author: RGAIDRY, J. hDOWNING, J.,

text:
    Mamta Pani RAO v. Maheswar RAO.
    No. 2005 CA 0059.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Writ Denied March 24, 2006.

      Richard Ducote, Jeannine A. Provencher, New Orleans, Counsel for Plaintiff/Appellant Mamta Pañi Rao.
    Jack M. Dampf, Helen Edgington, Baton Rouge, Counsel for Defendant/Appel-lee Maheswar Rao.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   RGAIDRY, J.

The plaintiff-appellant, Mamta Pani Rao, appeals judgments relating to the valuation and partition of property of the former community of acquets and gains existing between her and the defendant-appellee, Maheswar Rao. For the reasons stated below, we affirm.

FACTS AND PROCEDURAL HISTORY

The parties to this appeal, Maheswar Rao, M.D. (Dr. Rao) and Mamta Pañi Rao (Mrs. Rao), entered into a traditional arranged marriage on July 12, 1990, in Bhu-vaneswar, India. They subsequently established a matrimonial domicile in Baton Rouge, Louisiana.

Dr. Rao is a gastroenterologist and became a member of his medical group, Gas-troenterology Associates, L.L.C., on January 31, 2001. On the same date, he also became a member of another limited liability company, Gastro/Endo Land Company, L.L.C., which owned and managed the medical office property. Similarly, on January 31, 2001, he acquired an ownership interest in Louisiana Endoscopy Center, Inc., a corporation operating an outpatient surgical center in the same building as the physicians’ offices. The six physician members of the medical group owned equal interests in each of the legal entities. Thus, Dr. Rao held a one-sixth ownership interest in the corporation, Louisiana Endoscopy Center, Inc. The valuation of that corporate ownership interest is the only aspect of the judicial partition of the community property at issue in this appeal.

In connection with Dr. Rao’s acquisition of a one-sixth stock interest in Louisiana Endoscopy Center, Inc., he and Mrs. Rao executed a written acknowledgment on January 31, 2001, that they had read and agreed to the provisions of the corporation’s Stockholder Agreement and Articles of | alncorporation. On September 27, 2001, the six physician stockholders executed an Amended and Restated Stockholders Agreement of Louisiana Endoscopy Center, Inc. (the Amended Stockholders Agreement), which made certain changes to the original Stockholders Agreement. The most significant changes were provisions establishing a stipulated value of $25,000.00 for the stock of each equal stockholder in the event of resignation, death, or termination as a stockholder, or in the event of divorce.

Although Mrs. Rao admittedly signed a multiple original of a spouses’ signature sheet for the Amended Stockholders Agreement, the relevant circumstances pertaining to her signature on the document are disputed. Dr. Rao testified that the entire agreement and related documents were provided for her review and signature, while Mrs. Rao testified she was presented with only the spouses’ signature sheet. The signatures of the six physician stockholders were all placed on page 18 of the agreement, while each of the six spouses’ signatures was executed on a separate multiple original of page 19, the spouses’ signature sheet.

’ Mrs. Rao filed a petition for divorce on November 13, 2001, alleging that she was the victim of verbal and physical abuse by Dr. Rao, and specifically invoked the provisions of the PosWSeparation Family Violence Relief Act, La. R.S. 9:361, et seq. She also alleged entitlement to interim and final spousal support and custody of the parties’ two children. A judgment of divorce was rendered on July 18, 2002.

The trial court heard Mrs. Rao’s request for final spousal support on July 18, 2002, and at the conclusion of the hearing took the matter under advisement. On September 13, 2002, the trial court issued written reasons [4for judgment on the issue of final spousal support. After describing Mrs. Rao’s testimony regarding “several incidents of abuse” occurring over a number of years, the trial court expressed its belief in “Mrs. Rao’s testimony regarding the verbal and physical assaults by her husband.” Based upon that credibility determination and others, the trial court found Mrs. Rao free from fault in the divorce.

On May 8, 2002, Dr. Rao filed a petition requesting a judicial partition of the community of acquets and gains pursuant to La. R.S. 9:2801. The parties submitted detailed descriptive lists setting forth their respective positions on the community assets, liabilities, and reimbursement claims. The trial of the judicial partition was conducted on August 8, 2003 and December 17, 2003. On February 3, 2004, the trial court issued detailed written reasons for judgment, ruling that the Amended Stockholders Agreement was binding between the parties on the issue of the stipulated stock value of Louisiana Endoscopy Center, Inc. The trial court’s judgment in that regard was signed on March 2, 2004.

Dr. Rao filed a motion for new trial on the grounds that the judgment erroneously fixed legal interest on the sum owed to Mrs. Rao from date of judicial demand, rather than date of judgment. On March 15, 2004, Mrs. Rao filed a motion for new trial on the issue of the valuation of Louisiana Endoscopy Center, Inc. Dr. Rao’s motion was heard on March 30, 2004, and Mrs. Rao’s motion was heard on May 17, 2004. The trial court’s judgment granting Dr. Rao’s motion for new trial and denying Mrs. Rao’s motion for new trial was signed on May 27, 2004. This appeal followed.

ASSIGNMENTS OF ERROR

We summarize Mrs. Rao’s assignments of error as follows:

|¡¡1. The trial court erred in denying her motion for new trial on the judgment of partition of the community property, as that judgment was clearly contrary to the law and the evidence;

2. The trial court erred in determining that Dr. Rao’s testimony relating to the Amended Stockholders Agreement was credible, in light of its earlier adverse credibility determination on the issue of fault for final spousal support; and

3. The trial court erred in denying her motion for new trial, by failing to consider the issues relating to the Amended Stockholders Agreement in light of the history and dynamics of domestic violence shown at the trial of the issue of final spousal support.

DISCUSSION

The Nature of the Judgments Appealed

The courts of appeal will review only issues which were submitted to the trial court and which are contained in specifications of assignments or error, unless the interest of justice clearly requires otherwise. Uniform Rules of the Courts of Appeal of Louisiana, Rule 1-3. Based upon the substance of Mrs. Rao’s assignments of error, it might be concluded that Mrs. Rao has not properly raised an issue as to the merits of the trial court’s valuation of the ownership interest in Louisiana Endoscopy Center, Inc. But as other language in her brief and her motion for appeal clearly expresses her intent to appeal the merits of the judgment of March 2, 2004, we conclude the issue is properly before us.

LThe long-established rule in this circuit is that the denial of a motion for new trial is not an appealable judgment absent a showing of irreparable injury. Shultz v. Shultz, 02-2534, p. 3 (La.App. 1st Cir.11/7/03), 867 So.2d 745, 746. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment. Landry v. Leonard J. Chabert Medical Center, 02-1559, p. 5 n. 4 (La.App. 1st Cir.5/14/03), 858 So.2d 454, 461 n. 4, writs denied, 03-1748, 03-1752 (La.10/17/03), 855 So.2d 761. Thus; the interlocutory denial of a motion for new trial is subject to review on appeal in connection with the review of an appeal-able judgment in the same case. Moran v. G & G Construction, 03-2447, p. 11 n. 4 (La.App. 1st Cir.10/29/04), 897 So.2d 75, 83 n. 4, writ denied, 04-2901 (La.2/25/05), 894 So.2d 1148.

Standard of Review

An appellate court’s review of facts (such as the classification of spouses’ property as community or separate) is governed by the manifest error-clearly wrong standard. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) and Biondo v. Biondo, 99-0890, p. 4 (La.App. 1st Cir.7/31/00), 769 So.2d 94, 99. However, it is well settled that a trial court has broad discretion in adjudicating issues raised in a judicial partition proceeding under La. R.S. 9:2801. Smith v. Smith, 95-0913, p. 10 (La.App. 1st Cir.12/20/96), 685 So.2d 649, 655. If the trial court’s valuations of community assets are reasonably supported by the record and do not constitute an abuse of discretion, its determinations should be affirmed. Ellington v. Ellington, 36,943, p. 6 (La.App. 2nd Cir.3/18/03), 842 So.2d 1160, 1166, writ denied, 03-1092 (La.6/27/03), 847 So.2d 1269.

|7The standard of review of a denial of a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. Magee v. Pittman, 98-1164, p. 19 (La.App. 1st Cir.5/12/00), 761 So.2d 731, 746, writ denied, 00-1684 (La.9/22/00), 768 So.2d 602.

Assessment of Credibility

In this appeal, Mrs. Rao utilizes the trial court’s prior credibility determination on one aspect of an unrelated issue, fault for purposes of final spousal support, as the foundation and centerpiece of her contentions that the Amended Stockholders Agreement was the product of a fraudulent scheme and an absolute simulation. She further contends that her consent to that agreement was vitiated by a pattern of domestic violence, committed by Dr. Rao, which formed the basis of the prior credibility determination. However, later rulings of the trial court demonstrate that the trial court did not in fact make any factual finding on the issues of “domestic abuse” under La. R.S. 46:2131, et seq., or “family violence” or “domestic violence” under La. R.S. 9:361, et seq.

We initially address Mrs. Rao’s second assignment of error relating to the trial court’s assessment of Dr. Rao’s credibility on the factual issues relating to Mrs. Rao’s execution of the spouse’s signature sheet of the Amended Stockholders Agreement. Mrs. Rao seems to argue that because the trial court previously accepted her version of facts relevant to the issue of fault for purposes of final spousal support over that of Dr. Rao, the trial court therefore erred in accepting any aspect of Dr. Rao’s testimony as credible over hers on any other contested issue.

Mrs. Rao in effect contends that the trial court’s prior credibility determination in the context of resolving a different legal issue affords her the benefit of issue preclusion under the doctrine of collateral es-toppel. IsWhile it is true that credibility is essentially a fact issue, it is not generally the dispositive issue before the trier of fact, but rather a preliminary issue or factor in the determination of the ultimate dispositive issue. As one court has stated, “[i]ssue preclusion requires the issue to be precluded to have been a dispositive issue which the prior court must have considered in a contest between the same parties.” Goodman v. Spillers, 28,933, p. 11 (La.App. 2nd Cir.12/23/96), 686 So.2d 160, 167, writs denied, 97-0225, 97-0423 (La.3/27/97), 692 So.2d 393, 400. (Emphasis in original-.) It is well settled that in reaching its conclusions, the trier of fact need not accept all of the testimony of any witness as being true or false and may believe and accept any part or parts of a witness’s testimony and refuse to accept any other part or parts thereof. Harrigan v. Freeman, 498 So.2d 58, 64 (La.App. 1st Cir.1986). See also Smith v. Roussel, 00-1028, p. 5 (La.App. 1st Cir.6/22/01), 809 So.2d 159, 164.

