author: JACHARLES R. JONES, Judge. liBAGNERIS, J.

text:
    Kelvin E. BROOKS v. TRADESMEN INTERNATIONAL, INC.
    No. 2003-CA-1871.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.

      John W. Redmann, Yurbin E. Velasquez, G., Law Office Of John W. Redmann, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Robert J. May, Reed S. Minkin, Juge, Napolitano, Guuilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Defendant/Ap-pellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS SR.).
   JACHARLES R. JONES, Judge.

The Appellant, Kelvin E. Brooks (hereinafter “Mr. Brooks”), seeks a devolutive appeal from a judgment of the Office of Worker’s Compensation (hereinafter “OWC”) dismissing his claim with prejudice. This cause of action arises out of a claim for compensation benefits resulting from injuries sustained by Mr. Brooks during his employment. We reverse and remand.

Facts/Procedural History

On January 14, 2002, Mr. Brooks was installing a light fixture while standing on an eight-foot ladder, and was struck by 277 volts of electricity causing him to fall backwards, injuring himself. At the time of this accident, Mr. Brooks was employed as an electrician with Tradesmen International, Inc. (hereinafter “Tradesmen”). Mr. Brooks’ alleged that he suffered permanent injuries consisting of lower back pain, neck pain, blurred vision, and headaches.

Subsequent to the accident, Mr. Brooks was treated by three physicians: Dr. Robert A. Steiner, the doctor hired by Tradesmen and who discharged Mr. Brooks on April 26, 2002 to return to regular duty at work because he was of the opinion that the fall did not disable Mr. Brooks; Dr. John J. Watermeier, who treated Mr. Brooks for 11 months and was of the opinion that the January 14, 2002 accident 12caused Mr. Brooks to be disabled and to suffer from lumbar and cervical disc syndrome; and Dr. William R. Knight who was also of the opinion that Mr. Brooks suffered from cervical and lumber strains as a result of his fall.

On or about May 15, 2002, Mr. Brooks filed a claim for disputed compensation against Tradesman. Although trial was set for January 30, 2003, Tradesmen moved to continue the trial date because Mr. Brooks had not responded to discovery requests. The OWC granted the Motion to Continue and re-set trial for May 30, 2003, sending notices to Mr. Brook’s attorney as well as a copy to Mr. Brooks. Mr. Brooks dismissed his attorney around the first of February, and remained unrepresented by counsel until the date of trial. On May 30, 2003, Tradesmen appeared for trial as scheduled, however, Mr. Brooks did not appear. The OWC instructed Tradesmen to contact Mr. Brooks and determine whether he intended to proceed with trial. The person answering the phone at Mr. Brooks’ residence stated that Mr. Brooks was not home and that she did not know where he was. Mr. Brook’s claim was dismissed with prejudice for his failure to appear at trial. The OWC’s dismissal of Mr. Brooks’ claim with prejudice is the subject of the appeal now before this Court.

Discussion

Mr. Brooks, a pro se litigant, maintains that the OWC erred and abused its discretion in dismissing his case with prejudice. We find merit in this argument.

[sIt is well established that a plaintiff who fails to appear on the date set for trial may have the claim dismissed with prejudice upon the defendant’s motion for an involuntary dismissal. Matter v. McKinney, 310 So.2d 696, 698 (La.App.1st Cir. 1975).

LSA-C.C.P. art. 1672(A), states:

A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.

In deciding whether the dismissal is with or without prejudice pursuant to LSA-C.C.P. Art. 1672(A), a trial court is afforded great discretion, as the trial judge is more familiar with the conditions and requirements of their trial docket. McKinney, 310 So.2d 696, 698 (La.App. 1st Cir. 1975). Therefore, a trial court’s decision to dismiss a case with or without prejudice is reviewed on appeal pursuant to an abuse of discretion and manifest error standard. Id. However, in cases of workers’ compensation, rules of procedure are to be liberally construed. Piper v. Dillard’s Dept. Store, 621 So.2d 865 (La.App. 4th Cir. 1993).

In Archer v. Tudor Construction Company, the Third Circuit affirmed the court’s dismissal with prejudice of a workers compensation claim when the plaintiff failed to appear on the day set for trial. 94-850 (La.App.3 Cir. 2/15/95) 649 So.2d 1251. On appeal, the plaintiff argued that the hearing officer erred by dismissing his claim with prejudice because the defense counsel was supposed to enter a joint motion for a continuance on his behalf. However, the evidence proffered by the plaintiff was not made a part of the record, and the court was precluded from considering the motion on appeal. Therefore, the court opined that Rafter a careful review of the record, it could find nothing to excuse the plaintiffs absence from trial.

In Christopher J. Smith v. Ascension Enterprises, Inc., the Third Circuit amended the judgment of the OWC dismissing the workers’ compensation claim with prejudice. 2000-360 (La.App. 3 Cir. 11/2/00) 776 So.2d 534. In Smith, the claimant filed a disputed claim for compensation against his employer, which was dismissed for his failure to appear at trial. The claimant argued on appeal that the judge erred in dismissing his case with prejudice, because although he and his attorney were late, they did in fact appear at trial. He further asserted that his attorney attempted to contact the court to inform it of his tardiness, however his message was not conveyed to the judge. The court found that the claimant did not intend to abandon his claim because he attempted to inform the court of his tardiness, and also moved for a continuance prior to trial. Thus, the court held that a dismissal without prejudice was proper.

The rulings of the Third Circuit imply that a dismissal with prejudice is proper where the record reflects an intent to abandon the case or there is no reasonable explanation for the claimant’s failure to appear. However, we find that this is to onerous a burden to apply to a pro se litigant seeking workers’ compensation benefits. In the case at bar, the record reflects that the initial trial date was set for January 30, 2003, and upon a motion to continue by Tradesmen, the OWC reset the trial for May 30, 2003. At the beginning of February, shortly after the motion to continue was granted, Mr. Brooks terminated his attorney and remained without counsel until the date of the new trial.

Although the record reflects that the court sent notices to both Mr. Brooks and his former attorney, Mr. Brooks claims that he was unaware of the new trial | sdate. It is the opinion of this court that as a pro se litigant who lacks formal training in the law and its rules of procedure, Mr. Brooks should be allotted more latitude than those plaintiffs represented by counsel. As a dismissal with prejudice denies Mr. Brooks the opportunity to have his day in court, we find that under these circumstances, the dismissal in this case should have been without prejudice.

DECREE

For the foregoing reasons, the judgment of the Office of Worker’s Compensation dismissing the case of Kelvin E. Brooks with prejudice, is hereby amended, and the dismissal of Kelvin E. Brooks worker’s compensation is without prejudice.

AMENDED AND REMANDED.

liBAGNERIS, J.

Dissents with Reasons.

I respectfully dissent from the majority’s opinion for the following reasons;

This is an appeal from a dismissal of Mr. Brooks’ Workers Compensation claim as a result of his failure to appear at the trial on the merits.

FACTS

The record contains the following facts. Kelvin E. Brooks, appellant, injured his back on January 14, 2002 allegedly while working as an Electrician for Tradesmen International, Inc. in Jefferson, Louisiana. Mr. Brooks contends that he was shocked by a high voltage and fell eight feet to the ground off of a ladder. Mr. Brooks contends he sustained permanent injuries to his back and neck.

Mr. Brooks filed a claim for disputed compensation against his employer, Tradesmen International, Inc. in the Office Of Worker’s Compensation on May 15, 2002. Trial was set for January 30, 2003. On January 8, 2003, Tradesmen International, Inc. filed a Motion to continue the trial set for January 30, 2003. The trial court granted the motion for continuance and re-set trial to May 30, 2003. The trial court sent notices to Mr. Brooks’ Attorney of record as well as a copy to Mr. Brooks of the new trial date.

| ^DISCUSSION

The sole issue is whether the Office of Worker’s Compensation abused its discretion by dismissing Brooks’ case with prejudice pursuant to LSA-C.C.P. art. 1672(A). We affirm

Involuntary dismissal of a plaintiffs case for failure to appear on the day set for trial is governed by LSA-C.C.P. art. 1672(a), which states:

A. A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.

The express language of the article allows the court to decide whether the dismissal is with or without prejudice. In deciding whether to dismiss with or without prejudice pursuant to LSA-C.C.P. art. 1672(a), a trial court is afforded great discretion. As recognized by the First Circuit in Matter v. McKinney, 310 So.2d 696, 698 (La.App. 1st cir.1975):

The trial judge is much more familiar with the conditions and requirements of his trial docket than are we. I have no doubt that contribution to her decision to dismiss with prejudice were considerations respecting the condition of her docket, fairness not only to both these parties but also to other litigants in her court, and the needs of an orderly and prompt administration of justice.

