author: HUGHES, J.

text:
    Cheryl BROWN, M.D. v. KIDNEY AND HYPERTENSION ASSOCIATES, L.L.P.
    No. 2008 CA 0919.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 2009.

      Robert A. Barnett, New Orleans, LA, for Plaintiff/Appellant, Cheryl Brown, M.D.
    Stephen D. Marx, Metairie, LA, for Defendants/Appellees, Kidney and Hypertension Associates, L.L.P.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.
   HUGHES, J.

|2This is an appeal from a trial court judgment dismissing an action on grounds of abandonment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On December 2, 2003, plaintiff Cheryl Brown, M.D. filed a “Petition for Writ of Mandamus/Suit for Accounting and Damages” in the 22nd Judicial District Court, alleging: a one-third ownership interest in the defendant partnership, Kidney and Hypertension Associates, L.L.P. (Associates), the failure of Associates to make monetary distributions to her in accordance with her ownership interest, the refusal of Associates to provide financial records for her review, and resulting damages. Dr. Brown sought injunctive relief to compel Associates to comply with obligations associated with the partnership agreement and an award of damages.

On February 5, 2004, Associates responded to the suit, filing exceptions of no cause of action and unauthorized use of a summary proceeding, further answering in denial of Dr. Brown’s allegations, and filing a reconventional demand asserting a damage claim for Dr. Brown’s alleged breach of her employment contract. In these pleadings, Associates admitted that an offer of partnership had been extended to Dr. Brown in June 2003, however, it was asserted that she had never accepted the offer and the articles of partnership had not been amended.

Thereafter, on April 20, 2004, Dr. Brown responded with an “Opposition to ‘Exceptions.’ ” Then, on April 26, 2004, Associates filed a “Reply Memorandum in Opposition to Plaintiffs Opposition to Exception.”

No further filings appear in the trial court record until April 27, 2007, when Dr. Brown filed, by facsimile, a motion to consolidate the action with three other lawsuits pending before the trial court on related matters (the 13court received the original signed document on May 1, 2007 in accordance with LSA-R.S. 13:850 ).

On May 15, 2007, Associates filed an “Ex Parte Motion to Dismiss on Grounds of Abandonment,” asserting that Dr. Brown had taken no step in the prosecution of the lawsuit since April 26, 2004 and that by operation of LSA-C.C.P. art. 561, the suit was abandoned. Following an August 17, 2007 hearing on the motion, the trial court signed a judgment on September 11, 2007 in favor of the defendant, dismissing the plaintiffs suit.

Dr. Brown has appealed this judgment, and on appeal urges the following assignments of error:

1. Evidence exists that demonstrates prosecution of this matter occurred within the statutory three year period.
2. The trial court failed to properly recognize evidence of activity that occurred outside of the Court’s docket/record.
3. The trial court failed to recognize the delays to prosecute this claim due to the effects of Hurricane Katrina.
4. Evidence exists that demonstrates prosecution of this matter occurred within the statutory five year period as a result of the effects of Hurricane Katrina.

Additionally, on appeal, Dr. Brown filed a motion to remand asserting that “on or about April 19, 2008” her counsel discovered additional evidence |4“that demonstrated that activity did occur within a three year period” and requesting this court to remand for admission and consideration of this evidence by the trial court.

LAW AND ANALYSIS

In support of its finding of abandonment, the trial court issued written reasons for judgment in this case, which stated in pertinent part as follows:

Defendant argues that this case is abandoned pursuant to Louisiana Code of Civil Procedure Article 561 because no step in the prosecution or defense of this matter has been taken since April 26, 2004. On that date, the defendant filed a reply memorandum in opposition to plaintiffs opposition to exceptions. Defendant argues that the next action in the case occurred on April 27, 2007 when plaintiff filed by facsimile a Motion and Order to Consolidate. If this contention is correct, clearly, the three year period has run.[]
Plaintiff argues that the case is not abandoned because discovery has been, on-going in this case and in other separate cases involving the same parties but pending in different divisions of the 22nd Judicial District Court. Further, plaintiff submitted to the Court a copy of discovery along with a copy of a cover letter dated August 15, 2004 and addressed to defendant’s counsel. Unfortunately, neither the letter nor the discovery was filed into the record. This discovery does not bear a certificate of service indicating the date upon which it was mailed to defense counsel. The signature of plaintiffs counsel does not appear on the copies of the letter or the discovery. Faced with these inadequacies, the Court rejects the plaintiffs argument that the date of August 15, 2004 is the date upon which the abandonment period should commence.
The Court’s review of the record in this matter demonstrates that a reply memorandum was filed by defense counsel on April 26, 2004. Defendant’s exception was set for hearing on April 27, 2004. However, the record reflects that there was no appearance by counsel in court on April 27, 2004, and the hearing was continued without date. The jurisprudence indicates that an unopposed motion to continue without date is not a step in the prosecution. See Oliver v. Oliver, 671 So.2d 1081 (La.App. 3 Cir. 1996). The next action of record in the case occurred on April 27, 2007 when plaintiffs counsel filed by facsimile a Motion and Order to Consolidate, a clear step in the prosecution. A certificate of service bearing the date of April 27, 2007 appears on this motion.
|,BLouisiana Code of Civil Procedure article 561 provides that a plaintiff must take some “step” towards the prosecution of his or her lawsuit. A “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Next, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Lastly, the step must be taken within the legislatively prescribed time period of the last step taken by either party (8 years). See Clark v. State Farm Mutual Auto. Insurance Company, 785 So.2d 779, 784 (La.5/15/01).
After considering the law, the record in this matter, the arguments of counsel, and the memoranda filed by the parties, this Court finds that the three year abandonment period commenced on April 26, 2004 by the filing of the defendant’s reply memorandum. Therefore, the plaintiff should have taken a step in the prosecution of this action by April 26, 2007. The next step actually taken was on April 27, 2007 when plaintiff filed by facsimile the Motion and Order to Consolidate. The Court therefore finds that more than three years lapsed without a step in the prosecution, and the case is therefore abandoned....
* * *
Furthermore, the Court recognizes that an action which may be otherwise abandoned may be insusceptible to a claim of abandonment “when the defendant waives his right to assert abandonment by taking action inconsistent with an intent to treat the case as abandoned.” Id. at 785. Plaintiff argues that the discovery being conducted in other cases not consolidated with this case are actions by the defendant which have waived defendant’s right to assert abandonment. While steps in the other cases cited by plaintiffs counsel may have served as a step in this case, had there been some written agreement to consolidate discovery, consolidate the cases, or even to use the discovery in all cases, no such evidence has been presented to the Court....

