Vernis S. Hinchee v. Soloco, L. L. C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-770

VERNIS S. HINCHEE

VERSUS

SOLOCO, L. L. C.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-614-01
HONORABLE WENDELL R. MILLER, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Jack Derrick Miller
Post Office Box 1650
Crowley, LA 70526
(337) 788-0768
COUNSEL FOR DEFENDANT/APPELLEE:
SOLOCO, L.L.C.

John A. Cangelosi
King, LeBlanc & Bland, P.L.L.C.
201 St. Charles Avenue, 45th Floor
New Orleans, LA 70170
(504) 582-3800
COUNSEL FOR DEFENDANT/APPELLEE:
SOLOCO, L.L.C.

Kevin E. Huddell
Jones, Verras & Freiberg, L.L.C.
601 Poydras Street, Suite 2655
New Orleans, LA 70130
(504) 523-2500
COUNSEL FOR PLAINTIFF/APPELLANT:
Vernis S. Hinchee

AMY, Judge.

The defendant leased property from the plaintiff for use as a storage facility for

vehicles and equipment related to its oilfield services operations. The plaintiff filed

suit alleging that the property was contaminated upon its return and that the defendant

failed to adequately remediate the condition as it was contractually required to do.

The trial court entered judgment in favor of the defendant, finding that the plaintiff

failed to satisfy her burden of proving contamination on the property. For these

reasons, we affirm.

Factual and Procedural Background

The plaintiff, Vernis Hinchee, owns property in Jefferson Davis Parish, four

acres of which were leased by the defendant, Soloco, LLC, beginning in 1992.

Soloco, an oilfield service contractor, used the property as a storage and repair facility

for board mats used in its business, as well as a meeting place for its work crews. At

the end of the initial five-year lease, Soloco did not renew the lease due to its need

for a larger property for its operations. At that time, the plaintiff had a Phase I

Preacquisition / Due Diligence Environmental Site Assessment performed on the

property. The assessment identified areas of potential concern.1 Soloco began

investigating the areas of concern, having a Phase II Hazardous Materials Site

1
The Findings and Conclusions portion of the assessment reported “the following evidence
of recognized environmental conditions in connection with this property:”

" The previous construction and storage of sections of board mats for oil and
gas exploration roads that may have been preserved with unidentified
substances may be a concern in the surficial soils on the subject property.
Sampling and analysis of the soils in the areas where boards were stored
would be necessary to confirm the presence or absence of wood preservatives
in the soil [].

" The potential for spills from the above ground storage tanks on the northern
boundary of the property may be a concern. Sampling and analysis of the
soils in the former bermed area would be necessary to confirm the presence
or absence of petroleum hydrocarbons in the soil [].

Investigation performed that same year. The investigation concluded, in part, that

“the analytical results of the soil analyzed has not been impacted by the previous

storage of board mats once stored at the site.” It also reported no “environmental

threat” on the area where an above ground fuel storage tank was located during the

lease.2 A subsequent, 1998 assessment reported the presence of certain hydrocarbons,

and suggested further sampling and analysis, but concluded that the concentrations

of hydrocarbons did not exceed the RECAP3 screening levels it found applicable.

Given the findings of its assessment, Soloco notified DEQ of possible groundwater

contamination.

The plaintiff filed an initial suit for damages, asserting that Soloco was liable

for any contamination. Litigation of that suit was avoided when the parties entered

into a new property lease in April 2000 whereby Soloco agreed to provide retroactive

and prospective rental payments to the plaintiff while it continued its environmental

work on the property.4 Soloco also agreed to satisfy the following conditions:

2
The summary of the assessment, which was conducted by Gulf Coast Environmental
Consultants, Inc., provided:

It is the opinion of GCECI that the analytical results of the soil analyzed has not been
impacted by the previous storage of board mats once stored at the site. The specific
parameters analyzed for the presence or non presence of cresol were non detectable
for soil composite samples JY #1 - JY #4.