“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.” LSA-C.C.P. art. 1672(A).

| oThe trial court therefore did not abuse its discretion in granting defendants’ motion to dismiss Mr. Brooks’ claim when he failed to appear at the trial. Moreover, dismissal for plaintiffs failure to appear to prosecute a claim properly results in dismissal with prejudice. Keyes v. Johnson, 542 So.2d 209, 210 (La.App. 3rd Cir.), writ denied, 546 So.2d 1215 (La.1989); Thomas v. State, 383 So.2d 108, 108-09 (La.App. 3rd Cir.1980). As a result of the trial court’s superior knowledge of the condition of its docket, fairness to the parties and other litigants, and the need for orderly and prompt administration of justice, appellate courts will reverse a trial court’s determination of the terms of dismissal only for clear abuse of the court’s discretion. Keyes, supra. Given Mr. Brooks’ unjustified failure to attend the trial on his claim and the need for the orderly and prompt administration of justice, I cannot find that the trial court abused its discretion in dismissing Mr. Brooks’ claim with prejudice.

I recognize that pro se plaintiffs should be allotted more latitude than plaintiffs represented by counsel because they lack formal training in the law and its frequently arcane or counterintuitive rules of procedure. Mr. Brooks’ error can not be said to be attributable to his lack of education, however; he simply failed to appear at a legal proceeding of which he had notice and that any reasonable person would have realized was necessary to attend. Therefore, it would be improper to excuse his behavior on account of his comparative ignorance of the law, the cost of this litigation to the defendants and the judicial resources that have been consumed in its adjudication.

I have carefully reviewed the record and have found nothing in it to excuse plaintiffs absence from trial, which exposed him to a dismissal with prejudice. By the same token, I have not found anything in the record that would not support the | ¿hearing officer’s wide discretion to dismiss plaintiffs suit with prejudice. As stated in Matter v. McKinney, supra, the hearing officer is best familiar with her trial docket. She knows the conditions and requirements of her docket, the need for promptness and fairness to other litigants in her court, and the need for an orderly and prompt administration of justice. I recognize that a dismissal with prejudice is a harsh remedy, but a failure to appear for trial begs for reproach.

The trial court’s decision to dismiss a case with or without prejudice is reviewed on appeal pursuant to an abuse of discretion and manifest error standard. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199; Sauce v. Bussell, 298 So.2d 832 (La.1974). Accordingly, after reviewing the facts properly before us in the record, I find that the hearing officer committed no abuse of discretion by dismissing the plaintiffs case with prejudice.

Accordingly, I would affirm the judgment of the worker’s compensation judge.


source: Caselaw Access Project

author: 11 EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Blanche TAYLOR v. ORLEANS PARISH SCHOOL BOARD.
    No. 2003-CA-2023.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.

      Charlsey J. Wolff, Wolff & Wolff, Me-tairie, LA, for PlaintiffiAppellee.
    Philip A. Costa, Costa Law Firm, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.).
   11 EDWIN A. LOMBARD, Judge.

This appeal is from a judgment entered by a workers’ compensation administrative law judge (ALJ) denying and dismissing defendant/appellant’s Petition to Annul Judgment and Motion for New Trial. For the following reasons, we affirm.

Relevant Facts

On February 24, 2003, claimant/appellee Blanche Taylor filed pro se a Disputed Claim for Compensation, alleging that she was injured on January 31, 2003, while employed by the Orleans Parish School Board (OPSB). On March 7, 2003, a notice of the mandatory mediation was mailed to the OPSB and on April 2, 2003, counsel of record enrolled on behalf of Ms. Taylor. The claim was mediated on April 7, 2003, at which time counsel for the OPSB waived citation and accepted service. On April 15, 2003, appellee’s counsel moved for an expedited hearing to determine appellee’s right to medical treatment. Appellant’s counsel filed a written opposition on May 9, 2003, contending that the motion for an expedited hearing should be denied because appellee failed to sustain her burden of proof for summary judgment that she suffered an injury covered by ^workers’ compensation. At the motion hearing on May 12, 2003, counsel for the OPSB and Ms. Taylor stated on the record that, pursuant to a Consent Judgment which would be presented to the court for signature by May 16, 2003, Ms. Taylor would receive back temporary total disability benefits from January 31, 2003, through May 12, 2003, in one check to be received by May 16, 2003, and thereafter OPSB would pay bimonthly temporary total disability benefits until Ms. Taylor was released back to work. In addition, the OPSB agreed to pay Ms. Taylor’s outstanding medical bill according to a fee schedule, attorney fees in the amount of $600.00, and to choose a physician for an independent evaluation of Ms. Taylor. On May 21, 2003, counsel for OPSB filed a motion to annul and/or set aside the judgment rendered on May 12, 2003, and/or to grant a new trial, alleging that Ms. Taylor was not an employee of OPSB but was employed by AME Services, Inc., a janitorial company under contract with OPSB. On May 23, 2003, counsel for Ms. Taylor filed an amended disputed claim for compensation to include AME Services, Inc., and their insurers as defendants in this matter. On July 9, 2003, counsel for Ms. Taylor filed a second motion for an expedited hearing to obtain medical treatment.

On July 29, 2003, counsel for Ms. Taylor, the OPSB, and ETI, Inc., appeared at the hearing on OPSB’s Petition to Annul and the Motion for New Trial filed by OPSB. Counsel for Ms. Taylor submitted Ms. Taylor’s OPSB personnel file, including W-2 tax statements from 2001 and 2002, which indicated that Ms. | Naylor was an employee of the OPSB. In response, counsel for the OPSB contended that at the time of the accident in 2003 Ms. Taylor was an employee of AME, a subsidiary of ETI, but submitted no documentation of the contractual relationship between the OPSB, AME, or ETI, or of any employment relationship between Ms. Taylor and any of these entities in 2003.

After considering the arguments of the parties, the ALJ denied the petition to annul, observing that the contractual relationship between OPSB, AME, and ETI, was unclear and, accordingly, it was unclear whether Ms. Taylor was a statutory employee of OPSB or if OPSB had a procedural remedy against AME or ETI for its unilateral error for acknowledging Ms. Taylor as an employee in entering into the consent judgment. The ALJ issued a written judgment on July 30, 2003, dismissing and denying the Petition to Annul and the Motion for New Trial filed by the OPSB. The OPSB appeals this judgment, contending that it was error for the ALJ to deny its Petition to Annul and Motion for a New Trial and to rule that the claimant’s average weekly wage was $206.00.

Standard of Review

We review worker’s compensation cases under the manifest error or clear error standard. Bruno v. Harbert International, Inc. 593 So.2d 357 (La.1992).

Discussion

Appellant contends that the trial judge committed reversible error in failing to grant the Petition to Annul the Judgment and/or the Motion for New Trial because the petition and motion indicate a lack of consent for judgment. Specifically, appellant contends that there exists an error as to the principal cause of the agreement and an error of fact because the OPSB was not the appellee’s employer.

|4A consent judgment has binding force from the presumed voluntary acquiescence of the parties, not from adjudication by the court, Ritchey v. Azar, 383 So.2d 360 (La.1980), and may be annulled or rescinded for an error of fact or error of the principal cause of the agreement, Succession of Koch, 487 So.2d 635 (La.App. 4th Cir.1986), writ denied, 489 So.2d 251 (La.1986), any change, if warranted, must be affected according to law. Succession of Simmons, 527 So.2d 323 (La.App. 4th Cir.1988), writ denied, 529 So.2d 12 (La.1988).

In this case, the appellee was injured during the course and scope of her employment as a custodian in an Orleans Parish public school and filed a claim for compensation. As her employer, the OPSB waived citation, accepted service, mediated the claim, opposed her motion for an expedited hearing to determine her medical treatment, and entered into a consent agreement to pay her temporary total disability benefits pending medical treatment and determination of her injuries. After entering into the agreement, the OPSB attempted to renege, alleging that the agreement was based on an exroneous assumption that the OPSB was Ms. Taylor’s employer. At the hearing before the ALJ on the petition to annul and motion for a new trial, Ms. Taylor came forward with her OPSB personnel files indicating that she was an OPSB employee. The OPSB contended that the consent agreement was based on a unilateral error that the OPSB was Ms. Taylor’s employer but offered no evidence of the OPSB’s contractual relationship with another entity to supply custodial workers or employment records indicating that Ms. Taylor was an employee of another entity. Based upon this record, we cannot find that the ALJ was manifestly erroneous in denying appellant’s petition to annul or motion for a new trial.

|.Jn addition, the appellant argues that because of the nature of the proceedings that Ms. Taylor’s average weekly wage was, never proven to the court and, accordingly, that the trial judge committed reversible eiTor in ruling in the judgment of July 16, 2003, that Ms. Taylor’s average weekly wage was $206.00.

