author: 11WOODARD, Judge.

text:
    Robert L. SINGLETARY v. Melinda Singletary JAMES.
    No. 02-1074.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Charles A. “Sam” Jones, III, DeRidder, LA, for Plaintiff/Appellant, Robert L. Sin-gletary.

      Scott Westerchil, Leesville, LA, for Defendant/Appellee, Melinda Singletary James.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   11WOODARD, Judge.

In this child support case, Mr. Robert L. Singletary, the domiciliary parent of his two minor children, Leland and Neland Singletary, filed two rules, one for contempt for his former spouse’s failure to pay court ordered child support and another rule for support. She reconvened and filed a rule to modify custody, to set child support, and for contempt of court. On January 18, 2002, the court heard the matter, and based on the parties’ various stipulations, ordered Ms. James to pay $350.00 per month in child support, retroactive to January 1, 2002. Unable to pay the required child support because of her inpatient treatment for drug abuse, Ms. James filed an amended rule to reduce child support and filed a rule to modify visitation. Subsequently, the trial court suspended her child support obligation, retroactive to February 21, 2002, the date that she entered a Beaumont rehabilitation facility. It, also, allowed her thirty days within which to obtain employment, after which she and Mr. Singletary would submit income information to determine the amount of monthly child support. Mr. Singletary appeals. We reverse.

Mr. Singletary and Ms. James married on December 2, 1983, after which they had Leland and Neland, born on June 29,1985, and February 16, 1989, respectively. The parties separated in June 1991. Ms. James began living with another man. Consequently, Mr. Singletary filed for divorce and custody of their two children. Ms. James failed to answer. The trial court entered a default judgment against her on September 9, 1992, awarding Mr. Single-tary an absolute divorce and custody. On January 25, 1993, Ms. James moved for a modification of custody, alleging that she did not discover that she was divorced until the month before; that she believed that because of their temporary reconciliation in April 1992, he could not go back to court, regarding custody or divorce without, first, serving her with legal papers; that she had asked for visitation and communication with the children, but he denied both requests; and that he screamed at her and her daughter and went into a violent rage and damaged her father’s car. Thus, because she believed that she could provide a healthy and stable home for the children, she moved for joint custody and appointment as the custodial parent.

IgOn April 23, 1993, the trial court awarded Mr. Singletary and Ms. James joint custody of their minor children, designating Mr. Singletary as the domiciliary parent. In 2001, he filed a rule for contempt and rule for support. Ms. James, in turn, filed a rule to modify custody, to set child support, and for contempt of court. The court ordered Ms. James to pay $350.00 in child support, retroactive to January 1, 2002. On April 3, 2002, she filed an amended rule to reduce child support and to modify visitation. Consequently, the trial court awarded her specified visitation and suspended her child support obligation, retroactive to February 21, 2002, the date she entered a rehabilitation facility. Furthermore, it allowed her thirty days to find employment, at which time she and Mr. Singletary would submit income information to determine her child support obligation.

Standard of Review

We may not set aside a trial court’s finding of fact, absent manifest error or unless it is clearly wrong. In other words, in order to reverse the trial court’s judgment, after reviewing the record in its entirety, we must find that a reasonable factual basis does not exist for the trial court’s finding and that the record establishes that the finding is clearly wrong.

Child Support

Mr. Singletary alleges that the trial court erred in suspending Ms. James’ child support obligation because of her admission into a drug rehabilitation facility.

Under La.Civ.Code art. 227, a parent owes an obligation to support, maintain, and educate his or her children. This obligation is a matter of public policy. The court is to fix the amount of support after considering the needs of the child, as well as the means available to the parent obligated to pay it. At the hearing, Ms. James | .¡testified that she earned between $350.00 and $400.00 per week while working at the Petroleum Stopping Center in Beaumont, Texas. However, she currently has no income because she admitted herself into a treatment facility for drug abuse.

La.Civ.Code art. 232 provides that if a parent can prove that she is unable to provide the support, she may obtain a reduction or discharge by showing that she has experienced a change in circumstances from the time of the previous award. However, the parent is not relieved of her obligation unless she is not only unemployed but, also, unemployable. In the instant case, the parent’s own voluntary actions created her inability to pay. This court has held that this does not justify a reduction of child support. Furthermore, we stated in State v. Moore that:

“Although a court may sympathize with a parent’s problems, it may not act as a financial counselor to relieve problems brought on by his own poor fiscal management.” For the same reasons, a court should not act to reheve problems brought on by poor lifestyle management. Proof that the parent has brought about his own unstable financial condition precludes the reduction of the support obligation.

Under Rivers v. Rivers, this court will not grant relief to an obligor whose joblessness is the result, either in whole or in part, of his or her own doing. Mr. Singletary asserts that because Ms. James voluntarily terminated her employment and voluntarily used drugs, she is not entitled to a reduction in her child support obligation; and that, since she stated that the treatment facility permitted her to obtain gainful employment, she failed to prove a change of circumstances to relieve her of the obligation.

Ms. James admitted that she terminated her employment because of her addiction to pain pills. Although we are sympathetic to her situation and applaud her effort to seek treatment, it cannot supersede her primary obligation to her children, as “we do not feel we would aid ... [Ms. James’] efforts toward true rehabilitation by helping [her] to deny [her] primarily responsibility to support [her] minor |4child[ren].” We, also, note that her decision to take drugs in the first place, presumably, was voluntary.

We find no legal basis, permitting the trial court to suspend her obligation, retroactive to February 21, 2002, the date that she entered the treatment facility. Accordingly, we reverse its judgment and reinstate her child support obligation, in the amount of $350.00 per month, retroactive to January 1, 2002.

CONCLUSION

As Ms. James did not prove a change in circumstances that should relieve her of her primary obligation to support her children, we find that the trial court erred in suspending her child support obligation and, accordingly, reverse that holding. We reinstate her obligation to pay child support in the amount of $850.00 per month and order her to pay the amounts that were suspended from the date that she entered the treatment facility. We assess all costs to her.

REVERSED.

      . Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La.1993).

      . Id.

      . McManus v. McManus, 528 So.2d 1105 (La. App. 3 Cir.), writ denied, 533 So.2d 23 (La. 1988).

      . State v. Moore, 98-1243 (La.App. 3 Cir. 12/9/98); 722 So.2d 112 citing Chaudoir v. Chaudoir, 446 So.2d 951 (La.App. 3 Cir. 1984).

      . Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959); McManus, 528 So.2d 1105.

      . Moore, 722 So.2d at 113.

      . 511 So.2d 30 (La.App. 3 Cir.1987).

      . Vidrine v. Vidrine, 567 So.2d 811, 814 (La. App. 3 Cir. 1990).


source: Caselaw Access Project

author: |!WOODARD, Judge.

license: Public Domain

text:
    Russell W. GUNTER v. Randy MOORE.
    No. 02-1126.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      J. Casey Simpson, Shreveport, LA, for Plaintiff/Appellant, Russell W. Gunter.
    Charles Soileau, Soileau & Garde, Many, LA, for Defendant/Appellee, Randy Moore.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   |!WOODARD, Judge.

