author: JjLEON A. CANNIZZARO, JR., Judge.

text:
    K. Brad OTT. v. Jacquelyn Brechtel CLARKSON, In her Official Capacity as New Orleans City Council Member District “C”.
    No. 2003-CA-1287.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.
    Mark M. Gonzalez, New Orleans, LA, for Plaintiff/Appellant, K. Brad Ott.

      Edward R. Washington, III, Deputy City Attorney, Evelyn F. Pugh, Chief Deputy City Attorney, Sherry S. Landry, Acting City Attorney, New Orleans, LA, for Defendant/Appellee, Jacquelyn Brechtel Clarkson in her Capacity as Councilmem-ber for District “C” for the City of New Orleans.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO, JR., MOON LANDRIEU, Judge pro tempore).
   JjLEON A. CANNIZZARO, JR., Judge.

K. Brad Ott (“appellant”) appeals the trial court judgment denying his request for public records pursuant to a petition for a writ of mandamus against Jacquelyn Brechtel Clarkson, in her official capacity as a New Orleans City Council Member (“appellee”). For the reasons set forth herein, we affirm the ruling of the trial court.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Pursuant to La. R.S. 44:31 et. seq., appellant issued to appellee a request for public records by certified mail on September 9, 2002. The request, which was received at appellee’s office on September 16, 2002, stated in relevant part:

[I] am requesting that your office make available for review and possible copying any records, memos, communications, directives, e-mails, work orders, surveys and notices of meetings in relation to the removal of park benches from the Jackson Square Pedestrian Park; encompassing the 700 block of Chartres Street (“Chartres Street Mall”) and the 500 block of both St. Ann and St. Peter Streets.
Please call me at my home phone number listed below to work out a specific time you and/or your staff can be present to review and possibly copy the items outlined in this request, under the time and form guidelines under the Louisiana Public Records Act noted above, as well as consequences noted under Louisiana Revised Statute 44:37.

Appellant submits that he did not receive a response to the request and made a second request through his attorney on October 23, 2002. Appellee responded to lathe second request on October 25, 2002, providing appellant with various documents and stating, “[t]his is the entirety of the documents I have in my possession which I believe are responsive to your request.”

Appellant also sought and received records from the French Market Corporation (“FMC”). These records included correspondence between the director of the FMC and appellee, relative to the issue of the benches. Appellant maintains that these documents were not previously produced by appellee, and, therefore, issued another public records request to appellee on February 14, 2003. In connection with this request, appellant was allowed to view all documents on file at appellee’s office. Appellee’s file did not contain the memo from the director of the FMC to appellee that appellant had received from the FMC.

Thereafter, appellant filed a petition for writ of mandamus, alleging appellee’s “behind the scene” activity and failure to comply with the Public Records Act as grounds for the writ. La. R.S. 44:35(A) provides that any person who has been denied the right to inspect or copy a public record either by a final determination of the custodian or by the custodian’s failure to respond within five days may institute proceedings in the district court for a writ of mandamus.

The matter was tried on April 4, 2003, and was submitted after oral argument of counsel. Testimony of the parties was not presented. The trial court thereafter rendered judgment on April 15, 2003, denying the writ of mandamus. In his written reasons for judgment, the trial court stated:

| ¡¡There is no evidence that Councilmem-ber Clarkson unreasonably or arbitrarily failed to respond to Mr. Ott’s request. The Court does recognize, however, an evident need to redefine in particularity the manner in which public officials are to maintain records in their control.

Appellant has timely appealed the judgment of the trial court.

DISCUSSION

Appellant alleges three assignments of error. First, the trial court erred by never addressing appellant’s initial public records request to Councilmember Clarkson. Second, the trial court erred in finding that Councilmember Clarkson did not unreasonably or arbitrarily withhold or fail to respond to the public records request. Third, the trial court erred in denying the writ of mandamus and by not awarding-petitioner damages, costs, and attorney’s fees. We shall address all three assignments of error jointly.

At the outset, we recognize the well-established principle that the trial court’s factual finding that appellee was not arbitrary requires great deference and will not be disturbed by this Court absent a clear and manifest error. Syrie v. Schil-hab, 96-1027 (La.5/20/97), 693 So.2d 1173. A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The Louisiana Supreme Court has announced a two-part test for the reversal of the fact finder’s determinations: “(1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).” Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The issue to be | ¿resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the fact finder’s conclusion was a reasonable one. Id. at 882.

Based on the record before this court, we cannot say that appellee’s response was arbitrary, capricious, or unreasonable. Accordingly, we do not find manifest error on the part of the trial court. As previously noted, appellee responded to the records request by providing appellant with the information contained in her file and by affording appellant the opportunity to view the file at appellee’s office. The fact that appellant was able to obtain relevant documents, which were not found in appellee’s file, from a different source does not necessarily indicate that appellee either failed to produce the documents or that she acted unreasonably.

Finally, we conclude that the trial court properly denied appellant the attorney’s fees and penalties sought under La. R.S. 44:35(D). That statute provides that a prevailing party in an action to obtain public records is entitled to reasonable attorney’s fees, and it further provides that where a party only prevails in part, the award of attorney’s fees is discretionary with the court. “Actual damages and civil penalties are authorized only when the court finds that the custodian of the records has acted arbitrarily, capriciously or unreasonably”. Hunter v. Pennington, 98-1821, p. 4 (La.App. 4 Cir. 1/20/99), 726 So.2d 1082, 1084.

In the instant case, appellant is not a prevailing party. The trial court dismissed the writ of mandamus. Although appellant succeeded in obtaining the relief sought, he did so because of appellee’s voluntary action in providing the information. Regardless, such an award of penalties is discretionary, and we cannot say, under the facts of this case, that the trial court abused his discretion in refusing to award penalties and attorney’s fees.

CONCLUSION

For the reasons assigned, we affirm the judgment of the trial court, dismissing appellant’s writ of mandamus.

AFFIRMED.

      . We note that appellee failed to respond to appellant’s first request for documents within the statutorily mandated five-day period, but appellant did respond to the second request timely. By the time that this suit was filed, appellee had complied with appellant's first and second requests. See La. R.S. 44:35(A).

      . La. R.S. 44:1 et. seq.


source: Caselaw Access Project

author: I JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Michael L. MULLIN and Wife, Betty F. Mullin v. James CROSS, Vance Richard, and Iberia Financial Services, L.L.C.
    No. 2003-CA-1285.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.
    Michael L. Mullin, New Orleans, LA, for Plaintiff/Appellant.
    Timothy D. Scandurro, Dewey M. Scan-durro, Scandurro and Layrisson, L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge LEON A. CANNIZZARO JR. and MOON LANDRIEU, Judge Pro Tempore).
   I JOAN BERNARD ARMSTRONG, Chief Judge.

This is a suit to recover investment losses. In January 2000, Michael Mullin deposited a sum of money into an account with Iberia Bank. Thereafter, Mr. Mullin and his wife, the plaintiffs herein, decided to invest the funds with defendant, Iberia Financial Services, L.L.C., (Iberia) a wholly owned subsidiary of Iberia Bank. To that end, the Mullins met with defendant James Cross, an Iberia employee, to set up an investment account. After having met with Mr. Cross, the Mullins signed an investment account agreement with ProEquities, Inc., Iberia’s clearing broker. The investment made on behalf of the Mullins realized a significant loss and the Mullins filed a petition for damages against Iberia, Mr. Cross, and Mr. Cross’s supervisor, Vance Richard. Mr. Cross was not served and ProEquities, Inc. was not named as a defendant. The petition for damages alleges that the investments made by Mr. Cross were unsuitable and inappropriate given the Mullins’s specific instructions that they did not want the principal sum invested in a risky investment.

Although the investment account agreement contained an arbitration clause, the Mullins filed their petition for damages without first having submitted their claim to arbitration. In response to the petition, Iberia and Mr. Richard filed an 1 ¡.exception of prematurity and motions to dismiss or stay proceedings pending arbitration and to compel arbitration. The trial court maintained the exception and motions, dismissed the case without prejudice, and granted the Mullins the right to file an arbitration claim before the National Association of Securities Dealers, Inc.

The Mullins maintain that arbitration with Iberia and Mr. Richard is not mandatory because Iberia and its employees were not named in the agreement. They claim that only ProEquities is named in the agreement. Iberia and Mr. Richard contend that although they are not mentioned in the agreement by name, Iberia is included by reference in paragraph 3 of the agreement as a party because it is the “bank, or broker or other financial institution that opened the account.”

It is clear that the agreement contained a mandatory arbitration agreement. There are multiple references to the arbitration clause found in both the application and the agreement signed by the Mullins. The application includes the following statement directly above the Mullins’ signature line: “Notice: This document contains a pre-dispute arbitration clause, which appears on the reverse side at paragraphs 13 and 14.” Paragraphs 13 and 14 state, in bold print and all capital letters:

13. ARBITRATION DISCLOSURES
* ARBITRATION IS FINAL, AND BINDING ON THE PARTIES.
*THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO A JURY TRIAL.
‘PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.
*THE ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
| /THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
14. AGREEMENT TO ARBITRATE CONTROVERSIES
IT IS AGREED THAT ANY CONTROVERSY BETWEEN U.S. ARISING OUT OF YOUR BUSINESS OR THIS AGREEMENT, SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. AND IN ACCORDANCE WITH ITS RULES.

