author: MOORE, J.

text:
    STONEBRIDGE DEVELOPMENT, LLC, Plaintiff-Appellee, v. STONEBRIDGE ENTERPRISES, LLC, Defendant-Appellant.
    No. 42,039-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 4, 2007.

      Randy P. Zinna, Baton Rouge, for Appellant.
    R. Lane Pittard, Benton, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   MOORE, J.

|TThe defendant, Stonebridge Enterprises, LLC, appeals a judgment on the pleadings recognizing the plaintiff, Stonebridge Development, LLC, as the owner of a 2.92-acre tract of land in Bossier Parish and ordering the defendant to surrender possession of the property. We affirm.

Procedural Background

Stonebridge Development filed this suit in April 2006 alleging that it was the owner of the tract, which was described by metes and bounds, but that Stonebridge Enterprises was in possession of a portion of the tract and had refused to surrender possession to the plaintiff. The petition prayed for judgment recognizing the plaintiff as legal owner of the property and ordering the defendant to surrender possession of it.

Stonebridge Enterprises answered, admitting each of the petition’s allegations: that the plaintiff owned the tract, that the defendant was in possession of a portion of it, and that the defendant had refused to surrender possession. The answer contained no further factual allegations and merely prayed for judgment in favor of the defendant, rejecting the plaintiffs demands.

The plaintiff then moved for judgment on the pleadings, urging that the defendant had admitted each factual allegation necessary for a judgment in a petitory action, La. C.C.P. art. 3653. By memorandum only, the defendant argued that any issue involving improvements on the tract was beyond the scope of the pleadings. The defendant explained that it did not contest the plaintiffs title to the tract itself, but that the defendant owned |athe maintenance building situated thereon, and would oppose the petition only to the extent the plaintiff was trying to evict the defendant from its building.

At a hearing in July 2006, the court found that every allegation of the plaintiffs petition had been admitted by the defendant and that the issue of the building arose only in memorandum instead of by pleading. The court noted that it could not discern anything about the building, including who built it, when or where; the court therefore found that judgment on the pleadings was proper. The court rendered judgment recognizing the plaintiff as the legal owner of the property, using the same metes and bounds recited in the petition, and ordering the defendant to “immediately surrender its possession to any and all portions of the above described property” to the plaintiff.

The defendant appealed, urging three specifications of error:

1. The trial court erred in granting plaintiffs motion for judgment on the pleadings on any issue other than the ownership of the tract of land described in paragraph two of plaintiffs petition.
2. The trial court erred in ordering defendant to surrender possession of the building and other improvements located on the tract of land because the pleadings did not address or allege ownership of any property other than the tract of land.
3. The trial court erred in ordering defendant to surrender possession of the building and other improvements located on the tract of land because defendant’s answers specifically rejected and denied plaintiffs demand to surrender possession.

13Discussion

The motion for judgment on the pleadings is regulated by La. C.C.P. art. 965, which provides (with emphasis added):

Any party may move for judgment on the pleadings after the answer has been filed, or if an incidental demand has been instituted after the answer thereto had been filed, but within such time as not to delay the trial. For the purpose of this motion, all allegations of fact in mover’s pleadings not denied by the adverse party or by ejfect of law, and all allegations of fact in the adverse party’s pleadings shall be considered true.

A motion for judgment on the pleadings presents solely a question .of law. Gibbens v. Wendy’s Foods Inc., 31,487 (La.App. 2 Cir. 1/20/99), 729 So.2d 629. The jurisprudence favors giving a party his day in court; hence, judgment on the pleading is granted only when the legal right is clearly established. Canal Motors Inc. v. Campbell, 241 So.2d 5 (La.App. 4 Cir.1970). However, when the plaintiffs allegations clearly establish a right to relief, and the defendant admits each allegation, judgment on the pleadings is proper. Connette v. Wright, 149 La. 478, 89 So. 626 (1921).

The defendant argues, as it did in the district court, that it does not contest the plaintiffs ownership of the land described in the petition, but rather the plaintiffs ownership of the building and other improvements permanently attached thereto. According to the defendant, the petition does not specifically address the building and other improvements, and these items are separate immovables under La. C.C. art. 464. The defendant submits that any issue regarding the building and improvements is beyond the scope of the pleadings and could not be decided by judgment on the pleadings.

|4The defendant’s position is unpersuasive. The suit is a petitory action, which is defined by La. C.C.P. art. 3651:

The petitory action is one brought by a person who claims the ownership, but who is not in possession, of immovable property or of a right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership.

In accordance with this principle, the plaintiff alleged that it was the owner of the property but that the defendant was in possession of a portion thereof. The defendant admitted that the plaintiff owned it and that the defendant was not possessing it as owner. These admissions satisfied every requirement for a judgment recognizing the plaintiff as the owner and giving it possession of the property. La. C.C.P. art. 3651. The plaintiff was clearly entitled to a judgment on the pleadings. Connette v. Wright, supra.

Contrary to the defendant’s position, any buildings or improvements on land are not presumptively separate im-movables. “Tracts of land, with their component parts, are immovables.” La. C.C. art. 462. “Buildings, other constructions permanently attached to the ground * ⅜ * are component parts of a tract of land when they belong to the owner of the ground.” La. C.C. art. 463. “Things incorporated in or attached to an immovable so as to become its component parts belong to the owner of the immovable.” La. C.C. art. 493.1. In short, buildings are presumed to belong to the owner of the soil. Marcellous v. David, 252 So.2d 178 (La.App. 3 Cir.), writ refused, 259 La. 943, 253 So.2d 383 (1971). The law does not require a three-dimensional property description for tracts of land with buildings. If the ^defendant wished to assert separate ownership of alleged building and improvements, it did not accomplish this by simply admitting each of the plaintiffs allegations.

Finally, we note that even though the defendant admitted each of the plaintiffs allegations, the prayer for relief sought judgment in favor of the defendant, rejecting the plaintiffs demands. This court is cognizant of older jurisprudence holding that the character of a pleading is determined by the prayer for relief rather than by the allegations therein. See, e.g., Garnier v. Louisiana Milk Comm’n, 200 La. 594, 8 So.2d 611 (1942). However, the Code of Civil Procedure now espouses the theory of fact pleading, whereby a party may receive any relief to which he is entitled under the factual pleadings and evidence. Cox v. W.M. Heroman & Co., 298 So.2d 848 (La.1974). It would be incongruous to grant relief not warranted by the pleadings, solely on the basis of a non sequitur prayer. The defendant’s specifications of error lack merit.

Conclusion

For the reasons expressed, the judgment on the pleadings is affirmed, recognizing Stonebridge Development, LLC as the legal owner of the property described in the appendix to this opinion and ordering Stonebridge Enterprises, LLC to surrender possession of any and all portions of it to the plaintiff. All costs are to be paid by the defendant, Stonebridge Enterprises, LLC.

AFFIRMED.

^APPENDIX

A tract of land located in the Northwest Quarter of Section 12, Township 18 North, Range 13 West, Bossier Parish, Louisiana. Said tract more fully described as follows:

From the Northwest Corner of Section 12, Township 18 North, Range 13 West, Bossier Parish, Louisiana, run S 00°41'26" W a distance of 2,640.48 feet to a found one-half inch iron pipe, thence S 87°40'30" E a distance of 914.52 feet to a set one-half inch rod. Said point being the point of beginning for the tract herein described.

Thence N 19°22'06" W a distance of 200.00 feet,

Thence N 66°04'15" E a distance of 412.94 feet,

Thence S 21°54'36" E a distance of 399.47 feet,

Thence S 66°14'21" W a distance of 16.48 feet,

Thence N 87°17'19" W a distance of 445.60 feet back to the point of beginning.

Said tract containing 2.92 acres.

Also described as:

Begin at a pt in the center of the race track bayou 2640 ft S & 926 ft S 88 deg 08 min E from the NW cor of Sec 12, thence N 22 deg 59 min W with the centerline of said bayou 200 ft, thence N 65 deg E 411.5 ft, thence S 23 deg E 402 ft, thence S 65 deg W 18 ft, thence N 88 deg 08 min W 445.6 ft to the pt of beg sec 12, T 18, R 13, Tract 1A2B4.

      . The description is included as an appendix to this opinion.