Mr. Russell Gunter appeals the trial court’s grant of summary judgment to Mr. Randy Moore, who had purchased Mr. Gunter’s property in a tax sale. The Sheriff of Sabine Parish had seized the property when parish property taxes became delinquent. Mr. Gunter asserts that the sale to Mr. Moore is null because he did not receive notice of the delinquency or sale. We find that there is a genuine issue of material fact, regarding adequate notice for the tax sale. Thus, summary judgment is precluded. We reverse and remand for a trial on the merits.

Mr. Gunter failed to pay parish property taxes on a piece of property he owned in Sabine Parish. The taxes on the property, assessed in 1996, became overdue on January 1, 1997. Although the Sheriff, as ex-officio tax collector, attempted to notify him of the delinquency, via certified mail to the address on record, it was returned as unclaimed. Apparently, Mr. Gunter was attending college and participating in internships outside of Sabine Parish. The Sabine Sheriffs Office seized the property and sold it. Mr. Moore bought it at the tax sale in June 1997. Thereafter, Mr. Gunter had three years to come forward and redeem the property but failed to do so. Specifically, the redemption period ended in June 2000, but Mr. Gunter did not come forward until February 2001. At that point, his only alternative was to bring an action to annul the sale, which he did, within the five-year period allowed.

Mr. Moore filed a motion for summary judgment, essentially, requesting that the trial court find that he had complied with all of the legal requirements to perfect his purchase. The trial court granted his motion. Mr. Gunter appeals. We must decide whether there is any genuine issue of material fact that could render the sale a nullity.

Standard of Review for Summary Judgment

We review summary judgments, de novo, under the same criteria which govern the trial court’s consideration of whether summary judgment is appropriate. Therefore, a motion for summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue, regarding a material fact and that the mover is entitled to judgment, as a matter of law. La. Code Civ.P. art. 966 charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, its supporting documentation must be sufficient to establish that no genuine issue of material fact remains to be decided.

Monition

Louisiana law provides purchasers, like Mr. Moore, with two options to obtain additional protection against attacks on his title; namely, he could file a suit to quiet his title and obtain a judgment, confirming and quieting it, or he could petition for a grant of monition and obtain a judgment, confirming and homologating the sale. Either way, the judgment of confirmation has the same effect.

To obtain the judgment through monition, basically, the tax sale purchaser must put a description of the property he purchased in the newspaper, alerting anyone who might have an interest in the property, that it has been sold, and allowing him or her thirty days to assert any irregularities or illegalities in the tax sale. If no one comes forward, the court shall render a judgment, confirming and homologating the sale.

| sIn his initial petition, Mr. Gunter asserts that because Mr. Moore failed to obtain a judgment through monition, the sale was null. However, such a judgment is not required to effect the sale of the property. The monition procedure is simply a way for those who purchase property at a sheriffs sale to protect themselves against eviction or other responsibilities relative to possessing the property, but it does not affect the property’s actual transfer in any way. Accordingly, Mr. Moore’s failure to obtain the judgment, before Mr. Gunter’s action to nullify, has no effect on the validity of the tax sale.

Furthermore, during the pendency of Mr. Gunter’s action to nullify the sale, which, again, was grounded, partly, on Mr. Moore’s failure to obtain a judgment confirming and homologating the sale through monition, Mr. Moore did, in fact, obtain such a judgment. Notwithstanding, Mr. Gunter claims that there is a problem with the judgment because he was not notified of the proceedings. He asserts that the theory behind notice of lis pendens of actions regarding real property should have precluded Mr. Moore from petitioning for monition while his action to annul the sale was pending, especially since he was not notified.

Lis Pendens

Notice of lis pendens of actions regarding real property, not to be confused with the exception of lis pendens, is governed by Article 3751 of the Code of Civil Procedure. Its underpinning premise is that all persons deserve a warning that the title to certain property is in litigation and that they are in danger of being bound by an adverse judgment. Indeed, we find that the legislative intent was to expressly include this protection within the statutory scheme relative to tax sales.

For a tax sale purchaser to confirm his title before the former owner’s claim to annul the sale has prescribed, he must file a suit to quiet a tax title. This requires an |4ordinary proceeding against the former owner, which will provide him with personal service and, thus, ensure notice. Thus, it is clear that the legislature intended to require the tax sale purchaser to warn the former owner that he is in danger of being adversely affected by the confirmation judgment, if the purchaser seeks that judgment while the former owner still has time to bring an action to nullify the sale.

However, after the prescriptive period has passed, and the former owner no longer has a right to bring an action to nullify the sale, the need to notify him decreases, significantly, which is why, at that point, only, general publication is required and a monition proceeding may be used. Thus, this accomplishes the same purpose as notice of lis pendens. However, the statutes which implement this framework reveal a blatant contradiction in our law, regarding the time periods within which monition proceedings can be instituted.

Our Constitution provides that a tax sale purchaser, such as Mr. Moore, may quiet his tax title “as provided by law.” La.R.S. 47:2228, the procedure for quieting a tax title, gives the method of effecting this process. Namely, a claimant must bring an ordinary action against the former proprietor. This suit may be brought anytime after the three-year redemption period has ended. However, this same statute further provides that a monition proceeding, which requires only a general publication of the sale, may be brought in lieu of the suit to quiet tax title if five years have passed. Specifically, the statute provides:

In all cases where tax titles have been quieted by prescription of five years under the provisions of Section 25 of Article VII of the Constitution of 1974, the purchaser ... may, at his or their option, quiet the title by monition proceeding, as provided by law relative to sheriffs’ sales and tax sales.[]

(Emphasis added.)

Thus, La.R.S. 47:2228 permits a monition proceeding to be an alternative to the suit to quiet tax title but, only, after five years have passed, rather than the three | Syears required before bringing an action to quiet a tax title. There is a logical explanation for observing different delay periods for these two actions; a grant of monition is easier to obtain than is a judgment to quiet a tax title; yet, both will have the same effect.

Notwithstanding, La.R.S. 13:4951, which provides for such a monition proceeding of a tax sale, reads:

The provisions of R.S. 13:4950 shall be extended to tax sales; provided, that such tax sales are made and recorded at least three years previous to the application for monition. The effect of such proceedings and the judgment rendered therein shall be to confirm the tax sale and to cure all nullities therein, in like manner, and with the same effect as if the proceedings had been had under, and in accordance with, R.S. 47:2228.

(Emphasis added.) Thus, La.R.S. 13:4951 and La.R.S. 47:2228 present an obvious conflict regarding the delay time periods for obtaining a judgment confirming and homologating the sale by monition proceedings.

In reviewing the history of our Constitution and these statutes, we find an explanation for this inconsistency. Under the Louisiana Constitution of 1898, monition proceedings became inapplicable to tax sales, and the Constitution, itself, provided the exclusive procedure for quieting tax titles. The Constitution of 1921 stated that “[t]he manner and notice of form and proceeding to quiet tax titles shall be provided by law,” making the statute, regarding monition procedures, applicable again. However, the 1921 Constitution allowed a one-year redemption period and a three-year prescription period. Therefore, at that time, the three-year period for the monition petition would have coincided with the prescriptive period, rather than the redemption period. Thereafter, in 1932, the Constitution was amended to the [^current three-year and five-year periods. Therefore, when La.R.S. 47:2228, the procedure to quiet tax titles, was enacted in 1934, the Constitution had already been amended to reflect the three-year and five-year time periods, and the legislature drafted the statute to reflect them.