The disclosure and acknowledgement form signed by the Mullins in connection with the agreement states in bold print and capital letters, “I AM AWARE THAT THE CUSTOMER AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES.”

The sole issue on appeal is whether Iberia and its employees are covered by the arbitration clause. The agreement defines “you” in paragraph 3 of the agreement:

“You” shall include the bank and broker or other financial institution which opened the account of the undersigned.

The Mullins argue that “you”, as contained in the general provisions of the agreement, cannot be interpreted to include Iberia and Mr. Richard. Because the word “you” was used throughout the contract with various meanings, they claim it was ambiguous and should not be interpreted to include Iberia.

We find that the agreement included Iberia and Mr. Richard as parties to the arbitration agreement, and that Iberia was the financial institution that opened the account pursuant to paragraph 3 of the agreement.

This Court addressed a similar issue in Alford, v. Johnson Rice & Company, L.L.C., 99-3119 (La.App. 4 Cir. 11/15/00), 773 So.2d 255. In that case, the Alfords opened a stock account with Johnson and Rice, a brokerage firm. Johnson [4and Rice engaged Bear Sterns Securities as the clearing broker to process the customers’ orders. As in the instant case, the Alfords’ arbitration agreement appeared on a Bear Sterns form and referred only to the “broker” or “affiliate” of Bear Sterns, but did not specifically name Johnson and Rice by name. Although Johnson and Rice were not named in and did not sign, we held that they were covered by the arbitration clause.

After a thorough review of the entire record, and in light of our holding in Alford, we conclude that the arbitration agreement was binding as to Iberia and Mr. Richard. Accordingly, we affirm the judgment of the trial court granting defendants’ exception of prematurity and dismissing the petition without prejudice.

AFFIRMED.

      . The arbitration disclosures and agreement to arbitrate controversies are the only provisions of the agreement that appear in bold print capital letters.


author: JjEDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana In the Interest of J.B. and G.M.
    No. 2003-CA-0587.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 10, 2003.
    Eddie J. Jordan, Jr., District Attorney, Lorena M. Lisi, Assistant District Attorney, Juvenile Division “C”, New Orleans, LA, for Plaintiff/Appellant.
    David R. Katner, Tulane Juvenile Law Clinic, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   JjEDWIN A. LOMBARD, Judge.

FACTS AND PROCEDURAL HISTORY

On September 16, 2002, J.B. and G.M. (“defendants”) were arrested and charged with La. R.S. 40:967(B)(1) (possession of a Schedule II Controlled dangerous Substance with intent to distribute). Subsequently, on September 17, 2002 the State filed a petition against the defendants. On that day the defendants appeared before the Honorable Mark Doherty, and entered not guilty pleas. Subsequently, J.B. was released to his mother under house arrest, and G.M. was remanded pending further hearing. The case was allotted to the Honorable Yvonne Hughes, and a pre-trial conference was scheduled for September 25, 2002. The juvenile court did not set an adjudication hearing date.

On September 25, 2002, Orleans Parish Juvenile Court was closed due to Hurricane Isidore. Consequently, Judge Hughes reset the pre-trial conference to October 30, 2002. On October 30th the defendants appeared and maintained their not guilty pleas via their Orleans Indigent Defender Program (“OIDP”) attorney, Ferdinand Valteau. At this time, Tulane Law Clinic was appointed to represent J.B. The defendants were released to their parents pending the adjudication hearing. A trial date was set for January 30, 2003. Mr. Valteau waived all delays for the setting of the date.

|2On January 27, 2003, Tulane Law Clinic filed a motion for dismissal for untimely adjudication under Louisiana Children’s Code Article 877 on behalf of J.B. Mr. Valteau joined in on Tulane’s motion on behalf of G.M. On January 30, 2003 the matter came before the Honorable Judge Robert J. Klees. Following oral arguments by the Tulane Juvenile Law Clinic and the State, the juvenile court dismissed the petition. The State filed this subsequent appeal.

LAW AND ANALYSIS

The sole issue before us is whether the juvenile court erred in granting the defendants’ motion to dismiss the petition on the grounds that the adjudication hearing was not commenced timely pursuant La. Ch.Code. art. 877.

La. Ch.Code art. 877 provides:

Aet. 877 Adjudication Hearing; Time Limitations
A.If the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shall release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.

In the instant case, the record indicates that the defendants both appeared and answered the petition on September 17, 2002. G.M. remained in continued custody until the October 30th pre-trial conference. According to subsection B of the La. Ch. Code article 877, the adjudication hearing should have been held within thirty days of his appearance or on October 17, 2002. An adjudication hearing was not held on that date.

| aAfter J.M.’s appearance he was released to his parents and not in continued custody. According to subsection A of the La. Ch.Code article 877 the hearing should have commenced within ninety days of September 17, 2002, the date he appeared to answer the petition. Applying the formula for computation of time set forth in La.Ch.Code art. 114, J.M.’s adjudication hearing should have commenced by December 16, 2002.

Ultimately, the adjudication hearing, in both cases, was not set until January 30, 2003. Thus, in each case the hearing did not commence timely, and dismissal of the petition is mandated under La.Ch.Code art. 877(C).

The State, however, argues that good cause was shown when the pre-trial conference was continued because of Hurricane Isidore. The State contends that the ninety day date would have been selected but not for the court extending the pretrial conference date. The State also argues that since Mr. Valteau waived the delays, the January 30, 2003 date was a timely set date. This argument is without merit.

The fact that the pre-trial conference was continued because of the weather does not implicate Article 877. Article 877 provides for adjudication hearings and not pre-trial conferences. The hurricane delayed the pre-trial conference, not the mandatory adjudication hearing. We find, in this case, that “good cause” relates to the extension of time to set an adjudication hearing and not the setting of a pre-trial conference to determine the date of the adjudication hearing. See State in the Interest of J.C.F., 95-0423 (La.App. 4 Cir. 7/26/95), 659 So.2d 537.

We also find that pursuant to section B of La. Ch.Code art. 877, both the thirty and ninety-day periods established for holding the adjudication hearing is | ¿mandatory. Thus, Mr. Valteau’s waiver of delays to the setting of the hearing should not be considered a waiver of the right to a timely adjudication.

Additionally, as previously noted, La. Ch.Code art. 877 does not say that the adjudication hearing can be set outside the mandatory period, if good cause is demonstrated. Instead, it specifically states that the court may extend the deadline for the adjudication if good cause is demonstrated. There is no allegation or proof that the State or the juvenile asked the court to extend the deadline for the holding of the adjudicatory hearing. Moreover, the court failed to state the basis for finding that there was good cause for setting the adjudication hearing outside the mandatory time periods. Nor does the record suggest a basis for finding that good cause for setting an untimely adjudication hearing date existed.

In sum, we find that La. Ch.Code art. 877 sets out mandatory time limits within which the adjudicatory hearing must be commenced. Since the adjudication hearing was a date beyond the applicable period, the trial court was correct in granting the motion to dismiss.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Donna BROWN and Vicki Davis v. Steven S. HIATON, Church Mutual Insurance Company, Greater St. Stephen Baptist Church, and Louisiana Auto Insurance Company.
    No. 2003-CA-0155.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.

      Donna Brown, New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    James Ryan, III, Timothy T. Roniger, James Ryan, III & Associates, LLC, New Orleans, LA, for Defendant/Appellee, Church Mutual Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   JjLEON A. CANNIZZARO, JR., Judge.

This case involves a personal injury action by the plaintiffs, Donna Brown and Vickie Davis, against the defendants, Steven S. Hixon, his employer, Greater St. Stephen Baptist Church (“St.Stephen”), and their insurer, Church Mutual Insurance Company (the “Insurer”). Ms. Brown is appealing the trial court’s dismissal of her case.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Ms. Brown and her guest passenger, Ms. Davis, were traveling in a Nissan automobile when a vehicle owned by St. Stephen and driven by Mr. Hixon hit the Nissan from the rear, injuring Ms. Brown and Ms. Davis. Ms. Brown and Ms. Davis subsequently brought this suit. Ms. Davis settled her claim and is no longer a party to the suit.

At trial Ms. Brown represented herself in proper person. At the beginning of the trial, a motion to dismiss the claims against Mr. Hixon and St. Stephen was | ¡¡made on the ground that these two defendants had not been served with the citation in the suit. When the trial court judge asked Ms. Brown whether she had any evidence that these defendants had answered the petition for damages, she said no. The trial court dismissed the claims against these defendants. A motion was then made on behalf of the Insurer to dismiss the claims against it on the ground that an action against an insurer alone can only be brought in limited circumstances, none of which were applicable in the instant case. See La. R.S. 22:655(B). The trial court granted the motion and dismissed the entire case with prejudice.

After the case was dismissed, Ms. Brown filed a motion for appeal. Next Ms. Brown filed a Forma Pauperis Application , which was denied. Then because she did not pay the costs of the appeal, a rule to show cause why the appeal should not be dismissed was filed by the clerk of the trial court. The rule to show cause was heard by the trial court. Ms. Brown was present at the hearing, and she represented herself. After the hearing, Ms. Brown filed another Forma Pauperis Application. Prior to ruling on the second Forma Pauperis Application, however, the trial court dismissed Ms. Brown’s appeal on the grounds that the appeal costs remained unpaid. After the appeal was dismissed, the trial court judge then approved the second Forma Pauperis Application.