In summary, a credibility assessment made for the purpose of determining a dispositive issue is generally not itself an adjudicated issue upon which collateral es-toppel or issue preclusion can rest. Dr. Rao’s overall credibility was not a disposi-tive issue determined in the prior spousal support hearing, which was narrow in scope; thus, the trial court was free to undertake a new assessment of credibility for purposes of the hearing at issue. Mrs. Rao’s second assignment of error has no merit.

Our remaining discussion addresses Mrs. Rao’s first and third assignments of error, as they relate to both the judgment of partition and the judgment denying a new trial.

The Merits of the Partition Judgment Valuation

The relevant provisions of the Amended Stockholders Agreement read as follows:

1,ARTICLE IV.
BUY-OUT AGREEMENT
A. AGREEMENT TO SELL/BUY & VALUATION OF STOCK. Any Stockholder who resigns, dies or is terminated as a Stockholder of Corporation or as a Member of Gastro, as established herein, hereby expressly agrees, and his/her spouse expressly agrees, to sell all of his/her/their stock/ownership interest in this Corporation to said Corporation at the total stipulated value of Twenty-Five Thousand Dollars ($25,-000.00), which shall hereinafter be referred to as the “Stock Value”. The stockholders hereby expressly authorize the Board of Directors, on behalf of the Corporation, to redeem said stock/ownership interest from Departing Stockholders at the stipulated Stock Value stated above.
* * *
ARTICLE VI.
DIVORCE, SEPARATION, OR DEATH OF A STOCKHOLDER
In the event that a spouse of Stockholder holds an interest in the ownership of the Corporation through the community of acquets and gains in its asset access or in any other manner, then they do appear herein and agree as follows:
A. SEPARATION OR DIVORCE. Upon separation or Judgment of Divorce of any one of the Stockholders, or in any event causing the dissolution of the community of acquets and gains or any partnership or joint ownership existing between a Stockholder and his/her spouse involving ownership in Corporation, then the said spouse hereby irrevocably agrees to sell to his/her corresponding spouse/Stockholder, and the said spouse/Stockholder agrees to purchase the entirety of his/her spouse’s undivided interest in the Corporation that may be allocated to him/her. The purchase price, terms of purchase and manner of payments shall be as set forth in Article IV. For purposes of this Article, the Departure Date, or date of valuation, of the said ownership interest shall be from the date of the event causing the termination. In the event of legal separation or divorce, the Departure Date would be the effective date of the termination of the community of ac-quets and gains. For example, if a petition for divorce and/or the separation is filed effective as of a particular date in the petition, then that date shall be the one on which the value of the community of acquets and gains shall be terminated, even when a judgment is rendered a considerable time after the filing of that said petition for separation and/or divorce.
hnB. DEATH. In the event of the death of a Stockholder, the Corporation agrees to purchase, and said surviving spouse agrees to sell, the interest of the said deceased spouse/Stockholder and his/her ownership interest in the Corporation. Said purchase shall be as set forth in Article IV herein above. This Agreement shall be binding upon the successors and Assigns of the undersigned Stockholders and their respective spouses. The parties hereto agree to execute any and all documents and instruments that may be necessary in order to consummate the purposes of this Section.
ARTICLE XL
SPOUSES OF STOCKHOLDERS
And now to these presents come the spouses of the Stockholders, who did each declare and state that each has read, and hereby agrees to, all of the terms and conditions of this Agreement; that they acknowledge that their individual spouses are the “Stockholders” as defined and noted in this Agreement, with full authority to act under its terms as they may relate to his/her share of the community of acquets and gains or other joint ownership existing between them; and that each said spouse ratifies and confirms the execution by their spouse/Stockholder of this Agreement and, in particular, without limitation, does authorize them as a Stockholder to act under such terms and subject to such conditions as they may deem appropriate, subject only to the limitation that said authority does not extend to actions which would affect their separate and paraphernal assets. Further, that each spouse does agree and consent to all the terms and provisions hereof. Each said spouse does further agree and recognize that any transfer by their spouse/Stockholder of any interest of the Corporation shall constitute a transfer of the entire interest purported to be transferred, and that no additional authorization or consideration for such transfer shall be required, and that they shall join in such transfer (if necessary) upon request of the Corporation. That each spouse does further agree that each of their respective heirs, legatees, legal representatives, successors, transferees, vendees and assigns, shall be bound and obligated by the terms, obligations, restrictions and provisions hereof.

Mrs. Rao contends that the sell/buy and stock valuation provisions of the Amended Stockholders Agreement were actually an absolute simulation under La. C.C. art. 2026, and were the product of a scheme by Dr. Rao and the other physician stockholders to defraud any divorcing spouses of their true interest in community property. She further contends that the | ^ agreement was absolutely null as a contract contra bonos mores under La. C.C. art. 2030, or relatively null under La. C.C. art. 2031 based upon her lack of free consent at the time she executed it. She contends that the true value of the community’s ownership interest in Louisiana Endoscopy Center, Inc., was between $741,434.00 and $1,038,000.00, as established by her expert accountant’s testimony, rather than the stipulated stock value of $25,000.00.

Louisiana Civil Code article 2025 defines a simulation as a contract which the parties mutually agree “does not express the true intent of the parties.” A counterlet-ter is a separate written agreement expressing the true intent of the parties to a simulation. La. C.C. art. 2025. An absolute simulation is a contract intended to have no effects between the parties. La. C.C. art. 2026.

The evidence submitted at the trial of the judicial partition of community property simply does not support Mrs. Rao’s contention that the Amended Stockholders Agreement was an absolute simulation. Mrs. Rao first raised the issues of fraud and simulation in her motion for new trial; prior to that time, the only issues she raised were whether she validly consented to the agreement and the actual value of the community interest in the corporation. Although the trial court’s minute entry for the hearing on Mrs. Rao’s motion for new trial recites that evidence was introduced, the transcript of that hearing shows that no new evidence was introduced in support of the motion, let alone evidence of the pm-ported simulation and fraudulent scheme postulated by Mrs. Rao. To the contrary, the extensive record of the judicial partition hearing demonstrates that the stockholder physicians in fact intended the sell/buy provisions of the Amended Stockholders Agreement to produce the effects expressed in the event of any | ^stockholder’s death, termination, or divorce. No evidence of a counterletter expressing a contrary intent was introduced.

The Amended Stockholders Agreement expressly provides that “the primary function of the Corporation is to own and operate ambulatory surgical center(s) (hereinafter “ASC”), including any and all necessary and related facilities and equipment,” and that ownership was limited to practicing gastroenterologists in the Baton Rouge medical market. Additionally, any existing or potential stockholder must meet the medical practice requirements of 42 C.F.R. § 1001.952(r)(2), a federal “safe harbor” regulation governing “single-specialty” ambulatory surgical centers owned by physicians engaged in the same medical practice specialty.

Dr. Rao presented the testimony of James Barrett Benton, accepted as an expert attorney concentrating in healthcare practice law. Mr. Benton and his father, with whom he practices, prepared the operating agreements for Louisiana Endoscopy Center, Inc. and its affiliated businesses. He testified that the sell/buy and valuation provisions contained within those operating agreements, including the Amended Stockholders Agreement, are “standard” in agreements of that type for physicians’ business entities. He also testified that the sell/buy and valuation provisions of the Amended Stockholders Agreement did not afford Dr. Rao any financial advantage over Mrs. Rao in the event of divorce, as compared to any other event to which they applied, such as retirement.

According to Mr. Benton, the change establishing the stipulated stock value was mutually agreed upon by the physician stockholders to rectify what they perceived was an overstated stock value, financially detrimental to the corporation’s ongoing business in the event of the departure of a stockholder physician. That change was made with the assistance and [1sadvice of the corporation’s certified public accountant. Mr. Benton also explained the import of the federal “safe harbor” regulations on the decision to incorporate a stipulated stock value, as well as the financial, tax, and liability advantages of separating the medical group’s clinical and surgical practices into two separate legal entities. Finally, he expressed his legal opinion that the sell/buy and valuation provisions were binding on the stockholders’ spouses, even without their signatures.

David A. Winkler, C.P.A., the corporation’s accountant, was accepted as an expert in his field, and testified that he prepared valuations of each of the business entities, and Dr. Rao’s corresponding interests in each, as of the date of termination of the community. He corroborated the testimony of Mr. Benton, and valued Dr. Rao’s interest in Louisiana Endoscopy Center, Inc. at $25,000.00, the stipulated stock value, admitting that the figure chosen by the stockholders was “arbitrary” and bore no relation to the “profitability” of the corporation. He further explained the effect of the federal “safe harbor” regulations on the goodwill aspect of corporate valuation. When asked under cross-examination the hypothetical accounting value of Dr. Rao’s stock absent the stipulated stock value, Mr. Winkler stated it would be $2,000.00, the amount actually paid and invested by Dr. Rao in acquiring the stock on January 31, 2001.

Mrs. Rao presented the testimony of Ralph J. Stephens, C.P.A., accepted as an expert accountant specializing in business valuations. He prepared a report setting forth a limited “calculation” (as opposed to an actual appraisal) of the “hypothetical” value of Dr. Rao’s ownership interest, using the capitalization of cash flow approach, based upon the corporation’s financial records and tax returns. His calculation yielded a range of value between $741,000.00 and $1,349,000.00. That calculation was admittedly lupredicated upon a number of assumptions, including the inapplicability of the stipulated stock value provision. At trial, he affirmed that based upon the documented cash flow of the corporation, assuming a range of discount or capitalization rates, the value to a one-sixth investor in a hypothetical corporation with similar cash flow would fall between $741,434.00 and $1,482,869.00. On cross-examination, Mr. Stephens admitted that if the ability of the business enterprise to generate future cash flow was based upon an intangible asset such as the particular workforce or reputation, the capitalization of earnings approach would represent valuation of goodwill. He also admitted that sell/buy provisions such as the one at issue are commonly incorporated in business operating agreements.

A trial court may accept or reject in whole or in part the opinion expressed by an expert. The effect and weight to be given expert testimony is within the broad discretion of the trial judge. Further, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Burdette v. Drushell, 01-2494, p. 13 (La.App. 1st Cir.12/20/02), 837 So.2d 54, 65, writ denied, 03-0682 (La.5/16/03), 843 So.2d 1132.