Additionally, in La.R.S. 47:2228, the legislature permitted a purchaser to elect to bring a monition proceeding instead of the action to quiet tax titles “[i]n all cases where tax titles have been quieted by prescription of five years under the provisions of Section 11 of Article X of the Constitution of 1921.” This coincides with the prescriptive period under the Constitution. In 1978, the statute was amended to reflect the change in the Constitutional provisions from this section to “Section 25 of Article VII of the Constitution of 1974;” however, neither this amendment nor the 1974 Constitution altered the time periods, in question; nor did either reflect any substantive changes that are relative to our analysis in this case.

Accordingly, we find that the history of this statutory scheme reveals that the legislature intended that the delay for bringing a monition proceeding, as an alternative to a suit to quiet tax titles, should coincide with the five-year prescriptive, as opposed to the three-year redemption period; and La.R.S. 13:4951, simply, was never amended to reflect the prescriptive period after it had been amended in the Constitution.

Additionally, we must presume that the legislature intends to achieve a consistent body of law. Therefore, the only logical explanation is that the legislature meant for the monition proceeding to be available as an alternative to quieting a tax title, only, after the prescriptive period has passed. Moreover, La.R.S. 47:2228, providing for the five-year delay period for monition proceedings, was enacted after La.R.S. 13:4951. Thus, La.R.S. 47:2228 supersedes La.R.S. 13:4951. When two statutes are so blatantly contradictory, as these two, the later statute must govern.

|7As a matter of law, we find that Mr. Moore’s petition for monition was premature. Therefore, the court should not have rendered the judgment, confirming and homologating the tax sale by monition.

Ordinarily, once such a judgment is obtained, it stands as conclusive proof that the tax sale was lawfully made and serves to preclude the receipt of evidence to the contrary. However, the judgment cures, only, relative nullities, if any, concerning the tax sale as opposed to absolute nullities, which, by definition, may not be cured by confirmation. Thus, the judgment would not preclude Mr. Gunter from attacking the sale, based on him not having received notice, because this court has classified lack of notice as an absolute nullity. Specifically, at one time, this circuit acknowledged that “[t]he effect of Mennonite Board of Missions v. Adams, which elevated notice to a due process level, has caused the First, Second and Third Circuits of this state to believe that lack of notice is an absolute nullity.” Although in subsequent cases, this court has been more reluctant to classify the nullity as one type or the other, it has, specifically, held that even where the indebted taxpayer comes forward, not only after the three year redemption period but even after the five year prescriptive period, he may attack the sale for lack of sufficient notice.

SuffiCienCy of Notice

Mr. Gunter attacks the sale, arguing that the sheriff, as ex-officio tax collector, did not take reasonable, additional efforts to notify him once the sheriffs initial I «notice to him was returned as unclaimed. La.R.S. 47:2180 permits notice of the tax delinquency to be sent by certified mail. This court has indicated that when the sheriff sends notice to the known, correct address of the tax debtor with return receipt requested, he has made a reasonable effort, and the tax sale will not be invalidated simply because the debtor does not actually receive the notice.

Nonetheless, this court has, also, instructed that while it is not necessary that the property owner, actually, receive notice of the impending sale of his property, to satisfy his due process rights, he is entitled to “notice reasonably calculated, under all circumstances to apprise [him] of the pendency of the action and afford [him] an opportunity to present [his] objections,” if his “name and address are reasonably ascertainable.” In fact, this circuit dictates that in a case where notice is returned as undelivered, the sheriff must take “additional reasonable steps to notify the taxpayer of the delinquency” to satisfy this requirement, and “failure to perform this obligation renders a tax sale null and void.” (Emphasis added.)

Mr. Gunter argues that whether the Sheriff made reasonable, diligent efforts to locate him or to ascertain his mailing address can only be determined by a trial on the merits. While we do not agree that such a determination can never be made, absent a trial, we do agree that summary judgment was inappropriate in the case at bar because Mr. Moore did not offer sufficient evidence that the sheriffs efforts conformed to the jurisprudential requirements.

Burden of Proof

Mr. Moore points out that Mr. Gunter has not provided depositions, affidavits, or other evidence that the sheriff did not make reasonable, diligent efforts to apprise | sMr. Gunter of his property’s pending sale; instead, he, merely, rests on the allegations in his petition. He implies that Mr. Gunter had the burden of proof in Mr. Moore’s motion for summary judgment. Further, Mr. Moore submits that he has negated Mr. Gunter’s allegation by presenting factual evidence that the delinquency notice was attempted at the address on record for him on, at least, three occasions. Accordingly, he argues that this evidence shifts the burden of production to Mr. Gunter, requiring him to produce factual support, indicating that he will be able to satisfy his burden of proving that the sheriff was not diligent in attempting to notify him.

Given the jurisprudence, we cannot agree. As the movant, Mr. Moore has the burden of proving that there are no genuine issues of material fact, regarding the validity of the tax sale. Only then, does the burden shift to Mr. Gunter. Since Mr. Moore did not provide the trial court with evidence of any additional steps the sheriff took to notify Mr. Gunter, Mr. Moore did not sufficiently satisfy his burden of proof to shift the burden of production to Mr. Gunter. Thus, we hold that this is a genuine issue of material fact in dispute which precludes the grant of summary judgment.

CONCLUSION

We find that Mr. Moore did not meet his burden of proof of providing sufficient factual evidence, regarding the sheriffs adequate efforts to notify Mr. Gunter of the tax delinquency and sale of his property. Additionally, since the judgment of monition was improperly granted, it cannot cure the alleged defect in notice. Therefore, we reverse the grant of summary judgment. We assign the costs for this appeal to Appellee, Mr. Moore.

REVERSED AND REMANDED.

      . La. Const, art. VII, § 25(B).

      . La. Const, art. VII, § 25(C).

      . Seaman v. Howard, 98-1492 (La.App. 3 Cir. 6/2/99); 743 So.2d 694, writ denied, 99-1901 (La. 10/29/99); 748 So.2d 1165.

      . La.Code Civ.P. art. 966(C).

      . Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97); 702 So.2d 323.

      . La.R.S. 47:2228.

      .La.R.S. 13:4951.

      . Id.

      . La.R.S. 13:4945.

      . Land Co., Inc. v. Rudd, 193 So. 230 (La. App. 2 Cir. 1939).

      . La.R.S. 13:4941.

      . Land, 193 So. 230.

      . Black's Law Dictionary 932 (6th ed.1990).

      . La.R.S. 47:2228.

      . Id.

      . Id.

      . Id.

      . See Securities Mortgage Co., Inc., v. Triplett, 374 So.2d 1226 (La. 1979).

      . La.R.S. 47:2228.

      . See Stubbs v. Nylka Land Co., 1913, 11 Orleans App. 21.

      . La. Const. 1921 art. X, § 11.

      . Id.

      . La. Const.1921 art. X, § 11 (amended 1932).

      . Downs v. J & J Maintenance, Inc., 97-511 (La.App. 3 Cir. 10/8/97); 702 So.2d 845.

      . Id.