Appellant’s argument is disingenuous. The judgment signed on July 16, 2003, is based upon the consent agreement entered into by the parties at the hearing on May 12, 2003. The transcript of the May 12, 2003, hearing indicates that the parties discussed the terms of the consent agreement, including the money due to Ms. Taylor, prior to agreeing to it on record. Counsel for the OPSB acknowledged on the record that Ms. Taylor would receive any past due monies and the ALJ told her “everything you asked for, you got.” Ms. Taylor alleged in her petition for compensation benefits that her average weekly wage was $206.00 and nothing in the record refutes this amount. Based upon this record, we do not find that the ALJ was manifestly erroneous in determining that Ms. Taylor’s temporary total disability benefits should be based on an average weekly wage of $206.00.

Conclusion

For the foregoing reasons, the judgment denying the appellant’s Petition to Annul and Motion for a New Trial is affirmed.

AFFIRMED.

      . On July 16, 2003, a judgment was signed by the ALJ reflecting the terms of the consent judgment agreed to by the parties at the May 12, 2003, hearing.

      . On July 28, 2003, appellee filed exceptions of no cause of action, unauthorized use of summary proceeding and prematurity to appellant's Petition to Annul Judgment or, in the alternative, Motion for a new trial, noting that the Employer’s Report of Occupational Injury or Disease filled out by the OPSB on March 12, 2003, indicated that Ms. Taylor was an employee of OPSB working in the division of AME Services.


author: |.LEON A. CANNIZZARO, JR., Judge.

text:
    Kennith W. ROBERTS v. The NEW ORLEANS SYMPHONY and The Continental Insurance Company.
    No. 2003-CA-2206.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.

      Frank B. Hayne, III, William T. Abbott, Jr., New Orleans, LA, for Plaintiff/Appellant, Kenneth W. Roberts.
    Regel L. Bisso, Conroy Law Firm, Me-tairie, LA, for Defendant/Appellees, The New Orleans Symphony and Continental Casualty Company.
    (Court composed of Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   |.LEON A. CANNIZZARO, JR., Judge.

The plaintiffs, Sue Roberts and Floyd K. Roberts appeal from a trial court judgment rendered in favor of the defendants, the New Orleans Symphony and Continental Casualty Company, dismissing their suit as abandoned pursuant to La. C.C.P. art. 561.

FACTS AND PROCEDURAL HISTORY

In 1989, Kennith W. Roberts was employed by the New Orleans Symphony as a member of the stage crew at the Orpheum Theater. Having been directed to set up display tables in the lobby of the building, Mr. Roberts proceeded to take the elevator to the basement to obtain the equipment. However, when the elevator door opened, he failed to notice that the elevator car was not at the landing. Mr. Roberts stepped into the empty elevator shaft and fell to the bottom, sustaining serious injuries.

|?At the time of the accident, the Orphe-um Corporation owned the theater and leased it to the Symphony. Under the terms of the lease agreement, the Symphony assumed liability for the condition of the premises. Continental Casualty Company issued a general liability policy of insurance to the Symphony providing coverage for accidents on the premises.

Although Mr. Roberts sought and received workers’ compensation benefits on the basis of his employment with the Symphony, he filed a tort suit in 1989 naming as defendants the Symphony and the Or-pheum Corporation, among others. Mr. Roberts’ claim against the Symphony was based upon its contractual assumption of the building owner’s liability for the condition of the premises. The trial court rendered a summary judgment dismissing the Symphony from the suit on the ground that Mr. Roberts’ exclusive remedy against his employer was workers’ compensation. The Symphony’s dismissal was upheld on appeal in Roberts v. Orpheum Corporation, 91-2076, 91-2204 (La.App. 4 Cir. 12/15/92), 610 So.2d 1097, unit denied 93-0416 (La.4/12/93), 616 So.2d 682. Mr. Roberts’ claims against the Orpheum, however, were still pending.

In 1994, the Louisiana Supreme Court rendered a decision in Stelly v. Overhead Door, 94-0569 (La.12/8/94), 646 So.2d 905. Based upon that holding, Mr. Roberts reasserted his tort claim against the Symphony by filing suit in 1995.

In Stelly, the plaintiff, a United Parcel Service (UPS) employee, was injured in a work related accident at UPS’s Opelousas office. UPS had leased the premises from the building owner with an agreement assuming any liability that arose from defects on the premises. The plaintiff filed a workers’ compensation claim against UPS and received benefits. He also filed a tort claim against the building owner. Later, the plaintiff amended his tort suit to add UPS as a defendant based on the 13employer’s contractual assumption of the owner’s liability for the premises. The trial court granted summary judgment in favor of UPS, finding the plaintiffs exclusive remedy against UPS was workers’ compensation, and the court of appeal affirmed.

The Supreme Court reversed, holding that the plaintiffs tort action against UPS was not precluded under the pre-1990 version of La. R.S. 23:1032. The Court reasoned that under the terms of the lease agreement, UPS expressly assumed responsibility for the condition of the leased premises and for any and all liability resulting from defects therein. Yet, UPS also sought to benefit from the statutory immunity in La. R.S. 23:1032. If such a result was permitted, the Court concluded, the building owner would in effect be allowed to benefit indirectly from the statutory immunity of La. R.S. 23:1032. The building owner would enjoy the rights and benefits of ownership and, at the same time, have the ability to contract away all the legal obligations owed as a result of that ownership, without anyone acquiring the full range of legal obligations and duties in return. The result would deny the plaintiff full recovery for his injuries despite UPS’s contractual assumption of liability for all injuries to any person. Such a result, the Court concluded, was not permissible under the pre-amendment version of La. R.S. 23:1032. Because the plaintiffs accident occurred before the effective date of the 1990 amendment, the Court refused to apply the amendment retroactively, finding 14that to do so would adversely affect the plaintiffs vested rights. Thus, the plaintiff was allowed to pursue the tort claim against his employer.

In his second tort suit against the Symphony and its insurer, Continental Casualty Company, Mr. Roberts alleged liability based on the Symphony’s contractual assumption of the owner’s liability for defects on the premises. In October 1999, the trial court ordered Mr. Roberts’ 1989 and 1995 suits consolidated.

Thereafter, the defendants filed a motion to dismiss the 1995 suit on grounds of abandonment pursuant to La. C.C.P. art. 561 as no action had been taken in the case for more than three years. Following a contradictory hearing, the trial court rendered judgment dismissing the 1995 suit against the defendants with prejudice.

ASSIGNMENTS OF ERROR

On appeal, the plaintiffs assert the following four assignments of error: (1) the trial court erred in dismissing the 1995 suit as abandoned as it was consolidated with the 1989 suit against the Orpheum which was still active; (2) the trial court erred in determining that the three year period set forth in La. C.C.P. art. 561 is not subject to extension by agreement of counsel; (3) the trial court erred in failing to hold that in circumstances where two cases arise out of the same facts, and the defendants in each case are the same or are alleged to be joint tortfeasors, then any action in one case that is sufficient to prevent dismissal on the basis of abandonment is sufficient to prevent dismissal of the companion case as well; and (4) the trial court erred in dismissing the suit with prejudice.

FLAW AND DISCUSSION

Article 561 of the Louisiana Code of Civil Procedure, as in effect at the time the defendants asserted their exception, provided in pertinent part:

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 ...
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B. Any formal discovery as authorized by this Code and served on all parties whether 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.

Article 561 imposes three requirements on plaintiffs to avoid abandonment:

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

Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010, p. 5-6 (La.5/15/01), 785 So.2d 779, 784 (footnotes and emphasis omitted). Furthermore, the accrual of abandonment occurs automatically upon the passing of three years without a step | fibeing taken by either party, and it is effective without court order. Id., 2000-3010, p. 6 (La.5/15/01), 785 So.2d at 784.