      . Overruled on other grounds in A. Copeland Enterprises Inc. v. Slidell Memorial Hosp., 94-2011 (La.6/30/95), 657 So.2d 1292.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Arlene SQUYRES, individually, and on behalf of the Estate of Joseph Squyres v. OUR LADY OF LOURDES REGIONAL MEDICAL CENTER, INC., et al.
    No. 06-1517.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      Kenneth W. DeJean, Law Offices of Kenneth W. DeJean, Lafayette, Louisiana for Plaintiffs/Appellants, Arlene Squyres, Individually, and on behalf of the Estate of Joseph Squyres.
    Terry Rowe, Rowe & Middleton, Lafayette, Louisiana, for Defendant/Appellee, Karen Kemzuro.
    Patrick Manning Wartelle, Roy, Bivens, Judice, Roberts & Wartelle, Lafayette, Louisiana, for Defendants/Appellees, Our Lady of Lourdes Regional Medical Center, Inc., Monique Joseph, and Catherine Vaughtsteinmann.
    Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Bin this medical malpractice case, Plaintiffs appeal the trial court judgment granting a motion for summary judgment on behalf of Defendant, Karen Kemzuro. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS

On January 9, 2003, Joseph Squyres (Mr. Squyres) was admitted to Our Lady of Lourdes Regional Medical Center, Inc. (Lourdes) in Lafayette, Louisiana, for a left knee replacement to be performed by Dr. Thomas Montgomery. Following surgery, on the evening of January 12, 2003, Mr. Squyres complained of pain. The physician on call, Dr. Barry Henry (Dr. Henry), ordered Ambien to help him rest and Percocet to relieve the pain. In accordance with the doctor’s orders, certain nurses at Lourdes administered the Pereo-cet at 7:30 p.m. and the Ambien at 8:30 p.m. That same night, due to continued complaints of pain, Dr. Henry also ordered Dilaudid, which was administered to Mr. Squyres at approximately 11:00 p.m. In the early morning of January 13, 2003, at 12:30 a.m., Mr. Squyres went into respiratory arrest. He was administered cardiopulmonary resuscitation (CPR), placed on a ventilator, and moved to the intensive care unit. Mr. Squyres died on February 4, 2004.

On July 14, 2003, Arlene Squyres, individually, and on behalf of the Estate of Joseph Squyres, filed a Petition for a Medical Review Panel. The medical review panel rendered a decision on October 5, 2004, wherein the panel concluded that there was no breach of the standard of care by Dr. Henry, Lourdes, or its employees.

On November 30, 2004, Arlene Squyres, individually, and on behalf of the Estate of Joseph Squyres, filed suit against Defendants: Lourdes; Dr. Henry; nurse Karen Kemzuro (Ms. Kemzuro); nurse Monique Joseph (Ms. Joseph); and nurse ^Catherine Vaughtsteinmann (Ms. Vaught-steinmann). Plaintiffs’ claims against Dr. Henry were dismissed by the trial court pursuant to summary judgment granted in favor of Dr. Henry on April 18, 2005. A motion for summary judgment was also filed on behalf of Lourdes, Ms. Joseph, and Ms. Vaughtsteinmann, which was granted by the trial court on November 28, 2005. However, in Arlene Squyres v. Our Lady of Lourdes Reg’l Med. Ctr., Inc. et al., an unpublished opinion bearing docket number 06-744 (La.App. 3 Cir. 12/6/06), 943 So.2d 1277, 2006 WL 3864041, this court reversed the trial court’s grant of summary judgment in favor of Lourdes, Ms. Joseph, and Ms. Vaughtsteinmann’and remanded the matter for further proceedings. Ms. Kemzuro subsequently filed a motion for summary judgment on July 21, 2005, which was also granted by the trial court. A judgment was signed in accordance therewith on March 3, 2006. It is from this judgment granting summary judgment in favor of Defendant Ms. Kem-zuro that Plaintiffs appeal.

ISSUES

The issues raised by Plaintiffs for our review are summarized as follows:

1. whether the trial court erred in finding that a nurse was not qualified to testify as to the standard of care of nurses and could not testify as to whether a violation of that standard of care caused or contributed to the death of Joseph Squyres;
2. whether the trial court erred in finding that there was no genuine issue of material fact as to the cause of death of Joseph Squyres; and
3. whether the trial court erred in finding that there was informed consent for the risks associated with the medication and administering of the medication to Joseph Squyres.

1 ¿LAW AND DISCUSSION

Standard of Review

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, ie., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 04-0066 (La.7/6/04), 880 So.2d 1. The movant bears the burden of proof. La. C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to plaintiff to present factual support adequate to establish that he will be able to satisfy the eviden-tiary burden at trial. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131, 137. Thereafter, if plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. Id. This court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 751). Further, this court has defined a “material fact” to be one in which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Champagne v. Ward, 03-3211, pp. 4-5 (La.App. 3 Cir. 1/19/05), 893 So.2d 773, 776-77.

Burden of Proof

In a medical malpractice action, La.R.S. 9:2794(A) provides that the plaintiff shall have the burden of proving:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
|4(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

“Thus, according to La.R.S. 9:2794(A), any medical malpractice claimant must establish, by a preponderance of the evidence: (1) the defendant’s standard of care; (2) the defendant’s breach of that standard of care; and (3) a causal connection between the breach and the claimant’s injuries.” Browning v. West Calcasieu Cameron Hosp., 03-332, p. 10 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, 804, writ denied, 03-3354 (La.2/13/04), 867 So.2d 691 (citing Pfiffner v. Correa, 94-924, 94-963, 94-992 (La.10/17/94), 643 So.2d 1228).

Standard of Care and Causation

In opposition to the motion for summary judgment, Plaintiffs introduced the affidavit of Laura Frost Oettell (Ms. Oettell), a registered nurse, who opined that Defendants, including Karen Kemzu-ro, failed to meet the proper standard of care and that their actions were a proximate cause of the death of Mr. Squyres. Plaintiffs assert that the trial court erred in finding that Ms. Oettell was not qualified to testify as to the standard of care of nurses. We have reviewed the record of these proceedings, including the reasons provided by the trial court, and find this assertion to be without merit.

When ruling on the present motion for summary judgment, which was submitted to the trial court on the briefs of the parties, the trial court stated that “the court finds that there is no genuine issue of material fact and for the reasons stated in the previous ruling on the motion— previous motion for summary judgment as well as these reasons, the court will grant the motion for summary judgment.” In the oral reasons of July 5, 2005, to which the trial court referred, the trial court did not state [ Bthat Ms. Oettell was not qualified to testify as to the appropriate standard of care. Rather, the trial court stated that Ms. Oettell, a registered nurse, was not qualified to give an opinion as to the cause of Mr. Squyres’s death. As stated in our previous unpublished opinion, which involved the same affidavit of Ms. Oettell, a plaintiff may use the expert testimony of a nurse to establish the requisite standard of care. Arlene Squyres v. Our Lady of Lourdes Reg’l Med. Ctr., Inc. et al., an unpublished opinion bearing docket number 06-744 (La.App. 3 Cir. 12/6/06), 943 So.2d 1277, 2006 WL 3864041 (citing Coleman v. Christian Home Health Care, 99-2948 (La.App. 4 Cir. 4/11/01), 786 So.2d 819; Cagnolatti v. Hightower, 95-2598, 95-2599 (La.App. 4 Cir. 12/11/96), 692 So.2d 1104). Thus, we find from the record that the trial court correctly determined that Ms. Oettell, a registered nurse, was competent to testify on the issue of the applicable standard of care of nurses.

Plaintiffs also assert that the trial court erred in concluding that Ms. Oettell could not testify as to whether a violation of the standard of care caused or contributed to the death of Mr. Squyres. This argument was also asserted in Plaintiffs’ prior appeal of the granting of summary judgment in favor of Lourdes, Ms. Joseph, and Ms. Yaughtsteinmann. As we previously opined, “for the purpose of summary judgment, expert testimony is not required to prove that a patient’s death is causally connected to the defendant’s conduct.” Id. (citing Browning, 865 So.2d 795). Therefore, we find that the trial court erred in holding that Ms. Kemzuro was entitled to summary judgment on the grounds that Plaintiffs failed in their burden of proving causation.

Genuine Issues of Material Fact

Another issue raised by Plaintiffs in the present appeal is whether the trial court | (¡erred in finding that there was no genuine issue of material fact as to the cause of death of Mr. Squyres. We find, based on our review of the record of these proceedings, that there remain questions of fact as to what caused the death of Mr. Squyres.

In support of the motion for summary judgment, Ms. Kemzuro introduced the Opinion and the Reasons for Opinion of the medical review panel. Relevant to the present motion for summary judgment is the panel’s conclusion that “[t]he evidence does not support the conclusion that the defendant, Karen Kemzuro, L.P.N [.] failed to meet with the appropriate standard of care as charged in the complaint.” Additionally, on the issue of causation, the medical review panel concluded that “[t]he conduct complained of was not a factor of any resultant damages to plaintiff.”

In opposition to the motion for summary judgment on behalf of Ms. Kemzuro, Plaintiffs introduced the affidavit of Ms. Oettell, and the deposition testimony of Dr. Albert R. Corne, Jr. (Dr. Corne), an internist. Ms. Oettell stated in her affidavit that “[i]t is impossible for one to assume that the medication was administered correctly based on the lack of patient monitoring and documentation including the unfortunate event and outcome of Joseph Squyres following the administration of a potent opiate narcotic.” On the issue of causation, Ms. Oettell opined that “the breaches of the applicable standards of nursing care stated within [her] affidavit contributed to respiratory depression of Joseph Squyres and ultimately his death.” Dr. Corne, who had seen Mr. Squyres post-operatively as the physician on call on January 13, 2003, testified that Mr. Squyres “got enough medicine to produce respiratory arrest and a vegetative state.” Dr. Corne agreed with Ms. Oettell that the cause of death was the “volume of medication” and the resulting “snowball effect.”

| ./Considering the expert opinions of Ms. Oettell and Dr. Corne and their conflict with the expert opinions of the members of the medical review panel pertaining to the cause of death of -Mr. Squyres, we find that genuine issues of material fact remain as to whether or not the actions or inac-tions of Ms. Kemzuro breached the applicable standard of care and whether her actions or inactions caused or contributed to his death. These unresolved genuine issues of material fact preclude the granting of summary judgment. Therefore, we find that the trial court erred in holding that Ms. Kemzuro was entitled to summary judgment because there was no genuine issue as to any material fact that the cause of Mr. Squyres’ death was not caused by or contributed to by any act, omission, or breach of standard of care by Ms. Kemzuro.