On denying Dr. Brown’s motion for new trial, the trial court issued the following additional reasons for finding this suit abandoned:

On November 5, 2007, the Court received a faxed letter from defense counsel Stephen Marx wherein he stated that he again reviewed his file and did not find any indication that he received a letter or any document from plaintiffs counsel at or around August 15, 2004. Mr. Marx also attached to his letter a copy of a letter dated April 27, 2004 which he received from plaintiffs counsel. The Court has reviewed this letter of April 2004 and finds that it does not offer any additional information which is relevant to the issue of abandonment. The letter references a continuation of defendant’s exceptions (which is clearly not a step in the prosecution of the action), a status conference which apparently was never scheduled or conducted, and it contains a statement that additional pleadings | (¡would be filed later in the week. Consequently, the Court finds that the letter is not a step in the prosecution of the matter and does not interrupt the abandonment period which had commenced, as already found by this Court, on April 26, 2004.
Further, at the hearing on October 31, 2007, plaintiffs counsel stipulated that he had no further evidence to offer to the court. However, in memorandum, plaintiff makes two arguments.
Plaintiffs first argument is that a Request for Production of Documents was attached to counsel’s unsigned letter of August 15, 2004. As discussed extensively in this Court’s prior reasons for judgment, this document is also unsigned and has no certificate of service. Plaintiffs counsel did not produce the original discovery request in support of his motion for rehearing but explained that his office practice is to sign and mail original pleadings and retain unsigned copies in his file. Plaintiffs counsel has failed to offer any evidence or proof that the letter and discovery request were mailed or served upon defense counsel. Although Louisiana jurisprudence has established that discovery does not have to be filed in the record of the proceeding, plaintiff must prove or demonstrate that the discovery was in fact forwarded to opposing counsel. Because the discovery document is unsigned, lacks a certificate of service, and was not received by the defendant, the document is insufficient to prove that a step to interrupt abandonment was taken in the prosecution of this matter.
Plaintiffs second argument is that counsel’s practice suffered from the effects of Hurricane Katrina and cites Louisiana Code of Civil Procedure Article 561(A)(2) as support for his argument that the matter is not abandoned. Louisiana Code of Civil Procedure Article 561(A)(2) provides in pertinent part as follows:
“If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years, unless it is a succession proceeding ...” (Emphasis added.)
In his memorandum, counsel submits that not all of his legal files were lost nor was the ability to practice law so severely [affected] to put him out of business. The Court finds that counsel did not demonstrate in a specific manner how the hurricanes prevented plaintiff from taking a step in the prosecution of this particular matter. Instead, counsel only made general references to the overall effects of the hurricanes |7which were experienced in some form or the other by all who practice law.
For the reasons set forth above and those previously enumerated in its prior Reasons for Judgment, this Court finds that the matter is abandoned.

Whether or not a step in the prosecution of a case has been taken in the trial court for a period of three years is a question of fact subject to a manifest error analysis on appeal. Lyons v. Dohman, 2007-0053, p. 4 (La.App. 3 Cir. 5/30/07), 958 So.2d 771, 774 (citing Bias v. Vincent, 2002-642, p. 5 (La.App. 3 Cir. 12/11/02), 832 So.2d 1153, 1156-57, writ denied, 2003-0112 (La.3/21/03), 840 So.2d 542). On the other hand, whether a particular act, if proven, precludes abandonment is a question of law that we review by simply determining whether the trial court’s interpretative decision is correct. Id. (citing Jackson v. BASF Corporation, 2004-2777, p. 3 (La.App. 1 Cir. 11/4/05), 927 So.2d 412, 415, writ denied, 2005-2444 (La.3/24/06), 925 So.2d 1231, and Olavarrieta v. St. Pierre, 2004-1566, p. 3 (La.App. 4 Cir. 5/11/05), 902 So.2d 566, 568, writ denied, 2005-1557 (La.12/16/05), 917 So.2d 1118).

Abandonment is both historically and theoretically a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim. Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010, p. 11 (La.5/15/01), 785 So.2d 779, 787. The policy underlying Article 561 is the prevention of protracted litigation that is filed for purposes of harassment or without a serious intent to hasten the claim to judgment. See Chevron Oil Company v. Traigle, 436 So.2d 530, 532 (La.1983).

Abandonment is not a punitive measure; it is designed to discourage frivolous lawsuits by preventing plaintiffs from letting them linger indefinitely. Benjamin-Jenkins v. Lawson, 2000-0958, p. 3 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, 895, writ denied, 2001-1546 (La.9/14/01), 796 So.2d 681.

Dismissal of a lawsuit is the harshest of remedies. The law favors and justice requires that an action be maintained whenever possible so that the aggrieved party has his day in court to which he is entitled. Any action or step taken in a case to move the case toward judgment should be considered. Dismissal of those cases in which the plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon his lawsuit is not warranted. Breaux v. Auto Zone, Inc., 2000-1534, p. 3 (La.App. 1 Cir. 12/15/00), 787 So.2d 322, 324, writ denied, 2001-0172 (La.3/16/01), 787 So.2d 316.

Nevertheless, the mere intention to take a step in the prosecution or defense of a claim without having actually taken such a step is insufficient to interrupt the abandonment period. Benjamin-Jenkins v. Lawson, 2000-0958 at p. 4, 781 So.2d at 895. Moreover, no post-abandonment action(s) by a plaintiff can revive an abandoned action. Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010 at p. 15, 785 So.2d at 789.

Louisiana Code of Civil Procedure Article 561 governs abandonment and currently provides, in pertinent part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years....
|8(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
* * *
(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
* * *

To prevent abandonment, LSA-C.C.P. art. 561 imposes three requirements on plaintiffs. First, plaintiffs must take some “step” towards prosecution of their lawsuit. A “step” is a formal action before the court that is intended to hasten the suit towards judgment, or is the taking of formal discovery. Second, the “step” must be taken in the court where the suit is pending, and except for formal discovery, must appear in the suit record. Third, the “step” must be taken within the legislatively prescribed time period. Jackson v. BASF Corporation, 2004-2777 at pp. 4-5, 927 So.2d at 416. See also Breaux v. Auto Zone, Inc., 2000-1534 at p. 3, 787 So.2d at 324.

Any formal discovery in a case is considered a step in the prosecution, whether or not filed in the record, provided it has been served on all parties. Brister v. Manville Forest Products, 32,386, p. 4 (La.App. 2 Cir. 12/15/99), 749 So.2d 881, 884. This requirement of service is in keeping with the concept of notice, which the supreme court recently explained is intended to ensure notice to the defendant of actions taken that interrupt abandonment; otherwise, actions interrupting abandonment could occur without opposing parties formally learning of them for months or years, to their possible prejudice. Paternostro v. Falgoust, 2003-2214, pp. 6-7 (La.App. 1 Cir. 9/17/04), 897 So.2d 19, 23, writ denied, 2004-2524 (La.12/17/04), 888 So.2d 870 (citing Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010 at p. 17, 785 So.2d at 790). However, if a party has properly mailed a discovery request to another party, the failure to file a certificate of service in the record does not render the service ineffective; such service still constitutes a step in the prosecution and averts a dismissal for abandonment. See Brister v. Manville Forest Products, 32,386 at p. 4, 749 So.2d at 884.

In the instant case, the plaintiff alleges that he served the defendant with discovery during the pertinent time period, which prevented the case from being abandoned; however, no proof of service of that discovery appears in the record. In conjunction with his motion for abandonment, defense counsel filed an affidavit into the record stating that he had not received anything “by mail, facsimile or otherwise which might be construed as an action in the prosecution or defense of this case since April 26, 2004.”

In response to the motion for abandonment filed by defendant in the trial court, plaintiffs counsel filed a copy of a letter on August 29, 2007, which was dated August 15, 2004 and had an attached request for production of documents, which had allegedly been sent to defense counsel. The documents filed contained no certificate of service and were unsigned. Plaintiffs counsel admitted to the court, during oral argument of the matter, | tl“I cannot prove that I mailed it.” In light of this admission and the defendant’s denial that the August 15, 2004 discovery request was received, the trial court ruled that Dr. Brown failed to prove that the discovery request had actually been served on the defendant. After a thorough review of the record, we can find no error in this ruling.