In support of their motion for dismissal, the defendants submitted the affidavit of defense counsel who averred that no action had been taken in the 1995 suit from April 17, 1995, when Mr. Roberts filed a second supplemental petition, to September 4, 1999, when he served interrogatories and a request for the production of documents on the defendants. The plaintiffs offered nothing to contradict defense counsel’s affidavit. Because La. C.C.P. art. 561 is self-executing upon the expiration of three years without a step being taken by either party and is effective without court order, we find the trial court correctly determined that the 1995 suit was abandoned as of April 17, 1998. The fact that the trial court ordered the consolidation of the 1995 suit with the pending 1989 suit in October 1999 is of no consequence. The 1995 suit had been abandoned prior to the consolidation and could not be revived. Thus, the plaintiffs’ first assignment of error is without merit.

The plaintiffs next argue that the three-year time period of La. C.C.P. art. 561 is not peremptive and may be extended by agreement of counsel. Specifically, the plaintiffs contend that shortly after the filing of their 1995 petition defense counsel called their attorney requesting an extension of time to file responsive pleadings, to which their attorney orally agreed. They also contend that the attorneys exchanged written correspondence in February and March 2000, evidencing that the oral extension agreement was still in effect. Such action by defense counsel, plaintiffs argue, is inconsistent with an intent to abandon the case. In support of their contention, plaintiffs’ counsel cited at oral argument the case of Harrington v. Glenwood Regional Medical Center, 36,556 (La. App. 2 Cir. 12/11/02), 833 So.2d 1241, wherein the Second Circuit Court of Appeal held that the plaintiffs’ case was not abandoned where the defendant’s attorney sent a letter requesting an extension of time to answer to the plaintiffs’ counsel, who consented to an open-ended extension.

In Naccari v. Namer, 2001-2410, p. 5 (La.App. 4 Cir. 2/6/02), 809 So.2d 1157, 1160, we held that the mailing of informal correspondence cannot be construed as formal discovery and is insufficient to prevent abandonment or interruption of prescription. After reviewing the record, we find that the written correspondence between the plaintiffs’ counsel and defense counsel cannot be construed as formal discovery under the Code of Civil Procedure and is insufficient to prevent the abandonment or the running of the prescriptive period.

Furthermore, we find the Harrington case is distinguishable from the case at hand. In Harrington, in addition to requesting an extension to answer, the defendant also asked the plaintiff to sign a form for the release of medical records. He complied with the request. Several months later, plaintiffs counsel wrote to defense counsel inquiring whether the defendant had obtained the medical records. Defense counsel replied that he had. When defense counsel did not comply with the requirement of subsection D of La. C.C.P. art. 1465.1, the plaintiff requested the documents the next day. The appellate court found that a request properly made pursuant to La. C.C.P. art. 1465.1 constituted formal discovery as authorized by the code and was distinguishable from the mere correspondence that this Court | shad held was not formal discovery in Naccari. The second assignment of error is without merit.

The plaintiffs further argue that because the 1989 and 1995 suits arose from the same factual circumstances and involve the same defendants, the action taken in one case should be sufficient to prevent the running of the abandonment period in the other action. In support of this argument, the plaintiffs rely on the case of Johnson v. Berg Mechanical Industries, 35,290, p. 1 (La.App. 2 Cir. 12/19/01), 803 So.2d 1067.

In Johnson, the plaintiff, an employee of Berg, was injured in a work related accident at an oil refinery. He filed both a workers’ compensation claim and a tort suit alleging the same causes and facts. After a jury order was entered into the record in the tort suit in December 1996, no further action was taken in that case until November 2000 when one of the defendants moved to dismiss it on grounds of abandonment. Meanwhile, between November 1998 and September 1999, nine discovery depositions had been taken in the plaintiffs workers’ compensation suit. The trial court granted the motion to dismiss the tort suit. The Second Circuit Court of Appeal reversed, finding that the depositions taken in the workers’ compensation matter arising out of the same facts and attended by the defense counsel in the pending tort action were sufficient steps to interrupt the running of the abandonment period in the tort action. The Court noted that the tort defendants were careful to attend each deposition while reserving their rights to re-depose in the tort suit. The Court reasoned that the defendants derived the benefit of listening to the depositions in preparation for defending the tort action and had they considered the tort action abandoned, the defense attorneys would have had no reason to attend the workers’ compensation depositions. While recognizing that no |astep in the prosecution of the tort action took place before the trial court, the Court found that the facts demonstrated that the plaintiff did not intend to abandon his tort action. Thus, the Court concluded that dismissal on mere technicalities and form was not warranted.

In rendering its decision in Johnson, the Second Circuit acknowledged its departure from the application of La. C.C.P. art. 561 as written by narrowly limiting its decision to “the very specific and peculiar facts in this case.” Id., 35,290, p. 10, 803 So.2d at 1074. The facts and circumstances in the case at hand are clearly distinguishable from those in Johnson. Here, the parties in the 1989 and 1995 suits are no longer the same since the Symphony was dismissed as a defendant in the 1989 suit. See Roberts, 91-2076, 91-2204 (La.App. 4 Cir. 12/15/92), 610 So.2d 1097, writ denied 93-0416 (La.4/12/93), 616 So.2d 682. Also, nothing in the record indicates that discovery was conducted in the 1989 suit which was sufficient to interrupt the running of the abandonment period in the 1995 suit. Thus, we decline to follow the reasoning of Johnson in this case, so the third assignment of error is without merit.

Finally, the plaintiffs contend that the trial court erred in dismissing the 1995 suit with prejudice. They contend that the Symphony, Continental and the Orpheum are alleged solidary obligors and that the interruption of prescription as to the Or-pheum in 1989 interrupted prescription as to the other solidary obligors pursuant to La. C.C. art. 1799. Thus, the plaintiffs contend a dismissal without prejudice would allow them to reassert them claims against the Symphony and Continental while the 1989 suit is still pending. Defendants, on the other hand, argue that amending the judgment to dismiss the 1995 suit without prejudice would |10be futile because the 1989 suit is no longer pending and the one year prescriptive period to assert a tort claim has run.

The record before us indicates that the trial court rendered a partial summary judgment in the 1989 suit dismissing the Orpheum and the plaintiffs appealed. Their appeal was dismissed as the trial court failed to designate the judgment as a final appealable judgment. See Roberts v. Orpheum, 1998-1941 (La.App. 4 Cir. 2/2/00), 753 So.2d 916. The record, however, does not disclose if any further action was taken in the 1989 suit.

It is well settled that the dismissal of a suit on grounds of abandonment is a dismissal without prejudice. See Louisiana Central Credit Union v. LeBlanc, 98-23 (La.App. 5 Cir.1998), 721 So.2d 921, 923; D & S Builders, Inc. v. Mickey Construction Co., Inc., 524 So.2d 245, 247 (La.App. 5th Cir.1988); Pounds v. Yancy, 224 So.2d 1, 4-5 (La.App. 1st Cir.1969). Because we cannot determine from the record whether or not the 1989 suit is pending, in view of the established jurisprudence, we must amend the trial court judgment to dismiss the 1995 suit without prejudice.

CONCLUSION

Accordingly, for the reasons set forth herein, the judgment of the trial court is amended to dismiss the plaintiffs’ claims against the New Orleans Symphony and Continental Casualty Company without prejudice. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED

      . The original petition in this case was filed by plaintiff, Kennith W. Roberts, who died prior to the hearing on the defendants’ motion to dismiss on grounds of abandonment. Nothing in the record indicated that following Mr. Roberts’ death a succession proceeding was instituted or that a succession representative was appointed or confirmed. Thus, the dislrict court issued a summons pursuant to La. C.C.P. art. 803 C, ordering a legal successor of the deceased to appear and substitute himself or herself as the party plaintiff in the proceeding within sixty days. Shortly thereafter, Sue Roberts and Floyd K. Roberts, the parents of the deceased, filed a supplemental and amending petition substituting themselves as plaintiffs.