Informed Consent

Plaintiffs, on appeal, also raise the issue of a lack of informed consent by Mr. Squyres for the risks associated with the medication and its administration. However, we find this assertion to be misplaced. The duty to obtain informed consent is found at La.R.S. 40:1299.40(E)(7)(c), which provides that in order to be covered by the statutory provisions relative to informed consent, “the physician or other health care provider who will actually perform the contemplated medical or surgical procedure” must make the requisite disclosures. Thus, by the express terms of the statute, the duty of obtaining the informed consent of a patient is owed only by the physician or health care provider who will actually be performing the procedure. Because Plaintiffs bear this burden of proof at trial, it was their burden to show that Ms. Kemzu-ro performed a procedure which required that she obtain the informed consent of Mr. Squyres. There is nothing in the record establishing the fact that Ms. Kem-zuro performed the procedure which is the subject matter of this litigation. We find that |sPlaintiffs failed to meet this burden. Therefore, there is no genuine issue of material fact, and Ms. Kemzuro is entitled to summary judgment as a matter of law on the issue of informed consent. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Ms. Kemzu-ro dismissing the claims of Plaintiffs against Ms. Kemzuro solely related to her alleged failure to obtain the informed consent of Mr. Squyres for the risks associated with the medication and administration of the medication to him.

DECREE

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Karen Kemzuro dismissing the claims of Arlene Squyres, individually, and on behalf of the Estate of Joseph Squyres, against Karen Kemzuro only as to her failure to obtain the informed consent of Joseph Squyres. In all other respects, the judgment of the trial court granting summary judgment in favor of Karen Kemzuro is reversed, and this matter is remanded for further proceedings consistent herewith.

Costs of this appeal are assessed against Defendant, Karen Kemzuro.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: PETERS, J.

text:
    Sister Nira LEDOUX, et al. v. GRAND CASINO-COUSHATTA, et al.
    No. 06-1500.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2007.

      M. Terrence Hoychick, Hoychick & Aguillard, Eunice, LA, for Plaintiffs/Appel-lees Sister Nira Ledoux, Gale Thomas.
    Charles D. Elliott, Faircloth, Vilar & Elliott, L.L.C., Alexandria, LA, for Defendant/Appellant Coushatta Tribe of Louisiana.
    Court composed of JIMMIE C. PETERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   PETERS, J.

|! This appeal arises from a summary judgment rendered in favor of two plaintiffs, Sister Nira Ledoux and Gale Thomas, against the defendants: Grand Casino-Coushatta; the Coushatta Tribe of Louisiana; and Grand Casinos of Louisiana, Inc.-Coushatta. The trial court awarded Sister Nira Ledoux $65,581.00 and awarded Gale Thomas $32,790.50. Only the Coushatta Tribe of Louisiana (Tribe) has appealed. For the following reasons, we affirm the trial court judgment rendered against the Tribe.

DISCUSSION OF THE RECORD

The litigation began as a lawsuit filed jointly by the two plaintiffs asserting separate claims based on breach of contract. The defendants own and operate a gambling facility at Kinder, Louisiana — the Grand Casino-Coushatta (Casino). Both claims in this litigation arise from jackpots registered on the identical slot machine at the Casino one year and five days apart. Sister Ledoux’s award is exactly twice that of Ms. Thomas because of the difference in the number of coins wagered at the | ¡.time of each individual incident. In both instances the Casino refused to honor the jackpots.

Sister Ledoux and Ms. Thomas filed suit against the defendants on November 4, 2002, cumulating their actions in the same judicial demand. The Tribe and the Grand Casinos of Louisiana, Inc.-Coushatta responded with a number of pleadings, including a motion for summary judgment with respect to Ms. Thomas’s claim. In that motion, the defendants asserted that a malfunction in the slot machine voided any winnings registered by the machine and, thus, they were not liable to her for the claimed amount. In response to the defendants’ motion for summary judgment, both plaintiffs jointly filed a motion for summary judgment of their own. After a hearing, the trial court rejected the defendants’ motion for summary judgment and granted the plaintiffs’ motion for summary judgment, awarding the previously stated amounts. The Tribe then perfected this appeal.

OPINION

Before discussing the summary judgment issue, we deem it appropriate and necessary to discuss two issues preliminarily. One involves the Tribe’s assignment of error concerning jurisdiction, and the other involves the Tribe’s exception of prescription.

Jurisdiction

Pleading that it is a sovereign Indian nation enjoying immunity from suits in state court, and claiming that it has not waived its immunity, the Tribe timely filed an exception of lack of jurisdiction in the trial court. In a written opinion, the trial court rejected this exception, concluding that the Tribe, by means of language contained in its compact with the State of Louisiana (state) had specifically waived its sovereign 13immunity. The Tribe previously filed a writ application with this court complaining that the trial court had erred in rejecting the exception, but this court, in an unpublished opinion, denied writs. Ledoux v. Grand Casino-Coushatta, 04-87 (La.App. 3 Cir. 3/5/04). The Tribe’s effort to have the supreme court review our rejection of its writ application met with the same fate. Ledoux v. Grand Casino-Coushatta, 04-971 (La.6/4/04), 876 So.2d 84.

In one of its assignments of error now before this court, the Tribe has renewed its immunity argument and has requested that this court revisit the issue. The plaintiffs have responded by asserting that we should reject this assignment of error by applying the law of the case doctrine.

We find no merit in this assignment of error because we find no error in the trial court’s original judgment or in our denial of the prior writ application. However, because no reasons were given in this court’s earlier disposition of this issue, we will briefly explain why we agree with that prior decision that the Tribe expressly waived its sovereign immunity as to the claims asserted in this suit.

We begin by noting that the relationship between the Tribe and the state is set forth in the Tribal-State Compact for the Conduct of Class III Gaming. The pertinent language of the version of the compact in effect in 1998 and 1999, when the ^plaintiffs’ claims arose, is contained in Section 14:(B), and is entitled “DISPUTE RESOLUTION.” That section reads as follows:

In the event a dispute arises from the gaming operation refusing to award an alleged prize or pay an alleged winning to a patron, the dispute is not resolved to the satisfaction of the patron, and the dispute involves an alleged prize or winning with a value of $500 or more, then:
(1) The gaming operation shall immediately notify the Tribal Gaming Commission. The Tribal Gaming Commission shall investigate the dispute and determine how much, if any, of the prize is to be awarded or the winning is to be paid, and shall provide written notification to the patron of their determination within thirty (30) days from the date of the dispute.
(2) In the event that the dispute is not resolved to the satisfaction of the patron, then the patron may pursue the matter in the following sequential manner:
(a) mediation as provided in Section 14:(C) of this Tribal-State Compact.
(b) legal action or proceeding as provided in Section 14:(D) of this Tribal-State Compact.

With regard to pursuing legal action as contemplated by Section 14(B)(2)(b), Section 14:(D) provides in pertinent part:

Upon completion of the mediation in Section 14: (C) of this Tribal-State Compact, and if the dispute is not resolved to the satisfaction of a party, then that party may seek their remedy through a legal action or proceeding....

The Tribe waived its sovereign immunity in its dispute with Sister Ledoux and Ms. Thomas by agreeing to these terms.

The Tribe’s argument on appeal in support of this assignment is vague and nonspecific. It has cited one Louisiana case, Webb v. Paragon Casino, 03-1700 (La.App. 3 Cir. 5/12/04), 872 So.2d 641, in support of its position. However, that pease held that a tribe had not waived its sovereign immunity in a workers’ compensation claim against the tribe and did not address the effect of the compact provisions set forth herein. That is to say, it did not address a dispute over the payment of a prize or winning to a patron as is now before us, and is, therefore, easily distinguishable from the case at hand.

Exception of Prescription

The Tribe has filed an exception of prescription in this court, asserting that the plaintiffs’ claims had prescribed based on the two year prescription provided by tribal law. In support of this argument, the Tribe attached two exhibits to the exception. One is an excerpt taken from the Tribe’s Judicial Codes, and the other is a tribal amending resolution dated September 11, 2001. These exhibits purport to show that the Tribe imposed a two-year prescription on tort claims arising before September 11, 2001, and amended the period to one year by the resolution dated September 11, 2001. Neither of these exhibits is in the appeal record.