      . La.R.S. 13:4946; La.R.S. 13:4947.

      . Buillard v. Davis, 185 La. 255, 169 So. 78 (1936), overruled on other grounds by Ugulano v. Allstate Ins. Co., 367 So.2d 6 (La.1978).

      . Baptiste v. Shuler, 01-1127 (La.App. 3 Cir. 3/6/02); 809 So.2d 1210, writ denied, 02-989 (La.6/7/02); 808 So.2d 770.

      . State through DOTD v. Knight, 93-767 (La. App. 3 Cir. 2/2/94); 631 So.2d 714, writ denied, 94-571 (La.4/22/94); 637 So.2d 161.

      . Id.

      . Dockery v. DuPont, 93-1021 (La.App. 3 Cir. 4/6/94); 635 So.2d 679.

      . Id.

      . Estate of Willis v. Cairns, 630 So.2d 805 (La.App. 3 Cir. 1993).

      . Security First Nat’l Bank v. Murchison, 98-1225 (La.App. 3 Cir. 3/17/99); 739 So.2d 803, writ denied, 99-1712 (La.10/15/99); 748 So.2d 1147.

      . Smith v. Brooks, 97-1338, p. 3 (La.App. 3 Cir. 4/15/98); 714 So.2d 735, 736, (quoting Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180(1983)).

      . Constance v. Sudwischer, 502 So.2d 609, 613 (La.App. 3 Cir.), writ denied, 503 So.2d 1019 (La.1987).

      . Cairns, 630 So.2d at 807.

      . La.Code Civ.P. art. 966(C)(2).

      . Id.

      . Townley, 702 So.2d 323.


author: | WOODARD, Judge.

text:
    STATE of Louisiana v. Timothy D. BINGHAM.
    No. 02-1207.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    David W. Burton, District Attorney, Richard A. Morton, Assistant District Attorney, DeRidder, LA, for State/Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Timothy D. Bingham.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and ELIZABETH A. PICKETT, Judges.
   | WOODARD, Judge.

On June 27, 2001, Mr. Timothy Bingham was incarcerated in the Beauregard Parish Jail for a probation violation. He refused to return to his cell as one of the correctional officers had instructed him. He and several other correctional officers struggled. Several of the officers were injured during the scuffle, when they attempted to restrain him. Mr. Bingham was subsequently charged and convicted of three counts of battery on a correctional facility employee. He now appeals his sentence, alleging that it is excessive because of his mental illness. We affirm.

The Defendant, Timothy Bingham, was charged with three counts of battery of a correctional facility employee, a violation of La.R.S. 14:34.5. He pled not guilty to all of the charges. However, at the beginning of trial, he moved to change his plea to not guilty by reason of insanity, which the trial court denied. Thus, he moved for a mistrial, which the court also denied. A jury found him guilty on all three counts. The trial court sentenced him to serve three years at hard labor on each count to run concurrent with each other but consecutive to any previous sentence, with credit for time served, without benefit of probation, parole, or suspension of sentence. Mr. Bingham filed a motion to reconsider his sentence, asserting that it was excessive. He noted that the charge would be a misdemeanor had it not occurred in the correctional facility. The trial court denied this motion, stating that the three-year sentence was clearly not excessive given the maximum five-year sentence which the statute prescribes. He appeals.

Errors Patent

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find none.

Is.ExCessiveness of Sentence

Mr. Bingham contends that his sentence of three years at hard labor to run consecutive with any other sentence, without benefit of parole, probation, or suspension of sentence is excessive because of his mental illness. We note that, actually, he was sentenced to serve three concurrent three-year sentences without benefit of parole, probation, or suspension of sentence.

Article 1, Section 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence within the statutory limits may still be deemed excessive under the particular circumstances of the case. State v. Hopkins illustrates this court’s position relative to excessive sentencing as follows:

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive lacking a manifest abuse of discretion.
The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. Paragraph (c) of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The trial court need not refer to every aggravating and mitigating circumstance in order to comply with the article. However, the record must affirmatively reflect that adequate consideration was given to the codal guide- ■ lines in particularizing the defendant’s sentence.

(Citations omitted.)

The Defendant was charged under La. R.S. 14:34.5(A)(1), which states, in pertinent part:

■ Battery of a correctional facility employee is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a correctional facility employee acting in the performance of his duty.

|3The penalty under La.R.S. 14:34.5(B)(2) provides:

If at the time of the commission of the offense the offender is under the jurisdiction and legal custody of the Department of Safety and Corrections, or is being detained in a jail, prison, correctional facility, juvenile institution, temporary holding center, halfway house, or detention facility, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor without benefit of parole, probation, or suspension of sentence for not less than one year nor more than five years. Such sentence shall be consecutive to any other sentence imposed for violation of the provisions of any state criminal law.

In State v. Bell, this court upheld the defendant’s conviction and sentence for battery of a correctional facility employee of three and one-half years at hard labor without benefit of parole, probation, or suspension of sentence as not being excessive, even though he suffered from mental illness.

In the case sub judice, mental illness notwithstanding, the trial court noted that Mr. Bingham had a prior felony conviction for contributing to the delinquency of a juvenile in violation of La.R.S. 14:92. While on probation for that offense, he was charged and convicted of viewing child pornography on the internet. At the time of the commission of the offense currently before this court, he was in the legal custody of the Beauregard Parish Jail for a probation violation on the viewing child pornography on the internet charge.

We find that Mr. Bingham’s prior felony conviction, his subsequent probation violation, his commission of this offense while in the custody of the jail, and the fact that the three sentences were ordered to be served concurrent with each other are sufficient factors to uphold the trial court’s decision to impose three years at hard labor on each count.

Consideration of Mental Condition

Mr. Bingham also contends that the trial court did not adequately consider his mental condition when imposing sentence. During the sentencing hearing, the trial court heard testimony from his mother and his social worker regarding his mental | ¿illness. Both witnesses acknowledged his diagnosis of Bipolar II disorder, which causes him to become easily agitated in addition to having anger management problems. Dr. Ramin Shala, a psychiatrist who treated him, prescribed Zoloft, Neuro-tonin, and Depakote to manage his mental illness.

At the sentencing hearing, the trial court made the following comments concerning Mr. Bingham’s mental condition:

However, I am also of the belief that some consideration must be given you in connection with your established mental disability. In determining the length of the sentence, I’ve taken into account the factors favorable to you, including your age and the testimony presented by family and friends at your recent sentencing hearing. However, even they acknowledge that your impulsiveness is a serious behavioral problem. And though you are prescribed medication for your disability, you are resistant to taking it. Further, they acknowledge that your mood swings must frequently be accommodated with great patience and deference. You seem to this Court to be in denial of your medical needs and, as such, a potential danger to the public should someone choose not to treat you with such deference. Clearly, correctional officers are not required to do so and cannot be if they are to maintain control of the public’s places of detention.

The record demonstrates that the trial court adequately considered Mr. Bing-ham’s mental illness when imposing sentence on the three counts of battery on a correctional facility employee. Accordingly, the sentence is not excessive, especially given his prior felony conviction and subsequent probation violation. We affirm.

CONCLUSION

For the foregoing reasons, we affirm Mr. Bingham’s sentence.

