge trial is different- from the requirements of jury trials.” Jenkins v. Baldwin, 00-0802, p. 8 (La.App. 4 Cm. 8/29/01), 801 So.2d 485, 492. “A judge, unlike a jury, by virtue of the judge’s training and knowledge of the law is fully .capable of disregarding any impropriety.” Id. “[improperly introduced hearsay evidence will be considered harmless error if it is found to be cumulative and corroborative of other properly admitted evidence and did not contribute to the verdict. State v. Falkins, 12-1654, pp. 23-24 (La.App. 4 Cir. 7/23/14), 146 So.3d 838, 853.

The record indicates that the trial court considered thousands of pages of medical records, opposing medical expert testimony, as well as opposing lay witnesses. The record was replete with evidence that Mr. Benson should not be interdicted. Accordingly, the trial court judgment “was surely unattributable to any error in admitting” hearsay statements. Falkins, 12-1654, p. 24,146 So.3d at 853.

Medical Examination

The trial court excluded the transcript of Mr. Benson’s medical examination because it did not comport with La. C.E. art. 803(4). La. C.E. art. 803(4) provides that:

[statements made for purposes of medical treatment and medical diagnosis in connection with treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis in connection with treatment

11 fiare an exception to hearsay rules. Petitioners disagreed with the trial court, and aver that the transcript is non-hearsay evidence pursuant to La. C.E. 801(D)(2), as a “[p]ersonal, adoptive, and authorized admission.” Petitioners also contend that the exclusion was “extremely prejudicial.”

The transcript was created to assist the three medical experts in preparation of their reports for trial. All three experts agreed that the transcript would only be used by them. The trial court is vested with great discretion on evidentiary matters. Guillot v. Daimlerchrysler Corp., 08-1485, p. 21 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 190. Therefore, a trial court’s exclusion or inclusion of evidence will not be reversed absent an abuse of discretion. Id.

We agree with the trial court’s conclusion that the transcript was not created while Mr. Benson was seeking treatment or a diagnosis. Thus, we do not find that the trial court abused its discretion by excluding the transcript. As to Petitioners’ claims of extreme prejudice, we find that claim lacks merit. The trial court judge reviewed all of the reports written as a result of Mr. Benson’s medical examination prior to rendering judgment. Also, as the one and only factfinder in a bench trial, the possible effect of prejudice on the trial court judge is less likely. See Arcen-eaux, 06-1592, p. 37, 969 So.2d at 779.

ATTORNEYS’ FEES

Mr. Benson contends that the trial court erred in denying his Motion for New Trial, and that we should remand this matter to the trial court for the limited purpose of ascertaining the quantum of attorneys’ fees.

La. C.C.P. art.1971 provides that “[a] new trial may be granted, upon contradictory motion of any party or by the court on its own motion, to all or any of the parties and on all or part of the issues, or for reargument only.” “A new trial 117may be granted in any ease if there is good ground therefor, except as otherwise provided by law.” La. C.C.P. art.1973.

La. C.C.P. art. 4550 provides that “[t]he court may render judgment for costs and attorney fees, or any part thereof, against any party, as the court may consider fair.” The statute states that the trial court “may” award attorneys’ fees. Therefore, vast discretion is vested with the trial court. In the ease sub judice, the trial court judge determined that no award of attorneys’ fees was warranted. After reviewing the record, we find that the trial court did not abuse its vast discretion by refusing to award Mr. Benson attorneys’ fees, and affirm.

DECREE

For the reasons elaborated herein, we find that a proposed interdict is not required to testify at trial, pursuant to La. C.C.P. art. 4547. The trial court did not abuse its discretion by admitting out-of-court statements of Mr, Benson, and did not err by excluding the transcript of Mr. Benson’s medical examination. The trial court also applied the correct legal standard for interdiction. Lastly, the trial court did not err by refusing to award attorneys’ fees. Therefore, we affirm the trial court’s dismissal of Petitioners’ suit, as well as the denial of Renee Benson’s and Rita Le-Blanc’s prayers that they be appointed as curatrix and undercuratrix, respectively, of Mr. Benson’s property and person.

AFFIRMED

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurs and assigns reasons.

hi respectfully concur. I write separately because my view of the law applicable to this case varies from that of the majority.

I start with La. C.C.P. art. 4547, which states:

An interdiction proceeding shall be heard summarily and by preference. The defendant has a right to be present at the hearing and the court shall not conduct the hearing in his absence, unless the court determines that good cause exists to do so. The defendant has the right to present evidence, to testify, to cross-examine witnesses, and to otherwise participate at the hearing. If the defendant is unable to come to the courthouse for the hearing, the judge may hold the hearing where the defendant is located. The hearing may be closed for good cause. The court may call witnesses not called by the parties and may require the presence of a proposed curator. [Emphasis supplied.]

Like the majority, I agree that Mr. Benson had the right to refuse to testify. I would not, however, resort to New York law and jurisprudence to support that conclusion. Rather, such a conclusion is implicit in the language of article 4547.