Also, it appears that the results indicated for samples JYAGT #1, JYAGT #2, JGW
#1, and JGW #2 does not pose an environmental threat to the vicinity of the previous
location beneath the above ground fuel storage tanks or tank or its surrounding area.
3
As reported in the record, RECAP is an acronym for Risk Evaluation / Corrective Action
Program. It is a program promulgated by DEQ to assess a site’s risks to human health and the
environment.
4
Pertinent portions of the lease include:

Background

. . . Under the terms of the Initial Lease, Lessee assumed liability for all
damages and losses sustained by Lessor arising out of Lessee’s acts, omissions and
use of the Premises, including but not limited to, contamination and environmental

2

Lessee further agrees during the term of this Lease to perform any and
all cleanup, restoration, remediation and other activities at its sole cost
and expense which are necessary to (i) eliminate or remediate Hazardous
Materials (as hereinafter defined) upon, in or affecting the Premises in
accordance with the requirements of, and in order to bring the Premises
into compliance with federal, state and local laws, ordinances and
regulations; (ii) obtain a “No-Action” Letter issued by the State of

damage. The parties acknowledge that during the term of the Initial Lease,
contamination and/or environmental damage occurred for which the Lessee bears full
responsibility.

In consideration of Lessee’s aforesaid liability under the Initial Lease for
environmental and other damage to the Premises sustained by Lessor, and Lessee’s
obligation to remediate the aforesaid damage and pay all expenses associated
therewith, the parties hereby agree to enter into this Contract of Lease under the
following terms and conditions:

....

III.

Upon execution of this Contract of Lease (the “Lease”), Lessee agrees to pay
to Lessor as back rent the sum of One Thousand Dollars ($1,000) per month from
March 1, 1997 through December 31, 1999 . . . . Lessee further agrees during the
term of this Lease to perform any and all cleanup, restoration, remediation and other
activities at its sole cost and expense which are necessary to (i) eliminate or
remediate Hazardous Materials (as hereinafter defined) upon, in or affecting the
Premises in accordance with the requirements of, and in order to bring the Premises
into compliance with federal, state and local laws, ordinances and regulations; (ii)
obtain a “No-Action” Letter issued by the State of Louisiana, Department of
Environmental Quality which shall indicate that the Premises have been remediated
in a satisfactory manner with regard to Hazardous Materials and that no additional
action will be required to be taken or expenses incurred in connection with the
aforesaid remediation of the Premises; and (iii) restore the Premises to their same
condition at commencement of the Initial Lease. As used herein, the term
“Hazardous Materials” shall include, without limitation, all substances defined as
hazardous or toxic substances or materials, wastes and toxic or non-toxic pollutants
and contaminants in the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (42 U.S.C. § 9601 et seq.), as amended; those substances listed
in the United States Department of Transportation Table or by the Environmental
Protection Agency; any material, waste or substance which is petroleum, asbestos,
polychlorinated biphenyls, or designated as a hazardous substance to the Clean Water
Act; flammable explosives, radioactive materials and such other substances; and
materials and waste which are or become regulated as hazardous or toxic under
applicable local, state or federal or regulations . . . .

IV.

This Lease shall commence on the 1st day of January, 2000
(“Commencement Date”). The term of this Lease shall expire on the date of receipt
by Lessor of a report by Department of Environmental Quality of the State of
Louisiana (the “DEQ”) which states that the property meets the remediation
standards of the DEQ.

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Louisiana, Department of Environmental Quality which shall indicate
that the Premises have been remediated in a satisfactory manner with
regard to Hazardous Materials and that no additional action will be
required to be taken or expenses incurred in connection with the
aforesaid remediation of the Premises; and (iii) restore the Premises to
their same condition at commencement of the Initial Lease.

After the execution of this lease, Soloco engaged another firm to perform a

RECAP Closure Report of the premises after collection of additional data. This phase

proceeded with DEQ’s approval. The resulting report issued by Soloco’s consultant

indicated that benzene and hydrocarbon concentrations on either the soils or

groundwater did not exceed the RECAP standards. No further action was

recommended by the consultant. Upon application by Soloco, DEQ issued a “No

Further Action” letter in February 2001.5 The letter reported that “the Area of

Investigation (AOI) was closed in accordance with RECAP using Management

Option 1 standards, and there are no institutional controls on this property.” Soloco

asserts that its obligations under the April 2000 lease were satisfied upon issuance of

the letter.