AFFIRMED.

      . State v. Sepulvado, 367 So.2d 762 (La.1979).

      . 96-1063, p. 6 (La.App. 3 Cir. 3/5/97); 692 So.2d 538, 541.

      . 2001-372 (La.App. 3 Cir. 10/3/01); 796 So.2d 816.


author: hEZELL, J.

text:
    STATE of Louisiana v. Randy L. McDONALD.
    No. 02-909.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Robert Richard Bryant, Jr., District Attorney, Lake Charles, LA, for State of Louisiana.
    Carey J. Ellis, III, La. Appellate Project, Rayville, LA, for Defendant: Randy L. McDonald.
    Randy L. McDonald, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.
   hEZELL, J.

On December 3, 1998, a Calcasieu Parish grand jury indicted Defendant, Randy McDonald, and four other men for aggravated rape and armed robbery, violations of La.R.S. 14:42 and 14:64, respectively. On September 13, 1999, the State amended the indictment to clarify that each co-defendant was charged with a single count of aggravated rape and that Defendant was not charged with armed robbery. Defendant stood trial on October 17, 2000, but the jury deadlocked, and the court declared a mistrial.

After further motions, a second jury trial began on April 1, 2002. On April 4, the jury found Defendant guilty as charged. On April 5, the court denied Defendant’s motion for post-verdict judgment of acquittal. Defendant stated he was ready to proceed, and the court sentenced him to the mandatory term of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Defendant now appeals his conviction.

FACTS

On September 28, 1998, S.V. was ejected from a drug and alcohol treatment center in Lake Charles, Louisiana. She wanted to return to Opelousas, and a man named Michael Guillory offered to help her. The pair walked to the nearby home of Dewey Miller, a friend of Guillory’s, so that S.V. could use the telephone.

S.V. was unsuccessful in contacting anyone to give her a ride to Opelousas. Miller had to leave, so he asked S.V. and Guillory to leave, also. Upon leaving, the pair soon encountered Kristopher Schoening, a.k.a. Justin Schoening. The three smoked marijuana together, then proceeded to the nearby home of Defendant, Randy McDonald.

| ^Guillory and Schoening then left. Defendant began touching the victim, although she asked him not to do so. She then heard Forrest Bradford, a.k.a. “Red,” calling her into a back bedroom. Bradford offered to drive her back to Opelousas, in exchange for sex. She did not agree, but Bradford grabbed her, removed her clothing, put his penis in her mouth, then engaged in vaginal intercourse with her. After Bradford was finished, the Defendant had vaginal intercourse with S.V. At some point, Guillory and Schoening returned to the house, and they also had sex with her. Defendant also returned to the room and had anal sex with her. Michael Hoffpauir, who was also at the house, had sex with her. The victim did not consent to have sex with any of them.

At one point, the victim screamed and Schoening put a pillow over her head and pistol-whipped her. When the ordeal was over, S.V. got dressed and returned to the treatment center, seeking help. Guil-lory followed her halfway back to the center, claiming he had a gun. However, she finished the trip by herself, running the rest of the way to the center. Once there, she convinced someone to call the police. The subsequent investigation led to the arrest of Defendant and the other men.

ERRORS PATENT

The Court has reviewed the record in accordance with La.Code Crim.P. art 920 and finds that there are no errors patent.

Although the Defendant was sentenced immediately after the trial court’s denial of his motion for post verdict judgment of acquittal, and La.Code Crim.P. art. 873 mandates a twenty-four-hour delay between the denial of such motions and the | ..¡imposition of sentence, the Defendant indicated at sentencing that he was prepared to go forward with sentencing. The court finds that this would be harmless since the Defendant received a mandatory life sentence. State v. Porter, 99-1722 (La.App. 3 Cir. 5/3/00), 761 So.2d 115; State v. Williams, 617 So.2d 557 (La.App. 3 Cir.), writ denied, 623 So.2d 1331 (La. 1993).

ASSIGNMENT OF ERROR NO. 1

In this assignment, Defendant argues the evidence adduced at trial was insufficient to support his conviction. The test for such sufficiency challenges is well-settled:

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is governed by the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard the appellate court must determine that the direct and circumstantial evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt. State v. Captville, 448 So.2d 676 (La. 1984).

State v. Meyers, 620 So.2d 1160, 1162 (La. 1993).

Louisiana Revised Statutes 14:42 sets forth the elements of aggravated rape, stating, in pertinent part:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
(5) When two or more offenders participated in the act.

|4For purposes of Paragraph (5), “participate” shall mean:

(1) Commit the act of rape.
(2) Physically assist in the commission of such act.

At trial, the victim testified Defendant had sexual intercourse with her twice, once vaginally and once anally. Further, she testified she did not consent to have sex with him. Essentially, the Defendant and four other men gang-raped her.

The victim’s testimony was corroborated by the DNA evidence. Forensic DNA analyst Gina Pineda of Reliagene Technologies testified regarding the genetic evidence in this case. Pineda explained that Reliagene analyzed samples from a vaginal swab. The swab contained female and male genetic material. Testing of the female genetic material did not exclude the victim as being the donor. Pineda stated male genetic material was supplied by more than one man, but the DNA analysis excluded 99.9 percent of the population. The analysis did not exclude Defendant as a donor of the genetic material. Thus, Defendant was a member of the .01 percent of the population that could have contributed to the male genetic material.

The victim’s testimony was also corroborated by the testimony of the other males who were in the house during the offense. Scott Burnett, deceased at the time of the present trial, was sleeping on a couch during the offense. His testimony from Defendant’s previous trial was read before the jury. He testified that he lived at the house where the offense occurred, as did Defendant and Michael Hoffpauir.

Burnett recalled that Defendant, Hoff-pauir, “Justin,” “another Michael,” Forrest Bradford, and the victim were in the house on the afternoon of September 28, 1998. He testified that he slept most of the afternoon and evening, although Michael and Justin woke him up “one or two times.” He also woke up at about 10:00 p.m., | sand saw Michael and Justin leaving with the victim. He did not know about the incident until the next day.

Burnett testified that on the day after the incident, he asked Defendant “what all went on” the night before. Defendant replied all the other men had consensual sex with the victim, although he told Burnett that “Justin” put a pillow over her head and struck her with a pistol. Defendant also told Burnett that he had tried to have intercourse with the victim, but was unable to perform because he was too drunk. Burnett suggested that Defendant call the police, but soon all the men, including Burnett, were in police custody. Burnett also testified that Defendant and Hoffpauir hurriedly discarded or removed the victim’s belongings from the house.

One of Defendant’s accomplices, Forrest Bradford, testified at the present trial. He claimed that he had consensual sex with the victim, then left the room. He said Defendant and the other men also wanted to have sex with S.V.; she refused, but they proceeded to have intercourse with her against her will. The witness testified he did not see actual sexual entry, but saw Defendant performing “motions of sex.” Bradford stated that while Defendant was apparently having intercourse with the victim, one of the other men had a gun pointed at her head. He testified Defendant left the room, then went back in, saying he wanted to perform another sex act. However, Bradford was not sure whether Defendant actually had intercourse with the victim a second time.

