author: PETTIGREW, J.

text:
    Thomas R. DENTON v. Pamela A. VIDRINE, American Deposit Insurance Company, La Sheriffs’ Automobile Risk Program, and State Farm Mutual Automobile Insurance Company. Pamela Vidrine v. Thomas R. Denton, Randall Andre in his Capacity as Sheriff for the Parish of West Baton Rouge—West Baton Rouge Parish Sheriffs Office, Louisiana Sheriffs’ Automobile Risk Program and XYZ Insurance Company.
    Nos. 2006 CA 0141, 2006 CA 0142.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Lewis O. Unglesby, Robert M. Marion-neaux, Harry L. Shoemaker, III, John P. Calmes, Jr., Baton Rouge, for Plaintiff-Appellee Thomas R. Denton.
    Ronnie J. Berthelot, Carlos Romanach, E. Wade Shows, Baton Rouge, for Defendant-Appellant State of Louisiana Through the Department of Transportation and Development (DOTD).
    Suzanne Willoughby Miller, Terry J. Butcher, Baton Rouge, for Defendants-Appellees State Farm Mutual Automobile Insurance Company and Pamela A. Vid-rine.
    Burt K. Carnahan, New Orleans, for Defendant-Appellee State Farm Mutual Automobile Insurance Company.
    Before: PETTIGREW, DOWNING, and HUGHES, JJ.
   PETTIGREW, J.

|3These consolidated eases, involving claims for damages resulting from personal injuries, arise out of the same vehicular collision. Following a lengthy trial, the jury returned a verdict in favor of the plaintiff, awarding damages totaling $5,285,908.00. The instant appeal followed. For the reasons set forth below, we affirm.

FACTS

On January 12, 1995, Thomas R. Den-ton, a reserve deputy with the West Baton Rouge Parish Sheriffs Office, was operating a 1991 Chevrolet Camaro owned by the sheriffs office. While traveling in a northerly direction on S. Winterville Street, Mr. Denton attempted to turn left and proceed westbound on U.S. Highway 190 (“Hwy.190”). At approximately the same time, Pamela A. Vidrine was operating her 1985 Toyota Tercel in an easterly direction on Hwy. 190 in the inside lane of travel alongside a pickup truck. As Mrs. Vidrine approached the intersection of Hwy. 190 and Winterville Street, she noticed Mr. Denton’s vehicle in front of her. She applied her brakes, ultimately colliding with Mr. Denton’s vehicle. As a result of this accident, both Mr. Denton and Mrs. Vid-rine sustained injuries.

PROCEDURAL HISTORY

Following this accident, two separate lawsuits were filed and later consolidated. In the Vidrine suit, Mrs. Vidrine named Mr. Denton, Randall Andre, in his capacity as Sheriff for the Parish of West Baton Rouge, the Louisiana Sheriffs’ Automobile Risk Program (“LSARP”), and an unnamed insurance company as defendants. Mrs. Vidrine subsequently filed a motion to dismiss her suit with prejudice. Thus, there are no issues pertaining to Mrs. Vidrine’s claims at issue in the instant appeal.

In the Denton suit, Mr. Denton initially filed a petition for damages on November 25,1995, against Mrs. Vidrine, her insurer, American Deposit Insurance Company 14(“American Deposit”), LSARP, and his own uninsured/underinsured insurance carrier, State Farm Mutual Automobile Insurance Company (“State Farm”). On February 20, 1997, Mr. Denton filed a motion to dismiss his claims against Mrs. Vidrine and her insurer with prejudice. The trial court signed the motion on February 21, 1997.

Subsequently, on April 21, 1997, Mr. Denton filed a first supplemental and amending petition against LSARP and State Farm adding a request for penalties and attorney fees pursuant to La. R.S. 22:658. On February 27, 1998, Mr. Den-ton filed a second supplemental and amending petition adding the State of Louisiana, through the Department of Transportation and Development (“DOTD”) as a defendant. DOTD answered the petition asserting, among other affirmative defenses, that Mr. Denton’s petition was prescribed.

An exception raising the objection of prescription was later filed by DOTD on October 18, 2004, the first day of the trial of this matter, and heard by the trial court that same day. Following argument by the parties, the trial court denied the exception, citing this court’s previous decision in Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459, 99-0460 (La.App. 1 Cir. 3/31/00), 764 So.2d 1041, writ denied, 2000-1265 (La.6/16/00), 765 So.2d 338; the trial proceeded through October 22, 2004.

After hearing extensive evidence, the jury returned a verdict in favor of Mr. Denton, assigning 52 percent of the fault to DOTD, 44 percent of the fault to Mrs. Yidrine, and 4 percent of the fault to Mr. Denton and awarding damages totaling $5,285,908.00 to Mr. Denton as follows: $90,000.00 (Past Medical Expenses); $167,043.00 (Future Medical Expenses); $1,907,068.00 (Future Life Care Expenses); $321,666.00 (Past, Present & Future Mental Pain and Suffering); $321,667.00 (Past, Present & Future Physical Pain and Suffering); $723,315.00 (Past Loss Wages); $1,433,482.00 (Future Lost Wages); and $321,667.00 (Loss of Enjoyment of Life). The jury further found that State Farm’s failure to make an unconditional payment on Mr. Denton’s claim had been neither arbitrary nor capricious. A final judgment in accordance with the jury’s findings was signed by the trial court on November 3, 2004. Said judgment further provided as follows:

| rJT IS FURTHERED (sic) ORDERED, ADJUDGED AND DECREED that the award for general damages as to the State of Louisiana are reduced to a combined $500,000.00 because of the statutory cap as to suits against the State of Louisiana.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the State of Louisiana is cast for 52% of the aforementioned amount plus judicial interest on those sums from the date of judicial demand and its share of court costs.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that State Farm Automobile Automobile (sic) Insurance Company as the uninsured/un-derinsured motorist carrier of the Thomas R. Denton Vehicle owes its policy limit of $50,000.00 plus court cost and interest from the date of judicial demand until paid.
Court Costs to be determined at a hearing in accordance with law as provided for by La. C.C.P. Article 1920.

DOTD subsequently filed a motion for judgment notwithstanding the verdict on November 10, 2004, which the trial court summarily denied on December 9, 2004. This appeal by DOTD followed.

ASSIGNMENTS OF ERROR

1. The Trial Court erred in denying DOTD’s Peremptory Exception Raising the Objection of Prescription.
2. The Jury Verdict and the Trial Court’s Final Judgment incorporating the Jury Verdict were manifestly erroneous in finding DOTD liable for the damages suffered by Thomas R. Denton because U.S. 190 did not present an unreasonable risk of harm to Thomas R. Denton and, even [if] U.S. 190 was unreasonably dangerous, the condition of U.S. 190 was not a cause-in-fact of the motor vehicle accident on January 12, 2005 and Thomas R. Denton’s subsequent injuries.
3. The Jury Verdict and the Trial Court’s Final Judgment incorporating the Jury Verdict were manifestly erroneous in assessing DOTD with 52% fault, Pamela Vidrine with liability and 44% fault, and Thomas R. Denton with only 4% fault because the cause-in-fact of the injuries to Thomas R. Denton was the grossly negligent conduct of Thomas R. Denton.
4. The Jury Verdict and the Trial Court’s Final Judgment incorporating the Jury Verdict were manifestly erroneous in awarding $5,285,908 in total damages to Thomas R. Denton because the evidence did not establish |fithat Thomas R. Denton suffered a stroke as a result of the January 12, 1995 motor vehicle accident.
5. The Trial Court erred in denying DOTD’s request to have a special jury interrogatory on the issue of whether the January 12, 1995 motor vehicle accident had caused Thomas R. Denton’s March 12,1995 stroke.
6. The Trial Court erred in denying DOTD’s motion for continuance following the belated disclosure by the Plaintiff, Thomas R. Denton, that he would call Dr. Michael Puyau as a medical expert to link the motor vehicle accident to the stroke.
7. The Trial Court erred in overruling DOTD’s objection that the testimony of Dr. Michael Puyau constituted an expansion of the pleadings.
8. The Trial Court erred in denying DOTD’s Motion in Limine To Exclude the Testimony of Sheriff Mike Cazes, to Compel and Continue because DOTD was precluded from discovering whether the personnel record of Thomas R. Den-ton during his tenure as a volunteer Sheriffs Deputy contained any information about how Thomas R. Denton described the accident to his superior, the Sheriff of West Baton Rouge.
9. The Trial Court erred in denying DOTD’s Daubert motion against Dr. Michael Payou (sic) because Dr. Payou (sic) testified that he did not rely upon any recognized methodology in linking the January 12, 1995 motor vehicle accident to the stroke Thomas R. Denton suffered on March 12,1995.
10. The Trial Court erred in denying DOTD’s motions for mistrial and for failing to adequately instruct the jurors when, during closing arguments, Plaintiffs counsel inflamed the jury by telling them that that DOTD would win if Vid-rine was not found liable or if DOTD was found 100% at fault.
11. The Trial Court erred in taxing costs against DOTD because the gross negligence of Thomas R. Denton was the cause-in-fact of his January 12, 1995 motor vehicle accident.