Several months later, the plaintiff filed the present lawsuit, asserting that

5
The No Further Action Notification provides, in part:

The Louisiana Department of Environmental Quality - Remediation Services
Division (LDEQ-RSD) has reviewed your Risk Evaluation / Corrective Action
Program submittal dated December 2000 for the above referenced area of
investigation . . . Based on this review we have determined that no further action is
necessary at this time. This determination is based on the following considerations:

The property was previously used to construct, repair, and store “board road” mats
from 1982 to 1997. The potential sources on this site are a UST that was removed
in 1994, and two AST’s that were removed in 1997. The constituents of concern
(COC) detected on the property were TPH-DRO, TPH-GRO, and Benzene. The
media impacted by these constituents were soil and groundwater for TPH-DRO and
TPH-GRO, and soil only for Benzene. All COC concentrations were found to be
below the MO-1 limiting RECAP Standard for a non-industrial site.

The Area of Investigation (AOI) was closed in accordance with RECAP using
Management Option 1 standards, and there are no institutional controls on this
property. This site was sampled vertically to a depth of 16 ft, such that the AOI is
bounded by a series of borings that show no detectable contamination.

4

Soloco failed to pay rent under the lease after April 2001 and failed to return the

property to its pre-lease condition. She requested damages and contractual attorney

fees. Thereafter, the plaintiff filed a motion for summary judgment, asserting that due

to Soloco’s failure to make rental payments after April 2001, she terminated the lease

in August 2001 and that she was entitled to rental payments associated with the

period from April through August. The trial court granted the partial summary

judgment, awarding payment of past due rentals, plus interest. Subsequently, the

plaintiff amended her petition, seeking, not only a declaratory judgment and

injunctive relief, but damages pursuant to La.Civ.Code art. 2315 as well. These latter

tort claims were found prescribed by the trial court as they had occurred prior to the

original lease in 1997, yet the claims were not filed until 2001.

The remaining claims proceeded to a bench trial where the parties’ presented

evidence as to additional environmental testing performed and evaluated after the

filing of the lawsuit. However, the trial court found the plaintiff’s expert unqualified

to testify as to RECAP standards. Ultimately, the trial court entered judgment in

favor of Soloco, finding that the plaintiff lacked sufficient proof of contamination.6

6
In reasons for ruling, the trial court explained:

After reviewing the testimony, pre-trial memoranda, and the voluminous
evidence offered by the parties, the Court must find that the plaintiffs have not
sustained their burden of proving that the land in question is still contaminated as a
result of SOLOCO’s activity. HINCHEE did not call any experts in RECAP
regulations. One was a former employee of the Department of Environmental
Quality who did not have authority to speak on behalf of the DEQ and the others
worked for environmental testing companies. The plaintiff’s “experts” testified as to
their own experience in environmental sampling and soil contamination; however,
there was no evidence offered at trial that HINCHEE’s property could not be used for
any purpose the plaintiff wished. SOLOCO’s expert, Dr. Kiran Srinivasan, testified
about RECAP and was accepted as an expert by the Court. Dr. Srinivasan stated at
trial that he couldn’t agree that there is contamination present on the property and
that he believed that remediation was not necessary. He further testified that there
was no reason that the property could not be leased or sold for non-industrial
commercial business and/or residential structures. Consequently, after reading the
exhibits offered by the parties and reviewing the testimony at trial, the Court finds

5

The plaintiff appeals, assigning the following as error:

1. The evidence clearly shows that Hinchee’s property is
contaminated and that remediation is necessary under the terms
of the 2000 Lease and under LDEQ standards, and the trial court
erred in holding otherwise.

2. Hinchee’s environmental expert was eminently qualified to testify
as to all of the opinions contained in his expert reports, and the
trial court erred in limiting his testimony.

3. The trial court erred in refusing to allow Hinchee’s rebuttal
testimony to refute the new opinions of Soloco’s expert which
contradicted the expert’s written opinion.

Discussion

Limitation of Expert Testimony

In the trial court’s ruling that the plaintiff failed to meet the applicable burden

of proof, it noted that the plaintiff failed to call an expert in RECAP standards. The

plaintiff contests this assertion, arguing that the trial court abused its discretion in

refusing to permit Ernest Franz, its expert in the field of site investigation and

sampling, from offering expert testimony as to RECAP standards.