      . La. R.S. 23:1032, providing generally that an employee’s exclusive remedy against his employer shall be workers’ compensation benefits, was amended in 1989 by Acts No. 454, § 2, effective January 1, 1990, by adding the following:
      This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

      . La. C.C.P. art. 1465.1 D provides:
      The party requesting the medical records shall provide to the party whose medical records are being sought or to his attorney, within seven days of receipt, a copy of all documents obtained by the requesting party pursuant to the release.


author: 11 DAVID S. GORBATY, Judge. b CANNIZZARO, J.,

text:
    WORLD TRADE CENTER TAXING DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS OF WORLD TRADE CENTER TAXING DISTRICT and Nonresidents Owning Property or Subject to Taxation therein, et al.
    No. 2004-CA-1365.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.
    Gary J. Elkins, Richard T. Traína, Jordan B. Monsour, Elkins, P.L.C., New Orleans, LA, for Plaintiff/Appellee, World Trade Center Taxing District.
    Fred L. Chevalier, Raedtha A. Vasquez, Jones Walker Waechter Poitevent Carrere & Denegre, LLP, Baton Rouge, LA, and Russ M. Herman, Steven J. Lane, Soren E. Gisleson, Herman, Herman, Katz & Cottar, LLP, and Kenneth M. Carter, Kenneth M. Carter, PLC, New Orleans, LA, for Appellee, WTC Development, LP.
    Robert S. Angelico, Cheryl M. Kornick, K. Todd Wallace, Liskow & Lewis, New Orleans, LA, for Greater New Orleans Hotel and Lodging Association.
    Joseph R. Ward, Jr., Ward & Condrey, L.L.C., Covington, LA, for Ronnie J. Ther-iot.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   11 DAVID S. GORBATY, Judge.

The Greater New Orleans Hotel and Lodging Association (“Hotel Association”) and Ronnie J. Theriot, intervenors in the captioned litigation, appeal a judgment of the trial court denying in part their motions for new trial. For the following reasons, we remand.

LEGISLATIVE BACKGROUND:

Acts 2002, 1st Ex.Sess., No. 47, was enacted by the Louisiana legislature relative to cooperative economic development, to provide for tax increment financing in certain local governmental subdivisions, to authorize the creation of economic development districts within and by such local governmental subdivisions, to authorize increases in ad valorem, sales, and hotel occupancy taxes in such districts, and to provide for related matters.

Louisiana Revised Statute 33:9038.21 A provides for the creation of the World Trade Center Taxing District (“Taxing District”), a special taxing district |¡>and political subdivision of the State. The legislation was enacted to provide for cooperative economic development among the City of New Orleans (“the City”), the World Trade Center (‘WTC”), the Taxing District and WTC Development, Limited Partnership (“WTCD”), to provide for the renovation, restoration, and development of the property in the City which is known as the World Trade Center, and to implement a lease between the WTC and WTCD. La. R.S. 33:9038.21 C.

One of the rights and powers of the Taxing District is to enter into a cooperative endeavor with the State and its political subdivisions, and to, in its own name and on its own behalf, incur debt and to issue bonds, notes, certificates and other evidences of indebtedness. La. R.S. 33:9038.21 E(4) and (7), respectively.

To provide funds for the purposes of the Taxing District, La. R.S. 33:9038.21 F(l) authorizes it, acting by and through its board of commissioners, to levy and collect a tax upon the occupancy of hotel rooms, motel rooms, and overnight camping facilities within the district. The tax rate shall be at least equal to the aggregate rate of all such taxes levied and collected within the parish of Orleans by the State, local governmental subdivisions, and other political subdivisions or special taxing districts. The legislature specifically recognized that without the accomplishment of the purposes of the Taxing District there would be no collection of a hotel occupancy tax by any taxing authority within the district. Thus, if the Taxing District elects to levy and collect the tax authorized, such levy | «shall be deemed to supersede and be in lieu of any other tax on hotel occupancy within the district except for any such tax which is based on a per head or per person basis. La. R.S. 33:9038.21 F(4).

Louisiana Revised Statute 33:9038.21 G provides:

(l)(a) The district may issue revenue bonds payable from an irrevocable pledge and dedication of up to the full amount of hotel occupancy tax increments, in an amount to be determined by the district, to finance or refinance any project or projects, or parts thereof, which are consistent with the purposes of the district. A hotel occupancy tax increment shall consist of that portion of the hotel occupancy tax revenues collected by the district in an amount determined by the board of commissioners and which is in lieu of other such taxes levied by other taxing authorities.
(b) Dedication of hotel occupancy tax increments to pay the revenue bonds, shall not impair existing obligations of the district and shall not include tax revenues previously dedicated by the district for a special purpose.
(2) The district may pledge the taxes collected under the authority of this Section to any financing of the WTC property in furtherance of the purposes of the district. Such financing could include, but shall not be limited to loans, mortgages, the issuance of bonds, or the issuance of certificates of indebtedness.

PROCEEDINGS BELOW:

On February 17, 2004, the Taxing District filed a Motion for Judgment in the Civil District Court pursuant to La. R.S. 13:5124. According to the statute, upon filing of the motion, the court enters an order requiring publication of the motion two times within fifteen days from date of the issuance of the order. The court must specify the dates of publication, the first of which shall not be later than |4eight days from and after the date the order issued. The order shall also set forth the date of the hearing on the motion, which date shall be included in the publication. The date shall be at least ten days, but not more than thirteen days after the second publication.

The trial court ordered the publication on February 21 and February 23, the Saturday and Monday before Mardi Gras, and set the hearing on the motion for March 5. On March 1, the WTCD filed an answer to the Motion for Judgment, supporting the motion and praying that judgment be entered as prayed for by the Taxing District.

Following a hearing, a judgment was rendered March 15, ordering judgment in favor of plaintiffs as prayed for, recognizing that all statutory requirements had been fulfilled, and declaring the decree to be forever binding and conclusive as to the validity of the Agreement between the Taxing District and WTCD. The judgment further declared the validity, legality, effectiveness and enforceability of Acts 2002, 1st Ex.Sess., No. 47, the validity and legality of the underlying processes, and the validity of all matters adjudicated, operating as a permanent injunction against the institution by any person or any action or proceeding contesting such matters adjudicated or which might have been called in question in such proceedings.

On March 19, the Hotel Association filed a motion to intervene, with an accompanying motion for expedited hearing. Theriot filed a motion to intervene and motion for new trial on March 22. A hearing on the motions was set for March 24. On that date, the trial court rendered judgment granting the Hotel | ¡¡Association and Ronnie Theriot leave to intervene. On March 25, the Hotel Association filed its own motion for new trial, which the trial court set for hearing on April 6.

Following the trial court’s March 24 judgment, the Taxing District filed a notice of its intention to seek a supervisory writ from this Court, and for a stay of the trial court proceedings. The trial court set a return date and stayed the proceedings in the court below. The writ application was lodged with this Court on April 6 and a disposition was handed down May 19, finding no abuse of the trial court’s discretion, and thereby denying the Taxing District’s writ.

This Court based its decision on the fact that La. R.S. 13:5121, et seq., was controlling, and La. R.S. 13:5126 specifically provided “[a]ny property owner, taxpayer, citizen, or other person in interest may become a party to said proceedings by pleading to the motion within seven days after the second publication thereof, or thereafter by intervention upon leave of court. ...” The Court reasoned that “[g]iven the expedited nature of the validation procedure, the legislatively expressed intent to provide an equitable process with regard for the public fisc and rights of interested parties, plus the procedural exclusivity language in La. R.S. 13:5122, it appears that the legislature implemented La. R.S. 13:5126 to vest the trial court with discretion as to intervention to safeguard the rights of interested parties. There is no time limitation as to intervention expressed in La. R.S. 13:5126. Additionally, there is no case law on point to confirm or negate the foregoing conclusion.”

Following the ruling of this Court, a hearing on the motions for new trial was set for June 22. According to an order issued by the trial court on July 8, at the June 22 hearing, the trial court granted a new trial in part, allowing the | fiintervenors to address, in brief only, the constitutionality of La. R.S. 33:9038.21, as raised in their memoranda in support of the motions for new trial. The Court refused to hear any new evidence, but allowed intervenors to proffer evidence pursuant to La.Code Civ. Proc. art. 1636. Briefs were due on July 6.

On July 2, Theriot filed a notice of intent to seek supervisory writs and a request for a stay of the proceedings. The trial court denied the stay and set a return date of July 22. Mr. Theriot’s writ application was denied by this Court on July 16.

Intervenor, the Hotel Association, filed its brief on July 6; however, it attached proffered evidence to the briefs. The trial court issued an order striking the brief in its entirety, and giving the Hotel Association until July 12 to file a brief in conformity with the previous orders of the court.

On July 19, the trial court issued its ruling on the constitutionality of La. R.S. 33:9038.21, finding that intervenors failed to prove by clear and convincing evidence that the statute was unconstitutional. The court then adopted its prior ruling of March 5 in its entirety as the judgment of the court.

This appeal followed.