PRESCRIPTION (Assignment of Error No. 1)

The prescriptive period applicable in the case sub judice is the one-year liberative prescription for delictual actions, commencing the day the injury or damage is sustained. La. Civ.Code art. 3492. This statute, like all prescription statutes, is strictly construed against prescription and in favor of maintaining the cause of action. Babineaux v. State ex rel. Dept. of Transp. and Development, 2004-2649, p. 4 (La. App. 1 Cir. 12/22/05), 927 So.2d 1121, 1124. Prescription statutes are intended to protect defendants against stale claims and the lack of notification of a formal claim within the prescriptive period. Ordinarily, the burden of proof is on the party pleading prescription. However, if on the face of the petition it appears prescription has run, the |7burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. In re Brewer, 2005-0666, p. 4 (La.App. 1 Cir. 5/5/06), 934 So.2d 823, 826, writ denied, 2006-1290 (La.9/15/06), 936 So.2d 1278. In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. Our Lady of the Lake Hosp. v. Vanner, 95-0754, p. 3 (La.App. 1 Cir. 12/15/95), 669 So.2d 463, 464, cert denied, 525 U.S. 818, 119 S.Ct. 57, 142 L.Ed.2d 45 (1998).

On appeal, DOTD argues that because Mr. Denton’s suit was prescribed on its face, Mr. Denton was required to establish joint or solidary liability between DOTD and any remaining defendant in order for his claim against DOTD to remain viable. Moreover, DOTD contends that once Mr. Denton dismissed Mrs. Vidrine and American Deposit from the suit, any solidarity that may have existed between them and DOTD ceased and, consequently, any interruption of prescription occasioned by Mr. Denton’s timely filed suit against Mrs. Vidrine and American Deposit ceased also. DOTD maintains the trial court erred in relying on Doyle, noting in brief as follows:

Unlike the plaintiffs in Doyle, Denton amended his suit to add DOTD as a defendant more than a year after the sole joint tortfeasor and her insurer, Vidrine and American Deposit, had been dismissed with prejudice. Their dismissal resulted in the termination of any interruption of prescription based upon a timely filed suit against a joint tortfea-sor and her insurer. La. C.C. art. 3463. And, thus, Denton’s suit against DOTD filed over a year after Vidrine was dismissed was not timely filed. Therefore, the Trial Court’s reliance upon Doyle and denial of DOTD’s peremptory exception raising the objection of prescription were erroneous.

To the contrary, Mr. Denton cites Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 579 (La.1982), as support for his position that an uninsured motorist carrier is a solidary obligor with the tortfeasor. Mr. Denton notes further, “[t]hus, State Farm, as a UM carrier, is a solidary obli-gor, who was not dismissed at the time DOTD was added as a defendant, and is an obligor solidarily liable with DOTD.”

| sWe agree with Mr. Denton that Hoefly is controlling on the issue of the solidarity of the tortfeasor and the uninsured motorist carrier. In Hoefly, the Louisiana Supreme Court stated:

The question presented by this case is whether an automobile accident victim’s uninsured motorist carrier is solidarily obliged with the tortfeasor so that the victim’s timely suit against the latter interrupts prescription with regard to the insurer. The court of appeal affirmed the trial court’s judgment sustaining the insurer’s plea of prescription, holding that the plaintiffs’ timely suit against two tortfeasors, one uninsured and another underinsured, failed to interrupt prescription because the uninsured motorist insurer and the tortfea-sors were not solidary obligors. We reverse. An obligation is solidary among debtors when they are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor. When these characteristics result from provisions of law, as in the case of the obligation of the tort-feasor and uninsured motorist carrier, an obligation in solido exists without requiring an express declaration. Consequently, the plaintiffs timely and properly filed suit against the tortfeasors interrupted prescription as to his uninsured motorist carrier.

Hoefly, 418 So.2d at 576.

With regard to the trial court’s reliance on Doyle in denying the exception raising the objection of prescription, Mr. Denton argues that Doyle stands for the proposition that the interruption of prescription resulting from the proper filing of a suit continues as long as the suit is pending and is only lost when the plaintiff voluntarily dismisses the suit prior to trial. Thus, Mr. Denton maintains, because his suit was still pending at the time DOTD was added as a defendant, the filing of his suit against the original defendants interrupted prescription as to DOTD and that interruption was not lost when he dismissed Mrs. Vidrine and American Deposit as defendants. We agree.

In Doyle, the plaintiffs timely filed suit against a car manufacturer and the driver of another vehicle after their relatives were killed in a car accident. The plaintiffs filed a supplemental petition adding DOTD as a defendant four years after the accident. Later, the plaintiffs settled with the original defendants, who were dismissed from the suit. DOTD then filed an exception raising the objection of prescription, alleging the voluntary dismissal of the original defendants meant the supplemental petition could no longer relate back to the original petition for purposes of prescription. DOTD argued that it was a wholly new defendant and that the claims made against it were based on facts entirely ladifferent from those alleged in the original, timely filed petition. The trial court overruled DOTD’s exception. Doyle, 99-0459 at 2-5, 764 So.2d at 1042-1044

This court denied writs on the issue, citing La. Civ.Code art. 2324(C) and noting that “interruption was not lost by plaintiffs’ dismissal of the three original defendants.” Doyle, 99-0459 at 7, 764 So.2d at 1045. This court further cautioned that “dismissal of a particular defendant is not the same as the dismissal of the lawsuit.” Id. (citing Miller v. One Shell Square, 619 So.2d 1096, 1097-1098 (La.App. 4 Cir.1993)). Moreover, we concluded that because both “[t]he original and amending petitions involve the same accident, and both assert the defendants are at fault in causing that accident,” suit timely filed against the defendants in the original petition served to interrupt prescription against DOTD. Doyle, 99-0459 at 6, 764 So.2d at 1045.

Similarly, in the matter before us, both the original and amending petitions involve the same accident and assert that the named defendants were jointly at fault in causing the accident. Accordingly, pursuant to Article 2324(C) and our previous holding in Doyle, we find that the timely filed petition against the original defendants served to interrupt prescription on the claims asserted against DOTD. This assignment of error is without merit.

ALLOCATION OF FAULT (Assignments of Error Nos. 2 and 3)

In its brief to this court, DOTD asserts that because the original plans for Hwy. 190 were dated 1931, a time when there were no state or federal standards for design of highways, the standards to be followed for the construction for Hwy. 190 were those set out in the plans. DOTD maintains that it discharged its duty to the motoring public and further that the mere fact that an accident occurred does not render it liable to Mr. Denton. Citing La. R.S. 32:234, DOTD argues that “the presence of the flashing red light and stop sign which faced Denton and the flashing amber light which faced Vidrine (1) directed Denton to stop and to proceed from the stop sign only after he had ascertained |inthat it was safe to do so and (2) warned Vidrine to drive with caution as she approached the intersection of U.S. 190 and S. Winterville.”

In response to DOTD’s argument on this issue, Mr. Denton argues that when DOTD added two lanes of travel to Hwy. 190 in 1952, this was new construction that required DOTD to follow the standards in place at the time. Moreover, Mr. Denton cites to Hunter v. Department of Transp. and Development of State of La., 620 So.2d 1149 (1993), for the proposition that the section of Hwy. 190 at issue in this case was previously held by the Louisiana Supreme Court to be unreasonably dangerous to left-turning motorists. Thus, Mr. Denton contends, the jury’s finding with regard to the allocation of fault is not manifestly erroneous and should be upheld on appeal.

In Adams v. Parish of East Baton Rouge, 2000-0424, 2000-0425, 2000-0426, 2000-0427, p. 23 (La.App. 1 Cir. 11/14/01), 804 So.2d 679, 698, writ denied, 2002-0448 (La.4/19/02), 813 So.2d 1090, this court addressed the great discretion afforded to the trier of fact in its allocation of fault.

It is well settled that the allocation of fault is a factual matter within the sound discretion of the trier of fact and will not be disturbed on appeal in the absence of manifest error. If an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but then only to the extent of lowering or raising it to the highest or lowest point respectively that is reasonably within the trial court’s discretion. However, when there is evidence before the trial court that, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, the appellate court should not disturb this finding absent manifest error. [Citations omitted.]

InThe seminal case on the apportionment of fault between parties is Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). In Watson, the Louisiana Supreme Court identified various factors that may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actors, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. Watson, 469 So.2d at 974.

In the instant case, the jury determined that Mrs. Vidrine was 44 percent at fault, Mr. Denton was 4 percent at fault, and DOTD was 52 percent at fault. Applying the Watson factors set forth above, we have examined the jury’s assessment of fault as against each of the parties. Based on the facts of this ease, we do not find the jury’s assessment of fault constituted manifest error. Considering the record in its entirety, we are satisfied that it reasonably supports the jury’s conclusions. These assignments of error are without merit.

MOTION FOR CONTINUANCE (Assignments of Error Nos. 6, 7, & 9)

A continuance rests within the sound discretion of the trial court, and may be granted under La.Code Civ. P. art. 1601 “if there is good ground therefor.” The trial court must consider the particular facts of a case when deciding whether to grant or deny a continuance. The trial court should consider the diligence and good faith of the party seeking the continuance and other reasonable grounds, and may also weigh the condition of the court docket, fairness to the parties and other litigants before the court, and the need for orderly and prompt administration of justice. Absent a clear abuse of discretion in granting or denying a continuance, the ruling of the trial court should not be disturbed on appeal. Gilmore v. Wickes Lumber, 2004-2769, pp. 10-11 (La.App. 1 Cir. 2/17/06), 928 So.2d 668, 674.

According to the record, DOTD moved for a continuance on October 7, 2004, just eleven days before the trial of this matter was scheduled to begin. At the time of this 112request for continuance, counsel for DOTD argued to the trial court that it was not until Dr. Puyau’s September 8, 2004 deposition that DOTD first learned that Mr. Denton intended to have a medical expert testifying at trial as to a connection between the accident in question and Mr. Denton’s subsequent stroke. After hearing argument from the parties, the trial court denied the motion for continuance.