Dr. Brown contends on appeal that the evidence “clearly demonstrated that defense counsel did, in fact, have contact with undersigned counsel during the three year period.” (Emphasis added.) In support of this contention, Dr. Brown cites both a letter dated April 27, 2004, which was allegedly faxed to defense counsel, and other activities associated with a proceeding pending before the Louisiana Office of Disciplinary Counsel (ODC) brought by Dr. Brown’s husband (Robert Tilgham) against defense counsel’s law firm.

We find no merit in this argument, as it is clear from a plain reading of LSA-C.C.P. art 561 that mere “contact” with opposing counsel is insufficient to prevent abandonment of an action. A litigant must take some “step” in the prosecution or defense of the case in the trial court that hastens |12the case toward judgment. See Lemlem v. Adams, 2004-0281, p. 4 (La.App. 1 Cir. 2/11/05), 906 So.2d 481, 488-84; Breaux v. Auto Zone, Inc., 2000-1534 at p. 3, 787 So.2d at 324. Neither the action by Dr. Brown’s husband before the ODC, nor the simple correspondence between opposing counsel in this case constitute a “step” in the prosecution of this case. Steps taken in a separate action do not satisfy Article 561’s requirements, and an informal letter requesting cooperation in moving a case forward cannot be construed as formal discovery; both are insufficient to prevent abandonment. See Lemlem v. Adams, 2004-0281 at p. 5, 906 So.2d at 484, and Naccari v. Namer, 2001-2410, p. 5 (La.App. 4 Cir. 2/6/02), 809 So.2d 1157, 1160.

Next, Dr. Brown contends on appeal that the effects of Hurricane Katrina call for application of Paragraph (A)(2) of LSA-C.C.P. art. 561, providing for a five year abandonment period, in this case. Paragraph (A)(2) states that “if’ a party “proves” that the failure to take a step in the prosecution or defense of an action “was caused by” or was “a direct result” of Hurricane Katrina or Rita, the action is not abandoned until a period of five years from the failure to take a step in the prosecution or defense of the action.

A review of the record presented on appeal reveals that counsel for Dr. Brown made no allegation or argument regarding the effects of Hurricane Katrina in either his written opposition to defendant’s motion for dismissal on account of abandonment, his written motion for new trial, or at either hearing held before the trial court. It was not until a “Supplemental | ^Memorandum in Opposition to Motion to Dismiss/Post-Hearing Memorandum in Opposition to Motion to Dismiss” was filed that counsel for Dr. Brown first presented his assertion that his law practice had been affected by the effects of Hurricane Katrina. The trial court, in his written reasons (quoted in full hereinabove), found no merit in this argument, stating that counsel “did not demonstrate in a specific manner how the hurricanes prevented plaintiff from taking a step in the prosecution of this particular matter.”

Mere allegations of being affected by Hurricanes Katrina or Rita are insufficient to sustain the burden of proof under LSA-C.C.P. art. 561(A)(2). Lambert v. Roussel, 2007-1109, p. 9 (La.App. 1 Cir. 5/2/08), 991 So.2d 8, 13, writ denied, 2008-1193 (La.9/19/08), 992 So.2d 933. In this case, the trial court record contains only the allegations of Dr. Brown’s counsel that his law practice was affected by Hurricane Katrina; no evidence of these assertions was introduced into the record as required by LSA-C.C.P. art. 561(A)(2). Therefore, Dr. Brown has not established entitlement to the longer period of abandonment provided by LSA-C.C.P. art. 561(A)(2). See Liner v. Ippolito, 2008-0208, pp. 4-8 (La. App. 4 Cir. 8/20/08), 991 So.2d 1150, 1153-55; Fontenot v. Tidewater, Inc., 2008-0180, pp. 2-3(La.App. 4 Cir. 7/30/08), 990 So.2d 1280, 1282.

Dr. Brown has also filed a motion for remand in this court, asserting that new evidence has been discovered after the instant appeal was taken that “demonstrated that activity did occur within a three year period.” Dr. Brown asserts that proof has been located to establish that the correspondence from her counsel to defense counsel on April 27, 2004 was in fact transmitted by facsimile. Dr. Brown also asserts that additional evidence regarding the action brought before the Office of Disciplinary Counsel has been 114discovered. Further, Dr. Brown requests this court to remand to allow the introduction into evidence of her counsel’s affidavit recounting how Hurricane Katrina’s effects hindered the discovery of these items of evidence.

As discussed hereinabove, we have concluded that activities related to the ODC action and the April 27, 2004 correspondence between counsel, while they may have evidenced “contact” between the parties, are insufficient to satisfy the requirements of LSA-C.C. art. 561, requiring a litigant to take some “step” in the prosecution or defense of the case in the trial court that hastens the case toward judgment. See Lemlem v. Adams, 2004-0281 at p. 4, 906 So.2d at 483-84; Breaux v. Auto Zone, Inc., 2000-1534 at p. 3, 787 So.2d at 324. Therefore, we also conclude that the introduction of evidence to prove this “contact”, which does not also constitute a “step” in the prosecution of this action, would not be relevant to the merits of the issue of an Article 561 abandonment. Accordingly, we find no merit in Dr. Brown’s motion for remand.

CONCLUSION

For the reasons assigned herein, we deny the motion to remand and affirm the judgment of the trial court; all costs of this proceeding are to be borne by plaintiff/appellant, Cheryl Brown, M.D.

MOTION TO REMAND DENIED; JUDGMENT AFFIRMED.

      . The facsimile filing of a pleading in a civil action has the same force and effect as the original when the requirements of LSA-R.S. 13:850 have been met; this statute provides:
      A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
      B. Within five days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
      (1) The original signed document.
      (2) The applicable filing fee, if any.
      (3) A transmission fee of five dollars.
      C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.
      D. The clerk may purchase equipment and supplies necessary to accommodate facsimile filings out of the clerk’s salary fund.

      . In computing a period of time allowed or prescribed by law or by order of court, the date of the act, event, or default after which the period begins to run is not to be included. The last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day that is not a legal holiday. LSA-C.C.P. art. 5059. Applying Article 5059 to the instant case, results in April 26, 2007 being the last day of the three-year period for taking some step in the prosecution or defense of this matter.

      . The only other categories of causes outside the record that satisfy the jurisprudential exceptions to the abandonment rule are: (1) a plaintiff-oriented exception, based upon contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiff’s control: and (2) a defense-oriented exception based upon acknowledgement that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with intent to treat the case as abandoned. Jackson v. BASF Corporation, 2004-2777 at p. 5, 927 So.2d at 416. (In cases where the exceptional circumstances giving rise to a contra non valentem argument arise as a result of Hurricanes Katrina or Rita, the specific legislation found in LSA-R.S. 9:5822, LSA-R.S. 9:5824, [and LSA-C.C.P. art. 561(A)(2)] supercedes the general jurisprudential exception. Harris v. Stogner, 2007-1451, pp. 2-3 (La.11/9/07), 967 So.2d 1151, 1152.)

      . The April 27, 2004 letter does not appear in the trial court record, but is attached to plaintiffs motion before this court for remand, discussed hereinbelow, and states:
      This letter shall confirm our discussion yesterday afternoon. If anything is incorrect, please advise in writing.
      First, the Rule on your Exceptions is being continued. As promised, I have already contacted the Court twice not only to inform it of the continuance, but I have attempted to obtain new dates for a reset of those Exceptions. I am waiting for [their] return call.
      Second, I have also asked for an immediate status conference at which we are to discuss our anticipated Motion to Remove your firm as counsel. As stated before, your partner is expected to be a material witness in this case.
      Third, additional pleadings are expected to be filed this week after I meet with and verify pleadings with Dr. Brown and Creighton.
      Last and again as usual, I understood that you had agreed to resolve a number of other issues, but it appears that your intentions and promises are not forthcoming. Your client still refuses to remove my client’s name from his plate-glass window. Your client continues to interfere with patient files. Your client still continues to interfere with patient referrals. Your client may now have interfered with other accounts and credit. Because I have never heard from you and since this is at least the sixth time I have contacted you about this series of problems, I shall assume that neither you, your firm nor your client will make any attempt to resolve these on-going issues. My clients will be so advised.