With regard to the filing of an exception of prescription in the appellate court, La. Code Civ.P. art. 2163 (emphasis added) states:

The appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.
If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.

| fiEven assuming we can consider the Tribe’s Judicial Code excerpts, they do not support the Tribe’s position. It is readily apparent from the exhibits that they relate to tort claims, while the claims before us are in contract. We recognize that we have the discretion to remand the exception to the trial court for a full hearing should the interests of justice require it. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97), 696 So.2d 196. However, we do not find that .the interests of justice require a remand in this matter. We simply reject the exception of prescription.

Summary Judgment Issue

We turn now to a discussion of the record pertaining to the trial court’s ruling on the plaintiffs’ motion for summary judgment. As an appellate court, we perform a de novo review of summary judgment rulings. Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there exists no genuine issue as to any material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The mover has the burden of proving entitlement to summary judgment. La.Code Civ.P. art. 966(C)(2). However, La.Code Civ.P. art. 966(C)(2) further explains that if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, faction, or defense. “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

The parties in this litigation recognize that the law of contracts is determinative of the issues before us. A party who asserts that an obligation is null, or that it has been modified or extinguished, must prove the facts or acts giving rise to the nullity, modification, or extinction. La.Civ. Code art. 1831. Once a prima facie case has been established by the plaintiff by a preponderance of the evidence, the burden shifts to the defendant. Artificial Lift, Inc. v. Production Specialties, Inc., 626 So.2d 859 (La.App. 3 Cir.1993), writ denied, 94-112 (La.3/11/94), 634 So.2d 394. “Further, one who asserts a fact must carry the burden of proving that fact by a preponderance of the evidence.” Id at 862. Under this article the Tribe had the burden of proving the facts rendering its obligations null. Thus, plaintiffs are entitled to summary disposition if they can show an absence of factual support for one or more elements essential to the Tribe’s claim of the contract’s nullity, modification, or extinction, and the Tribe is then unable to produce factual support sufficient to establish that at trial it will be able to prove by a preponderance of the evidence the contract’s nullity, modification, or extinction.

The first claim arose on the evening of November 15, 1998, when Sister Ledoux visited the Grand Casino-Coushatta and played a Bonus Wheel Double Diamond Deluxe slot machine. When she deposited two quarters and activated the machine, it displayed three “7s,” and the “Bonus Spin” display monitor then advised her that she had a bonus round. When she played the bonus round, the monitor on top of the machine lit up and displayed the message: “Congratulations, you have won |s262,324 coins.” Two Casino employees approached Sister Ledoux and informed her that she had just won a jackpot worth $65,581.00. After the machine was opened and examined by a Casino technician, a Casino supervisor advised Sister Ledoux that the Casino would not pay her the jackpot because the machine had malfunctioned. Instead, he paid her $100.00 for hitting the three “7s.” Sister'Ledoux refused to release the defendants and demanded payment of the full amount of the jackpot.

Immediately after the November 15, 1998 incident, the Casino took the machine out of service for in-house testing. During the testing process, the Casino technician was unable to locate a specific malfunction or replicate Sister Ledoux’s winning scenario. Finding nothing wrong with the machine and convinced that no remedial work was necessary, the Casino technician simply replaced a chip on the machine’s logic board as a precaution and returned the machine to the Casino floor. On November 20, 1999, Ms. Thomas came to the Grand Casino-Coushatta and played the same machine. Instead of playing two quarters, as had Sister Ledoux, she deposited only one quarter. When she did, the machine immediately displayed three “7s” and the “Bonus Spin” display monitor advised her that she also had a bonus round. When she played the bonus round, the monitor on top of the machine lit up and displayed the message: “Congratulations, you have won 131,162 coins.” As had been the case with Sister Ledoux, two Casino employees approached Ms. Thomas and informed her that she had just won a jackpot worth $32,790.50; a technician opened and examined the machine; and a supervisor then informed her that the Casino would not pay the jackpot because the machine had malfunctioned. Instead, the supervisor offered her $625.00 in settlement. Ms. Thomas rejected this offer.

| flAfter the incident with Ms. Thomas, the Casino sent the slot machine to Gaming Laboratories International, Inc. (GLI), a testing laboratory which provides testing and consulting services to the lottery and gaming industry. GLI received the machine at its Golden, Colorado location on December 6, 1999, and the Casino provided it with the history surrounding the plaintiffs’ claims. After extensive testing, GLI was unable to locate a specific malfunction or to replicate the results which gave rise to this litigation. Notwithstanding its negative testing results, GLI concluded that the slot machine “must have malfunctioned” because it was not programmed to pay out that much money. GLI reported this conclusion to the Tribe but acknowledged that “the cause of the malfunction was indeterminate” because, like the Casino technicians, it was unable to reproduce the malfunction.

GLI’s conclusion was the basis of the defendants’ motion for summary judgment addressing Ms. Thomas’s claim. Among the exhibits filed in support of the summary judgment was the affidavit of James R.' Maida, the President, Chief Executive Officer, and co-founder of GLI. In his affidavit Mr. Maida stated that, based on a forensic review of the device, GLI had concluded that the machine malfunctioned on November 20, 1999 (the date of Gale Thomas’s play) causing erroneous data to be displayed on the LCD screen. Mr. Maida stated that the program code of the machine only allowed for a bonus win of 800 for a one-coin bet, 1600 for a two-coin bet, and 2500 for three-coin bet. Noting that GLI’s report had stated that “the game code software can not award any larger of a win under normal operating conditions,” Mr. Maida concluded that “[f]or this to occur, the machine must have malfunctioned on November 15, 1998 and November 20, 1999.” Elsewhere in his affidavit, Mr. Maida stated that the hardware had malfunctioned on November 20, 1101999, adding that the machine bears a sign that states in large letters that “MALFUNCTIONS VOID ALL PAYS AND PLAYS.”

Despite the fact that the slot machine had been sent to GLI with the specific request that it try to determine what happened regarding the jackpot hit by Ms. Thomas, it is clear from the GLI report that it was unable to do so. GLI described its “[ajttempt to re-enact scenario on duplicate game” in its report in these words (emphasis added):

After reviewing the state of game and reviewing the version of software in the game, it was determined that GLI Colorado did not have the proper equipment to emulate the game. A comparison of the amount of time that would have been needed to accomplish the task compared to the possible outcome resulted in the conclusion that this step would not be performed.

The deposition of Kevin Fontenot, the primary slot machine technician at the Kinder casino location, was also offered in support of the defendants’ motion for summary judgment. In his deposition, Mr. Fontenot testified that he opened the suspect slot machine on both occasions at issue and was unable to ascertain the malfunction on either occasion. Despite finding nothing to support his position, he concluded that the slot machine had malfunctioned because something had occurred which was “not in the normal operating range.” That is to say, both jackpots were in excess of the limits programmed into the machine, and the award of a jackpot in excess of those limits could only be the result of a malfunction.

The Tribe’s defense is based on two contentions. One is that the bonus wheel on its face showed that the maximum pay for a three “7s” bonus was 800 for a one-coin bet; 1,600 for a two-coin bet; and 2,500 for a three-coin bet. However, photographs introduced in support of the motion for summary judgment do not support this assertion. Nowhere does any language appear on the slot machine that Inthe maximum payout is fixed by these numbers. In fact, Mr. Fontenot admitted that the language was not there. Thus, the Tribe’s contention in this context is an argument not based on fact. Therefore, we find no material issue of disputed fact over whether the machine informed the player that there was a “maximum” payout in playing the bonus wheel. It did not do so.

The Tribe’s second contention is that on its face the machine contained the language “[m]alfunctions void all pays and plays,” and that this language is an explicit part of the contract between it and any player. Although the photographs filed in support of the Tribe’s motion for summary judgment are not sufficiently clear to establish the presence of the language, the affidavit and deposition testimony offered by the Tribe declare that the language is present. However, the plaintiffs deny having ever seen it, thereby creating a factual dispute concerning this issue. The Tribe correctly points out that this language, if present, constitutes an explicit part of the contract between it and the plaintiffs. However, assuming the language to be present on the slot machine, an essential element of the Tribe’s defense is that a malfunction occurred — and this is where the Tribe’s argument fails. Whether a slot machine malfunctioned is a question of fact. Griggs v. Harrah’s Casino, 05-321 (La.App. 4 Cir. 3/22/06), 929 So.2d 204, writ denied, 06-916 (La.6/16/06), 929 So.2d 1288. To prove a malfunction caused these outcomes it was incumbent on the Tribe to prove that the malfunction occurred when the game was played. Id. “The bet is wagered when the game is played, and when the game is completed, the result is final.” Id. at 217.

It is undisputed that nothing in the behavior of the slot machine in either instance suggested a malfunction. On both occasions the slot machine registered | ^jackpots and displayed messages informing the players of their good fortune. There were no noises, alerts, signs, warnings, LED displays, or other explanations signaling the players or the Casino that something was amiss in the operation of the machine. In fact, on each occasion Casino employees in the vicinity of the winning machines immediately, and without hesitation, informed the players of the specific amount won. Trained experts in both Louisiana and Colorado examined the machines and were unable to find a malfunction or even to duplicate the machine’s mechanics in awarding the jackpots at issue.