On appeal, DOTD challenges the trial court’s denial of its motion for continuance, arguing (1) that Dr. Puyau was not qualified to render an expert opinion pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, (1993), and (2) that Dr. Pu-yau’s testimony amounted to an expansion of the pleadings. We find no merit to these arguments.

Daubert Challenge

Article 702 of the Louisiana Code of Evidence provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Our supreme court has adopted the federal jurisprudential guidelines provided in Daubert to aid in interpreting Article 702 and to ensure that scientific and technical expert testimony meets minimal standards of reliability and relevance. See State v. Foret, 628 So.2d 1116, 1123 (La.1993).

The Daubert guidelines require that expert opinions be grounded in approved methods and procedures of science, rather than just subjective belief or unsupported speculation. The trial court must also ensure that the scientific “evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. at 2795. Before the expert opinion can be admitted, the trial court must make “a preliminary assessment that the reasoning or methodology underlying the testimony is scientifically valid” and of whether that reasoning or methodology properly can be applied to the facts at issue. Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796; Vardaman v. Baker Center, Inc., 96-2611, p. 6 n. 6 (La.App. 1 Cir. 3/13/98), 711 So.2d 727, 731 n. 6.

|iaTo fulfill the trial court’s gatekeeper function for proposed expert evidence, various factors may be considered by the trial judge: (1) whether the technique has been subjected to peer review or publication, (2) the “known or potential rate of error,” (3) a “reliability assessment,” in which the “degree of acceptance” within a scientific community may be determined and reviewed, and (4) the “testability” of the technique. Franklin v. Franklin, 2005-1814, p. 5 (La.App. 1 Cir. 12/22/05), 928 So.2d 90, 92, writ denied, 2006-0206 (La.2/17/06), 924 So.2d 1021.

It is well settled in Louisiana law that the admission of evidence, expert or otherwise, is subject to the trial court’s discretion. Fussell v. Roadrunner Towing and Recovery, Inc., 99-0194, p. 3 (La.App. 1 Cir. 3/31/00), 765 So.2d 373, 375, writ denied, 2000-1264 (La.6/23/00), 765 So.2d 1042. When considering the Daubert challenge by DOTD to Dr. Puyau’s testimony, the trial court noted as follows: “His testimony speaks for itself.” After a review of the instant record utilizing the Daubert guidelines, and considering relevancy and possible prejudice, we find that the trial court did not abuse its broad discretion in allowing Dr. Puyau’s expert testimony concerning the .connection between the accident in question and Mr. Denton’s stroke.

Expansion of Pleadings

It is well settled in Louisiana law that the trial court has much discretion under La.Code Civ. P. arts. 1151 and 1154 to allow a party to amend his pleadings. Moreover, the trial court has great discretion to admit or to disallow evidence, subject to an objection, based upon the scope of the issues and pleadings and to determine whether evidence is encompassed by the general issues raised in the pleadings. Muscarello v. Ayo, 93-2081, pp. 4-5 (La. App. 1 Cir. 10/7/94), 644 So.2d 846, 849. On appeal, this court will not disturb the orderly process of the trial court in this regard unless there is an abuse of discretion. Id.

Prior to the beginning of the instant trial, DOTD objected to “any attempts by Plaintiffs to expand the pleadings through the testimony of Dr. Puyau.” When asked to explain the objection, counsel for DOTD noted:

| 14[0]ur objection is that we maintain there is no eonnexity — no connection between the accident and the injuries suffered from the accident and the subsequent stroke suffered by Mr. Denton. Mr. Denton did not allege in his Petition against D.O.T.D. that he had suffered any stroke or brain damage as a result of the accident.

Counsel for DOTD added further:

We ... don’t think [Dr. Puyau’s] qualified ... we don’t think ... he can render an expert opinion in this case regarding the connection between the accident and Mr. Denton’s subsequent stroke, and secondly, we maintain that
any evidence attempting to connect the accident to the stroke is an expansion of the pleadings.

In response to DOTD’s objection, counsel for Mr. Denton argued as follows:

Judge, of course, you’ve already ruled on qualifications of ... Dr. [Puyau] to render an opinion. Secondly, in the initial Petition for Damages, paragraph nine says ... petitioner sues herein for all special and general damages ... including but not limited to, damages, physical pain and suffering, permanent injury and disfigurement, loss of enjoyment of life, mental, emotional anxiety and stress, past and future medical expenses, loss wages, future loss wages, and/or impaired future earning capacity, and all other damages related to the injury Petitioner sustained in the accident on January 12, 1995. That’s the opinion that Dr. Puyau rendered.

Dr. Puyau testified that immediately following the car accident, Mr. Denton had a 50 percent pneumothorax (collapse) of his left lung. According to Dr. Puyau, Mr. Denton complained of shortness of breath and pain on the left side of his chest for months after the accident and was seen in his office several times after his initial discharge. On March 9, 1995, Mr. Denton was readmitted to the hospital with left pleural effusion, a build-up of fluid around the lung, and dyspnea, shortness of breath. Dr. Puyau noted,

Basically, what happened to him on this second admission to the hospital, that I had put a chest tube in him to drain the fluid, and while he was in the hospital, he became septic, and — and went into— he developed what’s called septic shock. It was about his third day. He crashed. He became — his blood pressure dropped almost to unrecordable levels, and as a result of that, he had a stroke.

We find no abuse of discretion by the trial court in allowing Dr. Puyau to testify. It is clear from a review of the record that Dr. Puyau’s testimony describing Mr. Den-ton’s injuries was not an expansion of the pleadings. Mr. Denton filed the instant suit seeking damages caused by the January 12, 1995 accident — damages that included the injuries described by Dr. Puyau concerning Mr. Denton’s March 9, 1995 admittance to the hospital when he ultimately suffered a stroke.

INJURY INTERROGATORY (Assignment of Error No. 5)

In this assignment of error, DOTD contends it was prejudiced by the trial court’s erroneous denial of its requested special jury interrogatory asking jurors whether the accident in question was the legal cause of the stroke Mr. Denton suffered in March 1995. We find no merit to this argument.

It is well settled in Louisiana law that the determination of whether to submit interrogatories on each factual issue is a matter within the trial court’s broad discretion. Schramm v. Chaisson, 2003-2307, p. 12 (La.App. 1 Cir. 9/17/04), 888 So.2d 247, 254. Absent an abuse of that discretion, appellate courts will not set aside such a determination. Id. After examining the record in this matter, we find no abuse of the trial court’s broad discretion in not including DOTD’s requested special jury interrogatory.

DAMAGES (Assignment of Error No. 4)

DOTD argues on appeal that the evidence did not establish that Mr. Denton suffered a stroke as a result of the January 12, 1995 accident and, thus, the trial court’s judgment incorporating the jury verdict awarding damages totaling $5,285,908.00 was manifestly erroneous. Citing Maranto v. Goodyear Tire & Rubber Co., 94-2608, 94-2615, p. 3 (La.2/20/95), 650 So.2d 757, 759, DOTD maintains that Mr. Denton failed to satisfy his burden of proving, through medical testimony, that it is more likely than not that his stroke was caused by the accident. DOTD contends the “abusively high amount of damages” awarded by the jury “could only be based on the jury conclusion that the stroke was caused by the motor vehicle accident, a finding the jury was required to make in the absence of the aforementioned DOTD’s requested special interrogatory.”

A plaintiff bears the burden of proving the causal connection between an accident and injury (damage) by a preponderance of the evidence. Haydel v. Hercules Transport, Inc., 94-1246, p. 23 (La.App. 1 Cir. 4/7/95), 654 So.2d 418, 432, writ denied, 95-1172 (La.6/23/95), 656 So.2d 1019. Causation is a question of fact and, thus, subject to the manifest error standard of review. Haydel, 94-1246 at 24, 654 16So.2d at 432. In order to reverse a fact finder’s determination of fact, an appellate court must find from the record that a reasonable factual basis does not exist for the finding and that the record establishes that the finding is clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Based on our exhaustive review of the record before us, and mindful of the great deference we must afford the trier of fact, we find no manifest error in the jury’s finding that Mr. Denton’s injuries, including the stroke he suffered in March 1995, were caused by the January 12,1995 accident.

With regard to the amount of damages awarded, we note (as did Mr. Denton in his appellate brief), that DOTD does not make any specific claim concerning the amount of general damages awarded to Mr. Denton. Nonetheless, we have reviewed the damage award and, based on our review of the extensive medical evidence in the record, we find no abuse of discretion by the jury in the damages awarded. Given the “particular injuries and their effects under the particular circumstances” on Mr. Denton, the jury’s damage award is not beyond that which a reasonable trier of fact could assess. See Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

MOTION FOR MISTRIAL (Assignment of Error No. 10)

DOTD argues the trial court erred in refusing to grant its motion for mistrial. DOTD further contends that an alleged improper statement by Mr. Denton’s counsel during closing arguments inflamed the jury and that the trial court erred in not adequately instructing the jury to disregard the prejudicial remarks. We find no merit to these arguments.