Mr. Franz explained that he is the owner of Environmental Sampling, Inc., a

firm specializing in the investigation and remediation of contamination. The plaintiff

engaged the firm to conduct additional sampling and testing on the property in 2002

and, in 2005, to review a RECAP investigation performed by the defendant’s

consultant. Mr. Franz described his years of work and the licenses and certifications

he holds in the remediation field. However, when asked of his educational

background, Mr. Franz explained that he had no formal, higher educational degree

and that he was self taught. As for the compilation of the data for RECAP analysis,

that the plaintiff has not carried her burden of proving the contamination exists or
that she is restricted in her use of the property as a result of SOLOCO’s activities.

6

Mr. Franz explained that the geologists, toxicologists, and engineers who work for

him “crunch the numbers.” He explained that he oversees the process and reviews

each project. Vicki Bourgeois, a geologist who Mr. Franz described as an

environmental scientist performed the calculations necessary for the work.

Considering the traversal and qualification questioning, the trial court found

Mr. Franz unqualified to testify as an expert with regard to RECAP standards.7 Thus,

he was not permitted to offer his opinion as to whether contamination on the property

required remediation under RECAP standards.

Louisiana Code of Evidence Article 702 governs the admissibility of expert

testimony and provides:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.

A trial court’s determination of whether an expert meets these qualifications and

whether he or she is competent to testified in a specialized area is subject to the abuse

of discretion standard of review. Cheairs v. State ex rel. DOTD, 03-680 (La.

12/3/03), 861 So.2d 536. We find no such abuse of discretion.

7
The trial court explained as follows in limiting the expert testimony:

I think [Mr. Franz is] certainly a - - a very successful business person or
contractor, but I don’t think that makes him and [sic] expert in the scientific areas
that he’s going to have - - that I would think there that he’s going to have - - that I
would think there would have to be some testimony regarding to be able to - - to be
qualified to express those opinions. He has - - he has no scientific background and
training whatsoever. He certainly . . . is experienced in - - in the field of hard knocks
and that goes far in - - in helping him be qualified as a site evaluation and sampling
expert, but the - - the RECAP - - and going over the RECAP cookbook, as it’s been
presented to the Court or described to the Court, I think is going to require some - -
some educational background in geology and chemistry, and I don’t see that in this
witness. So I’m going to have to limit - - I’m - - I’m going to accept him as - - as a
site evaluation and sampling expert, but that is not going to include being able to
express opinions on the RECAP cookbook and the standards that are set forth in that
regulation.

7

Despite testimony regarding Mr. Franz’s years of experience working in the

field, specific testimony regarding his ability to compile the data was general in

nature. He stated only that, if he did compile the data, DEQ “would not deny [his]

work.” Also, the trial court recognized the complexity of the RECAP standards. We

do not opine whether the trial court could have permitted testimony in this regard.

Instead, we find no abuse of discretion in the trial court’s refusal to broaden Mr.

Franz’s areas of expertise given the limited information provided as to his abilities

and qualifications.

Neither do we find merit in the plaintiff’s assertion that La.Code Evid. arts.

7038 and 705(A)9 permitted Mr. Franz to testify as to data compiled by Ms.

Bourgeois. The trial court’s ruling does not indicate that it limited the testimony on

this basis. Furthermore, the wording of these Articles and the jurisprudence relied

upon by the plaintiff assume that the trial court previously found the witness qualified

to be an expert in the field. There was no such preliminary finding in this case.

This assignment lacks merit.

Breach of Contract

The plaintiff chiefly contends that the trial court erred in finding that she failed

to establish breach of contract. She argues that the evidence indicates that the

8
Article 703 provides:

The facts or data in the particular case upon which an expert bases an opinion
or inference may be those perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence.
9
Article 705 provides, in part:

A. Civil cases. In a civil case, the expert may testify in terms of opinion or
inference and give his reasons therefor without prior disclosure of the underlying
facts or data, unless the court requires otherwise. The expert may in any event be
required to disclose the underlying facts or data on cross-examination.

8

property was contaminated and that Soloco failed to remediate the condition in

accordance with the requirements of the April 2000 lease.