Bradford acknowledged that he pled guilty to sexual battery in connection with the incident at issue. Also, he noted that Scott Burnett was laying on the couch and did not participate in the offense.

Michael Hoffpauir took the stand and admitted he had non-consensual intercourse with the victim. He also testified that Defendant had non-consensual lfivaginal and anal intercourse with S.V. The witness acknowledged that he had been convicted of aggravated rape for his participation in the offense at issue.

Michael Guillory testified that on September 28, 1999, he was doing community service at a drug treatment center in Lake Charles. S.V. was “kicked out” of the center, and Guillory saw her crying on the steps. Guillory recalled that the victim wanted to get a ride out of town, so he took her to the nearby home of his friend, Dewey Miller, who let S.V. use the telephone. She was unsuccessful in reaching anyone; she and Guillory then left Miller’s house.

While outside the house, they encountered Kristopher Schoening, a.k.a. “Justin.” Guillory, Schoening, and S.V. then smoked marijuana together. They returned to Miller’s house, but he needed to go elsewhere, so the trio walked to Defendant’s house. When they arrived, Defendant, Bradford, and Hoffpauir were there. Burnett was also there, sleeping on the couch.

Guillory and Schoening left the victim there and walked to Guillory’s house, then returned. While at Defendant’s house, Guillory noticed that Schoening had a gun under his shirt. At some point, Schoening told the victim that Bradford needed to talk to her about potential transportation. Guillory testified that when he looked in the bedroom, he saw Bradford and the victim having sex.

According to Guillory, Defendant wanted to have intercourse with S.V. after Bradford was finished. She did not want to, but Defendant and at least one of the other men pulled her pants down, and Defendant got between her legs. He then had intercourse with her. Defendant then left the room; Hoffpauir and Schoening each had intercourse with her. Later, Defendant returned and appeared to have intercourse with the victim from a posteri- or position.

17During the offense, as the various men had intercourse with S.V., Sehoening had a gun, and at some point put a pillow over the victim’s head and pistol-whipped her. However, Guillory’s testimony was unclear regarding whether the pistol was actually pointed at her while Defendant had intercourse with her. Guillory testified that before the offense occurred, he told the victim that Defendant had a weapon.

On the stand, Guillory acknowledged that he had non-consensual intercourse with S.V., and that he agreed to a plea bargain in juvenile court in connection with the offense at issue.

Sehoening also took the stand and testified that Defendant had non-consensual intercourse with S.Y. Otherwise, his testimony was short and not very detailed.

We find the above evidence clearly supports the conviction. The testimony showed that Defendant and other offenders had non-consensual sexual intercourse with the victim, thus violating La.R.S. 14:42(A)(5). One of the participants had a gun and used it to threaten and batter the victim. Thus, Defendant could also be viewed as a principal to violating the first three subsections of La.R.S.14:42, as well. Also, the circumstances demonstrate Defendant acted intentionally; essentially, he participated in a gang-rape.

The gist of Defendant’s appellate argument is that the State’s witnesses were not credible. He notes the victim admitted she was intoxicated shortly before the offense, having smoked marijuana and taken Xanax. At trial, Defendant adduced expert testimony regarding the possible effects the drugs could have had on S.V.’s perception of events, or on her memory. Defense counsel conducted the following colloquy with its expert, Dr. Paul Ware (emphasis added):

Q So given the assumption of the facts that I told you about, height, weight, the drugs that were taken, the time frame, and add to that that | «about 10 o’clock that evening, later that same night, that same evening, that a deputy or a detective would have indicated that he thought she was under the influence or she was intoxicated in some sort because of that, would that seem consistent with what I’ve told you about what she took in the time frame?
A Yes, that would be consistent.
Q Okay. And if the female that had consumed those drugs and marijuana had also consumed some additionally [sic] alcohol that afternoon, would that compound her intoxication?
A Yes, that would just add to the intoxication and prolong the intoxication in regard to the amount consumed.
Q And if that person that had consumed — the female that had consumed those drugs, was involved in this traumatic event in the middle of the afternoon after consuming all those drugs, and if she was somewhat confused about what happened, would that be explained or would it be reasonable to expect that she’d be confused because of the drugs, as well as the event that occurred?
A I would expect that person to show some level of confusion, not be as clear in their thinking and in their memory because of the intoxication, and certainly if a person had a traumatic experience, like being raped, that also would add to the stress and probably make that person not as sure in regard to details, small details.
Q And certainly and that’s — that’s typically, in your view, analogize the Xanex to alcohol, I mean, that’s the affect [sic] that alcohol has is that, maybe if you’ve had too much alcohol it maybe distorts your perception.
A They have really the very same affect, [sic] so if you’ve seen someone alcohol intoxicated, someone Xanax intoxicated looks, walks, behaves the same way. May have some slurring of speech in the same way, but you just don’t smell the alcohol.
Q And the combination of the drugs, the possible alcohol, and the traumatic event, I mean, those — the combination of the two would have a significant affect on their perception as far as recalling what happened?
A Well, it certainly would have a significant affect on their perception if they have a memory of the event and can talk about it, they certainly, I believe that would be their memory. I believe the perception — difficulty of the perception would be in regard to probably details of the time situation.
Q Those are all the questions.

|9This Court finds there is nothing in Ware’s testimony that indicates the victim would have been mistaken in remembering that she was gang-raped, or that she would not be able to remember who the participants were. In fact, Ware’s testimony appears to explain some of the minor inconsistencies in S.V.’s testimony that Defendant highlights on appeal. Defendant observes the victim was not clear on the order in which the men raped her, did not remember whether Schoening or Guillory had the gun, and initially told an investigator that seven men (rather than five) had raped her.

However, as the State points out, S.V. testified Defendant raped her, that he was the second male to do so, that he did so twice, and that the second rape was anal. This Court finds that her testimony also clearly showed that Defendant’s actions took place in the context of a gang-rape in which other men also had non-consensual intercourse with the victim.

Defendant also notes various inconsistencies among the testimonies of the other males who participated in the offense. This Court finds the chief inconsistency resulted from the attempts of a couple of them to relate versions of the incident that were partially exculpatory to themselves. However, none of their versions were exculpatory toward Defendant; all of the other participant’s testimonies directly supported the victim’s contention that Defendant raped her.

Defendant also complains that the testimonies of Forrest Bradford and Michael Guillory lacked credibility because they received comparatively lenient deals from the State. As already noted, Bradford pled to sexual battery, and Guillory was set to plead as a juvenile. Further, Guillo-ry, Hoffpauir, and Schoening all testified pursuant to the court’s order to do so. When Schoening was initially called to testify, he had trouble recalling events regarding the offense. Then he watched his earlier, videoj*ecorded10 statements during lunch and later returned to the stand. As discussed earlier, Schoening then stated that Defendant participated in the offense.

Each of the men denied that he was inculpating Defendant in return for favors from the State. As Defendant’s appellate counsel acknowledges in brief, credibility is within the province of the fact-finder. In view of all the testimony supporting the basic elements of the crime, and the supporting DNA evidence, this Court finds the jury was reasonable in finding the State’s witnesses credible, and in finding Defendant guilty of aggravated rape.