When the community asset to be valued in a judicial partition is an interest in a corporation, the court must be careful to value the interest, not just the assets of the business entity. Ellington, 36,943 at p. 6, 842 So.2d at 1166. Business valuation methods are not exact, and are basically guides in determining the fair market value of a business. Given the dynamics of businesses and business practices, and factoring in circumstances that may be unique to the parties, an inflexible formula for determining business value would be impractical. See Achee v. National Tea Company, 95-2556, p. 8 (La.App. 1st Cir.12/20/96), 686 So.2d 121, 125.

|1sThe evidence clearly supports the conclusion that the hypothetical value postulated by Mrs. Rao’s expert accountant was largely based upon goodwill attributable to the personal qualities and patient relationships of Dr. Rao and his fellow stockholder physicians using the corporate facilities as part of their professional practice. Although Louisiana Endoscopy Center, Inc. is not a professional medical corporation per se, we conclude it was intended by the parties to be an extension of a professional medical practice group in accordance with the federal “safe harbor” regulations. It is inappropriate to use such goodwill attributable to Dr. Rao in the valuation of community corporate stock. See La. R.S. 9:2801.2. See also Preis v. Preis, 94-442, pp. 6-7 (La.App. 3rd Cir.11/2/94), 649 So.2d 593, 595-96 and Depner v. Depner, 478 So.2d 532, 534 (La.App. 1st Cir.1985), writ denied, 480 So.2d 744 (La.1986). Although the issue has not been specifically addressed by the legislature and seems to be res nova, we conclude it is likewise inappropriate to incorporate goodwill attributable to the personal, professional qualities of the other physician stockholders in such valuation. See 16 Katherine S. Spaht and Richard D. Moreno, Louisiana Civil Law Treatise: Matrimonial Regimes § 7.27 (2nd ed.1997; 2004 pocket part).

Stock transfer restrictions do not affect ownership of the stock; they merely qualify the privilege of disposition of the stock. Mestayer v. Williams, 569 So.2d 1102, 1106-7 (La.App. 3rd Cir.1990). Because stock transfer restrictions such as the sell/buy provisions at issue do not alter the lir,nature of the legal matrimonial regime or the classification of stock acquired during marriage as community property, they do not constitute prohibited matrimonial agreements under La. C.C. art. 2329. Guidry v. Guidry, 01-1615, p. 4 (La.App. 3rd Cir.10/30/02), 830 So.2d 570, 572. The latter case involved the divorce of an attorney shareholder of a legal corporation. He and his wife had executed a shareholders agreement and stock subscription agreement which set forth an agreed-upon method of disposition and valuation of shareholder stock in the event of divorce. The appellate court found that the agreements were “valid interspousal contracts which are binding in that we find no derogation of law or public policy.” Id.

The evidence shows that the object of the Amended Stockholders Agreement’s sell/buy and stock valuation provisions was to establish a stipulated, binding value of equal stock interests in a close corporation with a specialized purpose, in the event of any stockholder’s death, termination of ownership, or divorce, and to effect an orderly transfer of ownership according with the corresponding change in ownership interest in the medical group. That object is not contrary to public policy; thus, it is not absolutely null as contra bonos mores. See La. C.C. arts. 7, 2030. See also 7 Glenn G. Morris and Wendell H. Holmes, Louisiana Civil Law Treatise: Business Organizations § 29.10 (1999).

Shares of stock issued in the name of a spouse are subject to management by that spouse exclusively. La. C.C. art. 2351, Revision Comment (a) (1979). See also La. C.C. art. 2352. The undisputed evidence in the record shows that the stock certificate at issue, evidencing ownership of fifty shares of common stock of Louisiana Endoscopy Center, Inc., was issued in Dr. Rao’s name only. Thus, Dr. Rao clearly had the right to execute both the original and the Amended Stockholders Agreement, |17thereby subjecting the stock to the terms of the transfer restrictions and the stipulated stock value, without Mrs. Rao’s written assent. Succession of Moss, 00-62, p. 10 (La.App. 3rd Cir.6/21/00), 769 So.2d 614, 620, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462. A stock transfer agreement which is unambiguous, clearly sets forth its terms, and is executed by capable parties is enforceable. Id., 00-62 at p. 10, 769 So.2d 614, 620-21. The sell/buy provisions of Articles IV and VI were valid and binding stock transfer restrictions, and clearly governed the valuation of the stock. See, e.g., Kimball v. Anesthesia Specialists of Baton Rouge, Inc., 00-1954, pp. 15-16 (La.App. 1st Cir.9/28/01), 809 So.2d 405, 416-18, writs denied, 01-3316, 01-3355 (La.3/8/02), 811 So.2d 883, 886.

As for Mrs. Rao’s contention that she was presented only the spouses’ signature sheet and did not consent to the Amended Stockholders Agreement, the trial court made a considered credibility determination on that point. The trial court evidently accepted Dr. Rao’s version of events relating to the presentation of the documents for Mrs. Rao’s signature, and rejected her explanation for supposedly signing a one-page blank signature sheet. The trial court’s credibility determination is entitled to deference from this court, and is supported by the record. Further, as the trial court held, a party signing a contract is presumed to have consented to its contents, and cannot avoid his obligations by contending that he did not read or fully understand it. A signature to a contract is not a mere ornament. Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters, 01-2219, pp. 13-14 (La.App. 1st Cir.11/20/02), 837 So.2d 11, 24, writs denied, 03-0418 (La.4/21/03), 841 So.2d 805; 03-0417, 03-0427, 03-0438 (La.5/16/03), 843 So.2d 1129, 1130.

11sThe record and the trial court’s detailed reasons for judgment demonstrate that it gave full consideration to the testimony and evidence of both parties, and that Mrs. Rao had ample opportunity to present evidence during the hearing of Dr. Rao’s supposed fraudulent intent and the effect of the claimed “domestic violence” upon her consent to sign the agreement. As the trial court observed, however, Mrs. Rao “presented no evidence that Dr. Rao was intentionally trying to defraud her or acting against her best interests” in signing the agreement. The trial court’s judgment in that regard is fully supported by the record, and we find no abuse of its discretion.

Motion for New Trial

Given our foregoing analysis, the trial court’s judgment was not contrary to the law and the evidence. Thus, Mrs. Rao was not entitled to a new trial on that peremptory basis, and the trial court did not abuse its discretion in denying her motion for new trial in that respect. Although Mrs. Rao also contends that a new trial should have been ordered to allow her to conduct discovery and present evidence of fraud and simulation, she failed to put forth any newly discovered evidence which she could not have discovered with due diligence prior to the hearing. See La. C.C.P. art. 1972(2). Our review of the record further discloses no abuse of discretion in the trial court’s denial of a new trial on discretionary grounds. See La. C.C.P. art. 1973. Accordingly, the trial court’s judgment denying Mrs. Rao’s motion for new trial must be affirmed.

DECREE

The judgment of the trial court valuing and partitioning the community property of the parties is affirmed. The judgment of the trial court, denying plaintiff-appellant’s motion for new trial on the judicial 11Bpartition, is also affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Mamta Pañi Rao.

AFFIRMED.

hDOWNING, J.,

concurs with reasons.

I respectfully concur with the result reached under these particular facts. I write to explain that generally there is no right to an appeal of the denial of a new trial. The established rule in this circuit is that the denial of a motion for new trial is an interlocutory 'and non-appealable judgment absent a showing of irreparable harm. Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1 Cir.3/28/02), 818 So.2d 226, 228, citing Morrison v. Dillard Department Stores, Inc., 99-2060, p. 2 (La.App. 1 Cir.9/22/00), 769 So.2d 742, 744. The Louisiana Supreme Court, however, has instructed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant’s brief that the appeal was intended to be on the merits. Carpenter, 01-0467 p. 4, 818 So.2d at 228-229. Thus, we are to review the judgment on the merits and not the judgment denying a new trial.

Here, there has been no showing of irreparable harm in that Mrs. Rao does have an adequate remedy through appealing to this court for review and she is appealing the final judgment entered herein. Therefore, Mrs. Rao’s first assignment of error is moot and should not be reviewed.

      . Dr. Rao and Mrs. Rao executed similar acknowledgments in connection with his acquisition of membership in the limited liability companies, Gastroenterology Associates, L.L.C. and Gastro/Endo Land Company, L.L.C.

      . It is also the established practice of the appellate courts, as directed by the supreme court, to treat the appeal of the denial of a motion for a new trial as an appeal of the judgment on the merits, when it is clear from the appellant’s brief that he intended to appeal the merits of the case. Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 348-49, 223 So.2d 826, 828-29 (1969); Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1st Cir.3/28/02), 818 So.2d 226, 228-29, writ denied, 02-1707 (La.10/25/02), 827 So.2d 1153.

      . See 42 C.F.R. § 1001.952(r)(2), relating to "single-specialty” ambulatory surgical centers (ASCs). See also Gregg M. Wallender, Physician Employment, Recruitment Contracts: DIG Issues Final Anti-Kickback Safe Harbors, 43 Res Gestae 14, 18 (2000) ("... ASCs involving physicians who do not perform procedures at their ASC are not afforded protection. The OIG [U.S. Department of Health and Human Services Office of Inspector General] believes only ASCs that involve physicians engaging in an 'extension' of their practice warrant protection.... [S]uch individuals must perform services at the ASC and derive at least one-third of their respective medical practice income from all sources for the previous fiscal year or previous 12-month period from their own performance of procedures that require an ASC or hospital surgical setting ....”).


source: Caselaw Access Project

author: | ¡WELCH, J.

license: Public Domain

text:
    Franklin Jay WILLIAMS and Josephine P. Williams v. NOTAMI HOSPITALS OF LOUISIANA, INC., d/b/a Lakeview Regional Medical Center and Lakeview Medical Center, LLC, d/b/a Lakeview Regional Medical Center.
    No. 2004 CA 2289.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Wayne M. LeBlanc, Metairie, for Plaintiffs — Appellees Julie Williams Harris and Josephine P. Williams.
    C.T. Williams, Jr., Donald C. Douglas, Jr., James W. Vitrano, Mandeville, for Defendant — Appellant Lakeview Regional Medical Center.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   | ¡WELCH, J.

In this medical malpractice action, the defendant, Lakeview Medical Center, LLC, d/b/a Lakeview Regional Medical Center (“LRMC”), appeals from a trial court judgment rendered in favor of the plaintiffs, Franklin Jay Williams and Josephine P. Williams, overruling the defendant’s dilatory exception raising the objection of prematurity. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

On January 1, 2000, Franklin Jay Williams, who was eighty-three years old at the time, presented to the emergency room at LRMC, with complaints of fever, weakness, and diarrhea. In the emergency room, Mr. Williams was initially treated by Dr. Robert Limbaugh. He reported a past medical history of seizure disorders, angioplasty, and crohns disease. Thereafter, Mr. Williams was admitted to LRMC under the care of Dr. Roy Contreas Sagui-guit. On admission, it was noted that the plaintiff was confused and disoriented, and therefore, a fall prevention program was implemented. Mr. Williams was placed in a hospital room furnished with a bed equipped with an alarm system that would notify the hospital staff if Mr. Williams attempted to get out of his bed.