This Court remanded the case to the trial court for a clarification regarding the approval of the second Forma Pauperis Application after the appeal was dismissed. On remand the trial court vacated the dismissal and reinstated the appeal, which is now before us.

LDISCUSSION

Assignments of Error

Ms. Brown’s brief does not contain specifications or assignments of error as such. Under Rule 1-3, Uniform Rules — Courts of Appeal, we “will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Because it appears that Ms. Brown’s brief does, at least by implication, raise the issue of whether the Insurer should have been dismissed after Mr. Hix-on and St. Stephen were dismissed, we will treat the dismissal of the Insurer as an assignment of error for purposes of this opinion.

Dismissal of the Insurer

Ms. Brown contends that the Insurer should not have been dismissed from this case after the trial court dismissed the suit against Mr. Hixon and St. Stephen. The trial court dismissed the suit against these defendants on the grounds that they had not been served with a citation and had not filed an answer to the petition for damages. See La.C.C.P. art. 1201, which provides that without citation and service “all proceedings are absolutely null.”

|4Ms. Brown contends that the Insurer, which was served with the citation and filed an answer to the petition for damages, should not be dismissed from the case. We disagree, however. Pursuant to La. R.S. 22:655(B), an insurer can be sued alone only in certain instances. La. R.S. 22:655(B) provides that a direct action may be brought against an insurer alone only when (1) the insured is adjudicated a bankrupt or is involved in bankruptcy proceedings, (2) service of process cannot be made on the insured, (3) the cause of action is between parent and child or married persons, (4) the insurer is an uninsured motorist carrier, or (5) the insured is deceased. None of these situations are applicable in this case. Therefore, the trial court properly dismissed this suit against the Insurer.

Dismissal with Prejudice

We note, however, that this suit was dismissed “with prejudice”. La.C.C.P. art. 1672(C) provides that “[a] judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) [ninety days after the commencement of the action], upon contradictory motion ... or upon the court’s own motion, unless good cause is shown why service could not be requested.... ” (Emphasis added). We do not believe that this suit should have been dismissed with prejudice under La. C.C.P. art. 1672(C). Therefore, we hereby amend the trial court’s judgment dismissing this case to reflect that the case is dismissed without prejudice.

CONCLUSION

The trial court’s judgment is affirmed insofar as it dismisses the suit against 15Mr. Hixon, St. Stephen, and the Insurer. The judgment is amended, however, to reflect that the dismissal is without prejudice

AFFIRMED AS AMENDED.

      . Mr. Hixon was incorrectly identified as Stephen S. Hiaton in the petition.

      . Louisiana Auto Insurance Company was also sued, because it was thought to be an insurer of St. Stephen.

      . The record reveals that prior to trial two different law firms had represented Ms. Brown. One had withdrawn from the case, and the services of the other were terminated by Ms. Brown. The record also shows that the trial court judge advised Ms. Brown at least twice that she should not proceed to trial without representation by counsel. Ms. Brown, however, decided to proceed with the trial in proper person.

      . The Insurer had been served with the citation and had filed an answer.

      . If an application to proceed in forma pau-peris is granted, the applicant does not have to pay court costs.

      . The brief states that "[t]he following events will ascertain and /or describe inadequate representation of co-plaintiffs, Donna M. Brown and Vicki Davis due [sic] collusion, conspiracy, suppression of file record requirements, and breach of statutory duty by one or more defendant(s)” and then enumerates eight events. Several of the "events” relate to the settlement of Ms. Davis’ claims against the defendants and the failure of the Insurer to settle Ms. Brown’s claims or to otherwise compensate her. Additionally, some of the “events” refer to the Insurer's breach of "its duty of good faith and fair dealing.” The rest of the “events” relate to the dismissal of the suit against the Insurer, because the case was dismissed against St. Stephen and Mr. Hixon. The brief also mentions Ms. Brown’s claim that she was "a victim of inadequate representation.”

      . We note that Ms. Brown did not raise the issue of the dismissal of Mr. Hixon and St. Stephen. Because this issue was not raised, we will not address it. Mr. Hixon and St. Stephen did file an answer to a petition for intervention in this case. We will not, however, address the issue of whether or not this could be construed to be a general appearance in this suit, because this issue was not raised either in the trial court or on appeal.


author: J^EDWIN A. LOMBARD, Judge.

text:
    Laura E. TRUNK v. MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS, State of Louisiana, Louisiana Health Care Authority, John Doe and ABC Insurance Company.
    No. 2003-CA-0275.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.

      Patrick G. Kehoe, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Richard P. Ieyoub, Attorney General, Rodney A. Ramsey, Assistant Attorney General, LA Dept, of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   J^EDWIN A. LOMBARD, Judge.

FACTS AND PROCEDURAL HISTORY

This is a slip-and-fall personal injury case. The accident occurred on January 31, 1996. As Laura Trunk (“Plaintiff’) exited a conference room located on the third floor of the Medical Center of Louisiana at New Orleans (“Defendant”), she slipped on a foreign substance and injured her wrist. As a result of the fall the plaintiff suffered tendon and ligament injuries that required arthroscopic surgery.

At the time of the accident the plaintiff was completing her residency in Internal Medicine. Upon completion of her residency, the plaintiff had planned to specialize in Gastroenterology. This position would require extensive use of the hands and wrist in performing examinations and surgical procedures.

Plaintiff filed suit on January 30, 1997 and named the Medical Center of Louisiana as a defendant. Prior to trial both the defendant and the plaintiff filed motions for directed verdict on the issue of liability. The trial judge granted plaintiffs motion, but denied defendant’s motion.

| ¡..Subsequently, on April 3,4 and 8-12, 2002, a jury trial was held on the issue of damages. The jury returned a verdict in favor of the plaintiff in the amount of $35,000 in general damages and $17,901.79 for past medicals. The total amount awarded was $52,901.79. The jury made no award for mental pain and anguish, permanent disability, future medical and future lost of earning capacity.

Plaintiff moved for judgment notwithstanding the verdict (“JNOV”). The trial judge granted plaintiffs JNOV and increased the jury award to $250,000 general damages (including pain and suffering), $40,000 past and future medical expenses and $500,000 for future loss of earning capacity. Thus, the net judgment rendered for the plaintiff pursuant to the JNOV was in the amount of $790,000.

From that judgment defendant appeals, assigning the following as error:

(1) The trial court erred in granting plaintiffs motion for directed verdict on the issue of liability.
(2) The trial court erred in granting plaintiffs motion for JNOV on the issue of damages.
(3) The trial erred in denying its motion for directed verdict on the issue of liability because the plaintiffs exclusive remedy was workers’ compensation.

LAW AND ANALYSIS

ASSIGNMENT OF ERROR NUMBER ONE

By way of this assignment of error, the defendant contends the trial court erred in granting plaintiffs motion for directed verdict on the issue of liability. The defendant argues that the plaintiff must prove under Civil Code article 2315 that the floor created an unreasonable risk of harm. The defendant further submits that the plaintiff failed to prove that it owed a duty under the theory of negligence. |3 Additionally, the defendant argues that there was no evidence introduced to establish actual or constructive notice.

The standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict. Lott v. Lebon, 96-1328 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 616. The record supports the conclusion of the trial judge compelling the granting of a motion for a directed verdict, based not on a credibility determination (a factual issue), but on a sufficiency of evidence determination (a question of law). Id. A directed verdict should be sustained on appeal where the reviewing court would find a jury verdict in favor of the party opposing the motion to be manifestly erroneous had the trial judge allowed the case to go to the jury. Wichser v. Trosclair, 99-1929 (La.App. 4 Cir. 2/28/01), 789 So.2d 24.

A motion for directed verdict under La.Code Civ. Pro. art. 1810 is properly granted if in viewing the facts in the light most favorable to the adverse party, the trial court concludes that the evidence is such that reasonable, fair-minded jurors cannot arrive at a verdict in favor of the non-moving party. Lozano v. Touro Infirmary, 99-2587 (La.App. 4 Cir. 12/13/00), 778 So.2d 604, 607, writ denied, 2001-0551 (La.5/11/01), 792 So.2d 733. If there is substantial evidence opposed to the motion, i.e., evidence of such quality and weight that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case should be submitted to the jury. Lott v. Lebon, 96-1328 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 616, writ denied, 97-0359 (La.3/21/97), 691 So.2d 92, and writ denied 97-0414 (La.3/21/97), 691 So.2d 95; Walker v. Louisiana Health Management Co., 94-1396, p. 81 La.App. 1 Cir. 12/15/95), 666 So.2d 415, 421, imi denied, 96-0571 (La.4/19/96), 671 So.2d 922.

A directed verdict is appropriate only when the evidence overwhelmingly points to one conclusion. Hebert v. Bell-South Telecommunications, Inc., 01-00223 (La.App. 3 Cir. 6/6/01), 787 So.2d 614. A motion for a directed verdict is a procedural device available in jury trials with an eye toward judicial economy. Reed v. Columbia/HCA Information Systems, Inc., 2000-1884 (La.App. 5 Cir. 4/11/01), 786 So.2d 142, unit denied 2001-1384 (La.6/22/01), 794 So.2d 796.