For the reasons discussed, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2 (Pro Se Assignment of Error No. 1)

These assignments, argued in a supplemental brief by counsel, and in a pro se brief, allege the trial court erred by denying Defendant’s motion to quash. The motion was based upon the statutory time limitations for bringing a case to trial. As noted in the procedural history recited at the beginning of this opinion, Defendant’s first trial resulted in a mistrial. Defendant complains his second trial commenced untimely.

The time limitations for bringing a defendant to trial are governed by La.Code Crim.P. art. 578:

Except as otherwise provided in this Chapter, no trial shall be commenced:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
The offense charged shall determine the applicable limitation.

InThe grand jury handed down the indictment on December 3, 1998. Defendant initially stood trial on October 17, 2000. The court declared a mistrial on October 20, 2000, and the Defendant’s second trial commenced on April 1, 2002. The State argues that a Defense motion to recuse suspended the running of the time limitation imposed by Article 578. Judge Alcide Gray signed the recusal order on June 20, 2001, but it was not filed until July 3, 2001.

The State notes La.Code Crim.P. art. 580 (emphasis added):

When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.

Defendant cites La.Code Crim.P. art. 582: “When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.”

However, Article 580 applies to retrial situations otherwise governed by Article 582. State v. Brooks, 505 So.2d 714 (La. 1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363(1987), Thus, as Defendant’s trial commenced less than one year after the recusal ruling, the State argues it was timely. The lower court agreed and denied the motion.

This Court has not found a case discussing whether a recusal motion is a “preliminary plea.” However, such a motion would seem to be of the same genera as a motion to quash, and thus be covered by Article 580. See, e.g., La.Code Crim.P. art. 912(B), in which motions to quash and motions to recuse are named as motions for which the State can appeal from adverse judgments. It is clear that the second trial began within a year of the recusal. Defendant’s arguments ignore the clear | ^statutory language granting the State one year from the ruling to commence trial. However, his attorney-filed supplemental brief neither provides jurisprudence nor suggests a logical reason to ignore the language of article 580. Defendant’s pro se brief claims that Judge Gray recused himself. This is plainly incorrect, as the record shows his trial counsel submitted a motion on this matter on June 20, 2001. In the pro se brief, Defendant footnotes part of article 580, omitting the language that grants the State one year from a ruling on a preliminary motion to begin trial. Thus, his arguments ignore or omit the statutory authority of Article 580.

As the State observes, it was required to retry Defendant within one year of the recusal ruling, and it did so.

For the reasons discussed, this assignment lacks merit.

PRO SE ASSIGNMENT OF ERROR NO. 2

In his second pro se assignment, Defendant argues the court erred by ordering Guillory, Hoffpauir, and Schoening to testify. In his argument, he asserts the witnesses’ constitutional rights not to incriminate themselves. U.S. Const, amend. V.

However, the Defendant does not have standing to argue the Fifth Amendment rights of other individuals. State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98), 709 So.2d 213, writ denied, 98-582 (La.7/2/98) 724 So.2d 202.

Therefore, the assignment lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The victim's name is not used in compliance with La.R.S. 46:1844.

      . Minus her bra, which had been cut off.

      .Two of Defendant's accomplices have already been before this court. State v. Hoff-pauir, 99-1927 (La.App. 3 Cir. 10/11/00), 772 So.2d 181, State v. Schoening, 00-764 (La. App. 3 Cir. 12/20/00), 807 So.2d 252.

      . The sections cited comport with the provisions read to the jury.

      . The Court obtained two supplemental records, one filed with this court on November 6, 2002, and the other filed on November 15, 2002.


author: JjPETERS, J.

text:
    Sandra BERTRAND v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and Acadia Parish Police Jury.
    No. 02-1163.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Writ Denied May 2, 2003.

      Joseph R. Joy, III, Joseph Joy & Associates, Daniel M. Landry, III, Lafayette, LA, for Plaintiff/Appellant, Sandra Bertrand.
    Jeron J. Lafargue, Assistant Attorney General, Lafayette, LA, for Defendants/Appellees, State of Louisiana, through the Dep’t of Transp. & Dev. Acadia Parish Police Jury.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   JjPETERS, J.

The plaintiff, Sandra Bertrand, appeals a trial court judgment dismissing her suit against the State of Louisiana, Department of Transportation and Development (DOTD), as being abandoned. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

On January 21, 1998, Ms. Bertrand brought suit against DOTD and the Acadia Parish Police Jury, seeking to recover damages for injuries she sustained in a November 12, 1997 automobile accident. Shortly after filing suit, Ms. Bertrand dismissed the police jury as a defendant and proceeded only against DOTD. The record before us reflects that between the date that Ms. Bertrand dismissed the police jury from the litigation and the date that DOTD filed to have the suit dismissed as abandoned, the following pleadings were filed:

April 7, 1998 — DOTD filed a certificate, pursuant to La.Code Civ.P. art. 1313, certifying that it served responses to Ms. Bertrand’s propounded interrogatories and requests for production on her attorney of record by mailing copies on May 6,1998.
April U, 1998 — DOTD filed its answer to Ms. Bertrand’s petition, together with a request for jury trial. The trial court granted the jury trial request by written order signed the same day.
May 6, 1998 — DOTD filed a second certificate, pursuant to La.Code Civ.P. art. 1313, certifying that it served responses to Ms. Bertrand’s propounded interrogatories and requests for production on her attorney of record by mailing copies on May 5,1998.
July 8, 1999 — The trial court executed an order authorizing DOTD’s counsel of record to withdraw.
December 7, 1999 — The trial court executed an order authorizing the enrolling of new counsel for DOTD.
19lMarch 15, 2002 — Ms. Bertrand filed written interrogatories addressed to DOTD.
March 19, 2002 — DOTD filed an ex parte motion to have Ms. Bertrand’s suit declared abandoned. On the same date, Ms. Bertrand filed a motion to strike DOTD’s motion.
March 21, 2002 — The trial court executed a judgment dismissing Ms. Bertrand’s suit as having been abandoned. April 2, 2002 — Ms. Bertrand filed a rule to show cause why the judgment of dismissal should not be vacated. The trial court set this rule for hearing on April 15, 2002.
May 8, 2002 — The trial court executed a judgment reinstating Ms. Bertrand’s suit against DOTD. Although signed by the trial court on May 8, it was not filed of record until May 9.
May 9, 2002 — DOTD filed a second motion to dismiss Ms. Bertrand’s suit as having been abandoned. Attached to this motion is an affidavit of DOTD’s counsel of record declaring that “during the period between February 3, 1999 and February 20, 2002, no pleadings and/or actions were taken within [the] lawsuit that would interrupt the running of the three-year abandonment period set forth in La.C.C.P. Art. 561[.]”
July 1, 2002 — After a hearing on DOTD’s May 9 motion to dismiss, the trial court granted the motion, again dismissing Ms. Bertrand’s suit.
July 31, 2002 — The trial court executed a written judgment in conformity with its July 1 ruling.

It is this July 31 judgment that gave rise to the appeal now before us. In her appeal, Ms. Bertrand asserts three assignments of error.