The only basis for a claim of malfunction is the Tribe’s suggestion that the jackpot awards simply should not have happened because the hardware and software were designed, built, and programmed to limit the machine payout, and the two jackpots at issue exceeded those limits. According to the Tribe, normal operation of this ma- ■ chine should have never produced the resulting jackpots.

The flaw in this argument is the assumption that neither the design, construction, nor programming of the device could conceivably yield any result other than that desired by the designer, manufacturer, or programmer. We know of no presumption in the law that would operate to say that just because a generally successful effort was made to build and program the machine to yield no results larger than a certain number, any result producing such a larger number was the result of a malfunction. A malfunction defense requires factual support, not a presumption. Both Mr. Fontenot and Mr. Maida candidly admitted that no malfunction could be | ^identified or duplicated, .and Mr. Maida was not even sure whether the malfunction was in the hardware or the software. Thus, the Tribe was unable to produce factual support sufficient to establish that it would be able to satisfy its burden of proving a malfunction by a preponderance of the evidence at trial.

Additionally, a factually unsupported opinion, albeit from an expert in slot machines, cannot be used to invoke the reso-lutory condition that “[mjalfunetions void all pays and plays.” If the Casino is the only authority that can determine whether a malfunction has occurred, there exists a basic unfairness in this wager contract. Although in this particular case the Casino contests only a win that supposedly exceeded the limits of the machine, by its reasoning the Casino could declare a malfunction for any win, even those within the claimed outside payout limit of the machine. At the same time, if there is a malfunction in the Casino’s favor, it would never be detected because the wagerer would not recognize that the machine had malfunctioned to deprive him of a win — he would simply assume a losing play of the slot machine.

By the testimony of the Tribe’s own expert, a malfunction in the present case cannot be explained and is presently incapable of discovery and explanation. The assertion that a malfunction occurred rests solely on the Casino’s word. Such a system places in the Casino’s power a means to avoid its obligations that depends solely on its will as the obligor.

Louisiana Civil Code Article 1767 states that a conditional obligation, or one dependent on an uncertain event, is resolutory. The Comments to this article state that in its proper sense the word “condition” means “some operative fact subsequent |uto acceptance and prior to discharge, a fact upon which the rights and duties of the parties depend.” Revision Comments-1984(f). In the present case the Casino regards its obligation to pay a jackpot as enforceable if the machine is functioning properly; if it malfunctions its obligation ceases, nullifying all plays and pays. Louisiana Civil Code Article 1770 provides that a resolutory condition that depends solely on the will of the obligor must be fulfilled in good faith. We believe that here good faith requires that the Tribe be able to demonstrate with facts, not theory, that the machine malfunctioned.

A case similar to the present one is Jones v. Fowler, 185 So. 40 (La.App.Orleans 1988). In that case Fowler, the operator of a shooting gallery, offered a prize of $300.00 to any person, after payment of a fee, who could shoot out and obliterate a red figure “5” on a target from a certain distance with only three shots from a .22 caliber rifle. Jones claimed the prize when with three shots he succeeded in obliterating the red “5.” The gallery operator admitted the agreement but refused to pay the prize, claiming that the agreement made him “the sole judge of all shooting” and that, according to his observation, not all the red was obliterated. No red could be seen with the naked eye, although some could be detected with the use of a magnifying glass. The trial court’s decision to award the plaintiff the prize was affirmed because the contractual provision giving the operator the absolute power to determine whether or not the plaintiff had performed the obligation was potestative and hence voidable by the plaintiff, but the contract itself was not null and the court could determine whether or not the plaintiff had performed his part. In a Note, Contracts — Potestative Conditions — Good Faith in Performance — Articles 1901, 203⅛, | iñ2035, Louisiana Civil Code of 1870, 13 Tulane Law Review 626, the author points out that the court in Jones v. Fowler reached the proper result but that it could have decided the matter on the ground that the condition was not one dependent solely on the will of one of the parties, but rather upon an act tested by an objective standard. In other words, the condition was an enforceable one which required good faith in performance on the part of the defendant.

We cannot accept the Tribe’s position that its contractual right to void a win because the machine malfunctioned can be exercised merely by its after-the-fact declaration that the machine had malfunctioned. It would not be good faith for the Tribe to insist that it have the right to void a jackpot for a malfunction and at the same time have the exclusive right to determine what a malfunction is and when it occurred. Thus, where there was no apparent malfunction indication by the slot machine itself, a casino may not rely on the argument that the machine was not intended to register the particular jackpot to deny payment. That is to say, there must objective proof of a malfunction. Good faith in performance of a contract requires that the resolutory condition, i.e., that a malfunction occurred which caused the jackpot, be tested by some objective standard. That objectivity is not demonstrated in this casé.

DISPOSITION

For the foregoing reasons we affirm the trial court judgment granting Sister Nira Ledoux and Gale Thomas summary judgment against the Coushatta Tribe of Louisiana. We assess all costs of this appeal to the Coushatta Tribe of Louisiana.

AFFIRMED.

      . The original petition identifies the Coushat-ta Tribe of Louisiana as a sovereign nation owning land in Louisiana and operating a casino thereon pursuant to a contract with the State of Louisiana, and identifies Grand Casinos of Louisiana, Inc.-Coushatta as a Minnesota corporation authorized to do business in Louisiana. It identifies the Grand Casino-Coushatta as a separate legal entity— a joint venture operated by the other two defendants. The petition asserted that the three defendants operated a casino in Kinder, Louisiana, where the events occurred which formed the basis for this lawsuit. Subsequent pleadings make it clear that the Grand Casino-Coushatta is actually a trade name for the casino operation. Despite the assertions in the subsequent pleadings, the summary judgment now on appeal was rendered against the defendants as they were named in the original petition, i.e., the Grand Casino-Coushatta, the Coushatta Tribe of Louisiana, and Grand Casinos of Louisiana, Inc.-Coushatta.

      . Shortly after the summary judgment at issue in this appeal was rendered, the Coushat-ta Tribe of Louisiana obtained new counsel. After new counsel obtained permission to enroll as counsel of record in these proceedings, the counsel that had previously been representing all of the defendants sought and obtained an order from the trial court allowing counsel to withdraw as counsel of record for all defendants. Thereafter, new counsel for the Coushatta Tribe of Louisiana sought and obtained an order of appeal. Accordingly, the Coushatta Tribe of Louisiana is the only appellant and the judgment rendered against Grand Casinos of Louisiana, Inc.-Coushatta is a final judgment.

      . The law of the case doctrine provides that "an appellate court ordinarily will not reconsider its own rulings of law in the same case;” it applies to prior rulings of the appellate court and/or supreme court in the same case. This doctrine applies to parties who were in the litigation at the time of the prior ruling and had their day in court. The purposes of the doctrine are to avoid litigating the same issue again and to promote consistency of result within the case, essential fairness to the parties, and judicial efficiency. The "law of the case” is discretionary; it is not applicable to cases in which "the prior decision was palpably erroneous or its application would result in manifest injustice.” Estate of Patout v. City of New Iberia, 01-151, p. 7 (La.App. 3 Cir. 6/27/01), 791 So.2d 741, 747 (quoting Griggs v. Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/11/98), 722 So.2d 15, 19, writ denied, 99-385 (La.5/28/99), 735 So.2d 622).

      . The Tribe's argument makes the general statement that "[t]he Compact only contains a waiver of immunity from suit in State Court as to claims between the Coushatta Tribe and the State.” This is apparently a reference to the present compact, not the compact in effect when the instant claims arose. Although the Tribe did not expressly allude to the present compact's dispute resolution language, the record contains an amended version of the Tribal State Compact executed by the Louisiana Governor on December 8, 2000, and by the Tribal Chairman on December 11, 2000. The dispute resolution provisions we have quoted were modified by that amended version. However, these dispute resolution provisions were not in effect in 1998 and 1999.

      . The pleading filed with us states that the exception is being raised for the first time. That statement is incorrect. The defendants, including the Tribe, pleaded the exception of prescription in their December 27, 2002 answer to the petition. They pleaded prescription again on May 20, 2005 in their supplemental and amending answer to the petition. However, the prescription issue was never taken up in the trial court.

      . Louisiana Code of Evidence Article 202(B)(1)(f) provides that "[a] court shall take judicial notice of the ... [l]aw of foreign countries” when requested to do so by a party and when that party “provides the court with the information needed by it to comply with the request.”

      . The functioning of software reflects the ingenuity of the designer-programmer. Who is to say that this software did not behave as it was intended to behave? A result undesirable from the Casino’s standpoint does not necessarily mean that a malfunction caused it. It might have been that the result was programmed accidentally, or even purposely. It cannot be inferred that simply because the machine twice paid out more than it was believed to have been designed and programmed to pay out, there was a malfunction.

      . According to its comments Article 1770 did not change the law. It reproduced- the substance of Civil Code arts.2024, 2034, and 2035 (1870).