      . In Naccari, the letter at issue simply informed the plaintiffs that they needed to respond more fully to previously submitted discovery requests, and contained no suggestion the letter was formally seeking to compel answers to the discovery request. Rather, it appeared to be an informal, as opposed to a formal request for cooperation in moving the case forward. The mailing of informal correspondence cannot be construed as formal discovery and is insufficient to prevent abandonment or interruption of prescription. Naccari

        v. Namer, 2001-2410 at pp. 4-5, 809 So.2d at 1160.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee v. Fred REED, Defendant-Appellant.
    No. 44,119-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 14, 2009.

      Fred Reed, In Proper Person.
    James D. Caldwell, District Attorney, Vicki Vining Baker, Assistant District Attorney, for Appellee.
    Before BROWN, GASKINS, and MOORE, JJ.
   BROWN, Chief Judge.

17 Defendant, Fred Reed, appeals the trial court’s denial of his motion for reduction of child support due to a change in circumstances. For the following reasons we affirm the trial court’s judgment in part, reverse in part, and render judgment correctly reflecting defendant’s child support obligation in accordance with the child support guidelines.

Facts and Procedural Background

Fred Reed and Chandra Reed were married in 1991. At the time of their marriage, Chandra was the mother of three children. Fred subsequently adopted the three children, and thereafter he and Chandra had another three children. After 14 years of marriage, and while living in California, Fred and Chandra divorced.

After their divorce, Fred remarried and moved to Alabama, and Chandra Reed sent their five minor children to live with her mother, Irene Lockhart, in Lake Providence, Louisiana. On March 30, 2007, this case was initiated by the State of Louisiana as a result of an application for support filed with the Support Enforcement Services by Ms. Lockhart on behalf of the five minor children.

A hearing was held on February 26, 2008, and the trial court rendered judgment that same day. The trial court set child support at $678 per month, and an additional $200 per month was ordered to go towards an arrearage of $24,922.73.

Within a week of the judgment, Fred filed a motion for reduction of child support due to a change in circumstances; no mention was made of the |2arrearages. The trial court heard arguments on May 6, 2008, and denied the motion. From this adverse ruling, Fred Reed appeals.

Discussion

An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. La. R.S. 9311(A).

There is no bright line rule as to what constitutes a change of circumstances to warrant modification. Stogner v. Stogner, 98-3044 (La.07/07/99), 739 So.2d 762. A change in circumstances determination is to be made on a case-by-case basis, and it clearly falls within the great discretion of the trial court. Id. Since each case depends .on the particular facts involved, an appellate court will not disturb the trial court’s determination absent a clear abuse of discretion. Craft v. Craft, 35,785 (La.App.2d Cir.01/23/02), 805 So.2d 1213.

In the present case, the trial court imputed an expense-sharing income of $1,000 a month to Fred at the February 26, 2008, trial; this figure was considered by the court to be the amount Fred derived from living in his current wife’s home and using her vehicle. Within one week of that judgment Fred filed a motion for reduction of child support due to a change in circumstances. The change in circumstances alleged by Fred was that his current wife had filed bankruptcy, and, as a result, she would be charging him rent and no longer providing him with a vehicle. Fred contended that | »due to this unfortunate turn of events he no longer received any benefit from expense-sharing. To support his contention that there was a material change in circumstances, Fred provided a copy of the lease agreement entered into with his wife, a copy of a purchase agreement for his wife’s vehicle, and testified to the legitimacy of both at the May 6, 2008, proceeding. The trial court found that the evidence presented by Fred was not credible, and denied his motion for reduction.

Considering the trial court’s great discretion in determining whether a change of circumstances warrants modification, along with its better position to deduce credibility, we cannot find that the trial court was clearly wrong in denying Fred’s motion for modification on the basis of change of circumstances. We further note that Fred’s wife filed bankruptcy prior to the hearing on February 26, 2008. Although he could have mentioned the bankruptcy during that proceeding, Fred did not do so.

In his other assignment of error, Fred contends that the trial court erred by failing to properly apply the child support guidelines as required by Louisiana law.

La. R.S. 9:315, et seq., provides a set of guidelines that courts are mandated to follow in setting the amount of child support in any action to establish or modify child support on or after October 1, 1989. Stogner, supra; Hildebrand v. Hildebrand, 626 So.2d 578 (La.App. 3d Cir.1993). A trial court that deviates from the child support guidelines is required to “give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a ^mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines.” La. R.S. 9:315.1(B). Failure to give proper consideration to the guidelines results in the child support judgment being fatally flawed. Peck v. Peck, 37, 184 (La.App.2d Cir.05/14/08), 847 So.2d 111; James v. James, 34,567 (La.App.2d Cir.04/06/01), 785 So.2d 193.

After reviewing the record, it is apparent that the February 26, 2008, judgment is flawed in that it is a ruling based upon trial court error: failure to give proper consideration to the child support guidelines. Stogner, supra, directs that a previously flawed judgment cannot be used to deny a modification of child support. See also Peck, supra.

La. R.S. 9:315.2(A) states that “[ejach party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with any documentation of current and past earnings.” Furthermore, the documentation shall include a copy of the party’s most recent federal tax return. Id. In compliance with this statute, Fred provided suitable documentation to show his current and past earnings. Chandra, | showever, did not provide any documentation to show her current or past earnings. At the February 26, 2008, proceeding, Chandra testified that she was currently employed but “laid off right now,” and that she had no other source of income. Without obtaining any further information, the trial court set Chandra’s adjusted gross income at zero.

In setting Fred’s adjusted gross income, the trial court determined that his monthly income was approximately $1,100 and that he had an expense-sharing income of $1,000 a month. Thereafter, the trial court miscalculated the two income amounts and came up with a total adjusted monthly gross income amount of $2,300.

A party’s adjusted gross income is his or her gross income, minus amounts for preexisting child support obligations paid on behalf of a child who is not the subject of the action of the court. La. R.S. 9:315(C)(1). Thus, any amount Fred is obligated to pay per month in child support to a child who is not the subject of the current proceeding is to be subtracted out of his gross income to determine his adjusted gross income. The trial court, however, decided to not give Fred credit for his preexisting child support obligation of $200 a month when determining his adjusted gross income. There are no specific reasons stated in the record for this deviation.

Lastly, the trial court combined Fred’s erroneous adjusted monthly gross income ($2,300) to Chandra’s adjusted monthly gross income ($0.00) to come up with their combined adjusted monthly gross income. The trial court then applied the combined adjusted monthly gross income to the | r,schedule for support set forth in La. R.S. 9:315.19. However, instead of figuring a child support obligation amount based upon five children, as five minor children were the subject of the current proceeding, the trial court determined an obligation amount for six or more children, then divided that number by six, and then multiplied by five. Apparently, the trial court was factoring in Fred’s support obligation to a sixth child.