On January 2, 2000, at approximately 12:34 p.m., a nurse observed Mr. Williams sitting up in his hospital bed and eating his lunch. At approximately 2:00 p.m., a nurse found Mr. Williams lying in diarrhea on the floor of his hospital room with an abrasion on his head. On January 13, 2000, it was discovered that Mr. Williams sustained a brain injury as a result of this fall.

On December 18, 2000, Mr. Williams and his wife, Josephine P. Williams filed a complaint with the Commissioner of the Division of Administration, requesting that a medical review panel be convened in order to review alleged |sclaims of medical malpractice committed by LRMC, Dr. Limbaugh, and Dr. Saguiguit in connection with the medical treatment and care rendered to Mr. Williams when he was a patient at LRMC. Pursuant to this complaint, a medical review panel was convened and ultimately issued its opinion and reasons on May 9, 2002. In its opinion and reasons, the medical review panel found that the evidence did not support the conclusion that Dr. Limbaugh, Dr. Sa-guiguit, and LRMC failed to meet the applicable standard of care, as charged in the complaint.

Thereafter, on July 12, 2002, the plaintiffs filed a petition for damages against LRMC, with allegations similar in nature to those contained in the complaint filed with the Commissioner of the Division of Administration. The petition also alleged that this matter had been submitted to a medical review panel, that the medical review panel rendered its opinion on May 9, 2002, and that the medical review panel’s opinion was mailed to all parties on June 13, 2002.

LRMC answered the petition on September 6, 2002, essentially denying the allegations contained in the petition, except to admit Mr. Williams was admitted as a patient to LRMC, to admit it was a qualified health care provider under the Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (“MMA”), and to admit the matter had been submitted to a medical review panel. In further answering, LRMC contended that the care and treatment rendered to Franklin Williams at LRMC was proper and in accordance with standards of care required of hospitals.

Thereafter, defendants propounded discovery to the plaintiffs pertaining to information about witnesses, including expert witnesses that the plaintiffs were going to utilize at trial. With regard to expert witnesses, the plaintiffs responded that they had not yet hired an expert witness, but that the chart had been reviewed 14and they were advised that the nurses were negligent in not having the bed rails up and/or the bed alarm on.

On February 7, 2003, LRMC filed a motion for summary judgment, together with supporting exhibits, alleging that there were no genuine issues of material fact in dispute and that LRMC was entitled to judgment as a matter of law dismissing the plaintiffs’ claims against it. Specifically, LRMC alleged that the plaintiffs failed to produce an expert witness who could testify that LRMC and/or its employees had breached the applicable standard of care in treating Mr. Williams or contributed to his injuries, and that the plaintiffs failed to produce evidence indicating that the failure to monitor the bed alarm and/or failure to respond to the bed alarm signal was a breach of the standard of care constituting negligence on the part of the LRMC. On August 29, 2003, the plaintiffs, filed an opposition to the defendant’s motion for summary judgment, with supporting exhibits.

At the hearing on September 8, 2003, the trial court allowed the plaintiffs sixty days within which to name an expert, and upon their failure to do so, the case would be dismissed. On September 19, 2003, the trial court signed a written judgment granting the defendant’s motion for summary judgment, and further providing that upon the failure of the plaintiffs to properly identify an expert witness to establish the standard of care within sixty calendar days of September 8, 2003, judgment would be entered dismissing the matter with prejudice at the plaintiffs’ costs. Thereafter, the plaintiffs identified Carolyn Easley, Ph.D., R.N., C. and Harley McElroy, CRN, CLNC, as their expert witnesses.

On February 5, 2004, the plaintiffs filed their first supplemental and amended petition for damages. In response, LRMC filed a dilatory exception raising the objection of prematurity, contending that the claims set forth therein were never presented to a medical review panel, and therefore, those claims were ^premature and should be dismissed. The plaintiffs opposed the exception, contending that the medical review panel did consider the claims set forth in the supplemental and amended petition. In support of their respective positions on the dilatory exception, both parties submitted: (1) a copy of the plaintiffs’ complaint filed with the Commissioner of the Division of Administration, and (2) a copy of the plaintiffs’ submission of evidence/position paper to the medical review panel.

At the hearing on the dilatory exception, the trial court overruled the exception, relying on Perritt v. Dona, 2002-2601, 2002-2603 (La.7/2/03), 849 So.2d 56. The trial court signed a written judgment overruling LRMC’s dilatory exception raising the objection of prematurity on May 11, 2004, and it is from this judgment that the defendant has appealed. On appeal, LRMC’s sole assignment of error is that the trial court erred in overruling its dilatory exception raising the objection of prematurity.

STANDARD OF REVIEW

The facts are not in dispute with respect to this appeal. Therefore, the issue before this court is whether the trial court correctly interpreted and applied the law. Appellate review of questions of law is simply a review of whether the trial court was legally correct or incorrect. Dunn v. Bryant, 96-1765 (La.App. 1st Cir.9/19/97), 701 So.2d 696, 698-99, writ denied, 97-3046 (La.2/13/98), 709 So.2d 752.

| f,PREMATURITY

Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. The exception raising the objection of prematurity may be utilized in cases where the applicable law or contract has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. Generally, the person aggrieved in such a case must exhaust all administrative remedies before being entitled to judicial review. Id.

In raising the dilatory exception raising the objection of prematurity, the exceptor bears the initial burden of showing that an administrative remedy or procedure applies, by reason of which the judicial action is premature. Ginn v. Woman’s Hospital Foundation, Inc., 99-1691 (La.App. 1st Cir.9/22/00), 770 So.2d 428, 431, writ denied, 2000-3397 (La.2/2/01), 784 So.2d 647; Lewis v. Crossman, 582 So.2d 991, 994 (La.App. 1st Cir.1991). Once the existence of an administrative remedy is established, the burden then shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted. Ginn, 770 So.2d at 431.

The MMA provides such a mechanism in that it requires all medical malpractice claims against covered health care providers to be submitted to a medical review panel prior to filing suit in any court. La. R.S. 40:1299.47(B)(l)(a)(i); Dunn, 701 So.2d at 699. This administrative procedure affords the medical review panel an opportunity to render its expert opinion on the merits of a complaint. Dunn, 701 So.2d at 699 (citing Hutchinson v. Patel, 93-2156 (La.5/23/94), 637 So.2d 415, 419). If an action against a health care provider covered by the MMA has been commenced in a court and the complaint has not been first presented to a medical review panel, then the dilatory exception praising the objection of prematurity is the proper procedural vehicle to be invoked by the covered health care provider. Dunn, 701 So.2d at 699; see also McKnight v.D & W Health Services, Inc., 2002-2552 (La.App. 1st Cir.11/7/03), 873 So.2d 18, 20 (citing Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116, 119).

MEDICAL REVIEW PANEL

The MMA must be strictly construed because it provides limitations on the liability of a health care provider and provides advantages to health care providers in derogation of the rights of tort victims. Sewell v. Doctors Hospital, 600 So.2d 577, 578 (La.1992); Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, 1216. One such advantage is that all malpractice claims against health care providers covered under the MMA shall be reviewed by a medical review panel. La. R.S. 40:1299.47(A)(1). Additionally, no action against a health care provider covered by the MMA may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel. La. R.S. 40:1299.47(B)(l)(a)(i). The medical review panel “shall have the sole duty” to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. La. R.S. 40:1299.47(G).

With regard to malpractice complaints, in Perritt, 849 So.2d at 65, the Louisiana Supreme Court, determined:

that the statute [MMA] says nothing further about the required format for the “proposed complaint;” therefore, defendants can not require the plaintiffs to specify the health care providers’ standards of care. Furthermore, the language of La. R.S. 40:1299.47(G) suggests that it is the duty of the medical review panel to determine the appropriate standard of care based on the evidence presented and whether defendant breached that standard.... [S]etting out the appropriate standard of care is the role of the medical expert and not a claimant. We note that the MMA does not specifically delineate that the parties | sare entitled to “notice.” The claim is not required to be a fact pleading with the specificity that may be required of a petition in a lawsuit; rather, the claim need only present sufficient information for the panel to make a determination as to whether the defendant is entitled to the protection of the Act.

DISCUSSION

In the plaintiffs’ December 18, 2000 complaint filed with the Commissioner of the Division of Administration, they asserted a claim of medical malpractice against LRMC, Dr. Limbaugh, and Dr. Saguiguit, “in conjunction with negligent medical treatment and care rendered to Franklin Jay Williams when he was a patient” at LRMC. Plaintiffs further alleged that Mr. Williams was admitted to LRMC on January 1, 2000, in a weakened and confused state, that he was seen in the emergency room by Dr. Limbaugh, and that he was thereafter admitted to the hospital and seen by Dr. Saguiguit and other employees. The plaintiffs further alleged that due to the failure of LRMC, Dr. Limbaugh, and Dr. Saguiguit to institute a fall prevention program for Mr. Williams, he sustained a fall, which resulted in a brain injury that was neither diagnosed nor treated until eleven days after the fall. In their submission of evidence to the medical review panel, plaintiffs further alleged that Mr. Williams should have been restrained.

On May 9, 2002, the medical review panel issued its opinion and reasons finding that the evidence did not support the conclusion that the defendants failed to meet the applicable standard of care as charged in the complaint. The panel reasoned that Dr. Limbaugh treated the patient appropriately in the emergency room and within the standard of care, and that Dr. Saguiguit evaluated the patient and treated him for his multiple medical problems. As to LRMC, the medical review panel found:

(1) The patient had an unexpected event that could not be foreseen.
(2) This patient was not a candidate for restraints.
(3) The hospital personnel identified the neurologic changes, documented them appropriately, and notified the proper physician in care.

| pThus, the plaintiffs submitted their complaint claiming medical malpractice arising out of Mr. Williams’s fall during the January 1, 2000 admission to LRMC, to the medical review panel and have exhausted their administrative remedy with regard to all claims of malpractice associated with the fall. The issue to be determined by this court is whether LRMC has clearly shown that an administrative remedy remains available to the plaintiff with respect to the allegations raised by the plaintiffs in their first supplemental and amended petition for damages.