DISCUSSION:

In its first assignment of error, the Hotel Association avers that the trial court violated its due process rights in granting a new trial without allowing the introduction of any additional evidence or the cross-examination of prior testimony. Specifically, the Hotel Association argues that because it did not |7receive actual notice of the hearing, it is entitled to a full and complete new trial, not one limited to argument only.

The Hotel Association claims that the trial court clearly recognized that the Hotel Association’s right to due process was violated when the Taxing District failed to provide actual notice of the hearing, despite knowing that certain parties were opposed to the validation of the bond issue.

In response to the Hotel Association’s argument, the Taxing District first argues that the prior ruling of this Court denying Mr. Theriot’s writ application on the judgment denying a completely new trial constitutes the law of the case. As such, this Court should not revisit the issue. The Taxing District relies on Tsatsoulis v. City of New Orleans, 99-2544 (La.App. 4 Cir. 8/30/00), 769 So.2d 137, in support of its position, claiming that this Court held “that the law of the case doctrine applies to all prior decisions of an appellate court, including decisions rendered on supervisory writ applications.”

In Tsatsoulis, this Court entertained an appeal of a denial of a motion to intervene. The underlying case had been settled and compromised, terminating the litigation. This Court held that its prior ruling on the writ application, rendered after consideration of the merits of the writ application, was the law of the case, and would not be reconsidered on appeal. The denial of the prior writ application in the instant case was based “on the showing made,” clearly indicating that the panel did not find sufficient evidence in the writ application upon which to rule on the merits. Further, this Court indicated that it “presently” found no indication of abuse of discretion, implying that further actions of the trial on the issue could be considered. Thus, the prior ruling does not invoke the law of the case doctrine.

lRIn oral reasons, the trial court stated, “[ajfter considering the arguments and the briefs of Counsel, this Court is of the opinion that fundamental fairness dictates that a new trial at the very least in part is warranted. The Court does not believe that by granting a new trial and allowing the interested parties who have successfully intervened will not [sic] subject the World Trade Center Tax District to an unfair advantage, but rather place all parties on equal footing.”

Louisiana Code of Civil Procedure art. 1973 enables a trial court to grant a new trial if, in its discretion, the trial court determines there are good grounds therefor. We agree with the Hotel Association that the trial court clearly recognized that a substantial injustice would result if inter-venors were not allowed a new trial. The only possible basis for the trial court’s decision was that it believed the Hotel Association had not received adequate notice of the hearing. Despite this conclusion and the trial court’s statement that it desired “to place all parties on equal footing,” the trial court refused to give the Hotel Association a full new trial. Rather, it limited the new trial to argument (in brief form) on constitutional challenges only, and refused to allow the introduction of any new evidence. We find this ruling to be an abuse of the trial court’s discretion, particularly in light of the statement in the trial court’s corrected reasons for judgment that “this Court concludes that Intervenors have failed to clearly and convincingly show that La. R.S. 33:9038.21 is unconstitutional.” The trial court’s conclusion begs the question: how can one clearly and convincingly make a showing of unconstitutionality without being allowed to introduce evidence?

In Lamb v. Lamb, 430 So.2d 51, 53 (La.1983), the Supreme Court explained that a proper application of La.Code Civ. Proc. art. 1973 “necessitates an examination of the facts and circumstances of the individual case. When the judge 1 flis convinced by his examination of the facts that the judgment would result in a miscarriage of justice, a new trial should be ordered. We have recognized that the court has much discretion regarding this determination. However, this court will not hesitate to set aside the ruling of the trial judge in a case of manifest abuse.” [citations omitted.]

The trial court allowed the proffer of evidence intervenors claimed supported their positions. Ordinarily, in the interest of judicial economy, if a court of appeal renders a decision reversing a trial court, the court of appeal is mandated to review the facts, evidence and law and render a new judgment. Gonzales v. Xerox Corp., 320 So.2d 163, 165 (La.1975). This mandate, however, is premised on the appellate court having all of the facts before it. In the instant case, the trial court allowed both parties to proffer evidence for this Court to review should we decide it was error for the trial court to deny a full new trial. However, we note that the trial court did not allow the litigants to cross-examine each other’s witnesses, and offer such cross-examination testimony as proffered evidence. As such, the Hotel Association was not allowed to cross-examine John Keeling, the Taxing District’s economist, nor was the Taxing District allowed to cross-examine Mr. Theriot and the other witnesses the Hotel Association wished to call in support of its position. We find the denial of cross-examination particularly disturbing in light of the fact that the trial court relied on Mr. Keeling’s testimony adduced at the first trial to support its finding that La. R.S. 33:9038.21 is constitutional.

Accordingly, we find the trial court abused its discretion in granting only a limited new trial, and remand this matter for further proceedings.

REMANDED.

ARMSTRONG, C.J., respectfully dissents for the reasons assigned by Judge CANNIZZARO.

CANNIZZARO, J., dissents with reasons.

b CANNIZZARO, J.,

dissents with reasons.

I respectfully dissent from the majority opinion. In their motions for a new trial the appellants argued that La. R.S. 33:9038.21 is either unconstitutional as written or as applied. They asked for a new trial for the purpose of challenging the constitutionality of the statute. They also urged that they would be denied due process of law if they were not allowed to challenge the statute’s constitutionality.

The trial court found that “fundamental fairness dictates that a new trial at the very least in part is warranted.” The trial court granted the motions for a new trial but limited the new trial to the issue of the constitutionality of La. R.S. 33:9038.21. The trial court held that the issue would be considered only on briefs and that no new evidence would be adduced at trial.

In their assignment of errors on appeal, the appellants contend that the trial court violated their due process rights in granting a new trial without allowing the introduction of any additional evidence or the cross-examination of prior testimony. The appellants have, however, proffered the additional evidence that they wanted to introduce at the trial. I do not think that the trial court judge erred in granting a new trial to the limited extent that she did. This Court has all of the arguments and the evidence that the appellants presented to the trial court. I do not find that the appellants’ inability to cross-examine the appellee’s [¿witnesses at trial has denied the appellants due process. The appellants moved for a new trial solely on the basis that there were constitutional issues that they wanted to address, and the trial court afforded the appellants the opportunity to address those issues. I find no error in the trial court judgment.

The issue of the constitutionality of La. R.S. 33:9038.21, enacted by Act 47 of the First Extraordinary Session of the Louisiana Legislature of 2002, and the validity of the Cooperative Endeavor Agreement between the World Trade Center Taxing District and WTC Development Limited Partnership can be determined from the record that is now before us. Therefore, I am of the opinion that this Court should decide this case on the merits rather than remanding it to the trial court.

      . Appellants also assign as error the trial court's rulings on various constitutional issues. However, because we find merit in the first assignment of error, we do not reach the constitutional issues.

      . Acts 2002, 1st Ex.Sess., No. 47, enacted La. R.S. 33:9038, 33:9039 and 33:9040, which sections were redesignated as La. R.S. 33:9038.21, 33:9038.22 and 33:9039.23, respectively, and designated as Part III of Chapter 27, pursuant to the statutory revision authority of the Louisiana State Law Institute.

      . The caption on the motion was identical to the caption for this appeal, and, thus, named the same parties.

      . The Taxing District can avail itself of La. R.S. 13:5121, et seq., by virtue of La. R.S. 33:9038.8 K.

      .The Orleans Parish School Board filed a motion to intervene on March 24, for which leave was granted by the trial court ex parte.

      . The judgment was apparently rendered on June 29, but is not contained in the record on appeal.

      . Appellant, Ronnie J. Theriot, has adopted in its entirety the brief filed by the Hotel Association. As such, reference to the Hotel Association includes Mr. Theriot’s arguments.


author: JjDREW, J.

text:
    Betty Jo DRURY, Plaintiff-Appellee v. Kurt Donald DRURY, Defendant-Appellant.
    No. 38,951-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      William B. King, Shreveport, for Appellant.
    Katherine Clark Dorroh, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   JjDREW, J.

Kurt Drury appeals a judgment awarding Betty Jo Drury $600.00 per month in permanent periodic spousal support. We affirm.

FACTS

Betty Jo Drury (“Betty”) and Kurt Dru-ry (“Kurt”) were married on March 5, 1973. The couple eventually established a matrimonial domicile in Shreveport, Louisiana, where they resided when these proceedings commenced. The couple’s only child, Marci Brooks, is of the age of majority. On December 24, 2000, Donald moved out of the matrimonial domicile to pursue a relationship with a woman he had met on the internet. On February 22, 2001, Betty filed a petition seeking a divorce under La. C.C. art. 102, alleging that she was free of fault in the breakup of the marriage and requesting both interim and final periodic spousal support. On April 10, 2001, the court signed a judgment on matters incidental to the divorce which, among other things, awarded Betty monthly interim spousal support in an amount equal to the mortgage note on the former matrimonial domicile, or approximately $538.00.