      . Mr. Fontenot suggested in his testimony that, while rare, malfunctions do occur.


author: STEWART, J.

text:
    Andrew McGRAW, Plaintiff-Appellant, v. RICHLAND PARISH CLERK OF COURT, Richland Parish District Attorney’s Office and the Sheriffs Department for Richland Parish, State of Louisiana vs. Andrew McGraw, Defendants-Appellees.
    No. 42,029-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2007.

      Andrew McGraw, In Proper Person.
    Penny Wise Douciere, Assistant District Attorney, for Richland Parish District Attorney’s Office.
    Before WILLIAMS, STEWART and SEXTON (Pro Tempore), JJ. STEWART, J.
   STEWART, J.

_JjThe plaintiff, Andrew McGraw, appeals the denial of his public records requests for records related to criminal proceedings brought against him in 1990. For the following reasons, we affirm the district court’s judgment.

FACTS

Mr. McGraw was convicted in 1991 on two counts of distribution of cocaine and is serving two consecutive fifteen-year sentences. He has filed multiple post-conviction relief applications, which have been unsuccessful. He has also made numerous requests for records related to his criminal case.

Relevant to this appeal is Mr. McGraw’s pleading filed July 1, 2005, styled “APPLICATION FOR WRIT OF MANDAMUS, INJUNCTIVE OR DECLARATORY RELIEF” against the Richland Parish Clerk of Court, District Attorney’s Office, and Sheriffs Department seeking copies of the “Original, Initial and Supplemental Police Reports of Deputy Leo Lyles and Officer Tommy Cooper, in Docket Number: 53,-783.” Mr. McGraw alleges that he has requested these documents on several occasions dating back to 1990, and that the defendants' have not turned over the reports to him despite orders to do so by the district court, this court, and the supreme court.

On November 3, 2005, this court granted a writ of mandamus regarding Mr. McGraw’s July 2005 public records claim. Because the court could not determine from the writ application whether Mr. McGraw’s claim was pending or had merit, this court directed the district court to either rule on the claim within thirty days or inform Mr. McGraw if no claim was | ^pending. Thereafter, the district court ordered the state to file a response to Mr. McGraw’s claim.

The state’s response filed November 21, 2005, related that Mr. McGraw had previously been provided with a copy of the district attorney’s entire file, excepting certain original documents filed into evidence during Mr. McGraw’s trial. The state suggested that the court could order the clerk’s office to release copies of the filed evidence to the defendant. The state asserted that neither the Richland Parish Sheriffs Department nor the Rayville Police Department likely had additional files or information related to Mr. McGraw. Finally, the state noted that Mr. McGraw had obviously made use of information from the state’s file in his five prior post-conviction relief applications and other filings.

Attached to the state’s response was correspondence sent by an assistant district attorney to Mr. McGraw regarding his prior requests for records. A letter dated February 18, 2000, stated, “I am enclosing the two (2) police reports on your July 20, 1990 and July 25, 1990 arrests, which constitutes all of the information you requested.” A second letter dated March 1, 2000, informed Mr. McGraw as follows:

I am enclosing copies of the typed police reports, which are exactly the same as the handwritten reports I previously provided. These are the only police reports I have in my file. The Sheriffs Office may have additional police reports, although that seems unlikely.

In the third letter dated September 6, 2001, the assistant district attorney wrote that she was again “enclosing my entire District Attorney file ... |sexcluding documents filed into the Clerk’s record. I believe you have previously received almost every one of these documents.”

On November 23, 2005, the district court judge signed a judgment that denied Mr. McGraw’s public records request for information from the district attorney’s office. However, the court ordered the Richland Parish Clerk of Court to provide Mr. McGraw with a copy of the evidence submitted during his trial. As shown by a letter dated December 2, 2005, the clerk of court forwarded copies of the evidence to Mr. McGraw as ordered by the trial court. An index of the exhibits indicating which were forwarded to him was included with the letter.

On April 3, 2006, Mr. McGraw filed a pleading styled “Motion to Inspect, Examine And Copy Physical Evidence,” by which he sought copies of reports by arresting officers Tommy Cooper and Tommy Nicholson. Mr. McGraw also filed another application for post-conviction relief on that same date. Then, on April 12, 2006, he filed an application for a writ of mandamus regarding a request for records from the Rayville Police Department allegedly made on March 9, 2006. On the order included with the application, the district court judge wrote, “Denied. All material has been furnished on more than one occasion.” This denial was signed on April 20, 2006. Nevertheless, the Rayville Police Department searched its records and found one document pertaining to Mr. McGraw’s 1990 arrest. This document was mailed to him on April 20, 2006, by the district attorney’s office along with another copy of the information from the |4district attorney’s file that had been filed in its response of November 21, 2005.

On May 15, 2006, the district court judge signed two orders purporting to grant appeals. These appear to pertain to the rulings rendered on April 20, 2006 and November 23, 2005. It appears from the record that Mr. McGraw had previously sought review, either by writ or appeal, of the November 23, 2005 judgment, but that compliance issues resulted in a delay.

Again on June 7, 2006, Mr. McGraw filed a “Motion to Inspect, Examine And Copy Physical Evidence” pertaining to various police reports. Also on June 7, 2006, Mr. McGraw filed a motion seeking a new trial pertaining to his 1991 eonvic-tions. Attached as exhibits to this motion were copies of documents previously provided to him in response to his many public records requests. These copies included the jail register; handwritten and typed reports by an undercover officer or informant; the assistant district attorney’s letter of September 6, 2001, by which the entire file was again provided to Mr. McGraw; an order appointing counsel and setting bail; the grand jury indictment; trial excerpts; evidence transfer receipts and crime lab reports; an arrest affidavit by Officer Tommy Cooper; and three arrest affidavits by Deputy Leo Lyles. On June 15, 2007, the district court denied the motion for copies of police reports on the grounds that the requested documents had been provided “many times” and “used by petitioner on several occasions.” The trial court also denied the motion for |Ra new trial stating that the issues raised “have been argued numerous times via appeals, writs and post conviction relief.”

In the meantime, Mr. McGraw had filed an application for mandamus relief in this court regarding his motion for appeal. This court granted the writ of mandamus on June 23, 2006, to transfer the matter to the district court for action on the motion. By order of August 10, 2006, the district court recalled its order of appeal signed May 15, 2006, and set a return date for Mr. McGraw to file a writ application regarding the denial of his public records request. On August 17, 2006, this court again granted a writ of mandamus transferring the matter for the district court to perfect the appeal. Furthermore, by order of September 7, 2006, this court vacated the district court’s August 10, 2006 order recalling the appeal and again remanded to the district court for perfection of Mr. McGraw’s appeal in accordance with the prior writ grant of August 17, 2006. The matter is now before us for review.

DISCUSSION

Under La. R.S. 44:1 et seq., the public may obtain access to various public records. If a request is denied, the right of access may be enforced by writ of mandamus, injunctive or declaratory relief, together with attorney’s fees, costs and damages, as provided in La. R.S. 44:35. Generally, any person of the age of majority may inspect, copy, or reproduce a public record. La. R.S. 44:31(B)(1). The custodian of the record bears the burden of proving that a public record is not subject to inspection, copying, or reproduction. La.R.S. 44:31(B)(3).

[ fiAn individual, who is in custody after sentencing on a felony conviction and who has exhausted his appellate remedies, is permitted access to public records if his request is limited to grounds upon which he could file for post-conviction relief under La. C. Cr. P. art. 930.3. La. R.S. 44:31.1; State ex rel. McKnight v. State, 98-2258 (LaApp. 1st Cir.12/3/98), 742 So.2d 894. However, nothing in La. R.S. 44:31.1 prevents an inmate from seeking records related to his conviction simply because the time period for filing for post-conviction relief has passed. State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325.

Mr. McGraw is an inmate serving consecutive fifteen-year sentences on felony convictions. He has exhausted his appellate remedies. He has filed multiple requests for post-conviction relief, including repetitive and untimely applications. He has also filed multiple requests for records related to his criminal convictions. The record shows that these requests have been fulfilled in their entirety and that Mr. McGraw has made use of the information he received in his many post-conviction filings.

We find no error in the district court’s rulings of either November 23, 2005 or April 20, 2006. In the ruling of November 23, 2005, the district court denied Mr. McGraw’s request for records from the district attorney’s office but ordered the clerk of court to provide copies of evidence filed into the trial record. The state’s response showed that the district attorney’s office had previously provided Mr. McGraw with its entire file. Therefore, the district court properly denied the request for yet another copy. Also, the clerk of court complied with the order by providing Mr. McGraw with |7copies of the evidence from trial. We find no merit in Mr. McGraw’s appeal of this ruling.

In the ruling of April 20, 2006, the district court denied Mr. McGraw’s request for records from the Rayville Police Department on the grounds that Mr. McGraw had already received the requested information on more than one occasion. However, the Rayville Police Department still responded to the request by searching its records and finding one document pertaining to a 1990 charge against Mr. McGraw for possession of drug paraphernalia. This document was provided to Mr. McGraw along with yet another copy of the district attorney’s file.