The trial court has much discretion in deciding whether to grant or deny the motion for directed verdict. Brockman v. Salt Lake Farm Partnership, 33, 938 (La.App. 2 Cir. 10/4/00), 768 So.2d 836, writ denied 2000-3012 (La.12/15/00), 777 So.2d 1234; Delaney v. Whitney Nat. Bank, 96-2144 (La.App. 4 Cir. 11/12/97), 703 So.2d 709, writ denied 98-0123 (La.3/20/98), 715 So.2d 1211. A motion for directed verdict may be granted when, after considering all evidentiary inferences in the light most favorable to the mover’s opponent, it is clear that the facts and inferences are so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Burris v. Wal-Mart Stores, Inc., 94-0921 (La.App. 1 Cir. 3/3/95), 652 So.2d 558.

After a thorough review of the record, we cannot say that the trial judge abused his discretion with regard to the granting of the motion for directed verdict. Thus, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, the defendant contends that the trial court erred in granting plaintiffs motion for JNOV on the issue of damages. It argues that the jury award of $35,000 for pain and suffering was adequate and not unreasonable or | ^abusively low to require an increase in the award. Additionally, the defendant contends that the plaintiff failed to present sufficient credible testimony to support any award for future medical expenses or future loss of earning capacity. Thus, the defendant argues, the plaintiff is not entitled to such damages.

The plaintiff answers the appeal and contends that the “jury’s verdict was so abusively low as to shock the conscience of any objective arbiter.” She argues that the jury failed to appreciate the severity of her injury and failed to properly apply the facts and law in arriving at its decisions. We agree.

In ruling on a motion for JNOV under La.Code Civ.P. art. 1811, the trial court is required to employ the following legal standard: A JNOV should only be granted if the trial court, after considering all of the evidence in the light most favorable to the party opposed to the motion, finds it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on the issue. However, if there is substantial evidence of such quality and weight that reasonable persons might reach different conclusions, the motion must be denied. Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969); Cosie v. Aetna Casualty & Surety Insurance Co., 527 So.2d 1105, 1107 (La.App. 1st Cir.1988); Robertson v. Penn, 472 So.2d 927, 929 (La.App. 1st Cir.), writ denied, 476 So.2d 353 (La.1985). On appeal, the findings of the jury are reviewed under this standard. Woods v. Sammisa Company, Ltd., 873 F.2d 842, 846 (5th Cir.1989), cert. denied, 493 U.S. 1050, 110 S.Ct. 853, 107 L.Ed.2d 847 (1990). The trial judge’s action in granting a JNOV, thereby altering the factual finding of the jury, is governed by the manifest error or abuse of discretion standards. See Cosie v. Aetna Casualty & Surety Insurance Co., 527 So.2d at 1107 (employing a manifest error test); Robinson v. Bump, 894 F.2d 758 (5th Cir.1990) (employing an abuse of discretion test).

A JNOV is proper only where the trial judge concludes the verdict is one reasonable people could not have reached. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 at 832 (La.1991); Lilly v. Allstate Insurance Company, 577 So.2d 80, 83 (La.App. 1st Cir.1990), unit denied, 578 So.2d 914 (La.1991). In applying this standard, the court cannot weigh the evidence, pass on the credibility of the witnesses, or substitute its judgment of the facts for that of the jury. Barnes v. Thames, 578 So.2d at 1169.

In reviewing the trial judge’s decision to grant plaintiffs motion for JNOV on the issue of damages, we conclude that the motion was properly granted.

Having found the motion for JNOV was correctly granted, we must determine whether the trial court abused its vast discretion in its de novo award of damages.

A JNOV is a procedurally correct device for raising an unreasonable damage award. Orgeron v. Prescott, 93-926 (La.App. 5th Cir.4/14/94), 636 So.2d 1033, 1040, unit denied, 94-1895 (La.10/28/94), 644 So.2d 654; Verret v. Carline, 93-0508 (La.App. 1st Cir.3/11/94), 634 So.2d 37, 39, writ denied, 94-0842 (La.5/13/94), 637 So.2d 1070. When a trial court determines a JNOV is warranted because reasonable persons could not differ that the award was abusively low, it must determine the proper amount of damages. In making this determination, the trial court is not bound by the constraints imposed on appellate courts of raising the award to the lowest point reasonably within the discretion afforded that court. Instead, it should render a de novo award based on its independent assessment of l7damages. Anderson v. New Orleans Public Service, Inc., 583 So.2d at 833-34; Verret v. Carline, 634 So.2d at 39.

Plaintiffs treating physician, Dr. Harold Stokes, testified that plaintiff had a scapholunate disruption, which are tears in the ligaments in the wrist. As a result, Dr. Stokes preformed arthroscopic surgery on plaintiffs wrist. He also performed a left carpal tunnel release, to alleviate the pressure on the nerve that was causing continuous inflammation and swelling of the wrist joint.

After the surgery, plaintiff continued to suffer from impingement on the nerve in her wrist that was caused by scarring, and unstable range of motion the cartilage in the wrist. Dr. Stokes testified that the plaintiff still has significant complaints of pain and needed future surgery. However, if she does have wrist fusion surgery, she will sustain about a 15% to 25% permanent partial impairment rating of the upper extremity of her wrist.

Defendant’s orthopedic surgeon, Dr. Donald Faust, performed an independent medical examination of plaintiff. His report indicated that after surgery plaintiffs condition had become worse.

Moreover, testimony at trial established that plaintiffs desire to be a Gastroenterology specialist was severely impaired by her injuries. Dr. Nicolas Persich, an expert in the field of Gas-troenterology, testified that plaintiff would have a difficult time being effective as a Gastroenterologist. He indicated that plaintiff would be required to have a certain amount of grip strength to utilize the tools of the trade. Likewise, Dr. Dayton Daberknow, an expert in Internal Medicine, testified that plaintiffs loss of motion, strength, and physical pain, will impair her ability to perform Internal Medicine procedures. Defendant’s expert, health economist, Dr. Hugh Long, also agreed that the plaintiff suffered a | ¡^substantial loss of future income if she could not practice s a Gastroenterologist. He testified that plaintiffs loss of future income under that circumstance would be estimated at $1.3 million. Plaintiffs economist calculated the loss to be $541,549 less than even a general internist would normally earn.

General damages involve physical and mental pain and suffering, inconvenience, loss of intellectual gratification or physical enjoyment, and other factors that affect the victim’s life. Delphen v. Department of Transp. and Development (La.App. 4 Cir. 5/24/95), 657 So.2d 328, writ denied, 95-2116 (La.11/17/95), 663 So.2d 716, and writ denied, 95-2124 (La.11/17/95), 663 So.2d 717. The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific. The standard of review for damage awards requires a showing that the trier of fact abused the great discretion accorded in awarding damages. In effect, the award must be so high or so low in proportion to the injury that it “shocks the conscience.” Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991).

The law is clear that a claim for the loss of earnings need not be proven with mathematical certainty, but only by such proof as reasonably establishes plaintiffs claim. Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5 (La.App. 3 Cir. 1991). The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition. Pierce v. Milford, 688 So.2d 1093, 1095 (La.App. 3rd Cir.1996), citing Finnie v. Vallee, 620 So.2d 897.

Likewise, future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred. Cooper v. Liberty Mut. Ins. Co., 96-1522 (La.App. 4th 19Cir.8/20/97), 699 So.2d 115. Although a plaintiff is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record. Turner v. Pelican, 94-1926 (La.App. 4th Cir.9/15/96), 661 So.2d 1065, writ denied, 95-2513 (La.12/15/95), 664 So.2d 441, quoting Dixon v. Winn-Dixie Louisiana, Inc., 93-1627 (La.App. 4th Cir.5/17/94), 638 So.2d 306. If the fact finder can determine from past medical expenses or other evidence a minimal amount that reasonable minds could agree upon, then an award is proper. Id.

In the present case, given the particular injuries and damages suffered by Laura Trunk, as corroborated by her treating physicians, it is clear that the damage award of the trial court was within its broad discretion. We find no clear abuse of discretion in the trial court’s judgment. The award was not so high as to shock the conscience. The trial court did not abuse its discretion in the amount of damages awarded.

ASSIGNMENT OF ERROR THREE

Finally, in this assignment of error the defendant complains that the trial court erred in denying its motion for directed verdict on the issue of liability. Specifically, the defendant argues that the plaintiff, a medical student, was an employee of the Medical Center of Louisiana. According to the defendant, the plaintiffs exclusive remedy was in workers’ compensation. The defendant contends that the hospital had direct right of control over plaintiff; paid direct and indirect costs to have residents and medical students from LSU at the hospital to provide patient care; had final authority in all disciplinary matters; and provided the plaintiff with equipment for the treatment of the patients. Thus, the defendant | inconcIudes that the plaintiff was a borrowed employee of the hospital and the trial court should have dismissed plaintiffs lawsuit.

Under the Louisiana Workers’ Compensation Act, an employee injured in an accident while in the course and scope of employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer. La. R.S. 23:1032(A)(l)(a); Hill v. West American Insurance Company, 93-915, 93-932, p. 5 (La.App. 3rd Cir.3/2/94); 635 So.2d 1165, 1169, writ denied, 94-1630 (La.9/30/94), 642 So.2d 881.