On October 1, 2001, Kurt moved to have the trial court order Betty to show cause why the divorce should not be made final. In response, Betty filed an answer and reconventional demand requesting that the court set final periodic spousal support. A judgment granting the divorce was rendered on November 8, 2001. On April 30, 2003, a hearing was held to determine fault and final spousal support. At the conclusion of the hearing, the trial court took the matter under advisement. The court rendered judgment, with reasons, finding Betty free from fault in the breakup of the | ¿marriage and awarding her final periodic spousal support in the amount of $600.00 per month. Kurt appealed the judgment.

DISCUSSION

Kurt argues that the trial court erred in imputing Betty with earning potential of $350.00 per month when the evidence showed that she was earning more than that at the time of trial, and that the trial court compounded that error by failing to consider the imputed income in calculating the amount of support it ultimately awarded Betty. Both of these arguments are without merit.

At the time of trial, Betty was 65 years old and had suffered from and had surgery for carpal tunnel syndrome in both hands. She had also suffered from breast cancer in 1998, for which she underwent a mastectomy. In November of 2002, Betty was diagnosed with rheumatoid arthritis in her hands and feet. While she spent most of the marriage caring for the needs of her disabled husband, she did work part-time at Hallmark stocking cards. At the time of trial, Betty was still employed by Hallmark, but had provided her notice of resignation effective May 2, 2003. Betty’s decision to retire was due to her continuing health problems, especially the recent arthritis diagnosis. She testified that she had tried to retire several months earlier, but stayed on while a co-worker recovered from hip surgery.

Betty’s W-2s for the years 2000, 2001, and 2002 showed that she had an average gross monthly income of $537.16 in 2000, $825.48 in 2001, and $1,055.21 in 2002. Betty explained that the increase in income was a result of her working more hours than she did during the marriage. She testified |Rthat she was required to take on the additional work to make ends meet. Nevertheless, the trial court found that Betty would be unable to continue her employment with Hallmark due to her age and ongoing health problems and, thus, declined to attribute her with the income she had been earning from that employment. The trial court did find, however, that she should be able to maintain some form of part-time employment and imputed income to her in the amount of $350.00 per month.

Once freedom of fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other spouse to pay. La. C.C. arts. 111, 112; Carr v. Carr, 33,167 (La.App.2d Cir.4/5/00), 756 So.2d 639. La. C.C. art. 112 requires the court to consider all relevant factors in determining an award for final periodic spousal support. The nine factors listed in the article, while not exclusive, are as follows:

(1) The needs of the parties.
(2) The income and means of the parties, including the liquidity of such means.
(3) The financial obligations of the parties.
(4) The earning capacity of the parties.
(5) The effect of custody of children upon a party’s earning capacity.
(6) The time necessary for the claimant to acquire appropriate education, training, or employment.
(7) The health and age of the parties.
(8) The duration of the marriage.
(9) The tax consequences to either or both parties.

|4The trial court is vested with great discretion in making post-divorce alimony determinations, and its judgment will not be disturbed absent a manifest abuse of discretion. Carr, supra.

It is axiomatic that in determining a spouse’s earning capacity, one of the enumerated factors in La. C.C. art. 112, the court must look to that spouse’s age, health, education, and employment experience. After reviewing the entire record and considering the totality of the circumstances, we do not find that the trial court erred in finding that Betty would be unable to continue to earn an income at the same level she had in the three preceding years. Betty was 65 (an age when most people are retiring) and suffered from numerous health problems, described in the testimony of both Betty and her daughter. Her health problems were further confirmed by documentation of the numerous prescription medications Betty was required to take. Continuing the repetitive work associated with her job re-stocking greeting cards for Hallmark would be detrimental to Betty’s physical welfare. Accordingly, it was not an abuse of the trial court’s discretion to impute Betty with an average monthly income of $350.00 per month on the basis that she could find some form of part-time work which would not aggravate her health problems.

Kurt’s contention that the trial court failed to include this $350.00 in Betty’s monthly income when calculating the award of final support is without merit. The trial court found that Betty’s allowable expenses amounted to $1,816.00 per month. In adding $350.00 per month to Betty’s monthly social security income of $905, the trial court would have arrived at |Ba total monthly income of $1,255.00, which is $561.00 less than Betty’s monthly expenses. There is no rigid formula by which a final support award is to be made, and we do not find that the award of $600.00 per month was an abuse of the trial court’s discretion.

Kurt further argues that the trial court erred in awarding Betty final periodic support when her inability to financially provide for herself is due in part to her imprudent depletion of assets. Specifically, Kurt relies on evidence regarding two events: first, Betty’s withdrawal of $20,000.00 from a community account just after the parties’ separation and, second, Betty’s receipt of $26,000.00 from the sale of a home. Betty testified that some of these funds were donated to her children and her church, and to purchase a vehicle and a home. Kurt argues that the sums donated to her children and church to the detriment of her ability to support herself should preclude her from receiving alimony.

The evidence shows that Betty withdrew $20,000.00 from a community account prior to the parties’ physical separation in December of 2000. She then donated $5,000.00 apiece to each of her two children, put $5,000.00 down on the purchase of a Saturn automobile, used some funds to retain an attorney, and gave money to her church.

The evidence also shows that the parties had a community interest in a home located on Booth Drive, with a monthly mortgage note of $538.00. Kurt deeded the property to Betty, who sold it and received approximately $18,000.00 in proceeds. Betty then purchased a cabin on Camp Joy for | ,4)22,000.00, for which she made a down payment of $16,000.00 and borrowed an additional $6,000.00. Betty eventually sold the Camp Joy cabin for $26,000.00. The record is unclear as to what her payoff on the Camp Joy cabin was. She then made a down payment of $4,000.00 toward the purchase of a new home on Wells Island and financed approximately $30,000.00 of the purchase price. Her current monthly note on the Wells Island home is $301.00, approximately $235.00 less than the mortgage note on the matrimonial domicile.

A spouse claiming support is required to deplete her liquid assets to some extent before she may be entitled to post-divorce support. Patton v. Patton, 37,401 (La.App.2d Cir.9/24/03), 856 So.2d 56. In determining the extent of any depletion of assets, the court must apply a rule of reasonableness in light of factors such as the value and liquidity of the assets, ages and health of the parties and their relative ability, education, and work experience. Id. The court must be cautious of the probable long-term effects when contemplating depletion of assets. Id.

The evidence supports the trial court’s conclusions that the disposition of assets complained of by Kurt was not unreasonable and that Betty should not be required to deplete her remaining liquid assets before being awarded final support. Betty’s use of community funds to replace her vehicle, retain an attorney, and donate money to her children and church was not unreasonable. Betty testified that she put $5,000.00 down on the purchase of an automobile to replace the inoperable vehicle with which she had been left. She then donated a total of $10,000.00 to her children 17($5,000 each). She used part of the remainder to retain an attorney, an expense which became necessary as a result of Kurt’s actions. As noted by the trial court, one might question whether Betty was the best manager of her money, but the evidence does not support the conclusion that she “squandered” her funds or that her dispositions were made in bad faith.

The record is unclear as to the exact amount of money Betty was left with after the series of transactions that began with the sale of the matrimonial home and ended with her purchase of the Wells Island home. Viewed in a light most favorable to Kurt, Betty could have retained as much as $20,000.00. However, even assuming this to be the case, we find that the trial court did not err in finding that Betty should not be required to deplete these assets. Considering Betty’s various medical complications and advancing age, she is likely to encounter various expenses which she will not be able to afford on her monthly social security income and final periodic support. Accordingly, we find this argument to be without merit.

DECREE

At appellant’s costs, the judgment is AFFIRMED.

      . While no exact explanation is provided in the record, it appears that Betty had a son from a previous relationship.


author: JjLOLLEY, J.

text:
    Earl and Wanda TURNBOW Individually and on Behalf of Joshua Turnbow, Plaintiff-Appellant v. WYE ELECTRIC, INC., et al., Defendant-Appellee.
    No. 38,948-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 22, 2004.

      Anthony J. Bruscato, Monroe, for Appellant.
    Hayes, Harkey, Smith & Cascio by Charles S. Smith, Meridian, for Appellee.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   JjLOLLEY, J.