The plaintiffs’ original petition for damages alleged as follows:

3.
Because of his weakened condition, his seeming confusion, his attempts to get out of bed and his decreased nutrition and weight loss, the hospital, its employees, staff and/or treating physicians instituted a fall prevention protocol, having to place a bed alarm on petitioner Franklin Williams’ bed that would alert hospital staff of his movement in the bed or attempts to leave the bed.
4.
On January 1 and 2, 2000, there are nurses’ notes stating that the bed alarm is on, however, on January 2, 2000, between 1400 and 1733 hours, the patient is found lying on the floor, which is noted in the hospital records to be a failure in the preventive fall strategies.
5.
The sole and proximate cause of the fall of petitioner and injuries to petitioner is the failure of the nursing personnel and employees of Lakeview Regional Medical Center to have the bed alarm “on”, failure to monitor the bed alarm and/or failure to respond to the bed alarm signal that would have indicated that petitioner was moving or attempting to climb over his bed railings. Petitioner further alleges that res ipsa lo-quitur is applicable.

The plaintiffs’ first supplemental and amended petition for damages amended paragraph 5 to read as follows:

The sole and proximate cause of the fall of petitioner and his resulting injuries is due to the negligence and failure of the nursing personnel, employees and hospital, in the following particulars to wit:
1. Failure to judge petitioner as high risk for falls;
2. Failure to have adequate criteria to determine fall risk;
|in3. Failure to initiate an appropriate fall risk intervention at the time of admission;
4. Failure to have in place fall prevention protocols adequate to protect and prevent the fall of petitioner;
5. Failure to implement preventive strategies prior to his fall;
6. Failure to maintain the bed alarm system;
7. Failure to monitor the bed alarm;
8. Failure to have the bed alarm on;
9. Failure to respond to the bed alarm signal;
10. Failure to use wrist and/or vest restraints;
11. Failure to establish a regular toileting based on his recurrent diarrhea;
12. Failure to have a bedside commode;
13. Petitioners further allege that res ipsa loquitor (sic) is applicable.

LRMC contends that since alleged failure 8 (failure to have the bed alarm on) was the only claim presented to the medical review panel in plaintiffs’ submission of evidence, that all of the other alleged failures associated with the fall must now be presented to the medical review panel. We disagree. The plaintiffs filed a complaint containing a general allegation of medical malpractice that caused Mr. Williams to sustain a fall during his January 2000 stay and a specific allegation regarding the failure of defendants to institute a fall prevention program, and in its’ submission to the medical review panel, the plaintiff made specific allegations regarding the failure of defendants to use restraints. Then, after reviewing “all evidence” as required by the La. R.S. 40:1299.47(G), the medical review panel rendered its opinion.

LRMC has failed to present any evidence (or persuasive argument) that the allegations contained in the plaintiffs’ first supplemental and amended petition for damages were not also encompassed by the claim of medical malpractice contained in plaintiffs’ complaint filed with the Commissioner of the Division of Administration and their submission of evidence to the medical review panel. Moreover, we find that LRMC has also failed to show that the plaintiffs’ allegation regarding the failure to institute a “fall prevention program” does not also encompass other aspects of fall risk assessments, such as bed alarms, restraints, h,toileting procedures and bedside commodes, as alleged in the plaintiffs’ first supplemental and amended petition for damages.

In support of its position that the allegations contained in the plaintiffs first supplemental and amended petition are premature, LRMC relies on Lewis v. Crossman, 582 So.2d 991 (La.App. 1st Cir.1991), wherein another panel of this court held that an amending and supplemental petition was premature. However, we find the defendant’s reliance on Lewis misplaced. In Lewis, the plaintiff submitted a complaint to the medical review panel, which specifically claimed medical malpractice against Marshall Crossman, D.C., arising only out of the use of a multi-level treatment table to adjust plaintiffs spine, and against William Dear, D.C., for failing to supervise and instruct Dr. Crossman in the use of the treatment table. After the medical review panel process was completed, plaintiff filed a petition for damages alleging medical practice regarding the claims submitted to the medical review panel. Plaintiff later filed an amending and supplemental petition alleging that the same health eare provider defendants committed other acts of malpractice, namely:

(1) Failure to perform adequate x-ray examinations during any and all office visits with defendants;
(2) Failure to perform any examinations and x-rays subsequent to treatment by Marshall Crossman, D.C.... when William Dear, D.C. knew or in the exercise of reasonable care should have known that plaintiff suffered an injury;
(3) Abandonment of care to plaintiff;
(4) Failure to properly direct and supervise the work of Marshall Crossman, D.C.

Lewis, 582 So.2d at 993.

The trial court granted the dilatory exception raising the objection of prematurity, and this court affirmed the judgment, finding that allegations 1, 2 and 3 constituted new complaints or claims of malpractice unrelated to the treatment table that had not been presented to the medical review panel.

JjjThe Lewis holding is inapposite to the present case because the allegations contained in plaintiffs’ first supplemental and amended petition for damages do not raise new complaints or claims of medical malpractice, but merely set forth clarifying facts regarding the standards of care applicable to the fall sustained by Mr. Williams during the January 1, 2000 admission, and the alleged breaches of those standards of care by LRMC, all of which should have been considered by the health care providers comprising the medical review panel pursuant to their statutory duty.

At the medical review panel stage, the plaintiff is not required to set out the appropriate standards of care and specifically delineate every breach of the applicable standards of care, but rather need only present sufficient information for the medical review panel to make a determination as to whether the defendant health care provider is entitled to the protections of the MMA regarding the claimed medical malpractice. See Perritt, 849 So.2d at 65.

In this case, plaintiffs’ complaint and submission of evidence presented sufficient information for the medical review panel to make a determination regarding whether the defendant health care providers failed to meet the applicable standards of care regarding the fall sustained by Mr. Williams’s during his January 2000 stay. The medical review panel specifically determined that Dr. Limbaugh’s emergency room treatment was appropriate, that Dr. Saguiguit’s evaluation and treatment for multiple problems was appropriate, and that the treatment at LRMC did not fall below the applicable standard of care because Mr. Williams had an unexpected event, was not a candidate for restraints and because the subsequent neurological changes were properly identified, documented and reported.

1T ¡After thoroughly reviewing the record, we find that the administrative remedy required to address the allegations made in the supplemental and amending petition has been exhausted, and that LRMC has failed to show that an administrative remedy remains available. Having made such determination, we find the plaintiffs’ first supplemental and amended petition for damages was not premature and that the defendant’s dilatory exception raising the objection of prematurity was properly overruled by the trial court. Accordingly, we hereby affirm the judgment of the trial court.

CONCLUSION

For the above and foregoing reasons, the May 11, 2004 judgment of the trial court, overruling the dilatory exception raising the objection of prematurity filed by Lakeview Medical Center, LLC, d/b/a Lakeview Regional Medical Center is hereby affirmed.

All costs of this appeal are assessed to the defendant/appellant, Lakeview Regional Medical Center, Inc. d/b/a Lakeview Regional Medical Center.

AFFIRMED.

      . Pursuant to a motion granted by this court on June 23, 2005, Julie Williams Harris was substituted as a plaintiff in this matter for her father, Franklin Jay Williams.

      . Notami Hospitals of Louisiana, Inc., d/b/a Lakeview Regional Medical Center, was also named as a defendant. However, pursuant to consent judgment rendered and signed on December 4, 2002, Notami Hospitals of Louisiana, Inc., d/b/a Lakeview Regional Medical Center was dismissed as a defendant in this suit.

      . It is undisputed by the parties that this pleading was only an "amended” petition, not a "supplemental” petition, as all of the claims set out therein were exigible on the date of the original petition was filed.

      . This judgment is incorrectly entitled "ORDER”.

      .Although a judgment overruling a dilatory exception raising the objection of prematurity is an interlocutory judgment (La.C.C.P. art. 1841), which is not appealable in the absence of a showing of irreparable injury (La.C.C.P. art. 2083), this court has determined that a judgment overruling a dilatory exception of prematurity and requiring a health care provider to forgo the benefit of a medical review panel is considered appealable in that the panel proceedings cannot be adequately replicated after reversal on appeal. McKnight v. D & W Health Services, Inc., 2002-2552 (La.App. 1st Cir. 11/7/03), 873 So.2d 18, 21; Lange v. Earl K. Long Medical Center, 97-1661 (La.App. 1st Cir.6/29/98), 713 So.2d 1195, 1196 n. 1, writ denied, 98-2061 (La.11/13/98), 730 So.2d 935; Cashio v. Baton Rouge General Hospital, 378 So.2d 182, 183 (La.App. 1st Cir.1979).
      In this case, LRMC initially filed an application for supervisory writs with this court; however, the writ panel of this court, citing McKnight v. D & W Health Services, determined that the trial court’s ruling was an appealable judgment, and therefore, ordered that this case be remanded to the trial court with instructions that it grant LRMC an appeal. See Williams v. Lakeview Regional Medical Center, 2004 CW 1216 (La.App. 1st Cir.6/28/04) (unpublished writ action).

      . Louisiana Revised Statute 40:1299.47(A)(1) was re-designated as 40:1299.47(A)(1)(a) by 2003 La. Acts, No. 961, § 1.

      . LRMC admits in paragraph 9 of its answer that these alleged failures were considered by the medical review panel.

      . 2003 La. Acts, No. 961, § 1, prospectively added (A)(l)(b)(vi) to La. R.S. 40:1299.47, but still only requires the request for review of a malpractice claim or a malpractice complaint to contain a "brief description of the alleged malpractice.”


author: | .DOWNING, J.

text:
    Shawna Terpening WESTCOTT v. Darin Keith WESTCOTT.
    No. 2004 CA 2298.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Robert McComiskey, Metairie, Counsel for Plaintiff/Appellant Shawna T. Westcott.
    Angela Wilt Cox, Slidell, Counsel for Defendant/Appellee Darin Keith Westcott.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   | .DOWNING, J.

Shawna Westcott appeals a judgment setting Darin Westcott’s child support obligation at $86.00 per month; she also appeals judgment awarding Darin the income tax exemption for two of their three minor children. For the following reasons, we affirm.

The first issue for review is whether the trial court erred in applying the formula set forth in LSA-R.S. 9:315.9 to determine the parents’ respective child support obligations. Shawna argues that this statute is inapplicable because their custody arrangement is not one of true shared custody as defined in LSA-R.S. 9:315.9 A(l). She contends that the children spend about 63% of their time with her.

LSA-R.S. 9:315.9 A(2)-(6), however, mandate a formula to be used to determine the child support obligation where the “joint custody order provides for shared custody.” LSA-R.S. 9:315.9 A(2). Here, the parents’ stipulation establishes joint custody, providing for shared custody, and this stipulation was made the order of the court. Despite Shawna’s arguments to the contrary, nothing in the statute’s mandatory formula is dependent on the parties’ meeting the statute’s definition of shared custody. Accordingly, the trial court did not err in employing the statutory formula.