The issue of whether a borrowed servant relationship exists is a matter of law for the court to determine. Fanguy v. Dupre Brothers Construction Company, Inc., 588 So.2d 1251, 1257 (La. App. 1st Cir.1991), writ denied, 594 So.2d 892 (La.1992). However, there are numerous factual inquiries underlying “borrowed employee” status and the trial court’s factual findings will not be upset unless they are clearly erroneous. Fanguy, 588 So.2d at 1257. There is no fixed test, nor is the existence of a contract or any other single factor determinative; however, the following must be considered in determining the existence of a borrowed employee relationship: right of control; selection of employees; payment of wages; power of dismissal; relinquishment of control by general employer; which employer’s work was being performed at the time in question; agreement, either implicit or explicit, between the borrowing and lending employer; furnishing of instructions and place for performance of the work in question; length of employment; and acquiescence by the employee in the new work situation. Walters v. Metropolitan Erection Company, 94-0162, 94-0475, p. 4-5 (La.App. 4th Cir.10/27/94); 644 So.2d 1143, 1146, units denied, 94-2858 and 94-2870 (La.2/9/95); 649 So.2d 420.

| n Implicit in maintaining a borrowed employee relationship is the existence of an employment relationship between an employee, in this case, plaintiff, and a general or lending employer, in this case, Medical Center of Louisiana. As a general rule, for an employer-employee relationship to exist, there must be a contract of employment, either express or implied, whereby services are furnished in anticipation of compensation. Genusa v. Pointe Coupee Volunteer Fire District No. 4, 93-2214, p. 3 (LaApp. 1st Cir. 10/7/94); 644 So.2d 851, 852.

Here, we find that the record is completely devoid of any evidence establishing the existence of an employer-employee relationship between plaintiff and the defendant. The record clearly shows that plaintiff was a student and therefore did not render services to the defendant in anticipation of compensation. In fact, the defendant admitted in its brief that plaintiff “... did not receive any monetary compensation.” Because there exists no employment relationship between plaintiff and the defendant, plaintiff cannot be an “employee” borrowed by the defendant. Accordingly, the trial court did not err in denying the defendant’s motion for directed verdict because plaintiff was a borrowed employee whose exclusive remedy is workers’ compensation.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.


author: JjEDWIN A. LOMBARD, Judge. |,ARMSTRONG, C.J.,

text:
    Norman PENTON d/b/a Penton Studio v. George W. HEALY, IV.
    No. 2003-CA-0614.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.

      Santo A. Dileo, Harahan, LA, for Plain-tiffAppellant.
    Kevin C. O’Bryon, O’Bryon & Schnabel, PLC, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A CANNIZZARO, JR.).
   JjEDWIN A. LOMBARD, Judge.

The plaintiff, Norman Penton, D/B/A Penton Studio, seeks review of the trial court’s judgment in his favor in the amount of $1,500.00 in his open account suit against the defendant, attorney George W. Healy, IV. After review of the record, the briefs of the parties, and the pertinent caselaw and statutory authority, we reverse the judgment and remand the matter to the trial court for further proceedings.

Pertinent Facts and Procedural History

This case arises out of the production of twenty-three large photographic exhibits by the plaintiff in less than fifteen hours for use as a demonstrative aid by the defendant’s expert witness in an ongoing trial (the “Seither case”) in the Civil District Court for the Parish of Orleans. The plaintiff billed the defendant $6,796.37 for its services. On November 2, 2001, the defendant contested the amount, offering to pay only $1000.00. On November 7, 2001, the plaintiff refused the offer with the following detailed explanation of the charges:

Your offer of $1,000.00 for the courtroom exhibit photographs ordered by Susan Langoni on October 16, 2001 is unacceptable. Here is why:
|21) $250 is the price of a 20x24 mounted photograph. $180 is the price of a 16x20 mounted photograph. These are the regular prices that we see to all of our clients. It is common practice to discount any additional copies made from the same image, however you have 23 originals.
2) Part of the $500 lab rush fee covers the costs to mix the necessary chemicals to run the film and make the prints. Our regular production schedule is to mix new chemistry every other week. Your job came in at a time in the middle of this cycle. New chemistry had to be mixed with just hours to complete the printing. During a normal production cycle, chemistry is always left overnight before use. This gives us more consistent negative density[,] which makes the printing of the photographs more predictable. We did not have that time making the printing stage of the job that much more difficult. Also the lab rush fee includes the overnight labor and the interruption of work in progress that had to be can-celled and started over with a delay in delivery as promised to clients.
3) We will waive the $500 shooting fee as the difficult and expensive work was in the production of the prints.
Mr. Healy, please note that there is a big difference between a 4x6 proof size print and a 20x24 and 16x20 display size print. We are all familiar with the concept of one hour photos available at nearly every grocery store (done at an added cost), but the idea of 23 display size prints shot and ready for use in under 15 hours simply does not exist. If we did not have our own lab with the capability to process film and paper you would not have had these photographs at your trial. Even if we had shot the job digitally, large format ink jet photographs take at least an hour to print each one after a proper color balance has been achieved though test proofing.
During the conversation between Marlin Penton (my photographer) and Susan Langoni on October 16, the discussion was in the nature of whether or not we could do the job with such short notice. We did not discuss cost. The day after the shot I did discuss the job with several other area photographers to ensure that the invoice was not over nor under inflated. I found several who charge more than I do for display photos. Every conversation was ended with amazement that we were actually able to complete such an undertaking within the time frame.
There are very few photographers in the metro area who have their own lab and I can not think of even one that does his own C-41 film processing.
$6296.37 is your new total due. I am hoping that this particular job does not jeopardize a further working relationship between Penton Studio and O’Bryon & Schnabeo [sic].

|3On November 15, 2001, at the conclusion of the Seither trial, the defendant filed a rule to tax $173,427.02 in costs, including the plaintiffs bill, in the trial court. In his memorandum in support of the rule to tax costs, the defendant stated:

We received a bill from Penton Photography in the amount of $6,796.00 [sic]. This was the bill submitted to us in connection with the photographs taken of John Stilson’s demonstrative aid. The undersigned disputed this bill as he feels it is outrageous. The undersigned respectfully suggests that this court set a reasonable bill for photographing and “blowing up” the photographs of the “exemplar buck.” The undersigned did not approve this bill. The undersigned’s secretary called and asked that some pictures be taken and we received the bill as a consequence although we never approved the bill and never authorized this type of expense.

On November 16, 2001, the defendant filed a separate motion in the Seither case to determine photographic costs and a memorandum in support of the motion, requesting that the court set a reasonable amount for the photographs. On November 30, 2001, the plaintiff filed an opposition, pointing out that a determination of the dispute over the costs of the photographs within the context of the Seither case would be an unauthorized use of a summary proceeding. The plaintiff also filed a motion for sanctions against the defendant, claiming that he brought the motion in the Seither case to determine photographic costs solely to harass the plaintiff into accepting less than the invoiced amount.

On November 30, 2001, the trial court heard the motions and took the matter under advisement. On February 25, 2002, the trial court ruled as follows:

The [Seither] plaintiffs have filed a Motion to Set Costs in the above captioned case. Included in the [Seither] Plaintiffs costs and expenses was an invoice from Penton Studio in the amount of $6,296.37 for 24 photographs and enlargements produced for trial. This Court finds Penton Studios prices to be exorbitant by any standard. This Court does not think that photographs taken by Andy Warhol while being directed by Cecile B. Demil [sic] would approach such unreasonable costs.
Considering the Motion to Set Costs filed on behalf of the [Seither] Plaintiffs: LIT IS HEREBY ORDERED that the cost for Penton Studios taking of 24 photographs is set at $1,500.00.
IT IS FURTHER ORDERED that all other motions pending on the issue of the photographs taken by Penton Studios are hereby dismissed.

On April 2, 2002, the plaintiff filed a devolutive appeal of the trial court’s denial of its motion for sanctions in the Seither case and filed the instant petition on open account, attorney’s fees, and damages for abuse of process, in Orleans Parish First City Court. In its petition, the plaintiff alleged that the defendant owed $6,796.37, the invoiced amount, despite the Seither trial court’s order because the plaintiff was not a party in the Seither lawsuit. The plaintiff also sought damages for abuse of process, alleging that the subpoena was issued to him by the defendant in conjunction with the Seither rule to tax costs to harass him into accepting a lesser amount for his services and to convince him that the amount due could be determined in the summary proceeding to tax costs in the Seither matter.

On April 10, 2002, the defendant filed a declinatory exception of lis pendens and a peremptory exception of res judicata with his answer to plaintiffs suit on open account. The defendant averred that the plaintiff, by filing an opposition to the rule to fix costs, voluntarily appeared in the Seither case. The defendant argued that, to the extent that the value of the photographic exhibits was not decided through the motion to fix costs in the Seither case, the plaintiff was entitled only to a reasonable price at the time and place of delivery. In support of his argument, the defendant relied on his status as a mandatary for his client in the Seither case, which he claims was disclosed to the plaintiff at the time the [ .¡photographic services were requested, and asserts that he could not be held personally liable for the photographic services rendered on behalf of his client.