Generally, mistrials are properly granted because of some fundamental failure in the proceeding. A motion for mistrial in a civil case should be granted under the following circumstances: (1) when, before the trial ends and the judgment is rendered, the trial judge determines that it is impossible to reach a proper judgment because of some error or irregularity; and (2) where no other remedy would provide relief to the |17moving party. Barnes v. Thames, 578 So.2d 1155, 1161 (La.App. 1 Cir.), writs denied, 577 So.2d 1009 (La.1991). Motions for mistrial should also be granted upon proof of prejudicial misconduct occurring during a jury trial that cannot be cured by admonition or instruction. Because a mistrial results in the discharge of one jury and the impaneling of another to try the case anew, it is a drastic remedy. The trial judge is vested with broad discretion to grant a motion for mistrial where no other remedy would afford relief or where circumstances indicate that justice may not be done if the trial continues. This court should not disturb the trial court’s determination unless there is an abuse of discretion. Hunter v. State ex rel. LSU Medical School, 2005-0311, p. 4 (La.App. 1 Cir. 3/29/06), 934 So.2d 760, 763, writ denied, 940 So.2d 653, 2006-0937 (La.11/3/06).

During cross-examination of DOTD’s expert, Dr. Joe Blaschke, counsel for Mr. Denton made the following statement:

In fact, sir, it’s a fact, isn’t it, that when you got here and you learned from [counsel for DOTD] that it’s advantageous to the State for Pamela Vidrine not to be at fault because of legal circumstances that you’ve now decided that she couldn’t see what was right In front of her?

DOTD and State Farm objected to the question and, outside of the presence of the jury, moved for a mistrial, arguing that the statement was highly prejudicial and absolutely improper. The trial court overruled the objection and denied the motion for mistrial, noting as follows:

What I’m about to say is not to suggest that this gentleman is telling anything other than the truth. But bias, prejudice, a reason, a motive for testifying consistent with any party is fair game. He has him under cross examination. And what he has testified to in other courts or in other situations, if it is relevant to this case, is information that can be elicited in front of the jury to show that he has changed his opinion for whatever reason or because of payment. It is classic cross examination.

As noted by the trial court, the aforementioned question was posed to attack the credibility of the witness. Thus, the trial court did not abuse its discretion in allowing this line of questioning to continue.

With regard to the alleged improper statement by Mr. Denton’s counsel during closing arguments, the record reflects the following:

11sThere are a few principles of law that you need to understand, though. And you may, for example, I would think, if I were a juror, I’d be curious as to why is the State working so hard and paying an expert to come here and try to exculpate Pamela Vidrine, who is insured with State Farm. I mean Pamela Vidrine is driving down the road straight ahead. If she’s looking straight ahead, she is not supposed to run into things in front of her. That’s not complicated. Under normal situations in the State’s defenses, they would be blaming Pamela Vidrine. It helps them in this case — no fault on Pamela Vid-rine — doesn't matter what else you do — • they win. That’s why Mr. Blaschke, who has never testified in 65 cases on behalf of a motorist who runs into somebody all of a sudden has decided in this case to have a different opinion. That’s why Mr. Berthelot, representing DOTD, has never said for a second that a lady driving the maximum speed into an amber light, on a highway that she’s familiar with, who has decided to box herself in because she’s interested in the truck next to her, has no fault. A hundred percent against the State and they will win this case and Thomas Denton will get nothing.

Counsel for DOTD objected, arguing, “That is beyond closing arguments, Your Honor, that is an instruction that the Court has to give. That is beyond closing arguments.” Counsel for Mr. Denton noted “It is the facts of the case and if you want to instruct on it, I don’t mind.” Counsel for DOTD countered, “We object to it because we think it has inflamed the Jury — it has prejudiced the Jury, Your Honor.” The trial court sustained the objection and allowed counsel for Mr. Denton to continue with his closing argument. We find no abuse of discretion by the trial court in this decision.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment below in all respects and assess appeal costs in the amount of $12,957.84 against the State of Louisiana, through the Department of Transportation and Development.

AFFIRMED.

      . According to the record, Hwy. 190 is a four-lane highway divided by a four-foot median. There are no turn lanes at the location in question.

      . On November 3, 2004, Mr. Denton filed a motion to tax costs, the outcome of which is the subject of a separate appeal also decided this date. See Denton v. Vidrine, 2006-0145, 2006-0146 (La.App. 1 Cir. 12/28/06), 2006 WL 3804621. In yet another appeal arising out of this case, Mr. Denton challenges the trial court's denial of his "Motion To Introduce Additional Evidence And To Fix Interest.” See Denton v. Vidrine, 2006-0143, 2006-0144 (La.App. 1 Cir. 12/28/06), 2006 WL 3813736.

      . Pursuant to Uniform Rules — Courts of Appeal, Rule 2-12.4, this court may consider abandoned any specification of error that is not briefed by a party. Accordingly, we will not address herein DOTD's assignments of error nos. 8 and 11.

      . In the instant case, the record indicates that counsel for Mr. Denton, over the objection of counsel for DOTD, introduced the depositions of Mrs. Vidrine and James Clary in support of their defense of the objection of prescription. However, this court has been unable to locate said depositions in this voluminous record. This evidence notwithstanding, the allegations contained in the petitions, which must be accepted as true for purposes of the prescription exception, are sufficient for this court to determine the issues before us.

      . Article 2324(C) provides that interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

      . The duties of a motorist faced with a flashing signal are outlined in La. R.S. 32:234(A) as follows:
      A. Whenever an illuminated flashing red or yellow signal is used in a traffic sign or signal, it shall require obedience by vehicular traffic as follows:
      (1) FLASHING RED (STOP SIGNAL)— When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest cross-walk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.
      (2) FLASHING YELLOW OR AMBER (CAUTION SIGNAL) — When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through or past such signal only with caution.


source: Caselaw Access Project

author:
GUIDRY, J.
      McCLENDON, J.,

license: Public Domain

text:
    Rachel ESKIND, Individually, and on Behalf of Her Daughter, Annette Verrett v. Carroll MARCEL, Carroll’s Heating & Air, Inc., and U.S. Agencies Casualty Insurance Company.
    No. 2006 CA 0369, 2006 CW 1185.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Scott A. Cannon, Slidell, Counsel for Third-Party Defendant/Appellant U.S. Agencies Casualty Insurance Company.
    Jerry H. Schwab, Danna E. Schwab, Houma, Counsel for Defendant/Third-Party Plaintiff/Appellee Carroll Marcel.
    Karla G. Spinella, Houma, Counsel for Plaintiff Rachel Eskind, individually, and on behalf of her daughter, Annette Ver-rett.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

|2An insurer appeals a summary judgment rendered in favor of its insured relative to the insured’s third-party demand against the insurer for the expenses associated with the insured retaining separate legal counsel to represent him for excess exposure in a personal injury suit.

FACTS AND PROCEDURAL HISTORY

On December 6, 2002, an accident occurred in which a motorist, Carroll Marcel (Marcel), struck eleven-year-old Annette Verrett (Annette) when she ran out into the roadway in the path of Marcel’s vehicle. Rachel Eskind (Eskind), Annette’s mother, later filed a petition for damages, individually and on behalf of Annette, on February 27, 2003, against Marcel asserting various claims relative to the injuries Annette sustained in the accident. Eskind also named as defendants in the petition, Carroll’s Heating & Air, Inc., based on the allegation that Marcel was acting in the course and scope of his employment with the company at the time of the accident, and U.S. Agencies Casualty Insurance Company (U.SAgencies), as Marcel’s liability insurer.

On April 4, 2003, counsel obtained by U.S. Agencies filed an answer on behalf of Marcel and U.S. Agencies, denying liability for the damages claimed in Eskind’s petition; however, in a letter dated April 3, 2003, Jill R. Green had advised Marcel that she had been assigned to defend him in the suit filed by Eskind. She further advised Marcel that based on the allegations in the Eskind petition, the damages sought might exceed the liability limits of the U.S. Agencies policy and that “a court could render judgment in excess of the policy limits” Uagainst him, for which excess amount Marcel would be personally responsible. Green therefore advised:

Although U.S. Agencies will pay our fees, which include defending you in accordance with the terms, conditions, and limitations of the policy, you have the right, at your own expense, to retain an attorney of your choosing. If you elect to retain your own attorney, this office will cooperate fully with that attorney.

Marcel thereafter retained Jerry H. Schwab (Schwab) to represent him in regard to his liability exposure in excess of the coverage provided under the U.S. Agencies policy.

On February 12, 2004, U.S. Agencies filed a “Motion for Declaratory Judgment,” wherein it sought a declaration from the court that it no longer had a duty to defend Marcel in the suit filed by Es-kind because the insurer had reached an agreement with Eskind to pay the policy limits and had tendered such payment. Thereafter, Eskind filed a motion seeking an order to dismiss the claims against U.S. Agencies with full prejudice, while “reserving their rights against all other parties.” The trial court signed an order of dismissal on March 24, 2004.

In response to the motion for declaratory judgment and the order of dismissal, Schwab officially enrolled as co-counsel for Marcel and filed a third-party demand on Marcel’s behalf against U.S. Agencies, wherein he alleged that U.S. Agencies had breached its duty to defend Marcel against Eskind’s claims. Thus, Marcel sought indemnification from U.S. Agencies “for all expenses, costs, and attorney’s fees which [he] has incurred, or which he may incur in defense of the original claim herein.” Marcel later amended the third-party demand to allege that U.S. Agencies breached its duty to defend and was in bad faith, that its actions were arbitrary, capricious, and without probable cause, and accordingly, that U.S. Agencies was hable for attorney’s fees, costs, expenses that Marcel incurred and | continued to incur, and such penalties as allowed by law. U.S. Agencies filed an answer denying the allegations of the original and amended third-party demands.