Based upon the trial court’s deviations from the child support guidelines without providing specific reasons for those deviations, we find the February 26, 2008, judgment to be flawed. In cases where the record contains adequate information, we should apply the child support guidelines to the facts of the case rather than remanding to the trial court. Peck, supra; James, supra; State v. Flintroy, 599 So.2d 331 (La.App. 2d Cir.1992). Even if some of the required documentation is lacking, remand is unnecessary if there is sufficient evidence in the record to render a decision. Aydelott v. Aydelott, 42,161 (La.App.2d Cir.05/09/07), 957 So.2d 350; State, Dept. of Social Services ex rel. Clark v. Ruiz, 04-1064 (La.App. 5th Cir.02/15/05), 898 So.2d 514. Accordingly, we find that the record in the case sub judice contains adequate information, even though some required documentation is absent, for us to render a decision.

Although Chandra failed to provide the documentation required by La. R.S. 9:315.2(A), she testified that she had recently been laid off. Based upon this, the trial court, apparently, concluded that Chandra was not voluntarily unemployed. A trial court is granted broad discretion in determining whether a party is voluntarily unemployed, and its ^determination will not be overruled absent abuse of that discretion. Stephenson v. Stephenson, 37,323 (La.App.2d Cir.05/14/03), 847 So.2d 175. Finding that the trial court’s determination that Chandra was not voluntarily unemployed was within its discretion, we will not disturb its imputation to her of no adjusted monthly gross income.

Determining Fred’s adjusted monthly gross income requires us to correct the mistakes made by the trial court, as well as determine whether the trial court abused its discretion by imputing to Fred a $1,000 a month expense-sharing income. A trial court may consider as income the benefits a party derives from expense-sharing. La. R.S. 9:315(C)(5)(c). It is within the trial court’s wide discretion to determine the amount of benefit derived from expense-sharing. Hargroder v. Hargroder, 96-583 (La.App. 3d Cir.11/06/96), 682 So.2d 999, writ denied, 96-2921 (La.01/24/97), 686 So.2d 868.

During the February 26, 2008, trial, Fred testified that his current wife paid $949 per month for her mortgage, that she provided him a vehicle to get to work, and that she paid most of the other household expenses. Due to this testimony the trial court added $1,000 a month to Fred’s gross income as expense-sharing income. We do not find its determination to be manifestly erroneous.

Accordingly, we have $1,000 a month expense-sharing income, plus $1,100 a month income from Fred’s employment, as proven by the income documentation provided by Fred, which makes $2,100 a month in gross income. We must next subtract any preexisting child support obligations Isfrom the gross income in order to compute the adjusted gross income. Since Fred has a preexisting child support obligation of $200 a month, his adjusted monthly gross income is $1,900.

Applying the combined adjusted monthly gross income of Fred and Chandra, with a total of five children, to the schedule for support set forth in La. R.S. 9:315.19, it is determined that Fred’s monthly child support obligation is $776. Giving Fred a $132 a month credit for insurance premiums paid on behalf of the five minor children, we find that his total monthly obligation is $644.

Conclusion

For the reasons stated above, we affirm in part the trial court’s denial of Fred Reed’s motion for reduction of child support due to a change in circumstances. We also reverse in part, due to the trial court’s failure to give proper consideration to the child support guidelines, and render judgment setting Fred Reed’s monthly child support obligation at $644 and an additional $200 per month to go toward an arrearage of $24,922.73. Costs are assessed to each party.

      . One child had become a major.

      . In an attempt to clarify the majority’s finding that a previously flawed judgment cannot be used to deny a modification of child support, Justice Lemmon’s concurrence in Stogner, supra at 770, states:
      I write separately to point out that this court is not reversing the 1994 judgment which was not attacked until two years after it was rendered; rather, this court is reversing the 1997 judgment denying the 1996 motion to increase child support, although that reversal is based on the 1994 error in originally fixing child support.
      While we are constrained to follow the law as set forth in Stogner, we note the logic of Justice Victory's dissent in that case. Justice Victory takes issue with the fact that a party seeking modification of child support due to a change in circumstances will not have the burden of proving a change in circumstances if the previous judgment setting child support is flawed,

      . Fred lost his license to practice his profession as a medical doctor because he was convicted of medicaid fraud.

      . The child support amount originally set by the trial court included a $132 a month credit for insurance premiums paid by Fred.


author: JAMES F. McKAY III, Judge,

text:
    STATE of Louisiana v. James ALLEN.
    No. 2008-KA-0926.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2009.

      Robert L. Freeman, Jr., District Attorney of Orleans Parish, Brandi Dohre, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, For Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, Louisiana, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge,

h STATEMENT OF THE CASE

On July 3, 2007, the defendant was charged with attempted second-degree murder (count two), armed robbery with a firearm (count one) and being a felon in possession of a firearm (count three), in violation of La. R.S. 14(27)30.1, La. R.S. 14:64.3, and La. R.S. 14:95.1, respectively. On July 16, 2007, he entered pleas of not guilty. On August 7, 2007, counsel for the defendant filed motions to suppress the evidence and the identification and to sever all counts. On February 13, 2008, the district court denied the motion to suppress the identification and found probable cause to hold the defendant for trial. On April 9, 2008, the district court granted the defense motion to sever. On May 28, 2008, the state tried the defendant on the attempted murder count and, the defendant was convicted of the responsive verdict of aggravated battery in violation of La. R.S. 14:34. On June 25, 2008, the defendant was sentenced to serve ten years at hard labor with credit for time served. The state filed a multiple bill of information. The defense filed a motion for appeal and a motion for reconsideration of sentence. The defense filed a motion to reconsider the sentence.

STATEMENT OF THE FACTS

^Detective Ryan Aucoin testified that he was assigned to investigate the April 26, 2007 shooting of Jabbar LoCure. He spoke to Officer Shannon Jones, who wrote the initial police report, and Detective Brian Gillis regarding the facts surrounding the shooting. After obtaining a copy of the initial police report Detective Aucoin attempted to meet with the victim at University Hospital; he was not successful. He then drove to the scene of the shooting located at 3167 Preston Place. He was not successful in finding any witnesses or a gun at the scene. The following day he spoke to the victim’s father, William Lo-Cure, at LoCure’s home. He was able to develop a suspect named “Duggum”. Subsequently, on April 30, 2007 he visited the victim, Jabbar LoCure, at University Hospital. The victim was awake and alert but was not able to speak because his jaw was wired shut. He testified that he showed Jabbar a six-picture photographic lineup. He asked Jabbar if he could identify who shot him; Jabbar answered that he could. Using hand signals Jabbar indicated that a vehicle and at least three people may have been involved in the incident. When shown the photographic lineup Jabbar nodded to the defendant’s picture which was in the number one position. In addition, Jabbar wrote the defendant’s name on a piece of paper identifying him as the shooter. An arrest warrant was prepared, and the defendant was subsequently arrested; no gun was recovered from the defendant. Detective Aucoin testified that the defendant did not make any statements to him and, to his knowledge, did not make any statement to any other law enforcement officer. The defense moved for a mistrial; the motion was denied.

On cross-examination, Detective Ryan stated that Jabbar never described the height or weight of the person who shot him. He testified that the only facts he | ¡¡knew regarding the shooting were those he read in the initial police report and those relayed to him by the victim.

Erin Cunningham, Police Technical Specialist at the New Orleans Crime Lab, testified that she was summoned on April 26, 2007 to photograph the crime scene at 3167 Preston Place. She identified state’s exhibit One A as the photograph of a spent bullet casing that she photographed at the crime scene.

On cross-examination she testified that she had no independent knowledge of how the casing may have come to be at the crime scene.