On May 15, 2002, the plaintiff filed its opposition to defendant’s exceptions, arguing that the underlying suit (the Seither case) and the instant action do not have the same parties in the same capacities and do not involve the same transaction or occurrence. On May 21, 2002, the court overruled the defendant’s exceptions of lis pendens and res judicata and set the matter for trial. At the trial on December 16, 2002, the following evidence was adduced.

The defendant testified that upon being instructed by the trial court in the Seither case to provide the jury with photographs of the exemplar the next morning, he instructed his secretary to hire a photographer and that his secretary located and hired the plaintiff without further guidance or approval from him. The defendant conceded he did not know how the photographs were taken or developed. The invoice and correspondence between the defendant and the plaintiff regarding the fee for the photographic exhibits were admitted into evidence.

The defendant admitted that the plaintiff was not a defendant in the Seither case and that he filed the motion to determine photographic costs, rather than taxing the photographs as costs, because the photographs were not admitted into evidence. The defendant conceded that he paid $260,000.00 in fees in the Seither Incase, although the trial court’s order only taxed $29,000.00 in costs against the defendants. The defendant explained that he paid in full the fees of the other individuals who provided services in preparation for trial because “those folks had been working for me for a period of approximately 18 months.”

The plaintiff testified that he has been a professional photographer for thirty years and his studio is located in Kenner. He stated that his son, Marlin Penton, answered the telephone call from defendant’s secretary and took the photographs. The plaintiff described the process and timing of completing the order, which he completed between 6:00 p.m., when Marlin Penton arrived with the film, and ended at approximately 9:30 a.m. the next morning. He testified that by the time the photographs were taken, no other lab in the city was open for processing prints of such size.

The plaintiff admitted that the defendant’s secretary did not specify any particular process for producing the photographs and that she merely asked for big, clear prints. He further admitted that a digital camera could have been used, with the images printed on a ink jet printer at Kinko’s, but that the turn-around time was too short to use such a process because each print would take one hour to print. In response to the court’s question whether images from a digital camera could have been taken to Kinko’s and blown up, the plaintiff stated that he did not know but thought the quality would be poor if it were possible.

The plaintiff testified that he submitted his commercial price list after the defendant questioned the invoice and that he had no agreement on price prior to taking the photographs. The plaintiff also testified that he consulted other 17photographers in the area to make sure his price was not over-inflated or under-inflated.

Marlin Penton stated that he works in his father’s business, has been a professional photographer for fourteen years, is certified as a professional photographer by the Professional Photographer’s of America, and was the vice-president of the Greater New Orleans Professional Photographer’s Association. He testified that a woman from the defendant’s office called him about 3:00 p.m., requesting that photographs be taken for display in court the next day, which he assumed to mean within twenty-four hours. The woman told him that she wanted “the biggest that she could get for display in the courtroom”. He told the woman that he could produce a certain number of 20"x24" and 16"x20" enlargements. The woman did not ask about or discuss how much she wanted to spend on the photographs.

Shortly thereafter, Marlin Penton drove from his office in Kenner and met the defendant’s secretary, two young men, and one older man at approximately 4:30 p.m. in the Central Business District to take the photographs. The older man directed him as to the important details in each photograph.

Marlin Penton described the special camera he used, and why such a camera was necessary to produce large prints with clearly visible details, as requested. He explained that a digital camera image enlarged at Kinko’s could not have produced the large, clear prints requested by the defendant’s secretary:

... [M]ost digital cameras that the consumers use are going to be able to produce an 8 by 10 print. If you’re going to do something that big, you need a big digital camera. Much bigger even what was available to me back then. And, you still have an issue, the quality. The film is still stronger, it’s got more resolution power than digital does right now.

IsMarlin Penton concluded that were this loss of quality acceptable, each image would take a minimum of one hour to print. Thus, enlargements of 24 separate digital images at Kinko’s was not possible given the approximately 14 hours in which to complete the job as requested by the defendant.

Marlin Penton testified that while he knew the photographs were for use in court, he did not learn the name of defendant’s client until well after the assignment was completed.

The defendant offered into evidence the deposition of John C. Meseure, a photographer in Mississippi, as an expert in commercial photography. Meseure stated that he was asked to give an approximate price to take photographs of the wreckage of a car accident, to make 16"x20" and 20"x24" enlargements, and to mount those enlargements. Meseure testified that he charges $250.00 per hour, which includes small prints the customer can use to order enlargements for assignments within a thirty-minute drive from his office in Gulfport, Mississippi. Meseure testified that

[T]he turnaround of enlargements up-charges the cost of those by 100 percent. So our price basically doubles to get things overnight. But, basically, what I would charge — what I would charge for exactly what you’ve got here is in the neighborhood of between $2,800, $2,810, plus seven per cent sales tax in Mississippi. ... That would include your overnight delivery processing....”

In response to defendant’s query as to whether Meseure was aware that Marlin Penton drove from his office in Kenner to the Central Business District to take the photographs, Meseure stated that his rate of $250.00 per hour was applicable for assignments within a driving distance of 30 minutes from his office and beyond a 30 minute driving distance, an upcharge was applicable. He did not, however, specify the amount of the upcharge.

IflAt the close of the trial, the plaintiffs attorney submitted evidence of his fees to the court in the amount of $8,052.78.

On January 17, 2003, the court signed the judgment in favor of the plaintiff in the amount of $1,500.00, finding that the defendant, through his secretary, hired the plaintiff to take photographs for use at trial the next day. The plaintiff completed the assignment, delivered the photographs as requested, and presented the defendant with a bill in the amount of $6,796.37. The court found, however, that the cost of the photographs had been adjudged by the trial court in the Seither case and that the amount constituted a fair price. The trial court also found that the defendant was acting as a mandatary for his client when he contracted with the plaintiff and, accordingly, that the plaintiff in the Seither case is responsible for paying the cost of the photographs.

The plaintiff filed his motion for appeal on January 22, 2003, and this devolutive appeal follows.

Discussion

The plaintiff argues that the trial court erred in failing to address the abuse of process claim and in giving the order taxing costs in the Seither ease res judica-ta effect in the open account suit. We agree.

First, because the trial court failed to address the plaintiffs abuse of process claim, the matter must be remanded for a determination of that issue. See Ratcliff v. Boydell, 93-0362, p. 13 (La.App. 4 Cir. 4/3/96), 674 So.2d 272, 280 (to prove abuse of process, the plaintiff must prove an ulterior motive and willful acts in the use of the process not proper in the regular conduct of litigation).

Next, although the trial court denied the defendant’s exception of res judicata in the open account case, the trial court gave the order taxing costs res \wjudicata effect by finding that the cost of the photographs was a thing adjudged in the Seither case.

Louisiana’s law on res judicata provides in pertinent part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

La.Rev.Stat. 13:4232 (emphasis added). That is, “[ujnder the res judicata doctrine, ‘the formula derived in Louisiana jurisprudence states there must be identity in the two suits as to the thing demanded, the demand must be founded on the same cause of action, and the demand must be between the same parties.’ ” Berrigan v. Deutsch, Kerrigan & Stiles, LLP, 2001-0612, p. 5 (La.App. 4 Cir. 1/2/02), 806 So.2d 163, 167, quoting Cuccia v. Jefferson Parish School Board, 613 So.2d 1141, 1142 (La.App. 5 Cir.1993).

In this case, the amount of the plaintiffs invoiced amount for services rendered was challenged by the defendant in two separate motions in the Seither case: the rule to tax costs and the motion to set photographic costs. The order at issue references the rule to tax costs but states that it sets the cost of the photographs. It is not clear which pleading the order specifically addressed. Nevertheless, to the extent an order on either the rule or motion in the Seither case purports to settle the dispute between the plaintiff and defendant in this case, it has Iniio res judicata effect because the plaintiff in this open account case was not a party in the Seither case.

Moreover, the taxing of costs is a summary proceeding and is merely an incident to the main suit. O’Rourke v. Rowan Companies, Inc., 2000-1712, p. 4 (La.App. 3 Cir. 2001), 782 So.2d 1185, 1187, citing Succession of Franz, 109 So.2d 92, 236 La. 781 (1959). The court in Smith v. Roussel, 2000-1672, p. 5 (La.App. 1 Cir. 6/22/01), 808 So.2d 726, 730, held that a rule to tax costs cannot be used to resolve by summary proceeding a dispute between plaintiffs and their expert witness over fees charged.

In Weber v. Charity Hospital at New Orleans, 459 So.2d 705, 708 (La.App. 4th Cir.1984), reversed on other grounds 475 So.2d 1047 (La.1985), an expert witness maintained that he was owed a fee based upon a contractual arrangement with plaintiffs’ attorney. The plaintiffs’ attorney disputed his obligation to pay the bill and filed a “Motion to Set Expert Fees If Any Are Due to Dr. Thomas D. McCaf-fery, Jr.” Dr. McCaffery filed an “Exception of Improper Use of Summary Proceedings” wherein he prayed that the rule be dismissed. This court ruled as follows:

While not improper to ask the trial court to set expert fees as an element of costs to be paid by the party cast, a rule to tax costs is not the proper vehicle to determine the obligations due under a contract. An agreement entered into by a party as to the fee which an expert is to receive, or the statement of the expert as to his charges, or even the actual payment of such a fee to the expert, are not binding on the court and are not criteria to be used by the court in fixing the expert fees to be assessed as costs in the suit. La.Code Civ. Proc. Art.1920; La.Rev.Stat. 13:3666; Wetzka v. Big Three Industries, Inc., 409 So.2d 393 (La.App. 4th Cir.1982); State Department of Highways v. Gordy, 322 So.2d 418 (La.App. 3d Cir.1975). Any fees taxed as costs would not finally determine the contractual issues. Whether a contract exists and whether any obligation remains due under the contract should be decided in an ordinary proceeding between the parties alleged to have contracted.
| ^Plaintiffs’ “Motion to Set Expert Fees ...” manifests an intent to resolve the dispute concerning Dr. McCaffery’s charges by way of a summary rule to tax costs. This was improper. The trial judge correctly maintained the doctor’s exception and dismissed the motion.