The matter was heard before the trial court on April 19, 2004. The trial court accepted its court-appointed hearing officer’s application of LSA-R.S. 9:315.9 to calculate the respective child support obligations showing Shawna’s support obligation at $490.68 and Darin’s at $576.84. The difference of $86.16 was the recommended child support order.

Here, the trial court deviated from the statutory guidelines and gave oral reasons why he did so. When a court deviates from the guidelines, the court is required to give oral or written reasons for the deviation. LSA-R.S. |s9:315.1 B; also see Verges v. Verges, 01-0208, p. 11 (La.App. 1 Cir. 3/28/02), 815 So.2d 356, 364. In this case, the trial court articulated that it was aware that the parents spent unequal time with the three children. However, the trial court said that it considered how many meals each parent provided, and took into account the time each spend helping with homework. The trial court also stated that it relied on its court appointed experts, a hearing officer with a financial background and a social worker with many years experience, who spent many hours with the parties and considered many factors before making their recommendation. In using the fifty-fifty time split in the calculation, the trial court found that the experts factored in the unequal time actually spent due to sleeping but considered the children’s presence with each parent, the parents employment, and their overall participation in the children’s lives. The court also based its decision on the detailed findings contained in the record. We note particularly that the record contains a stipulation that the parties be awarded shared custody. Pursuant to LSA-R.S. 9:315.9, shared custody contemplates equal amounts of time. Accordingly, we conclude that this oral recitation of the court’s reasoning adequately explains reasons for deviating from the child support guidelines set forth in LSA-R.S. 9:315.1 B. See LSA-R.S. 9:315.1 C(8).

When the trial court deviates from the guidelines, it must include a finding as to the amount of support that would have been required under a mechanical application of the guidelines. LSA-R.S. 9:315.1 B. In this case, the trial court did not perform the mechanical application, but the necessary information is in the record, and this court has performed the calculation. The record reflects that the trial court varied from the guidelines in two respects. First, it made Darin responsible for the health care premiums and all childcare costs. Second, it used the fifty percent allocation rather than j 4the sixty-three percent allocation in determining the respective parents’ support obligation. According to our calculations, Darin’s child support obligation pursuant to the alternate formula would have been $178.93 more per month than the ordered $86.00 per month.

Considering these factors we find that the trial court was not manifestly erroneous in deviating from the guidelines as it did. See LSA-R.S. 9:315.17.

Shawna next argues that the trial court erred in allowing Darin to claim two of the three children as exemptions on his income taxes pursuant to LSA-R.S. 9:315.18. We note that the cited statute envisions situations where one parent is the designated custodial or domiciliary parent rather than situations where parents shared physical custody of their children. LSA-R.S. 9:315.18. We note that Darin’s income is approximately forty-percent higher than Shawna’s, so he garners a greater benefit from the deductions. Also, Shawna owes Darin $4,525.00 for arrear-age in child support. Generally, the trial court’s order is entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion. Campbell v. Campbell, 95-1711, p. 4 (La.App. 1 Cir. 10/10/96), 682 So.2d 312, 316. We thus conclude that it is reasonable and not an abuse of discretion for the trial court to allow Darin to claim two of the three children as exemptions on his taxes. Accordingly, we affirm the trial court judgment.

DECREE

Based on the above reasons, the judgment of the trial court is affirmed in all respects. The cost of this appeal is assessed to appellant Shawna Westcott. This memorandum opinion is issued in compliance with Uniform Court of Appeal Rule 2-16.1 B.

AFFIRMED.

GAIDRY, J., concurs.


author: | «DOWNING, J. hGAIDRY, J.,

text:
    Jacquelyn L. LACHNEY, Individually, and as Administratrix of and on Behalf of the Estate of James Dale Lachney, Jr. and as Tutrix of Their Minor Children, James William Lachney, Stephanie Lynn Lachney, and Jessica Larynn Lachney v. HANOVER INSURANCE COMPANY, Martin Boudreaux, Michael J. Bourg, Dugas Legal Investigative Services, L.L.C., Allstate Insurance Company, Continental Casualty Company and Progressive Insurance Company.
    No. 2004 CA 2316.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Writ Denied March 24, 2006.

      Terrence J. Hand, Ronald E. Lampard, Metairie, Counsel for Plaintiff/Appellant Jacquelyn L. Lachney, individually, and on behalf of estate of James Dale Lachney, Jr. and as tutrix of her minor children, James William Lachney, Stephanie Lynn Lachney, and Jessica Larynn Lachney.
    Todd A. Hebert, Houma, Counsel for Defendant/Appellee Allstate Insurance Company.
    Jason P. Lyons, Houma, Counsel for Defendant/Appellee Progressive Security Insurance Company.
    John W. Waters, Jr., New Orleans, Counsel for Defendant/Appellee Hanover Insurance Company.
    Sidney J. Angelle, Brant J. Cacamo, Counsel for Defendant/Appellee Martin Boudreaux, Michael Bourg and Hanover Insurance Co.
    Kirk L. Landry, Baton Rouge, Counsel for Intervenor — 2nd appellant Continental Casualty Company.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   | «DOWNING, J.

The sole issue in this appeal arises from a judgment wherein the trial court found that the uninsured/underinsured (UM) selection form used by Progressive Security Insurance Company (Progressive) was valid and enforceable. For the following reasons we affirm the trial court judgment granting Progressive’s motion for summary judgment.

Whether an insurance policy provides or precludes coverage is a dispute that is properly resolved within the framework of a motion for summary judgment. Richardson v. Lott, 03-0189, p. 5 (La.App. 1 Cir. 11/7/08), 868 So.2d 64, 69. The insurer bears the burden of proving that an insured rejected in writing UM coverage or selected lower limits. Id. The provisions of the UM statute were substantially amended effective September 6, 1998. After the effective date the selection/rejection choices were to be made on a form prescribed by the Commissioner of Insurance pursuant to LSA-R.S. 22:1406(D)(l)(a)(ii).

In this case, for some reason, two rejection forms were included in the policy at issue and the insured signed both forms. Plaintiffs argue that since two separate rejection forms were used in order to reject or select lower limits, both forms are invalid as a matter of law because the policy is thereby rendered ambiguous. We disagree. The first form signed by the insured is clearly not in compliance. The first form is defective, but the second form obviously attempts to cure the defective form. We disagree that this renders the policy ambiguous since both forms selected the same lower amount of UM coverage.

| ¿Plaintiffs next contend that the second form is invalid because it has been modified from the authorized form promulgated by the La. Insurance Commissioner. Specifically, they argue that the second form deviates from the promulgated form in four ways.

First, the form does not include the language, “[Tjhis form was promulgated pursuant to La. R.S. 22:1406 D(l)(a)(ii), and also, “[Tjhis form may not be altered or modified.” Plaintiffs contend that since these “magic words” were not included in the Progressive form it is therefore invalid.

Secondly, in the third sentence under selection choice number 1, the word funeral “costs” is used instead of funeral “expenses.”

Thirdly, in the paragraph below the signature section, the word “policy” is used two times successively and this is not found in the required form mandated by the Commissioner of Insurance.

Fourthly, the form has in the lower left hand corner the identification number of the form 8089, and this is not in compliance with the form mandated by the Commissioner of Insurance.

After carefully reviewing the UM selection/rejection form signed on July 27, 2001, by the president and legal representative, we conclude that the method of rejecting and/or selecting UM coverage satisfies the statutory requirements. The form clearly states that the policy will include UMBI coverage at the same limits as bodily injury liability coverage unless requested otherwise. The form clearly informs the insured that it can select UM coverage in an amount equal to the bodily injury limits of the policy, or an amount that will compensate for economic and non-economic losses with limits lower than the bodily injury liability coverage.

Although not exactly on point with this case, in Jones v. Jones, 36,040 (La.App. 2 Cir. 5/8/02), 817 So.2d 454, the court ruled that even though the ^prescribed form requires that the insurance company name and policy number be included on the UM form, this omission should not invalidate an otherwise valid form because it was clear that the insured wanted to reject UM coverage. Here, despite a number of technical errors, it is clear that the insured intended to choose UM coverage in a lesser amount than the liability policy limits. The form employed comports in every substantial way with the required statutory form.

Further, Blacks Law Dictionary (8lh ed.2004) provides that “prescribe” means to dictate, ordain, direct or to establish authoritatively (as a rule or as a guideline). It defines “promulgate” as to declare or announce publicly; to proclaim; to put a law into force and effect. These words are not synonymous. Thus, even though plaintiffs argue that the exact form promulgated by the Commissioner of Insurance was not used, they introduced no evidence to show that every word, including the superfluous language, was required by the Commissioner to make the form valid.

Accordingly, the assignments of error are without merit and we affirm the trial court judgment.

DECREE.

The trial court judgment granting Progressive Security Insurance Company’s motion for summary judgment is affirmed in accordance with Uniform Court of Appeal Rule 2-16.1 B. The costs of this appeal are assessed to plaintiffs/appellants.

AFFIRMED.

CARTER, C.J., concurs.

GAIDRY, J., concurs with reasons.

hGAIDRY, J.,

concurring.

I agree with the result reached herein, but I concur because of my disagreement with the rationale of Jones v. Jones, 36,040 (La.App. 2nd Cir.5/8/02), 817 So.2d 454, cited by the majority. The factual situation here is distinguishable from that of Jones, and in my view the result we reach is neither dependent on nor analogous to the result in Jones. Accordingly, I respectfully concur.