Jabbar LoCure testified that in the early morning hours of April 26, 2007, while taking home a female friend in the three thousand block of Preston Place, he was shot in the left side of his face and left arm by the defendant, James Allen. He stated that the defendant’s street name is “Dug-gum”. He testified that he knew the defendant from the neighborhood and that the defendant had taken his goddaughter to the prom. He stated that he and his female friend had gone to a club that night. He denied drinking alcohol that night but, he admitted that he took Perco-cet for pain from injuries that he sustained in an automobile accident. He denied having used cocaine that night. He admitted that he was married but insisted that his female friend was not his girlfriend. He stated that he stopped in front of his friend’s house; she exited his Blazer to go inside, and he walked around the back of the Blazer. He observed the defendant on the curb. Another car, a BMW, was also parked in front of the Blazer. As he stood behind the BMW, the defendant asked for “Z”, his friend’s brother. The friend told him that “Z” was not there. As Jabbar turned to walk to towards his friend’s front door, he heard footsteps behind him. As he turned, the defendant held a gun to his face and shot him. Jabbar wiped his face and stated to the defendant, “You shot me?” The defendant 14answered, “No you shot me.” The defendant tried again to put the gun in Jabbar’s face. Jabbar lifted his arm to block the gun, and the defendant shot him in the arm. Jabbar spun around and fell to the ground; the defendant walked away towards a silver car. Jabbar could see that there were several other subjects in the silver car. Jabbar denied shooting the defendant and denied having a gun or any other weapon.

Jabbar testified that the defendant did not leave immediately. Jabbar got up and went inside his friend’s house. As he turned and looked out of the doorway, he saw the defendant drive off. Shortly thereafter his brother arrived on the scene, calmed him down and called his father. His father arrived and drove him to Meadowcrest Hospital on Belle Chasse Highway. On the way to the hospital Jab-bar told his father that “Duggum” shot him. He testified that he was not able to remember the defendant’s real name. From Meadowcrest Hospital he was transported to University hospital where he underwent eleven hours of facial surgery and a tracheotomy to help him breathe. Jabbar testified that a couple of days after the surgery he was visited by Detective Aucoin. He stated that he was not able to speak but communicated through his wife and by writing information on a piece of paper. He stated that he was shown a photographic lineup and identified the defendant as the person who shot him. On a piece of paper he wrote, “My name is Jabbar LoCure, and I am telling Detective Ryan Aucoin that Duggum shot me twice. Once in the face and once in the arm. And, he is in position one.” He admitted to having a conviction for armed robbery in 1992.

On cross-examination, Jabbar admitted that he used cocaine on his birthday, April 17, 2007. He stated that the defendant’s street name is “Duggum” and that is how he knew him. He stated that he wrote the paper identifying defendant on the |ssame day that he was shown the photographic lineup and identified thee defendant’s picture. He admitted that his female friend, Shanell Reed, was, in fact, his girlfriend as he had previously testified at the motion to suppress hearing conducted on February 13, 2008. He also admitted that prior to the shooting another individual known as “Whiteboy” rode a bicycle to the scene. He denied that the defendant said, “Why did you shoot at me?” He stated that he stayed on the ground after he was shot until the defendant walked away. He admitted that his prior conviction was for two counts of armed robbery that occurred between Orleans and Jefferson Parishes.

On re-direct examination Jabbar testified that Shanell Reed is no longer his girlfriend.

William LoCure testified that he is the father of the victim, Jabbar LoCure. He stated that he drove to the scene of the shooting and transported his son to the hospital. He testified that Jabbar was bleeding from his mouth and shoulder. He was scared that Jabbar would die and wanted to know who shot him. Jabbar told him it was “Duggum” who shot him.

ERRORS PATENT

A review for errors patent reveals none.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

By his sole assignment of error, the defendant asserts that the trial court erred in denying his motion for a mistrial. Specifically, he argues that the prosecutor’s question to Detective Aucoin regarding the defendant’s failure to make any statement at the time of his arrest had no legitimate basis but to solely ascribe guilt. The testimony at issue follows:

lfiBY MR. SHUTE:
Q. Was Mr. Allen arrested pursuant to that warrant?
A. He was arrested, yes.
Q. Okay. To your knowledge as the lead detective in this case, was a gun recovered from Mr. Allen?
A. No gun was recovered in this case.
Q. Did Mr. Allen make a statement to law enforcement about what happened that day?
BY MR. HURTT:
Objection, Your Honor.
BY THE COURT:
I am going to permit that.
BY MR. SHUTE:
Q. Did he ever make a statement to you or to any other member of law enforcement?
A. He has never made a statement to me or to any other law enforcement to my knowledge.
BY MR. HURTT:
Your Honor, at this time I would ask for a mistrial.
BY THE COURT:
Denied
BY MR. SHUTE:
I have no further questions.
BY THE COURT:
Tender to the Defense.

|7La.C.Cr.P. art. 775 provides that the trial court shall grant a mistrial when prejudicial conduct in or outside of the courtroom makes it impossible for the defendant to obtain a fair trial. “Mistrial is an extreme remedy and, except for instances in which the mandatory mistrial provisions of La.C.Cr.P. art. 770 are applicable, should only be used when substantial prejudice to the defendant is shown.” State v. Castleberry, 98-1388, p. 22-(La.4/13/99), 758 So.2d 749, 768. “The determination of whether actual prejudice has occurred, and thus whether a mistrial is warranted, lies within the sound discretion of the trial judge, and this decision will not be overturned on appeal absent an abuse of that discretion.” State v. Wessinger, 98-1234, p. 24 (La.5/28/99), 736 So.2d 162, 183.

In State v. Smith, 336 So.2d 867 (La.1976), the Louisiana Supreme Court pointed out that Article 770 does not apply to references to a defendant’s post-arrest silence by the prosecutor or by witnesses, but only applies to references to the defendant’s failure to testify at trial. Rather, La.C.Cr.P. art. 771 is the applicable provision concerning the proper remedy where references are made to a defendant’s post-arrest silence. Pursuant to La. C.Cr.P. art. 771, the trial court has the discretion [Rto grant a mistrial or simply admonish the jury, upon the request of the defendant, where the prosecutor or a witness makes a reference to a defendant’s post-arrest silence. A brief reference to a defendant’s post-arrest silence does not mandate a mistrial or reversal when the trial as a whole was fairly conducted, the proof of guilt is strong, and the prosecution made no use of the silence for impeachment purposes. State v. Ledesma, 01-1314 (La.App. 5 Cir. 4/30/02), 817 So.2d 390.

In Smith, the defendant’s motion for mistrial was based upon a comment made by the prosecuting attorney during the direct examination of the arresting officer in an attempt to summarize the officer’s testimony. The prosecutor stated that the defendant had refused to give a statement when he was under custodial arrest. The Supreme Court found that the reference by the prosecutor was incidental and inadvertent and there was no indication of the deliberate intent of the State to inject or exploit the issue, and it held that the trial court did not abuse its discretion in denying the motion for mistrial.

In State v. Olivieri, 03-563 (La.App. 5 Cir. 10/28/03), 860 So.2d 207, the defendant challenged the comment made by the State in its opening statement referencing defendant’s post-arrest silence. The prosecutor commented in the opening statement, “And then when Agent Riker asked him about the rapes, the Defendant decided he didn’t want to talk any more.” The Fifth Circuit found that the comment did not warrant reversal of the defendant’s conviction.