OPINION

Louisiana Code of Civil Procedure Article 561(A)(1) provides that, with the exception of succession proceedings, “[a]n action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” A formal order of dismissal may be issued by the trial court “on ex parte | amotion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action.” La.Code Civ.P. art. 561(A)(2). In the case of a suit being dismissed as abandoned, a plaintiff has thirty days from service of the judgment of dismissal in which to move to set aside the dismissal of his suit. Id. Ms. Bertrand timely moved to set the dismissal aside.

In her April 2, 2002 pleading seeking to set the dismissal judgment aside, Ms. Bertrand asserted two grounds for relief: (1) that DOTD’s March 19 motion did not contain the appropriate affidavit and (2) that she had not abandoned her suit. Although the trial court scheduled Ms. Bertrand’s April 2 rule for hearing on April 15, 2002, the record contains no evidence that any hearing occurred on that day. The only reference to any prior proceedings concerning this rule occurred at the July 1, 2002 hearing in comments by the trial court and counsel for the litigants. At that hearing, the following exchange occurred between the trial court and counsel for DOTD:

BY THE COURT: ... Mr. Lafargue, I think I can anticipate what your argument is going to be and we discussed the substance of your motion, I think, the last time we were together.
BY [COUNSEL FOR DOTD]: As I appreciate it, Your Honor, we were here and we filed a motion to — dismiss on the basis of abandonment and you wanted to allow them time to come up with anything that would show that they had interrupted that period—
BY THE COURT: Well, I think also there was a lack of an — of a supporting affidavit at the time. And I suppose you supplemented the record with that affidavit.

(Emphasis added.)

While not providing any of the specifics of the prior discussions referred to by the trial court and counsel for DOTD, Ms. Bertrand’s counsel referred to a prior hearing |4and argued to the trial court that the reinstatement judgment was res judi-cata to the issue of abandonment and that the prescriptive period began to run anew from the date of the May 8, 2002 judgment.

On appeal, Ms. Bertrand asserts in her first two assignments of error that the trial court erred in granting DOTD’s second motion to dismiss because the reinstatement judgment had a res judicata effect, precluding DOTD’s attempt to raise the issue a second time. Additionally, she asserts that the very language of the May 8 judgment clearly establishes that it was intended to cause the three-year abandonment period to run anew.

The May 8, 2002 judgment provides in pertinent part: “IT IS ORDER[ED], ADJUDGED AND DECREED that this Court hereby reinstates the above captioned litigation pursuant to [the] ruling of this Court.” As previously stated, the only issues raised by Ms. Bertrand in her pleading seeking to have the first judgment of dismissal set aside were that DOTD’s pleading was defective because it did not contain the appropriate affidavit and that she had not abandoned her suit.

It is clear from the transcript of the July 1 proceeding that, in reinstating the suit, the trial court reserved unto Ms. Bertrand the opportunity to present evidence that she had not abandoned her suit. We interpret the May 8, 2002 judgment as nothing more than the grant by the trial court of an opportunity for DOTD to attach the appropriate affidavit to its motion and for Ms. Bertrand to present evidence to establish that she had not abandoned her suit. Therefore, we find no merit in Ms. Bertrand’s first two assignments of error.

In her third assignment of error, Ms. Bertrand asserts that the trial court erred in concluding, after the July 1 hearing, that she had abandoned her suit. At that | ¡^hearing, Katherine Martin, a paralegal employed by Ms. Bertrand’s attorneys, testified that she was familiar with Ms. Bertrand’s case and that she had communicated with representatives of DOTD during the litigation. During her testimony, she identified a letter dated October 5, 1998, which the law office had received from counsel for DOTD. The letter provides in pertinent part:

Your plaintiff responded to the DOTD’s discovery on July 8, 1998. Several of those questions were not answered. You did state that you had requested the information and that it would be forwarded upon receipt. The DOTD is now prevented from moving forward with this case due to the lack of information requested.
Please supplement your responses and forward them to me. Feel free to contact me if you have any questions or comments.

Ms. Martin testified that, in response to this correspondence, she contacted DOTD’s representative to determine what additional information it requested. According to Ms. Martin, she did not receive an answer from DOTD and, from that point forward, was “basically ... waiting to complete the discovery.” At no time, according to Ms. Martin, did Ms. Bertrand express any desire to terminate the litigation.

In Clark v. State Farm Mutual Automobile Insurance Co., 2000-3010, pp. 5-6, (La.5/15/01), 785 So.2d 779, 784, the supreme court thoroughly analyzed the abandonment issue and explained the plaintiffs burden under La.Code Civ.P. art. 561 as follows:

Article 561 has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discover, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step.

| fi(Footnotes omitted.)

As stated in Clark, our jurisprudence has consistently held that Article 561 “is to be liberally construed in favor of maintaining a plaintiffs suit.” Id. at 785. However, despite this concept of liberal construction, the Clark court noted:

Abandonment functions to relieve courts and parties of lingering claims by giving effect to the logical inference that a legislatively designated extended period of litigation inactivity establishes the intent to abandon such claims. When the parties take no steps in the prosecution or defense of their claims during that legislatively ordained period, “the logical inference is that the party intends to abandon the claim and the law gives effect to this inference.” Young v. Laborde, 576 So.2d 551, 552 (La.App. 4th Cir.1991). The presumption of abandonment that arises under Article 561 as a result of three years of litigation inactivity, however, is not conclusive. As noted, two jurisprudential, prescription based exceptions are recognized. Moreover, given that dismissal is the harshest of remedies, the general rule is that “any reasonable doubt [about abandonment] should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment.” Id.

Id. at 786-87.

Certainly, the failure to move forward because of DOTD’s concern about inadequate discovery is attributable only to Ms. Bertrand. Therefore, we do not find that DOTD’s letter of October 5, 1998, was a step toward the prosecution of Ms. Bertrand’s lawsuit that interrupted the running of the three-year prescriptive period.

The July 8, 1999 and December 7, 1999 filings by DOTD removing and enrolling counsel are not considered formal steps in the prosecution of the suit although they appear of record. Brown v. City of Shreveport Urban Dev., 34,657 (La. App. 2 Cir. 5/9/01), 786 So.2d 253. Thus, in the period between the May 6, 1998 Article 1313 certificate filed by DOTD and the March 15, 2002 interrogatories filed by Ms. Bertrand, there were no steps taken in the prosecution of Ms. Bertrand’s claim 17that would interrupt the three-year prescriptive period. Additionally, any step taken by a plaintiff after the three-year period has run is ineffective to prevent a judgment of dismissal from being granted. Clark, 785 So.2d 779. Therefore, Ms. Bertrand cannot claim any benefit from the March 15, 2002 filing.

We find that Ms. Bertrand failed to establish that she had not abandoned her claim and, therefore, find no merit in her third assignment of error.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment in all respects. We assess all costs of this appeal to Sandra Bertrand.

AFFIRMED.

COOKS, J., dissents.

      . The discrepancy between the date of filing and the date the responses were alleged to be mailed is not explained in the record. However, the discrepancy does not affect the result in this appeal.

      . Although filed on the same day, Ms. Bertrand's motion to strike was actually filed before DOTD's motion to have the suit declared abandoned. The Clerk of Court’s filing stamp reflects that Ms. Bertrand's motion was filed at 9:27 a.m. and that DOTD's motion was filed at 11:04 a.m.

      . Neither of the two judicially created exceptions apply to the case at hand.