Paragraph 3 of the lease required that Soloco “perform any and all cleanup,

restoration, remediation and other activities at its sole cost and expense which are

necessary to:”

(i) eliminate or remediate Hazardous Materials (as hereinafter defined)
upon, in or affecting the Premises in accordance with the requirements
of, and in order to bring the Premises into compliance with federal, state
and local laws, ordinances and regulations;

(ii) obtain a “No-Action” Letter issued by the State of Louisiana,
Department of Environmental Quality which shall indicate that the
Premises have been remediated in a satisfactory manner with regard to
Hazardous Materials and that no additional action will be required to be
taken or expenses incurred in connection with the aforesaid remediation
of the Premises; and

(iii) restore the Premises to their same condition at commencement of
the Initial Lease.

Soloco contends that it satisfied each of these requirements.

As defined in Louisiana Civil Code Article 1906, “[a] contract is an agreement

by two or more parties whereby obligations are created, modified, or extinguished.”

Article 1983 provides that: “Contracts have the effect of law for the parties and may

be dissolved only through the consent of the parties or on grounds provided for law.

Contracts must be performed in good faith.” A party alleging a breach of contract

bears the burden of proving that breach. Shirley v. Smith, 99-1281 (La.App. 3 Cir.

2/2/00), 758 So.2d 241, writ denied, 00-684 (La. 4/20/00), 760 So.2d 1160.

After review of the record, we find no manifest error in the trial court’s

determination that the plaintiff failed to meet her burden of proof on her breach of

contract claim. In fact, much of the difficulty in the plaintiff’s case is that her

presentation of the evidence, questioning of the witnesses, and framing of the issues

9

to both the trial court and this court do not focus on what she proved with regard to

breach. Rather, the focus appears to be on whether Soloco proved that it, in fact,

satisfied the lease in light of her allegation of excessive contamination. This is an

erroneous application of the burden of proof.

Eliminate or Remediate Hazardous Materials

The first contractual requirement in the April 2000 lease specified that Soloco

was to “eliminate or remediate Hazardous Materials [ ] upon, in or affecting the

Premises in accordance with the requirements of, and in order to bring the Premises

into compliance with federal, state and local laws, ordinances and regulations.” Thus,

the plaintiff was required to prove that hazardous materials existed and that Soloco

failed to eliminate or remediate these materials to the extent that they were in

compliance with the above delineated laws. Considering the evidence presented, the

trial court was not required to find she met this burden.

Even accepting the presence of hazardous materials, the plaintiff presented no

expert testimony indicating that the contaminants on the property required further

analysis or remediation. In fact, she lacked evidence that any condition violated

federal, state, or local ordinances or regulations. Recall that the plaintiff’s expert was

not qualified to testify as to RECAP standards. Furthermore, the trial court’s reasons

for ruling indicate that it accepted the testimony of Soloco’s expert who opined that

pursuant to DEQ RECAP standards, not only was the property suitable for

commercial or industrial purposes, but was suitable for nonindustrial purposes as

well.

We note that the plaintiff asserts that Dr. Srinivasan’s report indicates that he

personally proposed remediation due to levels of contamination and that his in-court

10

testimony differed. However, the trial court heard both Dr. Srinivasan’s testimony

and was in possession of the subject report. The trial court was able to identify any

conflicts and weigh the evidence accordingly. Additionally, the plaintiff’s counsel

subjected Dr. Srinivasan to rigorous cross-examination on any alleged disparities.

No Further Action Letter

Next, the contract of lease required Soloco to “obtain a “No-Action” Letter

issued by the State of Louisiana, Department of Environmental Quality which shall

indicate that the Premises have been remediated in a satisfactory manner with regard

to Hazardous Materials and that no additional action will be required to be taken or

expenses incurred in connection with the aforesaid remediation[.]” Thus, the plaintiff

was required to prove that Soloco failed to obtain such a letter.

As explained in the factual background, DEQ issued a No Further Action letter

in February 2001. The plaintiff argues that this letter was inadequate under the terms

of the lease as she desires the property suitable for nonindustrial purposes and, she

contends, the No Further Action letter does not provide for such use. However, the

lease, which was written by an attorney retained by the plaintiff, does not address

whether the property was to be returned in a condition suitable for industrial or

nonindustrial purposes. Neither did the plaintiff provide extrinsic evidence that

required the trial court to find that the contract reflected an intent for the No Further

Action letter to specifically anticipate a return to a nonindustrial standard. Louisiana

Civil Code Article 2056 provides that “[i]n case of doubt a provision in a contract

must be interpreted against the party who furnished its text.” See also Campbell v.