Thereafter, Marcel and U.S. Agencies filed cross motions for summary judgment, seeking a declaration from the court regarding U.S. Agencies’ duty to defend. At a hearing on the motions, the trial court denied the relief sought by U.S. Agencies and granted the motion for summary judgment filed by Marcel, awarding Marcel $18,954.10 in attorney’s fees and all costs associated therewith, together with legal interest due thereon from date of judicial demand until paid. U.S. Agencies suspensively appealed that portion of the judgment rendered in favor of Marcel and filed an application for supervisory writs relative to that portion of the judgment denying its motion for summary judgment. The writ application was referred to the panel herein for review in conjunction with the subject appeal. See Eskind v. Marcel, 2006-1185 (La.App. 1st Cir.8/7/06) (unpublished writ action). Hence, both matters will be addressed in the context of this appeal.

ASSIGNMENTS OF ERROR

On appeal, U.S. Agencies asserts that the trial court’s judgment is erroneous in the following respects:

(1) The Trial Court Erred by Ruling That [U.S. Agencies] Must Continue to Defend Carroll Marcel[;]
(2) The Trial Court Erred by Failing to Deny Carroll Marcel’s Motion for Summary Judgment as Premature;
(3) The Trial Court Erred by Failing to Deny Carroll Marcel’s Motion for Summary Judgment Because it Required the Weighing [of] Evidence;
|b(4) The Trial Court Erred in its Factual Conclusion That [U.S. Agencies’] Defense of Carroll Marcel Was So Poor That It Amounted to Bad Faith;
(5) The Trial Court Erred by Concluding that [U.S. Agencies] had to Hire an Attorney for Mr. Marcel to Oppose [U.S. Agencies’] Motion to Withdraw its Defense of Carroll Marcel;
(6) The Trial Court Erred by Awarding Carroll Marcel Attorney’s Fees.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Fagan v. LeBlanc, 04-2743, p. 5 (La.App. 1st Cir.2/10/06), 928 So.2d 571, 574. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

A motion for summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. Bilbo for Basnaw v. Shelter Insurance Company, 96-1476, p. 5 (La.App. 1st Cir.7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. Further, issues that require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Granda v. State Farm Mutual Insurance Company, 04-1722, pp. 4-5 (La.App. 1st Cir. 2/10/06), 935 So.2d 703, 707, writ denied, 06-0589 (La.5/5/06), 927 So.2d 326.

On appeal, summary judgments are reviewed de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Sunrise Construction and Development Corporation v. Coast 6Waterworks, Inc., 00-0303, p. 4 (La.App. 1st Cir.6/22/01), 806 So.2d 1, 3, writ denied, 01-2577 (La.1/11/02), 807 So.2d 235.

DISCUSSION

In its third assignment of error, U.S. Agencies asserts that the trial court improperly granted summary judgment in favor of Marcel. We agree. The summary judgment granted in favor of Marcel was predicated on a finding that U.S. Agencies had acted in bad faith in defending Marcel and in seeking to terminate its duty-to-defend obligation.

A liability insurer, in the absence of bad faith, is generally free to settle or to litigate at its own discretion, without liability to its insured for a judgment in excess of the policy limits. Gourley v. Prudential Property and Casualty Insurance Company, 98-0934, pp. 6-7 (La.App. 1st Cir.5/14/99), 734 So.2d 940, 944, writ denied, 99-1777 (La.10/8/99), 750 So.2d 969. However, a liability insurer is the representative of the interests of its insured, and when handling a claim against its insured must carefully consider not only its own self-interest, but also its insured’s interest, to protect the insured from exposure to excess liability. Lafauci v. Jenkins, 01-2960, p. 13 (La.App. 1st Cir.1/15/03), 844 So.2d 19, 28, writ denied, 03-0498 (La.4/25/03), 842 So.2d 403. The determination of good or bad faith regarding an insurer’s decision to proceed to trial or not involves the weighing of many factors, including the probability of the insured’s liability, the extent of the damages incurred by the claimant, the amount of the policy limits, the adequacy of the insurer’s investigation, and the openness of communications between the insurer and the insured. See Lafauci, 01-2960 at 13, 844 So.2d at 28-29. These factors were asserted by Marcel and considered by the trial court in support of Marcel’s motion for summary judgment. Thus, the trial court improperly granted summary judgment because in rendering the judgment, the trial court clearly had to determine the “reasonableness of [the] acts and conduct” of U.S. Agencies “under |7all facts and circumstances of the case” and conclude that U.S. Agencies had acted in bad faith. See Granda, 04-1722 at 4-5, 935 So.2d at 707; Bilbo for Basnaw, 96-1476 at 5, 698 So.2d at 694. In so finding, we pretermit consideration of the remaining assignments of error alleged by U.S. Agencies.

Likewise, we decline to exercise our supervisory jurisdiction with respect to U.S. Agencies’ writ application seeking reversal of that part of the trial court’s judgment denying its motion for summary judgment. The determination of whether U.S. Agencies should be released from its obligation to defend Marcel also depends on a determination of whether U.S. Agencies acted in good faith.

Finally, in answer to the appeal, Marcel requested that this court amend the judgment to award additional attorney’s fees for the work performed by counsel in defending the appeal, to assess penalties against U.S. Agencies for being arbitrary and capricious and for acting in bad faith, and to order U.S. Agencies to pay all costs incurred in this court and below. As we have ruled in favor of U.S. Agencies on its appeal, we deny the relief requested by Marcel in his answer to the appeal.

CONCLUSION

For the foregoing reasons, we reverse the summary judgment rendered in favor of Marcel. We also decline to exercise our supervisory jurisdiction to consider the writ application filed by U.S. Agencies. Further, we deny the request for additional damages and attorney’s fees submitted by Marcel in answer to the appeal. This matter is thus remanded to the trial court for further proceedings. All costs of this appeal are assessed equally to the parties.

JUDGMENT REVERSED IN PART, AFFIRMED IN PART, AND CASE REMANDED; WRIT APPLICATION DENIED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs, and assigns reasons.

|,To the extent that there are genuine issues of material fact in this matter as to whether U.S. Agencies fulfilled its fiduciary duties to its insured and whether U.S. Agencies’ attempt to withdraw its defense of the insured was in good faith, I concur with the result reached by the majority.

      . Jill R. Green and Michael H. Hogg of the law firm Hogg & Green submitted the answer on behalf on Marcel and U.S. Agencies.

      . Carroll's Heating & Air, Inc. separately answered the Eskind petition, denying any liability for the damages asserted. Jerry H. Schwab submitted the answer on behalf of Carroll’s Heating & Air, Inc.

      . The liability limits of the U.S. Agencies policy were $10,000 per person and $20,000 per accident.

      . Joseph R. McMahon (McMahon) filed the motion for declaratory judgment on behalf of U.S. Agencies.

      . This pleading was filed by McMahon.

      .The record reveals that U.S. Agencies withdrew its initial motion for declaratory judgment, observing that such relief properly should have been sought in a separate action; however, it later filed a cross motion for summary judgment again seeking a declaration from the court that its duty to defend Marcel had been extinguished once the policy limits had been exhausted upon payment of those limits to Eskind.


author: GUIDRY, J.

text:
    STATE of Louisiana v. Jamaal R. JOHNSON.
    No. 2006 KA 1235.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.

      Doug Moreau, District Attorney, Dylan Alge, Assistant District Attorney, Baton Rouge, Counsel for Appellee State of Louisiana.
    Katherine M. Franks, Slidell, Counsel for Defendant Appellant Jamaal R. Johnson.
    Jamaal Johnson, Harrisonburg, Defendant/Appellant In Proper Person.
    Before: PARRO, GUIDRY, and McClendon, jj.
   GUIDRY, J.

| ¿The defendant, Jamaal R. Johnson, was charged by bill of information with six counts of armed robbery in violation of La. R.S. 14:64 and two counts of possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1. He pled not guilty to all charges. Prior to the commencement of trial, the State severed counts 4-6 and 8 and elected to try the defendant only on counts 1-3 and 7 (three counts of armed robbery and one count of possession of a firearm by a convicted felon). Following a trial by jury, the defendant was convicted as charged. The defendant filed counseled and pro se motions for a new trial and post verdict judgment of acquittal. The trial court denied the pro se motion for a new trial and both counseled motions. Thereafter, the State filed a multiple offender bill of information seeking to have the defendant adjudicated a third felony habitual offender pursuant to La. R.S. 15:529.1. Following a hearing on the multiple offender bill, the trial court adjudged the defendant a third felony habitual offender on count one and sentenced him as follows: life imprisonment at hard labor on count one, sixty-five years at hard labor on counts two and three, and 15 years at hard labor on count seven. The trial court ordered that each of the sentences be served concurrently -without benefit of probation, parole, or | asuspension of sentence. The defendant now appeals urging the following assignments of error by counseled and pro se briefs:

Counseled:

1. The trial judge erred in failing to sustain the defense objection to the testimony of Kent Landacre when he purposefully and intentionally gave unresponsive answers to questions by both the state and the defense in order to introduce inadmissible “other crimes” evidence into the proceeding. The trial judge compounded the error when he permitted the deputy to expound on the answers, allowed the prosecutor redirect on the other crimes and later denied Jamaal Johnson’s post trial motion challenging the ruling.
2. Counsel was ineffective in failing to point out Detective Landacre’s pattern of unresponsive answers in order to bring inadmissible “other crimes” evidence before the jury and in failing to ask for a mistrial. Alternatively, counsel was ineffective should this court determine that it was defense counsel who elicited the other crimes evidence to the prejudice of his client.

Patent Error

1. The record does not reflect that Judge Marabella ruled on Jamaal Johnson’s timely filed pro se motion for post verdict judgment of acquittal prior to sentencing.
2. The trial judge’s reasons for judgment do not reflect the bases for the habitual offender adjudication.