However, not only did Mr. Benson consent to being interviewed/examined by physicians-psychiatrists—for purposes of this case, but he also voluntarily 12testified under oath before the trial judge on 20 April 2015 (the so-called “‘Watermeier* hearing” discussed infra) some six weeks before the actual interdiction trial commenced on 1 June 2015. Once he did so, he waived his right to refuse to be examined under oath on the record by any other party. Therefore, it was error for the trial court to refuse to allow plaintiffs’ counsel to examine him. But my analysis does not end there.

The “Watermeier hearing” that the trial court held where the trial court examined Mr. Benson is not authorized by law and I dare say that it has not been jurispruden-tially recognized. My appreciation of the purpose a “Watermeier hearing” is to ascertain whether a child of tender years is capable of testifying truthfully and whether the child should be subjected to cross-examination by counsel for the parties on the issue of custody. A child is not sworn for purposes of the hearing.

In the case at bar, the timing of the “Watermeier hearing” is also relevant. Mr. Benson testified under oath after the three psychiatric professionals (Drs. Sa-kauye, Block, and Thompson) simultaneously examined/interviewed him on 1 April 2015. Thus it is more likely that the psychiatrists formulated at least preliminarily their impressions and opinions of Mr. Benson before the “Watermeier hearing” without the benefit of the transcript from that hearing. It would appear that the trial court had possible reservations about the ability of Mr. |sBenson to withstand cross-examination. If after 20 April 2015 proceedings the trial court preliminarily thought Mr. Benson was competent enough such that interdiction might be unwarranted, why did he not permit plaintiffs’ counsel the right to examine him under oath at trial?

But here the issue of whether the trial court’s decision to refuse plaintiffs’ counsel the right to cross-examine Mr. Benson gets problematic. As noted above, Mr. Benson actually testify under oath before the trial judge with counsel for both sides being present and agreed to be examined/interviewed by psychiatrists, thereby waiving the right to refuse to testify further pursuant to Article 4547. To fall within the ambit of harmless error, a trial court has the obligation to clearly or implicitly state for the record that it needs no further evidence on the matter at issue. This, by implication, appears to be what the trial court did.

As the trial court stated 12 June 2015, the final day of trial:

I had a meeting with Mr. Benson on April 20th at his office, which was conducted for more than an hour. I was able to elicit testimony from him. I was able to ascertain his demeanor. I formed my own impression as to his credibility. And I am satisfied with that being sufficient. [Emphasis supplied.]

As Judge Love stated in Smith v. Pillow-Smith, 10-0167, p. 8 (La.App. 4 Cir. 11/17/10), 52 So.3d 264, 270,

Ms. Pillow-Smith maintains that the trial judge erred in stopping the cross-examination of Mr. Smith after he testified on his own behalf. “When a party complains on appeal of improperly excluded evidence, that party must proffer that evidence.” Briscoe v. Briscoe, 25,-955, p. 6 (La.App. 2 Cir. 8/17/94), 641 So.2d 999, 1004. “Failure to do so results in a waiver of the right to complain of the exclusion on appeal.” Id.
The record reveals that counsel for Ms. Pillow-Smith did not make a formal objection when the trial judge determined that she had heard enough of Mr. Smith’s testimony. Nor did counsel for Ms. Pillow-Smith 14proffer what evidence her continued examination of Mr. Smith would have elicited. [Emphasis in original.]

A proffer is governed by La. C.C.P. art. 1636, which states:

A. When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.
B. At the request of any party, the court may allow any excluded evidence to be offered, subject to cross-examination: on the record during a recess or such other time as the court shall designate; or by deposition taken before a person authorized by Article 1⅛3⅛ within thirty days subsequent to the exclusion of any such evidence or the completion of the trial or hearing, whichever is later. When the record is completed during a recess or other designated time, or by deposition, there will be no necessity for the requesting party to make a statement setting forth the nature of the evidence.
C. In all cases, the court shall state the reason for its ruling as to the inadmissibility of the evidence. This ruling shall be reviewable on appeal without the necessity of further formality.
D. If the court permits a party to make a complete record of the evidence held inadmissible, it shall allow any other party the opportunity to make a record in the same manner of any evidence bearing upon the evidence held to be inadmissible. [Emphasis supplied.]

In the case at bar, the plaintiffs were required to clearly make a proffer and clearly delineate that which their proffer would show. This they failed to do because plaintiffs’ counsel did not specifically state he was making a proffer regarding what would be elicited if allowed to cross-examine Mr. Benson. All that the plaintiffs’ counsel stated was:

Just for the record, before I close my rebuttal case I would re-urge for the final time that the Court allow me to call Mr. Benson, or that the Court call Mr. Benson specifically to address some of the issues that were brought up in the defense case, particularly the statements made by defense witnesses that he had capacity on January 7th, that he understood what was in | sthe Will or the Powers of Attorney. For the Court to ask him or allow us to ask him to even be able to describe what’s in those, and to be able to ask questions about some of those other issues that the defendant brought up. I can articulate those if you want. I’m guessing you’re not changing your ruling. I’m just making the motion.
⅝ * *
There was a lot of other testimony in the defense case about the things that Mr. Benson said that were relayed by defense witnesses, particularly Mr. Lauscha, Mrs. Benson, Mr. Cordes, which as Your Honor knows, we objected to as hearsay because they were not being called by a party deponent. And to the extent that all those statements were allowed in evidence with no ability to cross-examine him on the voracity of those statements would be of further grounds for my asking the Court for us to be able to call him.