Earl and Wanda Turnbow appeal the judgment of the Fourth Judicial District Court, Parish of Ouachita, Louisiana, granting the motion for summary judgment by Wye Electric, Inc. (“Wye Electric”). For the reasons that follow, we affirm the trial court’s grant of summary judgment.

Facts

On August 7, 2001, the Turnbows’ minor son, Joshua Turnbow, was visiting at a house located at 209 Arthur Street in West Monroe, Louisiana. The residents of the house were renting it from Wye Electric, and a Bullmastiff, as well as several Pit-bulls, were kept at the residence. The mastiff was chained outside along with a male Pitbull; two female Pitbulls were kept in an outside pen, and one female Pitbull was kept inside the house. The dogs apparently were owned by William Hicks, who shared the residence with Wendy Posey, Robert Coleman, Tracy Hamilton, and Paul Greene. While Joshua was visiting the house, he was bitten by the Bullmastiff dog.

As a result of the attack, Joshua’s parents subsequently filed suit in January 2002 against Robert Coleman, Wendy Po-sey, William Hicks and Wye Electric. Following some discovery, Wye Electric filed a motion for summary judgment, essentially arguing that the mere presence of dogs belonging to a tenant does not constitute “vices and defects” of the leased premises so as to make the landlord liable to others for injuries caused by a dog. Furthermore, Wye Electric argued that in order for a landlord to be guilty of negligence in such circumstances, there must be evidence that the landlord has actual knowledge of the dog’s vicious propensities, but that in this particular incident, the Turn-bows could not prove that Wye Electric had actual knowledge of the vicious propensity of the dog in question. Wye Electric’s motion for summary was granted by the trial court. | ¡^Subsequently, the Turn-bows filed a motion for new trial arguing that the trial court erred in basing summary judgment on lack of actual knowledge of the vicious propensity of the dog. The motion for new trial was summarily denied, and this appeal followed.

Discussion

In their first assignment of error, the Turnbows assert that the trial court erred in granting summary judgment on the issue of Wye Electric’s negligence. This assignment of error is without merit for the following reasons.

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Because Wye Electric did not bear the burden of proof in this matter, it only needed to point out the absence of factual support for one or more elements essential to the plaintiffs’ claim. La. C.C.P. art. 966(C)(2). For the reasons that follow, we conclude that summary judgment was properly granted, because the Turnbows failed to satisfy their burden. See La. C.C.P. art. 966(C)(2).

This case hinges on the requisite level of knowledge necessary to find a landlord negligent for injuries caused by a tenant’s animal. On appeal, the Turnbows rely primarily on Murillo v. Hernandez, 00-1065 (La.App. 5th Cir.10/31/00), 772 So.2d 868, for the proposition that a landlord is liable for injuries caused by a tenant’s animal if the landlord knew or should have known that the tenant was harboring an animal with vicious propensities. Wye Electric cites the same case for the proposition that the appellants had to prove Wye Electric had actual knowledge of the dangerous propensities of the dog in question. In | ^Murillo, the parents of a minor child brought a negligence action not only against a dog owner who was visiting a tenant that lived in an apartment, but also against the landlord and its insurer as a result of an incident in which the child received a dog bite. Although the trial court awarded a judgment against the dog owner, the court granted a motion for involuntary dismissal filed by the landlord and its insurer.

The Murillo court determined that although a landowner is strictly liable for injuries caused by vices or defects of its building, he is not liable to a third person for injuries caused by his lessee’s animal, and that the strict liability of the animal owner under La. C.C.P. art. 2321 cannot be imputed to a nonowner. However, a landlord still may be liable in negligence if there is a violation of a duty and that violation is a cause-in-fact of an injury. Id. To find a landlord negligent in such a scenario, the record must show the landlord had actual knowledge of the dog’s vicious propensity. Id., citing Compagno v. Monson, 580 So.2d 962 (La.App. 5th Cir.1991). See also, Verdun v. Hebert, 03-0225 (La.App. 5th Cir.05/28/03), 848 So.2d 138 where a non-owner of animal must be shown to have actual knowledge of animal’s propensity to injure in order to be found liable for negligence under La. C.C. art. 2316.

We agree that a landlord is not strictly liable for injuries to a third person caused by a lessee’s animal. We further agree that such a situation is governed by a negligence analysis in which there must be a violation of duty that is a cause-in-fact of the injuries sustained. In the absence of any lease provision either prohibiting tenants from having dogs, or attempting to regulate the type of dogs allowed, a landlord has no duty either to inspect leased premises to ascertain Lwhether or not a tenant had a dog, or, if aware that a tenant has a dog, to ascertain whether or not the animal might have a “vicious propensity.”

In the instant case, the trial court correctly found no evidence that any employee of Wye Electric knew of the alleged “vicious propensity” of the dog, that there was no evidence the employees even knew the breed of the dog, and that nothing had drawn their attention to the animal for them to study its behavior.

Specifically, the depositions of Rosie Wilkinson, Rachel Atkins, and Cathy Tripp were considered by the trial court. All were employed by Wye Electric during the pertinent time frame. Wilkinson indicated that as an employee of Wye Electric, she had gone to the rent house with Tripp to talk to Coleman about rent payment on two occasions. On the first occasion, Wilkinson saw a dog at the residence, but the dog did not bark and she did not remember what kind of dog it was. She stated that no one had ever complained to her about any dogs.

Atkins stated that on occasion she had collected rent from the residents at issue. Atkins had not gone to the premises to collect the rent. However, she was not aware that the tenants had a dog, and no one ever came by Wye Electric or called about the dogs on the rental property.

Tripp, the comptroller at Wye Electric, supervised Wilkinson and Atkins at the time of the accident. Tripp had never seen any evidence of dogs at the house, but indicated there was no policy against having dogs on the property.

Wye Electric also referred to the affidavit of Mike Moss who was the warehouse manager at Wye. Moss indicated that the warehouse was located near the backyard of the rental house, and that substantial weeds and bushes grew between the warehouse and the backyard. However, while performing his duties as manager, Moss did notice a “cur dog” either tied or in a pen on the property. | ^Although Moss saw the dog on several occasions, he never saw the dog exhibit any vicious propensities or interact with people. No one ever mentioned anything to him about the dog.

In its written ruling, the trial court concluded that no evidence existed that an employee of Wye Electric knew of the vicious propensity of the dog in question, the employees even knew the breed of the dog, the dog had drawn the employees’ attention, or the employees had reason to study its behavior. Instead, the trial court concluded that just because some employees knew that one or more dogs were on the rented premises, a duty was not created to inspect and determine the disposition of the animals. Such a conclusion was not in error. Accordingly, because the Wye Electric employees had no actual knowledge that might be imputed to Wye Electric, and because no duty existed to obtain such knowledge under the undisputed facts of this case, we conclude that the trial court correctly granted summary judgment in Wye Electric’s favor.

In their second assignment of error, the Turnbows assert that the trial court erred in denying the motion for new trial. They claim it is undisputed that the dog owner, Robert Coleman, moved and could not be served, much less located and subpoenaed for deposition, prior to the hearing on the motion for summary judgment, but that he was located shortly after entry of summary judgment. The Turn-bows assert that Coleman would be the person with the most knowledge of the facts of the case and would be in a position to give evidence on key issues such as whether Wye Electric personnel were aware of the number of dogs and breeds of dogs he had on the premises. Accordingly, they assert that the trial court abused its discretion in denying the motion for new trial.

| fiWhen reviewing the denial of a motion for new trial, the trial court’s decision will not be reversed unless an abuse of discretion can be exhibited. Williams v. Super Trucks Inc., 36,993 (La.App.2d Cir.04/09/03), 842 So.2d 1210. Appellants do not assert that Coleman would actually give evidence that Wye Electric employees were aware of facts that might result in a finding of a breach of duty, but only that Coleman would be in a position to give evidence on key issues. Furthermore, we observe that the Turnbows’ argument in this court concerning new trial differs from their argument in the trial court, discussed above, in which they asserted reason to believe, as a result of communications with Wendy Posey, that both Coleman and Hicks were in possession of facts which would prove that Wye Electric either knew or should have known that more than one dog was harbored on the premises, and also knew or should have known that these particular dogs represented an unreasonable risk of harm to others. However, under any of appellants’ assertions, we detect no abuse of the trial court’s discretion. Such general assertions fall short of the showing necessary to demonstrate an abuse of discretion; they neither give details of the asserted communications with Posey, nor give details of any facts that allegedly would prove what Wye Electric either knew or should have known.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.