Pro se:

1. Ineffective assistance of counsel — violation of constitutional right to compel attendance of witnesses.
2. Ineffective assistance of counsel — violation of constitutional right to testify on his own behalf.
3. Ineffective assistance of counsel — violation of constitutional right to due process of law based on counsel’s failure to request a mistrial.

Finding no merit in the assigned errors, we affirm the defendant’s convictions, habitual offender adjudication, and sentences.

FACTS

On October 12, 2004, at approximately 1:00 p.m., a black male entered the U.S. Agencies Casualty Insurance (U.S. Agencies) location at Sullivan and pGreenwell Springs Roads in Baton Rouge and requested an insurance quote. The man told Ryan Rice, an employee of U.S. Agencies, that he needed the quote for his cousin who lived in Missouri. When Rice advised him that U.S. Agencies did not offer insurance in Missouri, the man left.

Later that same day, at approximately 5:00 p.m., Rice was assisting Roxie Gana-way, a customer, when a different young black male, who Rice subsequently identified as the defendant, entered U.S. Agencies. Rice greeted the individual and told him he would be with him shortly. The man began impatiently pacing back and forth. The man then pulled out a gun, pointed it at Ganaway, and threatened to shoot her if she screamed. He then instructed Ganaway to get under the desk and demanded that Rice open the safe. Ganaway complied. Rice informed the gunman that the safe was operated by a time-delayed lock and could not be opened for approximately fifteen minutes. The gunman then moved Ganaway and Rice to a nearby bathroom to allow time to pass so that the safe could be opened. The gunman threatened to kill Ganaway, Rice, and himself if the police came. He then rummaged through Rice’s desk drawer, taking his keys, his cellular telephone, and approximately $250.00 cash found in a cash box. He also took cash from a cash box in another employee’s desk. He took Gana-way’s keys, cellular telephone, and cash that she had in her possession.

Meanwhile, Charles Wilson, another customer, entered U.S. Agencies. The gunman emerged from the restroom, where he had been holding Ganaway and Rice at gunpoint, and told Wilson “be with you in a second.” Wilson, who had come in to make an insurance payment, waited patiently. The gunman approached Wilson and forced him into the restroom with the others. The gunman took Wilson’s cellular telephone and the money he had in his hand. Approximately five minutes later, the gunman instructed Rice to “smash” the video surveillance equipment he found stored in an adjoining storeroom. Rice complied by picking |sup the digital recording equipment and throwing it onto the floor until it appeared broken. Rice eventually opened the safe and filled the blue nylon bag given to him by the defendant with all of its contents. The gunman fled, taking Rice’s fiancée’s Oldsmobile Alero that Rice had driven to work that day.

The beginning of the encounter was captured on videotape. The defendant was ultimately developed as a suspect. After being shown the video footage from U.S. Agencies, the defendant told the investigating officers, “he has clothes like me, but I can’t tell if — I mean, I can’t say if it is me. It looks like me, he has clothes like me, but I can’t say if it is me.” The defendant admitted that he had been using drugs and stated he could not recall what he had been doing at the time of the robbery.

At trial, the defense presented a theory of mistaken identity. Carol Johnson, the defendant’s mother, testified that her son visited the U.S. Agencies office early on the day in question. She stated that the defendant told her that he was going there to get a quote for a family member. She further testified that she was originally from Missouri and still had numerous relatives living there. Ms. Johnson viewed the footage captured in the U.S. Agencies surveillance camera. She testified that the young man with the white muscle shirt who entered U.S. Agencies early in the day was her son, the defendant. She denied that the individual seen robbing the victims inside the establishment was the defendant. Ms. Johnson testified that she never observed the defendant in clothing similar to that worn by the gunman in the video.

COUNSELED ASSIGNMENTS OF ERROR NUMBERS 1 AND 2

In these related assignments of error, the defendant argues the trial court erred in failing to sustain a defense objection when Detective Kent Landacre testified regarding inadmissible other crimes evidence. The defendant further notes that several times during his testimony, Detective Landacre was “purposefully and | ^intentionally unresponsive” to the questions posed to him. The defendant claims this was part of Detective Landacre’s calculated plan to introduce evidence of the defendant’s alleged implication in other robberies before the jury. The defendant argues that the jury’s awareness of the defendant’s implication in other armed robberies detrimentally impacted his defense of misidentification. The defendant claims his trial counsel was ineffective in failing to point out Detective Landacre’s pattern of unresponsiveness and in failing to move for a mistrial.

The defendant first cites a portion of Detective Landacre’s direct examination. He notes that, when asked the innocuous question of how he set up the meeting with Rice to view that photographic lineup, Detective Landacre responded as follows:

I believe I met him at his residence. And at the time I had five or six [lineups] because our procedure is is (sic) when we have a suspect for armed robbery we are investigating additional robberies so we show it to unsolved robberies where we have somebody who says they can identify them. So at the time when I showed a lineup I probably had six, maybe seven photo lineups generated to show additional victims from other robberies. But he [Ryan Rice] was actually the third person I showed that night... or the fourth person I showed that night.

The defendant also'complains of Detective Landacre’s response, on cross-examination, to an inquiry as to whom, besides Rice, was shown a photo lineup containing the defendant’s picture. The defendant claims that Detective Landacre’s response, wherein he indicated that he showed the lineup to “three victims from a Deangelo’s robbery[,]” again “implicated [the defendant] in inadmissible other crimes.”

Initially, we note neither of the aforementioned responses constitutes evidence of the defendant’s alleged involvement in any other armed robberies. At best, the testimony reflects that the defendant’s photograph was included in a lineup that was presented to victims of other robberies. The officer did not testify, nor did his responses imply, that any of the victims of the other robberies positively ^identified the defendant as the gunman. Thus, the responses in question were not unambiguous references to another crime committed or alleged to have been committed by the defendant. Furthermore, the record reflects that the defendant did not lodge a contemporaneous objection to either of the responses in question. Under La.C.Cr.P. art. 841 and La. C.E. art. 103(A)(1), a contemporaneous objection is required to preserve an error for appellate review. The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Hilton, 99-1239, p. 12 (La.App. 1st Cir.3/31/00), 764 So.2d 1027, 1035, writ denied, 2000-0958 (La.3/9/01), 786 So.2d 113. Irregularities or errors cannot be availed of on appeal if they are not objected to at the time of the occurrence. State v. Walker, 94-0587, p. 4 (La.App. 1st Cir.4/7/95), 654 So.2d 451, 453, writs denied, 95-1124, 95-1125 (La.9/22/95), 660 So.2d 470.

Next, the defendant points to a portion of Detective Landacre’s cross-examination wherein the defense counsel inquired about how the defendant was developed as a suspect. Detective Landacre replied, “[w]hen I came to work on the 25th of October my Lieutenant, Lieutenant Blackwell had informed me that the City Police had arrested an individual, Jamaal Johnson, for the armed robbery of Quizno’s. And it’s our standard procedure.... ” Counsel for the defendant and the defendant both contemporaneously objected to this response. The prosecutor argued that the witness was simply answering the question posed by defense counsel and requested that he be allowed to finish the response. In overruling the defense objections, the trial court noted that the evidence was brought out in response to defense questioning, as opposed to having been elicited by the State. The court stated, “[y]ou asked the question, Mr. Leblanc [defense counsel]. He is just answering the question.” Thereafter, Detective Lan-dacre again explained that the defendant had been arrested for a robbery at the Quizno’s Subs location at 1 sCoursey Boulevard and Sherwood Forest Boulevard. He further explained that when an individual is identified and arrested for a robbery, his photograph is routinely included in photographic lineups presented victims in other robberies.

Louisiana Code of Criminal Procedure article 770(2) provides for a mandatory mistrial when a remark, within the hearing of the jury, is made by the judge, the district attorney, or a court official, and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. Remarks by witnesses fall under the discretionary mistrial provisions of La.C.Cr.P. art. 771, which, in pertinent part, provides as follows:

In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.

A mistrial under the provisions of Article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. State v. Tran, 98-2812, p. 3 (La.App. 1st Cir.11/5/99), 743 So.2d 1275, 1280, writ denied, 99-3380 (La.5/26/00), 762 So.2d 1101. A mistrial is warranted when certain remarks are considered so prejudicial and potentially damaging to the defendant’s rights that even a jury admonition could not provide a cure. State v. Edwards, 97-1797, p. 19 (La.7/2/99), 750 So.2d 893, 906, cert. denied, 528 U.S. 1026, 120 S.Ct. 542, 145 L.Ed.2d 421 (1999). Mistrial is a drastic remedy that is authorized only where substantial prejudice will otherwise result to the accused. State v. Anderson, 2000-1737,9,p. 19 (La.App. 1st Cir.3/28/01), 784 So.2d 666, 682, writ denied, 2001-1558 (La.4/19/02), 813 So.2d 421. A trial court’s ruling denying a mistrial will not be disturbed absent an abuse of discretion. State v. Givens, 99-3518, p. 12 (La.1/17/01), 776 So.2d 443, 454.

In the instant case, the defendant contends the trial court erred in overruling his objection to the reference to the robbery at Quizno’s. He argues that the problem was further compounded when the prosecutor was allowed to repeatedly refer to the robbery at Quizno’s on redirect examination. Citing La.C.Cr.P. art. 770, the defendant asserts a mistrial was mandatory under the facts and circumstances of this case.