Melton, 01-2578 (La. 5/14/02), 817 So.2d 69.

11

Moreover, the condition of the property prior to commencement of the initial

lease with Soloco remains unclear from the record as the plaintiff’s son testified that

the acreage was leased by an oilfield company for the storage of its trucks for a two-

and-a-half year period beginning in 1959.

Despite the record’s lack of clarity on the parties’ intentions as to the objective

of the No Further Action letter, Soloco provided expert testimony indicating that,

even assuming a nonindustrial standard, no remediation would be required. Given

that the plaintiff was required to establish that the No Further Action letter obtained

by Soloco was inadequate, and to do so with a preponderance of the evidence rather

than mere arguments or assumptions, we find no manifest error in a determination

that she failed to meet this burden of proof.

Restoration of the Premises

Finally, the contract of lease required that Soloco “restore the Premises to their

same condition at commencement of the Initial Lease.” Again, the plaintiff was

required to prove that Soloco failed to satisfy this element rather than Soloco proving

that it, in fact, satisfied the element. In considering the plaintiff’s evidence, the trial

court could have considered that the plaintiff did not provide information regarding

the condition of the soil or groundwater on the property at the beginning of the initial

lease. The trial court was also aware that the property had a prior industrial use. In

light of the vagueness of this background information, we do not find that the trial

court was required to find that the plaintiff established that the return of the property

was insufficient.

We also observe that, while the plaintiff asserts that this third requirement

necessarily applies to environmental remediation and standards, we do not find that

12

the trial court was required to find this necessarily to be the case. Rather, the trial

court could have considered this requirement to be one involving the condition of the

surface area or remaining equipment or structures. Moreover, the first two delineated

requirements anticipate that hazardous materials will be “eliminated or remediated”

and then only to the level of compliance with various laws. Thus, the plaintiff’s

interpretation of the third requirement could be viewed as inconsistent since it would

mandate a broader level of remediation, even elimination. Recall that,

“[i]nterpretation of a contract is the determination of the common intent of the

parties.” La.Civ.Code art. 2045. See also La.Civ.Code art. 2050.10 So, to the extent

the third requirement may be ambiguous, it could be construed against the drafting

party, the plaintiff. See La.Civ.Code art. 2056; Campbell, 817 So.2d 69.

This assignment of error lacks merit.

Rebuttal Testimony

At the close of the defendant’s case, the plaintiff’s counsel argued that the

defendant’s expert, who testified that no encumbrances on the property were required

nor was remediation necessary under RECAP standards, contradicted a report he

issued prior to trial. Counsel argued that, pursuant to La.Code Evid. art. 611(E)11, he

should have had the ability to present his own previously uncalled expert in rebuttal.

The trial court denied the request and observed that the opinion asserted to be a

change in testimony was elicited before the plaintiff rested her case in chief and not

when the witness was recalled during the defendant’s presentation of evidence. The

trial court concluded that any additional witnesses necessary to contravene the

10
Article 2050 provides: “Each provision in a contract must be interpreted in light of the
other provisions so that each is given the meaning suggested by the contract as a whole.”
11
Article 611(E) provides that “[t]he plaintiff in a civil case and the state in a criminal
prosecution shall have the right to rebut evidence adduced by their opponent.”

13

opinion should have been presented at that time. Our review reveals no abuse of the

trial court’s discretion in this regard. See State ex rel. Guste v. Nicholls College

Foundation, (La.App. 1 Cir. 1991), 592 So.2d 419, writ denied, 593 So.2d 651

(La.1992), wherein the first circuit found no abuse of discretion where the trial court

refused to allow the State to submit or develop new evidence on rebuttal where the

intent of the evidence was not to rebut matters raised by the defendant in its defense,

but to introduce new evidence.

This assignment lacks merit.

DECREE

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

this proceeding are assessed to the plaintiff, Vernis S. Hinchee.

AFFIRMED.

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