It is clear from the record that Mr. McGraw’s various requests have been fulfilled by the district attorney, the clerk of court, and the Rayville Police Department. It appears that these offices have provided Mr. McGraw with all the information in their possession. In fact, the record includes an extensive pleading by Mr. McGraw filed June 7, 2006, by which he seeks a new trial on his convictions. This pleading refers to and includes as exhibits various records that have been provided to Mr. McGraw over the years in response to his requests. Additionally, attached to the state’s reply brief are copies of records pertaining to Mr. McGraw’s criminal proceedings. Thus, Mr. McGraw has again been provided with copies of the various records, including police reports, related to his convictions.

On this record, we find no merit in Mr. McGraw’s claim for relief. His requests have been fulfilled multiple times, and the issue is now moot. Inmates are rightfully entitled to obtain copies of records related to their |sconvictions, even after the time period for filing for post-conviction relief has passed. However, the law does not sanction abuse of the procedure for obtaining such records by allowing repetitive requests for records that have already been provided.

CONCLUSION

For the reasons stated, the trial court’s judgment denying Mr. McGraw’s public record’s request is affirmed. Costs are assessed to Mr. McGraw.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. Christopher ELLIS, Appellant.
    Nos. 41,884-KA to 41,885-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2007.

      Jones and Charles by Charles D. Jones, for Appellant.
    William R. Coenen, Jr., District Attorney, Johnny R. Boothe, Penny Wise Douei-ere, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

h Christopher Ellis was charged with possession of a firearm by a convicted felon and with possession of cocaine within 1,000 feet of a school. In December 2004, he pled guilty to the reduced charges of possession of cocaine with intent to distribute and attempted possession of a firearm by a convicted felon. He was sentenced in March 2005 to 15 years at hard labor without benefits on the cocaine charge. He was sentenced to 5 years at hard labor without benefits on the firearm charge. Pursuant to a motion to reconsider the sentence, the trial court subsequently reduced the sentence on the cocaine charge from 15 years at hard labor without benefits to 10 years at hard labor without benefits. The sentences for the cocaine offense and the firearm offense were ordered to run concurrently. Ellis now appeals, assigning as error the excessiveness of his sentence. Finding no merit in his arguments, we affirm both of Ellis’ convictions and sentences.

FACTS

In November 2001, Ellis was charged by a bill of information with possession of cocaine with intent to distribute within 1,000 feet of a school campus, a violation of La. R.S. 40:981.3(A). As part of a plea agreement, this charge was reduced to possession of cocaine with intent to distribute, a violation La. R.S. 40:967. Also in November 2001, Ellis was charged by bill of information with possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. Pursuant to a plea agreement, this charge was reduced to attempted possession of a firearm by convicted felon.

At a sentencing hearing conducted in March 2005, the court noted that pursuant to the plea agreement between the state and the defendant, any |2sentences imposed would run concurrently and that the state would not file a habitual offender bill against the defendant. The court noted that it had reviewed a presentence investigation report on Ellis that contained both positive and negative information on the defendant. After reviewing the facts underlying the offenses to which the defendant pled guilty, the court noted that Ellis had been convicted in 1994 of possession of cocaine with intent to distribute and had been sentenced at that time to five years at hard labor. After serving his sentence and successfully completing his parole, the only other problems noted concerned two charges in Winnsboro City Court for excessive noise. After reviewing the defendant’s social history, after allowing the defendant to comment on the information that the court had reviewed from the pre-sentence investigation report, and after listening to argument from the state and from defense counsel, the court gave its reasons for the sentences chosen.

The court found Ellis to be a second felony offender for whom there was an undue risk, during any period of a suspended sentence or probation, of committing another crime. The court found Ellis was in need of correctional treatment in a custodial environment that could be provided most effectively by his commitment to an institution, and that any lesser sentence than the one the court was about to impose would deprecate the seriousness of the defendant’s crimes. The court found the aggravating factors to be the defendant’s lack of work, his lack of support of his family, his second conviction of possession of cocaine with intent to distribute, and the attempted possession of a firearm after the previous felony conviction. 13The court also noted reports from law enforcement of frequent selling activities by defendant. On the mitigating side, the court noted that the defendant had a rough childhood, and that there were social factors that weighed in his favor; apparently, the defendant was trying to finish his GED. Finally, the court considered the reduction in charges that benefitted the defendant through his plea bargain.

Based upon the foregoing, the trial court sentenced the defendant to 15 years at hard labor without benefits on the cocaine charge; the court sentenced the defendant to 5 years at hard labor without benefits on the firearm charge, both sentences to run concurrently.

Pursuant to a motion to reconsider the sentence, the trial court subsequently reduced the 15-year hard labor sentence without benefits to 10 years at hard labor without benefits. The court indicated that after the original sentences, the court learned that there had been a previous plea offered by the state and rejected by the defendant that the court did not factor into its sentencing choice on the drug charge.

DISCUSSION

The defendant’s sole assignment of error on appeal is that the sentence imposed is excessive and shows little regard for the sentencing guidelines of La. C. Cr. P. art. 894.1. In particular, the defendant asserts that the court abused its discretion in finding that the defendant was in need of incarceration for 15 years at hard labor, and that a lesser sentence would deprecate the seriousness of the crime. Additionally, the defendant asserts that the court failed to consider that the defendant’s criminal conduct was l4the result of circumstances unlikely to recur, the character and attitudes of the defendant indicate that he is unlikely to commit another crime, and the imprisonment of the defendant would entail excessive hardship on his dependants. For the following reasons, we find these arguments to be without merit.

Excessive Sentence

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for the sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions; where the record clearly shows an adequate factual' basis for the sentence, remand is unnecessary even where there has not been full compliance. State v. Lobato, 603 So.2d 739 (La.1992). There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Our review of the record plainly shows that the trial court adequately reviewed aggravating and mitigating circumstances in this case and adequately considered the guidelines of Article 894.1. Considering the ^seriousness of the offense and the defendant’s criminal history, the trial court specifically found the presence of all factors listed in Article 894.1(A). Additionally, the court correctly set forth the aggravating and mitigating factors indicated in the presentence investigation report.

Accordingly, we now turn to the second prong of the excessive sentence test: whether the sentence is grossly out of proportion to seriousness of the crime or nothing more than a purposeless and needless infliction of pain and suffering. See State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1. Initially, we note that appellant’s counsel errs in his argument indicating that Ellis is sentenced to 15 years at hard labor on the cocaine charge. As previously noted, upon resentencing, Ellis was given a sentence of 10 years at hard labor without benefits. Additionally, Ellis bene-fitted significantly from his plea bargain agreement. Under the provisions of La. R.S. 40:981.3, Ellis, as originally charged, would have received the maximum fine and could have been imprisoned for not more than one-and-a-half times the longest term of imprisonment authorized by R.S. 40:967. In turn, under the provisions of R.S. 40:967, the sentencing range runs from not less than 2 years, to not more than 30 years. Thus, Ellis’ maximum sentencing exposure prior to his plea bargain was 45 years at hard labor in addition to the maximum fine which, under R.S. 40:967, was $50,000. The plea bargain reduced the maximum sentence from 45 years to 30 years, the trial court initially only imposed half that amount (15 years), and the court then reduced that sentence by an additional one third to 10 years. This great reduction was given to Ellis despite the fact that he was convicted of his |fisecond offense for possession of cocaine with intent to distribute. Given these circumstances, we find the defendant’s sentence on the drug charge to be generous rather than excessive.

CONCLUSION

For the foregoing reasons, the sentence imposed was neither grossly disproportionate to the severity of the offense, nor shocking to our sense of justice. The trial court did not abuse its discretion in imposing the sentence that the court chose for this defendant. Therefore, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: CARAWAY, J.

text:
    Sherry L. ADKINS, Plaintiff-Appellant, v. Clay D. ADKINS, Defendant-Appellee.
    No. 42,076-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2007.

      David L. White, Bossier City, for Appellant.
    James M. Johnson, for Appellee.
    Before CARAWAY, LOLLEY and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

| t This case presents the question of the wife’s justification for leaving the marital home for alleged cruel treatment in a situation where admitted incompatibility and friction existed between the spouses. The question is pertinent for the wife’s claim for' permanent spousal support since our law requires the recipient of support to be “free from fault” in the breakup of the marriage. The trial court denied support to the wife finding that her leaving the home amounted to abandonment. With the claim for cruel treatment resting almost exclusively on the conflicting testimony of the spouses, the trial court’s crediting of the husband’s account of the marriage was not an abuse of its discretion, and the finding of abandonment and fault may not be overturned. We affirm.

Facts

Clay D. Adkins and Sherry L. Adkins Palmer married on June 30, 2001, and established their matrimonial domicile in Webster Parish. They separated on May 29, 2005, after an alleged verbal altercation which resulted in the wife calling the police. Thereafter, Sherry established her residence in Bossier Parish, where she is a self-employed personal trainer. No children were born of the marriage, but each has children from their respective prior marriages.

The court initially awarded Sherry interim spousal support. The trial court rendered a judgment of divorce dissolving the marriage in April 2006, |2but reserved the issue of Sherry’s entitlement to spousal support for a June trial. At the close of the two-day trial, the matter was taken under advisement.