Ordinarily a police officer is not classified as a court official under State v. Watson, 449 So.2d 1321, 1328 (La.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985). The Louisiana Supreme Court has generally recognized that a police officer’s unsolicited, unresponsive reference to another crime by the defendant is not the comment of a court official under Article 770. Absent a showing of a pattern of unresponsive answers or improper intent by the police officer or prosecutor, such comments would not fall within the purview of Article 770. State v. Harris, 383 So.2d 1, 9 (La.1980); State v. Hammontree, 363 So.2d 1364, 1370-71 (La. 1978); See State v. Martin, 376 So.2d 300, 308 (La.1979).

Herein, while the defendant recognizes that a police officer is not typically considered a court official under Article 770, he asserts that because Detective Landacre’s testimony reflects a pattern of unresponsiveness and improper intent, the officer must be held to the same standard as a court official. Our review of the record does not reflect a pattern of unresponsive answers by the officer or any other showing of improper intent by the witness. The testimony in question was elicited by the defense, and, thus, there was no improper intent on the part of the | ^prosecutor. The State cannot be charged with testimony elicited by defense counsel. Thus, the officer’s testimony concerning the defendant’s implication in the robbery at Quizno’s, while constituting an improper reference to another crime, does not fall within the ambit of Article 770’s mandatory mistrial provisions. The permissive mistrial provision contained in Article 771 is applicable to this case.

In State v. Tribbet, 415 So.2d 182, 184 (La.1982), the police officer, while testifying on cross-examination by defense counsel, alluded to other crimes or arrests of the defendant. Citing State v. Kimble, 375 So.2d 924, 928 (La.1979), the supreme court reiterated its position that the state cannot be charged with testimony elicited by defense counsel implying that the defendant had previously committed the other crimes, and the defendant cannot claim reversible error on the basis of that which he elicited. State v. Tribbet, 415 So.2d at 184-185.

Applying the supreme court’s ruling in Tribbet to the instant case, we find no error in the trial court’s overruling the defense objection. Like the officer in Tribbet, Detective Landacre was being cross-examined by defense counsel when he referred to the defendant’s arrest in connection with the robbery at Quizno’s. Contrary to the defendant’s assertions in his brief, the answer provided was clearly responsive to the question asked. The response consisted of an explanation as to the officer’s development of the defendant as a suspect in the robbery at U.S. Agencies. The trial court did not err in refusing to charge the State with the testimony clearly elicited by defense counsel. Thus, we find no error or abuse of discretion in the trial court’s overruling the defendant’s objection.

These assignments of error lack merit. Ineffective assistance of counsel

It is well settled that a claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, if the record |1T discloses the evidence needed to decide the issue of ineffective assistance of counsel and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Williams, 632 So.2d 351, 361 (La.App. 1st Cir.1993), writ denied, 94-1009 (La.9/2/94), 643 So.2d 139.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. In assessing a claim of ineffectiveness, a two-pronged test is employed. The defendant must show that (1) his attorney’s performance was deficient, and (2) the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The error is prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. In order to show prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; State v. Felder, 2000-2887, pp. 10-11 (La.App. 1st Cir.9/28/01), 809 So.2d 360, 369-370, writ denied, 2001-3027 (La.10/25/02), 827 So.2d 1173. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

In the instant case, the defendant first argues his trial counsel was ineffective in failing to point out the “pattern of unresponsive responses” by Detective Landa-cre. As discussed in the previous assignment of error, the first two instances cited by the defendant were not unambiguous references to any crime or bad act by the defendant. The responses merely indicated that the defendant’s photograph was also included in lineups presented to other robbery victims. Thus, the only instance in the alleged “pattern” of unresponsiveness or improper intent was the reference to |12the robbery at Quizno’s. The defendant’s trial counsel objected to this particular testimony.

Insofar as the defendant argues his trial counsel was ineffective in asking the particular question that led to the witness’s response, we note that a defense attorney’s examination of witnesses falls within the ambit of trial strategy for purposes of evaluating an ineffectiveness claim. State v. Eames, 97-0767, p. 8 (La.App. 1st Cir.5/15/98), 714 So.2d 210, 216, writ denied, 98-1640 (La.11/6/98), 726 So.2d 922. See State v. Soler, 93-1042 (La.App. 5th Cir.4/26/94), 636 So.2d 1069, 1079, writs denied, 94-0475 (La.4/4/94), 637 So.2d 450, & 94-1361 (La.11/4/94), 644 So.2d 1055. It is well settled that allegations of ineffectiveness of counsel relating to decisions involving investigation, preparation, and strategy cannot possibly be reviewed on appeal. See State v. Martin, 607 So.2d 775, 788 (La.App. 1st Cir.1992). Only in an evidentiary hearing in the district court, where the defendant could present evidence beyond that contained in the instant record, could these allegations be sufficiently investigated. Accordingly, this allegation is not subject to appellate review. See State v. Albert, 96-1991, p. 11 (La.App. 1st Cir.6/20/97), 697 So.2d 1355, 1368-1364.

COUNSELED ASSIGNMENT OF ERROR NUMBER 3

In this assignment of error, the defendant correctly asserts that the record does not reflect that the trial court ruled on his timely filed pro se motion for post verdict judgment of acquittal prior to sentencing. In its appellee brief, the State concedes there was no ruling on the motion. The State agrees that the trial court’s failure to rule on the pro se motion warrants remand.

The record reflects, as the defendant correctly asserts, the defendant filed both a counseled and a pro se motion for post verdict judgment of acquittal. On February 1, 2006, the trial court denied the defendant’s counseled and pro se | ismotions for a new trial and his counseled motion for post verdict judgment of acquittal. The record does not contain a ruling on the defendant’s pro se motion for post verdict judgment of acquittal. Louisiana Code of Criminal Procedure artital 821(A) provides that a motion for post verdict judgment of acquittal must be filed and disposed of before sentence. Normally, the failure of the trial court to rule on this motion would be considered an error patent on the face of the record and would require that the sentences be vacated. See State v. Handley, 94-1313, p. 3 (La. App. 1st Cir.10/6/95), 662 So.2d 177, 178; State v. Magee, 496 So.2d 562, 563 (La.App. 1st Cir.1986). However, we do not find such action necessary under the circumstances of the instant case. Our review of the record reflects that both post verdict judgment of acquittal motions challenged the sufficiency of the state’s evidence of the defendant’s identity as the gunman. There was no ground raised or argument presented in one motion that was not present in the other. Thus, any error in the trial court’s failure to rule on the pro se motion was harmless. See La. C.Cr.P. art. 921. In denying the counseled motion, the trial court stated, “the court sat through a trial. The court heard the testimony. The court heard the testimony of the defendant’s mother who testified in the trial. The court instructed the jury. The jury came back with a verdict of guilty. The court believes that that was certainly a fair verdict for them to come back with. The court is certainly not going to disturb that jury verdict.” Thus, in denying the counseled motion, the court ruled on each of the grounds urged in the pro se motion.

This assignment of error lacks merit.

PATENT ERROR NUMBER 1

In this assignment of error, the defendant contends the trial judge’s reasons for judgment do not reflect the basis for the habitual offender adjudication. Specifically, the defendant claims that the written reasons for judgment issued by [ ufhe trial judge failed to state the offenses that formed the basis of the habitual offender adjudication.

The habitual offender bill of information contained in the record lists four predicate convictions as follows: 1) an August 18, 1995 simple burglary conviction (19th Judicial District Court docket number 10-94-560); 2) an August 8, 1995 simple burglary conviction (19th Judicial District Court docket number 01-95-2230); 3) an August 18, 1995 simple burglary conviction (19th Judicial District Court docket number 01-95-2751); and 4) a March 5, 1996 armed robbery conviction (19th Judicial District Court docket number 11-95-1849). The defendant makes much of the fact that the trial judge stated that he was considering three convictions that were entered on the same date but the bill of information lists only two convictions with the same date. While the defendant is correct in his notation of the typographical error contained in the habitual offender bill of information, the defendant is incorrect in his assertion that the “transcript is confusing.” Our review of the transcript of the habitual offender hearing reveals that any confusion as to the basis for the adjudication was clarified on the record. In finding the defendant to be a third felony habitual offender as to the conviction of armed robbery of Gana-way, the trial court specifically noted that the defendant pled guilty to “several counts” on the same date. Thereafter, the matter was further clarified by the prosecutor who advised the court that there were three convictions entered on the same date. The court then responded, “all right.” Thus, it is clear from the record, viewed in its entirety, that the habitual offender adjudication was based on the fact that the defendant had a 1996 armed robbery conviction (the existence of which he stipulated), and the three 1995 simple burglary convictions entered on the same date. The three simple burglary convictions were treated as | iSone conviction for purposes of the habitual offender statute. Because the trial court made clear on the record the basis of the third felony habitual offender adjudication, we find no error in the fact that the court did not specify each of the underlying predicate convictions in its written reasons for judgment.

This assignment of error lacks merit.

PRO SE ASSIGNMENTS OF ERROR NUMBERS 1, 2, AND 3

The defendant also submitted a pro se brief wherein he argues he received ineffective assistance of counsel at trial. In three assignments of error, the defendant claims that failure of his trial counsel to properly represent him affected the outcome of his case. He claims his counsel’s performance fell below the standard of care when he: 1) failed to call the defendant’s alibi witnesses to testify; 2) refused to allow the defendant to testify on his own behalf; and 3) failed to move for a mistrial after being notified that several state witnesses were observed “putting stories together” in violation of the court’s sequestration order. We find these assignments of error and their supporting allegations of ineffective assistance of counsel raised in the defendant’s pro se brief cannot be sufficiently investigated from an inspection of the record alone. The claims are best considered in their entirety by the trial court on post-conviction relief at an eviden-tiary hearing. The issue of the defendant’s failure to testify and the alleged violation of the court’s sequestration order involve circumstances outside of the instant record. Thus, there is no way for this court to review these claims. The decision of whether or not to call a certain witness at trial and the decision not to move for a mistrial, could involve matters of trial preparation and/or strategy. As previously noted, decisions relating to investigation, preparation, and strategy require an evidentiary hearing and cannot possibly be reviewed on appeal. These pro se assignments of error are not subject to appellate review.

|1fiFor all the foregoing reasons, the defendant’s convictions, habitual offender adjudication and sentences are affirmed.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATION AND SENTENCES AFFIRMED.