In the instant case, the prosecutor’s question to Detective Aucoin, which elicited the reference to the defendant’s post-arrest silence, does not appear to be for the purpose of calling the jury’s attention to it or having the jury make an 1 ^inappropriate inference. See, State v. Kersey, 406 So.2d 555, 560 (La.1981). In fact, defense counsel objected to the comment without stating the nature of the objection or requesting an admonition. Hence, the jury’s attention was not diverted to the issue of the defendant’s post-arrest silence. There is no indication that the State deliberately intended to exploit the defendant’s post-arrest silence. The state made no further mention of the defendant’s post-arrest silence during the testimony of other state witnesses or in closing argument. Clearly, the trial as a whole was conducted fairly. The defendant was known to the victim by his street name, “Duggum.” The victim positively identified the defendant at trial and in a six-person photographic line up. Furthermore, the defendant never articulated any substantial prejudice he sustained by Detective Aucoin’s answer. In fact, the jury convicted him of the lesser included offense of aggravated battery. Further, assuming that the trial court committed error in failing to admonish the jury, such error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The inquiry is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. McQuarter, 2000-1553 (La.App. 4 Cir. 6/6/01), 788 So.2d 1266. The trial court did not abuse its discretion in denying the request for a mistrial. Under these circumstances, a mistrial was not warranted. This assignment is without merit.

CONCLUSION

Accordingly, for the above and foregoing reasons we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . C.Cr.P. art. 771 provides:
      Art. 771. Admonition
      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:
      (1) When the remark or comment is made by the judge, the district attorney, or a court official, and the remark is not within the scope of Article 770; or
      (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.
      In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.


author: PAUL A. BONIN, Judge.

text:
    R. Ray ORRILL, Jr. v. Toni Lyn Swain Mathieu ORRILL.
    No. 2008-CA-0400.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 4, 2009.

      Bennett Wolff, Wolff & Wolff, Metairie, LA, for R. Ray Orrill, Jr.
    Roy M. Bowes, Joaquin Shepherd, Joshua Mathews, Roy M. Bowes & Associates, Gretna, LA, for Toni Lynn Swain Mathieu Orrill.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hThe appellant, Toni Lynn Swain Orrill Jenkins (“Mrs. Jenkins”), appeals a judgment of the trial court designating her former husband, R. Ray Orrill, Jr. (“Mr. Orrill”), as the primary custodial parent of their minor son, J.O., and awarding her visitation three (3) weekends per month. We affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

The parties were married in July 1997, and J.O., the only child of the marriage, was born in 1998. Mrs. Jenkins has another son, E.M., from a prior marriage. He was born in 1991.

On July 11, 2005, Mr. Orrill filed a petition for divorce pursuant to La. Civ.Code art. 102, and a judgment of divorce was rendered on April 5, 2006. Pursuant to a consent judgment of August 16, 2005, the parties agreed to joint custody of J.O., with Mr. Orrill designated as the interim primary custodial parent until the end of the 2005-2006 school year, at which time the custodial arrangement would be reviewed. Prior to executing the consent judgment, Mrs. Jenkins purchased a home and moved away to Covington, Louisiana in St. Tammany Parish. During |athe marriage the parties and J.O. had resided in a house on Lark Street in New Orleans and J.O. had attended private school in Metair-ie. After the divorce Mr. Orrill and J.O. continued to live in the Lark Street home and J.O. continued in the same school.

After the 2005-2006 school year ended, Mr. Orrill filed an expedited motion to establish permanent custody. Following a hearing, the trial court rendered judgment on August 11, 2006, maintaining the existing custodial arrangement. The judge found that it was in the best interest of J.O. that Mr. Orrill remained the interim primary domiciliary parent and that J.O. continued his education at Metairie Park Country Day School for one additional year, making the custodial arrangement reviewable again at the end of the 2006-2007 school year. The trial court decided that moving J.O. to a school in St. Tammany Parish would be too much of an adjustment for the child and Mr. Orrill could provide a more stable home at that time.

In November 2006, Mrs. Jenkins began dating her current husband, Andrew Jenkins, and, shortly thereafter, he and his nine-year-old daughter, A.J., moved into Mrs. Jenkins’ Covington home. On April 23, 2007, Mr. Jenkins and Mrs. Jenkins were married.

In May 2007, Mrs. Jenkins requested an ex parte change of custody and filed a motion for a temporary restraining order and preliminary injunction, seeking to enjoin Mr. Orrill’s physical custody of J.O. Specifically, she alleged that on the nights of April 19, 2007 and May 25, 2007, while J.O. was in his care, Mr. Orrill 13was so inebriated that he posed a danger to the child. Following a hearing, the trial court denied the motion.

After the Jenkinses were married, Mr. Orrill filed a Motion to Set Final Custody which the trial court heard over several days in September and November 2007. On January 11, 2008, the trial court rendered a judgment granting the parties joint custody, with Mr. Orrill designated as the primary custodial parent, and Mrs. Jenkins with visitation rights three weekends per month. Mrs. Jenkins appeals the judgment.

STANDARD OF REVIEW

In child custody cases, appellate courts will not disturb an award of custody absent a manifest abuse of discretion in the trial court. See Revision Comments — 1993 to La. Civil Code art. 134, Comment (b). In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the Louisiana Supreme Court described the appellate review standard by stating that “upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.” Id. at 1196. See also AEB v. JBE, 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 761.

DISCUSSION

In the first of her two assignments of error, Mrs. Jenkins argues that the district court abused its discretion in designating Mr. Orrill as the primary Udomiciliary custodian and granting her visitation three (3) weekends per month. Specifically, she contends the evidence demonstrates that she is a full-time, stay-at-home mother, who resides with J.O.’s stepfather, stepsister and half-brother, while Mr. Orrill, an attorney, works a minimum of 45 hours per week and lives “alone”. Thus, Mrs. Jenkins contends, she is the parent who should have primary custody as she has more time to spend with J.O. during the week while Mr. Orrill has more free time on the weekends. Mrs. Jenkins further argues that the court appointed custody evaluator, Dr. Karen van Beyer, recommended that it would be in J.O.’s best interest to live in the two parent household with his siblings. Mrs. Jenkins also claims that J.O. expressed his preference to live with her and that he has exhibited signs of depression since Mr. Orrill was awarded primary domiciliary custody.

“In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interests of the child.” La. Civ.Code art. 131. The “best interest of the child principle [is] the principal substantive criterion for granting and changing custody.” Bergeron, 492 So.2d at 1197. In the absence of an agreement between the parents as to custody, “or if the agreement is not in the best interests of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to | r,serve the best interests of the child, the court shall award custody to that parent.” La. Civ.Code art. 132.

Factors to consider in determining the best interest of the child are provided in La. Civ.Code art. 134, which reads:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

Differing Opinions of Experts

Mrs. Jenkins’ argument relies heavily on the opinion testimony of Dr. van Beyer, who the trial court both appointed and accepted as an expert witness. Her testimony, opinion, and recommendations were generally very favorable to the Impositions espoused by Mrs. Jenkins regarding the future custody of J.O. However, the trial judge, at Mr. Orrill’s request, had appointed and accepted an additional expert witness, Dr. Beverly Howze. See generally La. C.E. arts. 701 et seq. Her testimony, opinion and recommendations differed considerably from Dr. van Beyer’s.

By the conclusion of the trial, the judge did not accept the recommendations of Dr. van Beyer. Declining to adopt a court-appointed expert’s custody recommendation is not error. Monteleone v. Monteleone, 591 So.2d 1228, 1236 (La.App. 4th Cir.1991). “After weighing and evaluating expert and lay testimony, the trial court may accept or reject the opinion expressed by any expert.” Warlick v. Warlick, 27,389 (La.App. 2 Cir. 9/29/95), 661 So.2d 706, 710.