Weber, 459 So.2d 705, 708.

Accordingly, in giving the order taxing costs res judicata effect by finding that the cost of the photographs was a thing adjudged in the Seither case, the trial court relied on the improper order in the Seither case which was the result of the improper use of a summary proceeding to resolve the dispute between plaintiff and defendant in this case and issued contradictory rulings: denying the defendant’s exception of res judicata and finding that a reasonable fee for the photographs was a thing adjudged. Moreover, the trial transcript indicates that the trial judge, in rendering judgment in the open account case, felt bound by the $1500.00 amount set by the district judge in the Seither rule to tax costs and, accordingly, to the extent that she felt constrained by the district judge’s earlier ruling, she, in effect, failed to review the evidence before her and make an independent judgment. Accordingly, because the trial judge erred in relying on the order by the district judge in the Seither case and did not independently review the evidence, the judgment is vacated as it pertains to the amount due to the plaintiff and upon remand, the trial judge should determine the reasonable fees due to the plaintiff in the open account suit.

In the interest of judicial economy, we note that the evidence in the record before us does not support the trial judge’s finding that the photographs could have been taken by an amateur photographer and blown up at a copy center. Specifically, the record includes testimony by the plaintiff and his son, Marlin Penton, on the issue of the possible use of digital photography to produce large, |1sclear photographic exhibits, as requested by defendant’s secretary. Both men discounted the possible use of digital images and ink jet enlargements due to the poor quality of the resulting exhibits and the amount of time each image would take. Defendant’s expert witness did not address the issue of digital photography at all. Accordingly, there is no basis in the record to support the trial court’s finding that enlargements could have been made with a digital camera and a quick copy center’s enlargement process.

Moreover, there is no evidence in the record which supports a finding that the defendant was a disclosed agent for Seither and, therefore, not personally liable for the plaintiffs services. While generally speaking, an agent is not responsible to third persons where his principal is disclosed, the agent may make himself personally liable if he expressly or impliedly pledges his own responsibility. Weeden Engineering Corp. v. Hale, 435 So.2d 1158, 1160 (La.App. 3 Cir.1983). In this case, the defendant testified that he directed his secretary to hire a photographer who could produce the photographic exhibits for use the next day at trial. The plaintiff testified that while he knew the photographs were for use in court, he did not learn the name of the client until well after the assignment was completed. The plaintiff directly billed the defendant for its services. Accordingly, based on the record before us, the plaintiffs assumption that defendant was personally responsible for payment based on the defendant’s actions appears reasonable.

Finally, we note that if the trial court determines upon remand that the amount demanded by the plaintiff was correct, then reasonable attorney fees may be awarded. See La.Rev.Stat. 9:2781(A); Montgomery Stire, 1999-3145, p. 6, 769 So.2d 703, 706 (under the precise wording of La.Rev.Stat. 9:2781(A), unless the amount demanded is correct, attorney fees are not due).

Conclusion

For the foregoing reasons, we affirm in part and vacate in part the judgment of the trial court. The judgment in favor of the plaintiff is affirmed and the matter is remanded to the trial court for a determination of the plaintiffs abuse of process claim, the reasonable fees due to the plaintiff, and whether attorneys fees should be awarded to the plaintiff. The defendant is cast with all costs of this appeal.

AFFIRMED IN PART, VACATED IN PART, REMANDED.

ARMSTRONG, C.J., dissents in part.

|,ARMSTRONG, C.J.,

dissents in part.

I respectfully dissent in part. I agree with the majority insofar as it affirms the judgment of the trial court in favor of the plaintiff and remands for a determination of the abuse of process and attorney’s fees claims. However, I respectfully disagree with the reversal of the judgment awarding the plaintiff $1,500 for the value of his services.

It is clear from the evidence cited in the majority’s opinion that there was no agreement between the plaintiff and the defendant as to the price to be paid for the photographs. Since LSA-C.C. art. 1927 provides that a contract is formed by the consent of the parties established through offer and acceptance, the validity of the contract at issue herein turns on there being proof, inter alia of a meeting of the minds as to the object of the contract and as to the price. Absent agreement as to price, the defendant cannot be said to have

an obligation to pay the amount claimed by the plaintiff. Under these circumstances, the plaintiff is entitled to receive the value of his services under the civilian doctrine of quasi-contract or quantum meruit. See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Edmonston v. A Second Mortg. Co. of Slidell, Inc., 289 So.2d 116 (La.1974); Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888; Love v. E.L. Habetz Bioilders, Inc., 2001-1625 p. 15 (La.App. 3 Cir. 6/26/02), 821 So.2d 756, 767.

Lin the case at bar, the plaintiff has proved his entitlement to recover under quantum meruit. Furthermore, the plaintiff has shown that the defendant has been enriched by the value of the plaintiffs photographs; that the plaintiff has been impoverished to the extent of his direct and indirect costs; that the impoverishment was caused by the plaintiffs belief that the defendant would compensate him in a reasonable, although undefined, manner for his work; there is no other justification or cause for the plaintiffs impoverishment or the defendant’s enrichment; and the plaintiff has no other remedy at law.

The plaintiff and the defendant had the opportunity to present their evidence on the issue of the value of the plaintiffs services, and the trial court, albeit in the Seither case, fixed a reasonable fee. In the interest of judicial economy, I do not find it necessary to reopen this issue and require the trial court on remand to rehear the same evidence. The amount awarded satisfies the reasonableness standard of both quantum meruit and unjust enrichment.

      . Mary Seither, et al. v. Winnebago Industries, Inc., et al., Civil District Court No. 99-17502. The photographs were of an "exemplar buck”, a modified truck frame used to demonstrate possible modifications Winnebago could have made to its vehicle.

      . On July 2, 2003, this court ruled that the record was devoid of any evidence to support the claim that Healy filed the motion to determine photographic costs to harass Penton Studio into compromising the outstanding account for photographic services

      . During Healy’s testimony in the open account case, the trial court made the following remarks:
      THE COURT:
      If we already have an order where they’ve setting the cost of the photographs at $1,500.00 why are we here?
      MR. DILEO [Penton Studio's Counsel]: Because the $1,500.00 is only as between the defendants in the lawsuit and Mary Seither. It has nothing to do with what is owed by Mr. Healy to Mr. Penton.
      THE COURT:
      Oh, I think it does matter. Mr. Healy is acting upon Ms. Seither’s behalf. But, I’m going to let you continue, but I doubt if you’re gong to get anymore. I didn’t know. — I never knew when we had the pretrial conference that there was already an order where the court ordered the costs at $1,500.00 — * * ’"That doesn't mean you can charge Ms. Seither $1,500.00 and charge Mr. Healy the balance. It says, the cost. So, the cost is the cost.


author: J^DENNIS R. BAGNERIS SR., Judge.

text:
    Tabitha DEGRUY, et al. v. Robert JENKINS, et al.
    No. 2003-C-1797.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2003.

      Jennifer Willis, Cater & Willis, New Orleans, LA, Counsel for'Plaintiff.
    Jeffrey P. Lozes, Lozes & Ponder, New Orleans, LA, Counsel for Robert Jenkins.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and JUDGE LEON A. CANNIZZARO, JR.).
   J^DENNIS R. BAGNERIS SR., Judge.

The relator, Robert Jenkins, seeks review of a September 15, 2003 judgment denying his motion to dismiss the plaintiffs’ action on the grounds of abandonment.

FACTS

The plaintiff, Tabitha DeGruy, individually and on behalf of her minor child, Jodie Smith, filed a petition for damages against the relator and ABC Insurance Company on May 5, 1997. The petition contained a notation to hold service. On or about April 20, 2000, the plaintiffs requested citation of the petition via a letter addressed to the Clerk of Court. The plaintiffs enclosed a check made payable to the Civil Sheriff for $30.00 to cover the cost of citation. The plaintiffs also filed into the record a Request for Notice. Although the clerk apparently received the letter on April 25, 2000, service of the petition apparently was never effectuated. However, it appears that no further action was taken in the case until April 17, 2003, when the plaintiff filed a notice to take the relator’s deposition on May 13, |22003. Shortly thereafter, on May 13, 2003, the plaintiff again requested service on the relator. That letter was filed into the record on May 14, 2003.