In its written ruling, the trial court denied Sherry’s claim on the fault-based ground of abandonment. It found no proof of adultery by Clay which would give Sherry lawful cause for leaving the marital home. It found Sherry was not free from fault in the dissolution of the marriage. Sherry appeals the judgment.

Discussion

Sherry argues the trial court erred in denying her final spousal support and crediting Clay’s version of the events leading to the breakup over hers. She also assigns as error the trial court’s failure to properly weigh the testimony of two counselors, Martin Miller, who counseled them both during the marriage, and Glenda Lawson, Sherry’s individual counselor.

Final periodic support may be awarded to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay. La. C.C. arts. Ill and 112. Thus, a spouse seeking such support must be without fault, and the burden of proof is upon the claimant. Mayes v. Mayes, 98-2228 (La.App. 1st Cir.11/5/99), 743 So.2d 1257. The statutory law does not define fault which would prevent an award of permanent alimony and legal fault has been determined according to jurisprudential criteria. See Allen v. Allen, 94-1090 (La.12/12/94), 648 So.2d 359. Fault continues to mean misconduct that rises to the level of one |sof the previously existing fault grounds for legal separation which previously existed in our law when the action for separation of the spouses was a part of our law. Revision Comment (c) of 1997, La. C.C. art. Ill and citations therein.

The 1990 revisions of the codal provisions pertaining to the dissolution of marriage repealed former Civil Code Article 138 (grounds for separation from bed and board). Former La. C.C. art. 138 (1870). The three fault grounds implicated in this case listed in that article remain pertinent to the issue of fault for permanent spousal support and provide as follows:

1. In case of adultery on the part of the other spouse;
3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them toward the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable;
5. Of the abandonment of the husband by his wife or the wife by her husband;

Former Civil Code Article 143 further defined the elements necessary to prove abandonment, as follows:

1. the party has withdrawn from the common dwelling;
2. the party left without lawful cause; and
3. the party has constantly refused to return to live with the other.

Former La. C.C. art. 143 (1870); Skannal v. Skannal, 25,467 (La.App.2d Cir.1/19/94), 631 So.2d 558, writ denied, 94-697 (La.5/13/94), 637 So.2d 1067.

Lawful cause which justifies the withdrawal from the common dwelling has been held by this court to be that which is substantially |4equivalent to a cause giving the withdrawing spouse grounds for a separation under former Civil Code Article 138. Skannal, supra. A continued pattern of mental harassment, nagging and griping by one spouse directed at the other can constitute cruel treatment. Jenkins v. Jenkins, 441 So.2d 507 (La.App. 2d Cir.1983), writ denied, 444 So.2d 1223 (La.1984). Mere friction or dissatisfaction in the relationship or incompatibility between the spouses, however intense, is not enough to constitute cruel treatment or lawful cause for abandonment. Skannal, supra; Jenkins, supra. Thus, where one spouse unilaterally decides to leave the marital domicile, and subsequently refuses to return, the separation is either for lawful cause or it is abandonment.

Another element necessary for proof of abandonment is that the abandoned spouse desired the other spouse’s return. Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980); Mayes, supra; Jenkins, supra; Donna G.R. v. James B.R., 39,005 (La.App.2d Cir.7/2/04), 877 So.2d 1164, writ denied, 04-1987 (La.9/3/04), 882 So.2d 550 (eviction from family home attributable to husband, culminating in wife and children’s relocation and subsequent refusal to join husband in new dwelling does not constitute abandonment precluding award of final support).

A party is not deprived of alimony due to a reasonable justifiable response to the other spouse’s initial acts. A spouse who perceives infidelity may become quarrelsome or hostile. Such a reasonable reaction does not constitute legal fault. The suspicion of adultery causes the breakup and not the reaction. A spouse who reacts should not be precluded from |5receiving alimony solely because of his or her own response. Jones v. Jones, 35,502, 35,503 (La.App.2d Cir.12/5/01), 804 So.2d 161.

Domestic relations issues largely turn on evaluations of witness credibility, and therefore, the trial judge has much discretion in such matters. Skannal, supra. Fault is a factual finding that will not be disturbed unless it is clearly wrong. Id. “Uncorroborated testimony of one spouse as to the other spouse’s alleged acts, contradicted by the accused spouse, where the credibility of neither is attacked, will not constitute a preponderance of the evidence ... absent an ability of the trial court to determine the truth of what occurred by weighing credibility.” Jenkins, supra.

In her testimony, Sherry described Clay’s treatment of her during their marriage as mental and emotional abuse that began within a couple of months of the marriage in May 2001. She admitted that he never struck her, but complained of instances of verbal abuse consisting of Clay yelling and screaming at her, calling her names and accusing her of being “crazy” and unfaithful. Sherry explained that Clay would never act abusively in front of the boys and that she tried to hide these incidents from them. She remembered particular occasions when Clay took her car keys away and when she slept in the boys’ rooms or the bathroom to “get away” from him.

Sherry denied ever having a “jealousy problem,” but claimed that Clay was constantly accusing her of infidelity. Sherry’s allegations of Clay’s infidelity included an incident in which she discovered Clay outdoors on his cell phone in the middle of the night, as well as finding | fimake-up on his clothes after he returned from a business trip. After Sherry left the home and moved into an apartment in Bossier, Clay allegedly stalked Sherry and, on one occasion, forced her to have sex with him in her apartment. For her part, Sherry acknowledged an incident in which the clothes iron she was using was thrown at a wall, damaging it, but she denied that she tried to hit Clay with the iron. Finally, Sherry testified that she thought Clay wanted her back. She stated that she would have returned if he had gotten the help he needed, and she admitted that she still loved Clay.

On the other hand, Clay testified that he did not want a divorce. He attributed their problems to Sherry’s constant accusations of infidelity and their arguments over his son, Logan. Sherry’s insecurity and distrust of him led her to search his phone records every month and try to identify all the calls he made. Clay denied any infidelity but admitted that they argued, and that he had screamed and yelled at her. However, he was willing to go to counseling and basically do whatever Sherry wanted in order to save the marriage. He acknowledged that during the final two to three months of the marriage, things were going badly and blamed their problems on trust issues and his son, Logan. Clay testified he tried to get Sherry to return to the marriage but stopped after receiving a restraining order shortly before Sherry filed for divorce.

The parties communicated with each other in person, on the phone and via email after their separation on May 29, 2005. Both of them disputed the meaning of various e-mail content and greeting cards submitted into evidence to illustrate the pattern of their marital discord.

|7Although Sherry’s son, Shane, and other persons who knew the parties testified at trial, their testimony did not reveal direct evidence of the parties’ problems which would corroborate either spouse’s view of the marriage. Thus, after hearing these two conflicting accounts of the marital discord, the trial court was faced with a credibility determination and expressly found in its written ruling that Clay’s testimony was more credible. Accepting Clay’s account of the marital discord, the trial court could find that Clay’s actions did not amount to cruel treatment so as to provide lawful cause for Sherry’s abandonment of the marital domicile.

In reaching this conclusion, we also reject Sherry’s argument that the testimony of two marriage counselors, which was not acknowledged in the trial court’s written ruling, tended to corroborate her account of the status of the marriage demonstrating lawful cause for her leaving Clay. The testimony of the therapist, Martin Miller, who had consulted with both parties since 2002, reveals no admissions or actions by Clay in the counseling sessions that could independently establish such cruelty that would give Sherry lawful cause for leaving Clay. In fact, the parties remained together during the extended period of Miller’s counseling which ended ten months before their separation. Miller did not recall making a recommendation for separation because of the reported conduct by Clay. The other therapist, Glenda Lawson, counseled only Sherry during the final month before the separation. Thus, Sherry’s one-sided reports of the parties’ conflict to Lawson could be discounted by the trial court.

|sUltimately, the trial court as the finder-of-fact, not the marriage counselor or for that matter, the appellate court, weighs the two conflicting accounts of spouses with admitted incompatibility to determine whether the case demonstrates lawful cause for one spouse to leave or instead, abandonment. This particular situation of alleged abandonment with incompatibility or irreconcilable differences between the spouses has given our courts much difficulty in the search for “lawful cause.” Skannal, supra; Mercer v. Mercer, 95-1257 (La.App. 3d Cir.4/3/96), 671 So.2d 937; Durand v. Willis, 470 So.2d 947 (La.App. 3d Cir.1985), writ denied, 477 So.2d 98 (La.1985); Lyons v. Lyons, 33,237 (La.App.2d Cir.10/10/00), 768 So.2d 853, writ denied, 00-3089 (La.1/5/01), 778 So.2d 1142. The policies of our fault-free divorce laws and the fault-based spousal support scheme are in tension in this setting producing difficult cases. Nevertheless, the trial court’s ruling is supported by the jurisprudence involving similar marital strife and presents no abuse of the discretion given the trial court for the resolution of this domestic relations dispute.

Conclusion

For the foregoing reasons, the trial court’s denial of permanent spousal support is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . Sherry has four sons, three of whom lived with the parties during the marriage; the father of these children is deceased. Clay's child from his prior marriage alternates living six months with Clay and six months with his mother.