      . In 2003 the legislature re-designated the UM statute as LSA-R.S. 22:680. The Act also added language that a properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. LSA-R.S. 22:680(l)(a)(ii).


author: __y?ETTIGREW, J.

text:
    Barry GAUTHIER, Individually and as Natural Tutor of Jacob Gauthier and Bryce Gauthier v. Alton WILSON, Salvation Army, Liberty Mutual Ins. Co., Edward Trusclair, Divinity Transport, Inc., Penske Truck Leasing, Inc., Empire Indemnity Ins. Co. Allison Amoroso v. Alton Wilson, the Salvation Army, Divinity Transport, Inc., Penske Truck Leasing, Zurich Ins. Co., Empire Indemnity Ins. Co., and Edward Trusclair Nathan Ryan Landry v. Alton Wilson, the Salvation Army, Divinity Transport, Inc., Penske Truck Leasing, Zurich American Ins. Co., Empire Indemnity Ins. Co., and Edward Trusclair Amy and Brad Pace, Individually and on Behalf of Their Minor Child Lyndon Pace, and Amy Pace on Behalf of Her Minor Child, Blair Copeland v. Alton Wilson, the Salvation Army, Divinity Transport, Inc., Penske Truck Leasing, Zurich American Ins. Co., Empire Indemnity Ins. Co., and Edward Trusclair Christopher S. Evans, and Anita Evans, Individually and on Behalf of Their Minor Children, Zachary Evans, Mason Evans, and Parker Evans v. Alton Wilson, the Salvation Army, Divinity Transport, Inc., Penske Truck Leasing, Zurich American Ins. Co., Empire Indemnity Ins. Co., and Edward Trusclair Keith and Ardra Odendahl, Individually and on Behalf of Their Minor Child Brooke Odendahl v. Alton Wilson, the Salvation Army, Divinity Transport, Inc., Penske Truck Leasing, Zurich American Ins. Co., Empire Indemnity Ins. Co., and Edward Trusclair Norbert Russell Landry, III v. Alton Wilson, the Salvation Army, Divinity Transport, Inc., Penske Truck Leasing, Zurich American Ins. Co., Empire Indemnity Ins. Co., and Edward Trusclair Norbert Russell Landry, Jr. v. Alton Wilson, the Salvation Army, Divinity Transport, Inc., Penske Truck Leasing, Zurich American Ins. Co., Empire Indemnity Ins. Co., and Edward Trusclair.
    Nos. 2004 CA 2527, 2004 CA 2528, 2004 CA 2529, 2004 CA 2530, 2004 CA 2531, 2004 CA 2532, 2004 CA 2533, 2004 CA 2534.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Writ Denied March 31, 2006.

      Robert M. Marionneaux, Jr., Lewis O. Unglesby, Baton Rouge, for Plaintiffs-Ap-pellees Barry Gauthier, et al.
    Brian L. Williams, Baton Rouge, for Plaintiffs-Appellees Allison Amoroso; Nathan Ryan Landry; Amy and Brad Pace, et al.; Christopher Evans,, et al; Keith Odendahl, et al.; Norbert Russell Landry, Jr.; and Norbert Russell Landry, III.
    W. . Ransom Pipes, Baton Rouge, for In-tervenor State Farm Mutual Automobile Ins. Co.
    David T. Butler, Jr., Baton Rouge, for Intervenor American Interstate Ins. Company.

      Brenda H. Verbois, Franklin J. Foil, Baton Rouge, Howard B. Kaplan, Metairie, for Defendant-Appellant Empire Insurance Company.
    Frank Tomeny, III, Baton Rouge, for Defendant-Appellant Edward Trusclair.
    Todd Crawford, Susan A. Daigle, Lafayette, for Defendants-Appellants Alton Wilson and the Salvation Army.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   __y?ETTIGREW, J.

In this ease, defendant insurance company appeals from two separate judgments in which the trial court assessed over $85,000.00 in costs against it following a jury trial.

FACTS AND PROCEDURAL HISTORY

In these consolidated cases, the plaintiffs filed suit claiming damages resulting from personal injuries and four fatalities arising out of the same vehicular collision. Prior to the trial of this matter, several defendants were dismissed, leaving defendant insurance company, Empire Indemnity Insurance Company (“Empire”), as the sole remaining defendant for trial purposes. Following a lengthy trial, the jury returned a verdict in favor of the plaintiffs and against Empire, awarding plaintiffs damages totaling $6,931,555.42 and casting Empire for 60 percent of said damages plus judicial interest and costs. Thereafter, the plaintiffs filed two motions for costs, outlining the various costs associated with the trial of this matter. The court heard argument from the parties on July 26, 2004, and subsequently, on August 17, 2004, signed two judgments in accordance with its findings on the cost issue.

In the first judgment, concerning the motion to tax costs filed by the Gauthier plaintiffs (“the Gauthier judgment”), the trial court ordered that Empire pay a total of $62,808.91 in court costs for the following:

1. Filing fees with the clerk of court $ 2,023.10
2. Expert fees of Randy Rice, Economist $ 1,340.00
3. Deposition costs of Kaiser Court Reporting $ 842.43
4. Expert fees of Stress Dynamics, Accident Reconstruction $ 3,102.86
5. Expert fees of Fay Engineering, Accident Reconstruction $54,405.02
6. Deposition costs of Curren-Landrieu, LLC $ 1,095.50

In the second judgment (“the Amoroso judgment”), the trial court ordered that Empire reimburse the Amoroso plaintiffs $26,058.11 plus the actual costs paid to the East Baton Rouge Parish Clerk of Court (as determined by the Clerk). These costs were broken down into the following categories:

LDeposition costs of Kaiser Court Reporting $ 408.43 '
2. Expert fees of Stress Dynamics, Accident Reconstruction $12,588.56
3. Expert fees of Fay Engineering, Accident Reconstruction $ 9,741.12
M- Deposition costs for Dr. Michael A. Frierson $ 1,220.00
"oT Expert fees of Cary Rostow; Psychologist $ 2,100.00

It is from these judgments that Empire has appealed, assigning the following specifications of error:

I. The trial court erred in assessing deposition costs for depositions not used at trial, expert witness fees for experts who did not testify at trial and expert witness fees for time plaintiffs failed to prove was in preparation for trial.
II. The trial court erred in assessing 100% of the costs to defendant.

COSTS FOR DEPOSITIONS

On appeal, Empire argues that the costs awarded against it for the depositions of Alton Wilson, Linda Thomas, Edward Trusclair, Robert Cooper, and Mike Sutton should be disallowed because they were not used for trial purposes. Empire asserts that because only portions of these depositions were introduced rather than the entire depositions, the costs associated with same are not recoverable. Empire relies on La. R.S. 13:4533 and Moran v. Harris, 93-2227 (La.App. 1 Cir. 11/10/94), 645 So.2d 1248, as support for its position.

It is well settled in Louisiana that the trial court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Samuel v. Baton Rouge General Medical Center, 99-1148, pp. 7-8 (La.App. 1 Cir. 10/2/00), 798 So.2d 126, 131-132. The only costs taxable against a litigant are those provided for by positive law. Degruise v. Houma Courier Newspaper Corp., 2000-0229, p. 9 (La.App. 1 Cir. 3/28/02), 815 So.2d 1074, 1081, writs denied, 2002-1202, 2002-1179 (La.6/21/02), 819 So.2d 342, 345. Thus, in order to determine whether the costs of the depositions in question are taxable as costs against Empire, it is necessary that they fall within the purview of La. R.S. 13:4533, which provides as follows: “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” As set forth by the Louisiana Supreme Court in Succession of Franz, 242 La. 875, 139 So.2d 216, 218-219 (1962), the language of La. R.S. 13:4533 “is explicit and must be held to include all depositions, whether taken for proof of a claim or the defense of a claim, or for |7discovery purposes, provided the depositions are ‘used on the trial,” ’ which “the Legislature intended that their introduction and acceptance in evidence would constitute such use.” If a deposition is not so used at trial, the cost of that deposition, including the deponent’s fee for giving the deposition, may not be taxed as costs. Moran, 93-2227 at p. 3, 645 So.2d at 1250.

In the instant case, the record reflects that certain pages from the depositions 'of Linda Thomas, Edward Trusclair, Robert Cooper, and Mike Sutton were shown to the jury during the trial. We can find no requirement in either La. R.S. 13:4533 or applicable jurisprudence that the entire deposition be introduced in order for the cost of same to be taxable against a litigant. Thus, Empire’s argument to the contrary is without merit. However, our inquiry does not end here. We must determine whether these deposition excerpts were “used on trial” as contemplated by La. R.S. 13:4533.

Our review of the record reveals that excerpts from Mr. Sutton’s deposition were the only ones used at trial for impeachment purposes. See La.Code Civ. P. art. 1450. ■ The other deposition excerpts were simply introduced during expert testimony to support or corroborate the expert’s opinions, a use that does not, in this court’s opinion, satisfy the requirement of La. R.S. 13:4533. Moreover, with regard to the deposition of Alton Wilson, this court can find no reference in the record where any portions thereof were introduced and accepted in evidence. For these reasons, we agree that the cost associated with Mr. Sutton’s deposition ($452.10 of the $1,095.50 awarded in the Gauthier judgment for deposition costs of Curren-Landrieu, LLC) is a valid cost that can be taxed against Empire. However, the costs associated with the depositions of Linda Thomas, Edward Trusclair, Alton Wilson, and Robert Cooper ($842.43 in the Gauthier judgment and $408.43 in the Amoroso judgment) are not recoverable.

EXPERT WITNESS FEES

Empire argues on appeal that the plaintiffs did not produce the direct evidence necessary to support the court’s award of $65,146.14 for the testimony of Ric Robi-nette. Noting that some of Mr. Robi-nette’s expenses were for work done prior to trial that did not involve preparation for trial or actual trial testimony, Empire cites Wingfield v. State ex rel. Dept. of Transp. and Development, 2003-1740 (La.App. 1 Cir. 5/14/04), 879 So.2d 766, and Wampold v. Fisher, 2001-0808 (La.App. 1 Cir. 6/26/02), 837 So.2d 638, as support for its argument. Empire further asserts that the $15,691.42 ($3,102.86 in the Gauthier judgment and $12,588.56 in the Amoroso judgment) in costs associated with the fees for Mike James is not recoverable because Mr. James “was not called as an expert at trial, his deposition was not used at trial and he did not incur any time in preparing or testifying at trial.”

Louisiana Revised Statutes 13:3666 sets out the general rule regarding compensation of expert witnesses and provides, in pertinent part, as follows:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

In Wingfield, this court discussed the assessment of expert witness fees and explained what evidence a litigant must introduce to be successful on a motion to tax costs.

Experts are only entitled to reasonable fees and related costs. Neither the agreement between the hiring party and the expert, nor the bill submitted to the court, binds the court’s decision. Factors to be considered by the trial court in setting expert fees and related costs include: the time spent testifying at trial, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of work performed, and the knowledge, attainments, and skill of the expert. Additional considerations include the helpfulness of the expert’s testimony to the court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases. While an expert may receive fees for preparatory work, this is limited to the work done in preparation for trial, not consultations that only assist the attorney in his preparation for trial. Experts who testify by deposition may also have Rtheir fees taxed as costs, provided that their depositions have been introduced as evidence.
In setting expert fees and related costs for in-court time, such as testimony and depositions submitted at trial, the trial court may rely upon its own in-court observations and experiences, without further proof. However, for work done or expenses incurred outside the courtroom, such as time spent gathering facts in preparation for trial testimony and time spent away from regular duties, the- plaintiff in rule must submit competent and admissible evidence. Unless the parties stipulate to the specifics and costs of the out-of-court work, the expert must testify at the trial, or a subsequent hearing on the rule to tax costs, and be subject to cross-examination. Thus ... the mere assertions of an attorney and the expert via the submitted bill, even in conjunction with an expert’s affidavit attesting to the correctness and truth of the billing statement, are not sufficient. This is especially true for complex, protracted litigation that has produced high expert fees and related costs.