I find that one must balance this against the trial court’s actual limitation placed upon the number of witnesses that it would allow to be called as described by the majority. A trial court has the right to reasonably restrict the number of witnesses it will permit to be called and examined in order to restrict the amount of repetitive evidence. See La. C.E. arts. 103, 401-403. The record before us does not clearly demonstrate to me that the trial court abused its discretion in limiting the number of witnesses.

Under these circumstances, I conclude that the error of refusing to allow plaintiffs’ counsel to cross-examine Mr. Benson must be viewed as harmless.

I have little doubt that Mr. Benson suffers from periodic short-term memory loss. I have no doubt that Mr. Benson’s decision-making ability is not perfect. But then, how many people in the latter years of life do not suffer from both shortcomings? Certainly, individuals of all ages suffer from imperfect decision-making ability from time-to-time. But the test for interdiction is of one of being unable to “consistently” make reasoned decisions. La. C.C. art. 389.

| ^Interdiction should be sought sparingly and pronounced only in those cases where it is clear that no other reasonable means are available to protect the individual sought to be interdicted. In our society, interdiction is often viewed like a form of the scarlet letter “A,” or in this case the scarlet letter “I.”

This ease was tried for eight days in June 2015. We are now many months past that trial and, on the assumption that one of the parties will seek further review of this case from a higher court, it will likely be a few months hence before a final, definitive decision is rendered one way or another on whether Mr. Benson should or should not be interdicted. Nothing prevents an individual with a right of action at a later date to again seek an interdiction of Mr. Benson based upon his then health, just as a decision that would interdict Mr. Benson could be set aside at any time should the impairing condition(s) cease.

Like the majority, I do not find that the trial court’s decision is manifestly erroneous or clearly wrong as a matter of law. Neither I nor this court under the jurisprudence may substitute our view of the conflicting evidence even though I (or we) viewing the evidence in the first instance might have reached a different conclusion. Cf, La. Const, Art. V, § 10(B).

      . Renee Benson is the daughter of Mr. Benson,

      . Rita and Ryan LeBlanc are Renee’s children, and Mr. Benson’s grandchildren.

      .This matter was sealed pursuant to a protective order in the trial court, and the hearings were closed to the public. See In re Interdiction of Benson, 15-0589, unpub. (La.App. 4 Cir. 5/29/15); La. C.C.P. art. 4547.

      . Petitioners contend that legal errors committed by the trial court warrant a de novo review. For the reasons stated herein, we do not find that the trial court committed legal errors sufficient to warrant the use of our de novo review.

      . We note that New York jurisprudence is persuasive and not controlling,

      . Louisiana provides that an attorney shall be provided for a proposed interdict unless private counsel is retained or waived. See La. C.C.P. art. 4544.

      .New York’s Article 81 proceedings against an AIP are similar to Louisiana’s interdiction proceedings.

      . Petitioners also contend that the trial court erred by admitting the video tape of Mr. Benson executing his will. As discussed above, the trial court possesses great discretion on evidentiary rulings, and, as this was a bench trial, the trial court judge was in the position of disregarding any impropriety.

      . The transcript of 20 April 2015, appearing as an exhibit in the record on appeal, reflects Mr. Benson was sworn as a witness. Therefore, he was in fact testifying. The trial court’s view that Mr. Benson statements under oath are "not testimony,” because they were not given during the actual trial of the interdiction is peculiar, if not incredible. Moreover, the trial court contradicted itself on this point as described infra.

      . In re D.C.M., 13-0085, p. 6 n. 9 (La.App. 1 Cir 6/11/13), 170 So.3d 165, 169, defines a Watermeier hearing:
      A “Watermeier hearing” is a hearing in chambers, outside the presence of the parents, but in the presence of their attorneys, with a record of the hearing to be made by the court reporter, to inquire as to the competency of a child to testify as to custody.

        See also D.M.S. v. I.D.S., 14-0364, pp. 4-5 (La.App. 4 Cir. 3/4/15), — So.3d —, —, 2015 WL 926777 *2, writ den. 15-0897 (La.6/19/15), 172 So.3d 654.

      .Obviously, if during a trial the cross-examination became too vigorous or heated at any point of the proceedings, the trial court could rein in counsel. The trial court has much, if not vast, discretion in that regard.

      , Plaintiffs’ counsel obviously understood what is a proffer and how it should be made because proffers were made at various points of the proceedings.

      , As a matter of law, the trial court could have merely relied upon the testimony of the two psychiatrists who concluded Mr. Benson need not be interdicted, rejected the entirety of the third psychiatrist's testimony, and rejected the testimony of all other witnesses. Such a conclusion would not be manifestly erroneous unless for some relatively objective reason the two psychiatrists’ testimony was clearly wrong in view of the other evidence in the case.

      .The letter worn by the main character, Hester Prynne, on her clothing in Nathaniel Hawthorne’s The Scarlet Letter: A Romance. (1850).