      . We observe that in the defendant’s pro se brief, he spells his first name "Jamal,” whereas throughout the record the defendant's first name is spelled "Jamaal.” For the purposes of this opinion, we will spell the defendant's first name as it is spelled in the record for consistency.

      . The record reflects that the defendant filed a pro se motion for post verdict judgment of acquittal and a counseled motion entitled "Motion for a Judgment N.O.V. or in the alternative, for a New Trial.” The transcript further reflects that the defendant filed a handwritten pro se motion for a new trial. A copy of the handwritten motion is not contained in the record. The record has been supplemented to include a copy of the counseled motion.

      . Louisiana Revised Statutes article 14:95.1(B) provides that whoever is convicted of the offense of possession of a firearm by a convicted felon "shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.” On count seven, the trial court sentenced the defendant to fifteen years at hard labor but failed to impose the mandatory fine. Because the trial court’s failure to impose the fine was not raised by the State in either the trial court or on appeal, we are not required to take any action. See State v. Price, 2005-2514, p. 22 (La.App. 1st Cir. 12/28/06), 952 So.2d 112, 124-25, 2006 WL 3805138 (en banc). As such, we decline to correct the illegally lenient sentence.

      . The defendant would have to satisfy the requirements of La.C.Cr.P. art. 924 et seq. in order to receive such a hearing.

      . Although the bill of information lists the date of this conviction as August 8, 1995, the minute entry introduced in support of the conviction reflects that the conviction occurred on August 18, 1995, the same date as the other simple burglary convictions.


author: BELSOME, J.

text:
    Lee Allen HAYNES v. Hollis T. JACKSON, Tax Assessor and Talmadge Bunch, Sheriff and Tax Collector for East Feliciana Parish.
    No. 2005 CA 2587.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2006.
    Jack Riffle, Baton Rouge, for Plaintiff/Appellee, Lee Allen Haynes.
    Brent K. Delee, Baton Rouge, for Defendant/Appellant, Hollis T. Jackson, Tax Assessor.
    William F. Dodd, Houma, for Defendant/Appellant Talmadge Bunch, Sherriff & Tax Collector.
    Before: BAGNERIS, KIRBY, and BELSOME.
   BELSOME, J.

LLee Allen Haynes (Haynes) is appealing the trial court’s granting of Assessor Holice T. Jackson, Jr.’s (Jackson) Peremptory Exception of Prescription.

FACTS

Haynes is a resident and property owner in East Feliciana Parish. On May 26, 2004, Haynes filed a petition alleging overpayment of property taxes and seeking a reimbursement. On November 4, 2004, Haynes supplemented and amended his petition to include other allegations against Jackson but again asking for reimbursement for overpaid taxes.

The lawsuit filed by Haynes arose from a dispute with the ad valorem tax bill for 2003. The taxes for 2003 were due on December 31, 2003. Haynes paid his tax bill on April 19, 2004, under protest. A Notice of Tax Appeal accompanied his tax payment. Haynes subsequently filed the petition seeking the reimbursement for overpayment on May 26, 2004.

Jackson filed a Peremptory Exception of Prescription based on Haynes’ noncompliance with La. R.S. 47:211o. The trial court granted the ^exception citing Louisiana Employers-Managed Ins. Co. v. Litchfield, 805 So.2d 886 (La.App. 1st Cir. 2001). This appeal followed.

LAW AND ANALYSIS

On appeal Haynes argues that the trial court erred in granting Jackson’s exception of prescription because he had properly and timely filed an action challenging the validity and/or legality of a change in a tax assessment pursuant to State ex rel. United Seamen’s Service Inc. v. City of New Orleans et al., 209 La. 797, 25 So.2d 596 (1946). In United Seamen’s Service, the issue was whether the property in question was legally exempt from taxation. Id. We find those facts distinguishable from the instant case. As the trial court stated, Haynes’ original and supplemental and amending petitions, seek a judgment determining the amount of taxes overpaid and an order for reimbursement. Therefore, we find the trial court was correct in finding that La. R.S. 47:2110 and Litchfield, supra, are controlling.

In Litchfield, the taxpayer brought an action to recover taxes paid under protest. However, the taxes paid under protest were delinquent. La. R.S. 47:2101 requires that ad valorem taxes are due in the calendar year of the assessment. Under the facts of Litchfield the taxes were assessed in 1999 and therefore due on or before December 31, 1999. The payment under protest was not made until May 18, 2000. Even though the taxpayer filed suit for reimbursement within the 30 days required by La. R.S. 47:2110, the Litchfield court, following the holding in Capital Drilling Co. v. Graves, 496 So.2d 487 (La. App. 1st Cir.1986) and Comm-Care Corporation v. Louisiana Tax Commission, 681 So.2d 1001 (La.App. 1st Cir.9/27/96), found that La. R.S. 47:2101 must be read in pari materia with 47:2110. The 1¿result is that a taxpayer waives the right to litigate if their ad valorem taxes are not paid timely.

In sum, Haynes paid the ad valorem taxes assessed in 2003 on April 19, 2004 rather than by December 31, 2003, which made them delinquent under La. R.S. 47:2101(A)(1). Subsequently Haynes filed suit for reimbursement on May 26, 2004, well past the 30 days mandated by La. R.S. 47:2110. Thus, Haynes ability to litigate the overpayment of his taxes was prescribed.

For the reasons set forth we do not find that the trial court erred in granting the exception of prescription filed by Holice T. Jackson, Jr.

AFFIRMED.

      . La. R.S. 47:2110 states in part:
      Suits to recover taxes paid under protest
      A.(1) No court of this state shall issue any process whatsoever to restrain or render any decision that shall have the effect of impeding the collection of an ad valorem tax imposed by the state, or by any political subdivision thereof, under authority granted to it by the legislature or by the constitution.
      (2)(i) Any person resisting the payment of any amount of tax due shall pay the amount due to the officer designated by law for the collection of such tax and shall give him, the parish or district assessor, and the Louisiana Tax Commission written notice at the time of payment of his intention to file suit for the recovery of such tax. Upon receipt of such notice, the amount so paid shall be segregated and held by the officer for a period of thirty days. If a suit is timely filed contesting the correctness of the assessment pursuant to R.S. 47:1998 and seeking the recovery of the tax, then that portion of the taxes paid that are in dispute shall be deemed as paid under protest and such amount shall be segregated and shall be further held pending the outcome of the suit. That portion of the taxes paid by the taxpayer to the officer which is neither in dispute nor the subject of a suit contesting the correctness pursuant to R.S. 47:1998, shall not be made subject to the protest.
      (ii) The parish or district assessor or the tax commission may have adjudicated or file a rule to show cause compelling a taxpayer who has paid taxes under protest to specify the amount of taxes that the taxpayer deems to be in dispute. The court shall then order the release of any monies that are not shown by the taxpayer to be in dispute.
      (3) If the taxpayer prevails, the officer shall refund the amount to the taxpayer with interest at the actual rate earned on the money paid under protest in the escrow account during the period from the date such funds were received by the officer to the date of such refund. If the taxpayer does not prevail, the taxpayer shall be liable for the additional taxes together with interest at the rate set forth above during the period from the date the notice of intention to file suit for recovery of taxes was given to the officer until the date such taxes are paid.
      B. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of such right respecting the legality of any tax accrued or accruing or the method of enforcement thereof. In any such suit, service of process upon the officer or agency designated and provided for in R.S. 47:1998(A)(2) or (B)(3) or Subsection A of this Section shall be required.
      C. The right to sue for recovery of a tax paid under protest as provided herein shall afford a legal remedy and right of action at law in the state or federal courts where any tax or the collection thereof is claimed to be an unlawful burden upon interstate commerce, or in violation of any act of the Congress of the United States, the Constitution of the United States, or the constitution of the state. Upon request of a taxpayer and upon proper showing by such taxpayer that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, the taxpayer, upon agreement to abide by the pending decision of the courts, may pay the additional assessment under protest but need not file an additional suit.
      D. An assessment valuation shall be challenged only pursuant to the method or procedures as provided first in R.S. 47:1992, then R.S. 47:1989, and finally R.S. 47:1998.

      . La. R.S. 2101 reads in pertinent part:
      Time for payment; notice when due
      A. (l)(a) All taxes shall be collected in the calendar year in which the assessment thereof is made, and they shall be designated as the "taxes for the year __”, accordingly as they are collectible, and the taxes assessed in each year shall be due in that calendar year as soon as the tax roll is filed in the office of the recorder of mortgages, except taxes on movable property in the event of a bulk sale under the provisions of the Bulk Sales Law, and they shall be paid on or before the thirty-first day of December in each respective year in order to avoid the notice, advertisement, and sale required by Article VII, Section 25 of the Constitution of Louisiana. In the event of a bulk sale of movable property under the provisions of the Bulk Sales Law, all taxes due on movable property shall be due ten days prior to completion of the transfer or the payment of any consideration therefor and shall be payable upon completion of the bulk sale.