Wingfield, 2003-1740 at pp. 6-7, 879 So.2d at 770 (citations omitted). See also Wampold, 2001-0808 at pp. 2-4, 837 So.2d at 640-641.

Expert Fees of Mike James

A review of the two judgments in this case reveals that the trial court awarded a total of $15,691.42 ($3,102.86 in the Gauthier judgment and $12,588.56 in the Amoroso judgment) for the fees of Stress Dynamics, Inc. and Mike James. According to the record, Mr. James was hired as an expert by the Amoroso plaintiffs but was never called to testify at trial as the Amoroso plaintiffs relied instead on the testimony of the Gauthier plaintiffs’ expert, Mr. Robinette. Although portions of Mr. James’ deposition were referred to by other witnesses during trial, this does not satisfy the requirement that the deposition be “used on the trial” as set forth in La. R.S. 13:4533. Thus, the costs associated with Mr. James’ work on this case are not recoverable. See Moran, 93-2227 at p. 3, 645 So.2d at 1250.

Expert Fees ofRic Robinette

In the Amoroso judgment, the trial court ordered that Empire reimburse the Amoroso plaintiffs $9,741.12 for the costs they paid to Fay Engineering Corporation for Mr. Robinette’s testimony. According to the record, counsel for Empire objected to this amount as being “a little high” but conceded that $9,741.12 represented the Amoroso plaintiffs’ share of the costs associated with Mr. Robinette’s trial preparation and testimony. Given these circumstances and mindful of the great discretion we must afford Lothe trial Court in awarding expert witness fees, we find no error in the court’s award of $9,741.12 to the Amo-roso plaintiffs.

With regard to the Gauthier judgment, the court awarded the Gauthier plaintiffs $54,405.02 for Mr. Robinette’s fee. Although Mr. Robinette’s invoice does not appear in the record before us, it is clear from the record that a significant portion of the amount awarded as costs represented “work done or expenses incurred outside the courtroom” and that counsel for Empire did not “stipulate to the specifics and costs of the out-of-court work.” See Wingfield, 2003-1740 at pp. 6-7, 879 So.2d at 770. Moreover, Mr. Robi-nette did not testify at the hearing regarding the motion to tax costs. Without more direct evidence on the value of the out-of-court claims, and their relevance to Mr. Robinette’s opinion, the trial court had no basis to determine the reasonableness of these claims. Wingfield, 2003-1740 at pp. 8-9, 879 So.2d at 771. Accordingly, the court’s award of $54,405.02 for Mr. Robi-nette’s fees must be reversed and the matter remanded for either stipulations or an evidentiary hearing, and further proceedings consistent with this opinion.

ASSESSMENT OF COSTS

The jury verdict in the underlying trial on the merits found Empire’s insured to be 60 percent at fault. Empire argues that the trial court erred by casting all court costs against it, contending that it should have been cast with only 60 percent of the court costs in accordance with the jury’s allocation of fault.

While the assessment of costs may be made to reflect the percentage of negligence attributable to each party, the trial court may assess costs in any equitable manner pursuant to La.Code Civ. P. art. 1920. This article has been liberally interpreted as granting broad discretion to the trial court. Russell v. Snelling Personnel, 2001-2134, p. 9 (La.App. 1 Cir. 10/9/02), 835 So.2d 672, 678-679. Upon review, an appellate court will not disturb the trial court’s fixing of costs absent an abuse of the sound discretion afforded the trial court. MCI Telecommunications Corp. v. Kennedy, 2004-0458, p. 11 (La.App. 1 Cir. 3/24/05), 899 So.2d 674, 681. In the present case, we do not find the trial court abused its discretion in taxing Empire with all of the costs. The plaintiffs’ claims in the underlying action resulted in a jury verdict in the plaintiffs’ favor fybased on a substantial assessment of fault against Empire’s insured. Under these circumstances, we find no abuse of discretion in the trial court’s allocation of all costs against Empire.

CONCLUSION

For the above and foregoing reasons, we amend that portion of the Gauthier judgment that awarded $1,095.50 in deposition costs of Curren-Landrieu, LLC to reflect that only $452.10 are recoverable as costs associated with the deposition of Mike Sutton. We reverse the court’s award of $842.43 for the depositions of Alton Wilson, Linda Thomas, and Edward Trusclair. We reverse the award of $3,102.86 for the expert fees of Stress Dynamics, Inc. and Mike James. We reverse the court’s award of $54,405.02 for Ric Robinette’s fees and remand the matter for either stipulations or an evidentiary hearing, and further proceedings consistent with this opinion. In all other respects, the Gauthier judgment is affirmed. With regard to the Amoroso judgment, we reverse that portion of the judgment that awarded $408.43 for the depositions of Alton Wilson, Linda Thomas, and Edward Trusclair and we reverse the court’s award of $12,588.56 for the expert fees of Stress Dynamics, Inc. and Mike James. In all other respects, the Amoroso judgment is affirmed. All costs associated with this appeal are assessed equally amongst the parties.

GAUTHIER JUDGMENT REVERSED IN PART; AMENDED, AND AS AMENDED AFFIRMED; REMANDED. AMOROSO JUDGMENT REVERSED IN PART, AFFIRMED IN PART.

      . In an unpublished opinion rendered this same date, we addressed Empire’s appeal from tire judgment on the merits. See Gauthier v. Wilson, 2004-2045 through 2004-2052 (La.App. 1 Cir. 11/4/05), 913 So.2d 896.


author: | .GAIDRY, J.

text:
    Mamta Pani RAO v. Maheswar RAO.
    No. 2005 CU 1523.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Richard Ducote, New Orleans, Counsel for Plaintifi/Appellee Mamta Pañi Rao.
    Helen M. Edgington, Jack M. Dampf, Baton Rouge, Counsel for Defendant/Appellant Maheswar Rao.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   | .GAIDRY, J.

MEMORANDUM OPINION

The defendant-appellant, Maheswar Rao (Dr. Rao), appeals the judgment of the Family Court of the Parish of East Baton Rouge granting the request of the plaintiff-appellee, Mamta Pañi Rao (Mrs. Rao), to relocate with the parties’ minor children to Orlando, Florida.

The parties were divorced on July 18, 2002. At the time the relocation request at issue was made, the parties were sharing the physical custody of their minor children on an equal basis.

Dr. Rao contends that because in his view Mrs. Rao’s proposed relocation was “optional” rather than necessary, and motivated primarily by her desire to remove herself geographically from him and the former matrimonial domicile, it was not requested in good faith. He further contends that the trial court erred in failing to apply the burden of proof for change of custody mandated by Bergeron v. Bergeron, 492 So.2d 1193 (La.1986) and Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731.

We initially address the issue of Mrs. Rao’s good faith. A trial court’s determination in a relocation matter under La. R.S. 9:355.18 is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Curole v. Curole, 02-1891, p. 4 (La.10/15/02), 828 So.2d 1094, 1096. In Curole, similar concerns over the motivation of the relocating parent were raised by the objecting parent. Id., 02-1891 at pp. 6-7, 828 So.2d at 1097-98. Our review of the record in this matter demonstrates that there was substantially more factual support for the trial court’s judgment here than that of the trial court in Curóle. The supreme court in Curóle found no manifest error in the trial court’s finding of good faith. We also find no manifest error on the part of the trial court here.

13We next address Dr. Rao’s contention that the trial court’s judgment is legally erroneous in contravening the burden of proof for change of custody under Bergeron and Evans. Louisiana Revised Statutes 9:355.1 et seq., which govern relocation, were enacted in 1997 and amended in 2003. Thus, it cannot be presumed that the legislature enacted and amended these statutes in ignorance of the standard established by Bergeron and elucidated in Lungrin. Further, the supreme court’s failure to address the applicability of the holdings of either Bergeron or Evans in the context of relocation in Curóle is a compelling, albeit mute, indication that the standards of burden of proof established by the former cases do not apply in the special, limited circumstances of parent relocation specifically addressed by the legislature. We conclude that, to the extent Bergeron and Evans might somehow be applicable to determination of a relocation request and corresponding change in custody, the standards are inherent within the statutory relocation factors and requirements of good faith and best interest of the children as set forth in La. R.S. 9:355.12 and 9:355.13 respectively. See, e.g., Elliott v. Elliott, 05-0181, pp. 8-11 (La.App. 1st Cir.5/11/05), 916 So.2d 221, 227-29, 2005 WL 1109457, writ denied, 05-1547 (La.7/12/05), 905 So.2d 293; Peacock v. Peacock, 39,950, pp. 5-9 (La.App. 2nd Cir.5/4/05), 903 So.2d 506, 510-513.

The trial court’s written reasons for judgment thoroughly discuss the relevant facts of this contentious custody litigation, the applicable law, and the pertinent factors forming the basis of its judgment. Indeed, the trial court’s written reasons for both the judgment on the merits and the judgment on the new trial could well serve as a paradigm for all trial court reasons for judgment. A careful review of the record demonstrates that the trial court did not abuse its discretion in finding that the proposed relocation was made in good faith. The determination of whether the relocation is in the | ¿children’s best interest is more difficult. The statute does not mandate that any one factor be given more weight than another in the trial court’s analysis. Curole, 02-1891 at p. 6, 828 So.2d at 1097. Conversely, it does not prohibit the trial court from determining that one or more factors are entitled to more weight than others in comparing them and ultimately determining the issue. Although this court might disagree with the conclusions and the relative weight accorded some factors by the trial court, we simply cannot conclude that its ultimate decision constitutes a clear abuse of discretion.

The record of this matter amply demonstrates that this is a case of two loving parents who truly desire the best for their children despite their differences as to achieving that goal. The trial court had the benefit of direct observation of the parties and the difficult task of weighing credibility and the weight of all the evidence over the course of several years. Given that evidence and its well-articulated reasons for judgment, we cannot presume to second-guess the trial court’s considered judgment as to the best interest of the children.

The judgment of the trial court is affirmed. This memorandum opinion is issued pursuant to Rule 2-16.1(B) of the Uniform Rules of the Louisiana Courts of Appeal. The costs of this appeal are assessed to the defendant-appellant, Mahes-war Rao.

AFFIRMED.