On July 23, 2003, the relator filed a rule to show cause why the matter should not be considered abandoned as of April 25, 2003. In support of the request to consider the matter abandoned the relator argued that the only action taken between April 25, 2000 when a request for service was made and May 13, 2003, when another request for service was made, was the filing of a notice of deposition. The relator argued that the notice of deposition filed on April 17, 2003 could not be considered a step in the prosecution of the case because La. C.C.P. art. 561 required that the deposition be served on all parties and that it be taken within the three-year prescriptive period. The plaintiff opposed the motion to dismiss arguing that filing of the notice of deposition and service by U.S. mail clearly constituted a step in the prosecution of the action. Additionally, the plaintiff averred that the relator knew about the scheduled deposition because an attorney contacted plaintiffs counsel on behalf of the relator to advise that the relator was not available for deposition on the scheduled dated.

A hearing on the relator’s rule was held on September 5, 2003, and on September 15, 2003, the trial court denied the motion to dismiss for abandonment. The relator seeks review of that judgment.

DISCUSSION

The relator argues that the trial court erred in failing to find that the case was abandoned where no defendant had ever been served and no deposition was ever taken prior to the running of the prescriptive period for abandonment. Moreover, the relator argues that the notice of deposition was improper under La. C.C.P. art. 131437 because even though no defendant had been served the plaintiff failed to obtain leave of Court to take the deposition.

La. C.C.P. art. 561, the abandonment statute provides in relevant part as follows:

Art. 561. Abandonment in trial and appellate court
A. (1) An 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 ...
B. Any formal discovery as authorized by this Code and served on all parties ivhether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action, (emphasis added)

Pursuant to the above-cited codal article, an action is considered abandoned when the parties fail to take a step in the prosecution or defense of the case for a three-year period. Clearly, the plaintiffs’ requests for service constitute steps in the prosecution of the case. Freedlander, Inc., The Mortg. People v. Certain, 623 So.2d 677, 678 (La.App. 4 Cir. 8/19/93). Moreover, in determining if a particular act constitutes a step in the prosecution of a case, our courts do not appear to make a distinction between cases wherein service is actually made prior to the prescriptive period and cases wherein service is made after the prescriptive period. Rather, the courts emphasize the fact that a request for service is a formal act that evidences an intention not to abandon an action. Thus, in Department of Transportation and Development v. Waste Management, Inc., et al., 626 So.2d 59 (La.App. 3 Cir. 11/03/93) the court reversed the dismissal of an action on grounds of abandonment where the action was not served until after the abandonment period had run. In Department of Transportation and Development v. Waste Management, Inc., et al. |4the plaintiff filed suit on March 27, 1987 against two defendants. The suit papers noted that service information would be provided at a later date. Four years later, an attorney filed a motion to enroll as co-counsel for the plaintiff. A year later, the plaintiff filed a motion to set for trial. The motion was denied because neither defendant had filed an answer. Service was finally requested more than five years after the suit was filed. The trial court dismissed the action on grounds of abandonment; the appellate court reversed, finding that the plaintiffs motion to set the case for trial constituted a “step” in the prosecution, which precluded a finding of abandonment.

In reaching that conclusion the court stated:

Whether or not the defendants were served within the five years is not relevant. All that is relevant is whether a ‘step’ in the prosecution of the case was taken within the five years. For the purpose of La.Code Civ. P. art. 561, a ‘step’ in the prosecution or defense is taken when a party ‘takes formal action, before the court and on the record, intended to hasten the matter to judgment.’ Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La.1983) .... we do not believe that it is necessary that the step actually move the case forward as the trial judge apparently believed. We think the more important consideration is whether the step taken demonstrates that the party has not abandoned either the prosecution or the defense of the case.... The filing of the motion was at least intended to hasten judgment. The filing evidences no intent on the part of the plaintiff to abandon the case, (emphasis added)

Department of Transportation and Development, 626 So.2d at 61.

Similarly, in King v. American Motorists Ins. Co., 295 So.2d 26 (La.App. 4 Cir.5/10/74), suit was filed but nothing further happened, not even service of process on any defendant, until three days short of five years, when the plaintiff amended his petition and requested service of process on all defendants. The trial court sustained the defendants’ exceptions of prescription and motions to dismiss |Ron the ground of abandonment, and the plaintiff appealed. This court held that the inclusion in the record of plaintiffs amending petition and his formal request for service were steps in the prosecution and, coming as they did within five years from suit, the action was not abandoned. In concluding that the case had not been abandoned the court specifically addressed the effect of a failure to serve the defendant when it stated:

It is not the issuance of the citation by the clerk nor the service of it by the sheriff that is controlling here. What is controlling is the plaintiffs request for such through the written documents filed in the record.

King v. American Motorists Ins. Co., 295 So.2d at 28.

In Landry v. Thomas, 422 So.2d 513 (La.App. 4 Cir. 11/2/82), the defendant was not served with process until more than five years after suit, but a motion to take his deposition was filed (though this, too, was not served until after suit) on the last day of the five years from suit. The Landry court held that this was a formal step indicating that there had in fact been no abandonment of the action. See also, Viesel v. Republic Inc. Co., 95-0244 (La. App. 4 Cir. 11/30/95), 665 So.2d 1221, wherein this court concluded that the plaintiff took a step in the prosecution of his action when he “clocked in” a notice of intent to take a deposition. Based on the reasoning of these cases, the relator’s argument that the filing of a notice of deposition does not constitute a step in the prosecution of the case if the deposition is not taken has no merit.

Moreover, there is nothing in La. C.C.P. art. 561 that requires that a deposition actually be taken in order to be deemed a step in the prosecution of the case. Rather, the article merely provides that any formal discovery served on all parties constitutes a step in the prosecution of the case. Prior to the 1997 | ^amendments to art. 561, filing a notice on the record was considered a step; but with the amendment any formal discovery whether filed in record or not is a step in the prosecution. Thus as noted in Brister v. Manville Forest Products, 32,386, 32,387 (La.App. 2 Cir. 12/15/99), 749 So.2d 881, “A notice of deposition served on the adverse party by mail is formal discovery.” Id. at p. 4, 749 So.2d at 884.

Moreover the mere fact that the plaintiff improperly served the discovery on the relator via mail prior to service of the petition without obtaining permission from the court does not appear to vitiate the effect of the action. Clearly, service of the notice of deposition by mail, even if it had not been filed into the record, would have been sufficient to constitute a step in the prosecution of the case if the petition had already been served on the plaintiff. There appears to be no dispute that the relator received the notice because an attorney acting on the relator’s behalf contacted plaintiffs’ counsel to advise that the relator would not be available on the proposed deposition date. The fact that service was made without first obtaining permission from the court appears to be a technical error on the part of plaintiffs’ counsel. This court has been reluctant to uphold dismissals for technical non-compliance with rules where it appeared a plaintiff had not evidenced an intention to abandon a case. Instead, this court has been very liberal in its interpretation of La. C.C.P. art. 561. Thus, in Charpentier v. Goudeau, 95-2357 (La.App. 4 Cir. 3/14/96), 671 So.2d 981, this court held that where the plaintiffs had mailed an interrogatory to the defendant but had failed to file in the record an article 1313 ^certification reflecting service of the interrogatory by mail, such service was a step in the prosecution thus precluding dismissal of the action for abandonment.

Although it appears that the plaintiffs may have been dilatory in taking steps to proceed with this case, a review of the various documents filed in support of the writ application reveals that the plaintiffs manifested their intention to pursue this case by taking various steps within three years of each other. The plaintiffs filed their petition on May 5, 1997; they requested service of the petition almost three years later, when on April 20, 2000 they requested service and paid the required fee. The plaintiffs’ April 20, 2000 letter requesting service is stamped by the deputy clerk as being received on April 25, 2000. In the letter, plaintiffs’ counsel indicates that she was enclosing a check for $30.00 to cover the cost of service. This request for service of citation was clearly filed prior to the expiration of the three-year prescriptive period for abandonment. The case apparently lay dormant until April 17, 2003 (three days shy of the three year abandonment period) when the plaintiffs filed into the record a copy of a Notice of Deposition that was mailed to the relator on April 17, 2003. The plaintiffs then again requested service on the relator on May 13, 2003.

The service by mail of the notice of deposition on April 17, 2003 constituted a step in the prosecution of the case. Because that step occurred within three years of April 20, 2000, we do not find that the trial court clearly erred in denying the relator’s request to dismiss the case for abandonment.

In addition to these reasons, we note that relator waived any argument that the case was abandoned when he answered the lawsuit on September 8, 2003, and | ¿when he answered discovery on September 11, 2003. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 15 (La.5/15/01), 785 So.2d 779, 789.

Accordingly, the judgment of the trial court is affirmed.

WRIT GRANTED; RELIEF DENIED.

      . In Hargis ex rel. Krey v. Jefferson Parish, 99-0971 (La.App. 4 Cir. 12/8/99), 748 So.2d 606, this court held that a letter (not filed in record) sent by plaintiffs to the clerk of civil district court requesting service on the defendants and payment of fees for service on some defendant did not constitute a formal step in the prosecution so as to prevent abandonment under art. 561. The Supreme Court granted the plaintiffs’ request for writs, and in Hargis v. Jefferson Parish, 2000-0072 (La.3/17/00), 755 So.2d 891, reversed the judgment of this court dismissing the plaintiffs’ suit on the ground of abandonment and remanded to the district court for further proceedings.

      . This Court does not address the issue of whether the case should have been dismissed pursuant to La. C.C.P. art. 1201 and/or art. 1672 C for failure to request service within ninety days because that issue has not been raised or addressed by the trial court.