The record reflects that Dr. van Beyer interviewed J.O.; Mr. Orrill, Mrs. Jenkins, Mr. Jenkins, and Dr. William Walker, J.O.’s godfather and a close friend of Mr. Orrill. She also spoke to Leigh Collins, J.O.’s school counselor; and Dr. Lynn Parker, a psychologist who had treated J.O. for anxiety, depression and attention deficit, hyperactivity disorder (ADHD). Based on numerous interviews and conversations, Dr. van Beyer recommended to the trial court that primary domiciliary custody be transferred from Mr. Orrill to Mrs. Jenkins. In her opinion, J.O. needed a stable home life for his emotional health and that he would benefit most by living with his mother and stepfather in a two-parent household along with his half-brother and stepsister.

|7Because Mrs. Jenkins claimed that Mr. Orrill had an alcohol problem, Dr. van Beyer had recommended that he be evaluated by Dr. Ken Roy, a psychiatrist and substance abuse specialist, and a referral was made. Dr. Roy evaluated Mr. Orrill, but Dr. van Beyer did not await the results of Dr. Roy’s evaluation before she submitted her custody evaluation report to the court in which she recommended a change in primary domiciliary custody.

Dr. Howze performed the second custody evaluation. She interviewed the same persons as Dr. van Beyer plus Mrs. Jimmie Oleaga, a person who assisted Mr. Orrill with taking care of J.O. in Mr. Or-rill’s absence, Dr. Rosencrantz, the parties’ marriage therapist, Dr. Steven Jones and Dr. Joa Montano, Mr. OrrilTs neighbors, and J.O.’s siblings, E.M. and A.J. Of course Dr. Howze agreed with Dr. van Beyer that J.O. needed a stable, secure home. She differed with Dr. van Beyer on which parent should be the primary custodian. Dr. Howze recommended that J.O. remain in the primary custody of his father and continue to attend Metairie Park Country Day School.

“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.” Lasyone v. Kansas City Southern Railroad, 2000-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693 (citation omitted). Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact and should not be disturbed on appeal in the absence of manifest error. Id.

The trial judge gave us the benefit of thorough and comprehensive findings and conclusions in his reasons for judgment. He clearly explained why he accepted Dr. Howze’s recommendation and rejected Dr. van Beyer’s in this case. |sDr. van Beyer’s opinion that Mrs. Jenkins was better able to provide J.O. with a stable, secure home was based, the trial judge found, on subjective statements made by Mrs. Jenkins which Dr. van Beyer accepted as true without further validation. Conversely, the court “was impressed” that Dr. Howze consistently cross-validated the information provided to her by the parties and others. The court noted that Dr. van Beyer accepted as true Mrs. Jenkins’ allegation that Mr. Orrill had a drinking problem and considered that an important factor in recommending a change in primary domiciliary custody. Yet, as emphasized by the trial court, Dr. van Beyer did not have the benefit of Dr. Roy’s evaluation when she reached such a conclusion and recommendation. Dr. Roy found no objective evidence of substance abuse by Mr. Orrill. Not only did Dr. Howze, prior to recommending that Mr. Orrill remain the primary custodial parent, consider Dr. Roy’s report, she also confirmed with Dr. Rosen-crantz, the parties’ marriage therapist, that Mr. Orrill exhibited no signs of alcohol abuse during the marriage.

Dr. van Beyer’s conclusion that Mrs. Jenkins’s new family unit was stable and secure was also rejected by the trial judge. Dr. van Beyer had accepted Mrs. Jenkins’ unsubstantiated claim that her son, E.M., and her stepdaughter, A.J., had no problems and were doing well. As it turned out, both children were being treated for attention deficit disorder (ADD). Dr. Howze, for her part, had actually interviewed E.M. and A.J. Dr. Howze documented their difficulties.

Dr. van Beyer seemed unaware of other important aspects of Mrs. Jenkins’ situation, which have grave bearing on an appropriate recommendation for custody. The Jenkinses were living in a two-bedroom house in Covington. When [ ^staying in that house, J.O. shared a bedroom with his stepsister of the same age. The older brother E.M. had a room in a detached garage. The mortgage lender had a foreclosure suit pending against Mrs. Jenkins because she had not made any mortgage payments since she purchased the house in August of 2005. Although the Jenkinses were not paying the mortgage note on the family’s primary residence, Mr. Jenkins was nonetheless paying a monthly note of $1,325 on a vacant cabin. Dr. van Beyer admitted at trial that her recommendation may have been different had she known of the Jenkins’ financial status and the pending foreclosure suit.

Dr. Howze also called the trial court’s attention to an important matter which bears on the question of which home was the better for J.O. Mr. and Mrs. Jenkins began them romance just three weeks after his wife died in November 2006. By January 2007, they were living together and in April they married. The first Mrs. Jenkins’ death was sudden. Dr. Howze suspected that Mr. Jenkins may not have allowed himself adequate grieving time and that A.J., the daughter, was still “suffering from predictable traumatic stress” due to the loss of her mother. Introducing J.O. to this situation was, in Dr. Howze’s opinion, not ideal.

The findings and recommendations of Dr. Howze are clearly supported by the evidence. Dr. van Beyer’s findings and recommendations are clearly not as sound when considered in light of the evidence and in view of Dr. van Beyer’s own admission.

Ramifications of the Jenkins’ Financial Problems

The trial judge received considerable other evidence which was not directly the subject of the experts’ inquiry, but which is important to the trial judge’s | ^discharge of his duty to determine J.O.’s best interests in selecting the appropriate primary custodial parent.

We previously discussed the living circumstances and the pending foreclosure suit on the house in which J.O.’s mother, stepfather, half-brother and stepsister reside. Mrs. Jenkins quit her $55,000.00 per year job to be a “stay-at-home mom.” The Jenkins’ financial ability to provide J.O. with stability and security were further jeopardized when Mr. Jenkins quit his long-time job with Shaw Sunland Fabricators and became self-employed. He is earning $1,000.00 per week less expenses. As a result, the Jenkins can barely meet their monthly expenses on Mr. Jenkins’ income. Moving J.O. into this financially unstable household, which could be displaced or dispersed at any time could hardly support a finding to make Mrs. Jenkins the custodial parent. One can readily appreciate the trial judge’s resolution of the factor concerning “[t]he permanence, as a family unit, of the existing or proposed custodial home or homes.” La. Civ.Code art. 134(5).

Mother’s Actions Alienating Son from Father

One of the important factors that a court is to consider when determining the best interests of a child, is the “willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.” La. Civ.Code art. 134(10). On this factor the trial judge found Mrs. Jenkins seriously wanting. Regarding four separate events or instances the trial court questioned whether Mrs. Jenkins was acting in the best interest of J.O. or merely to “further her own agenda.” The court found that Mrs. Jenkins had exposed J.O. to unnecessary police intervention on four occasions in less than a year.

InOn April 20, 2007, at 1:00 a.m., J.O. called his mother, stating that he had awakened and was unable to awaken his father. While still on the phone, at his mother’s urging, J.O. left the house and went across the street to the home of Dr. Jones and Dr. Montano, both physicians. Dr. Jones spoke on the phone with Mrs. Jenkins. Mrs. Jenkins did not ask that Dr. Jones or Dr. Montano check on Mr. Orrill. Instead, Mrs. Jenkins called the police and drove from Covington to Mr. Orrill’s home in New Orleans. When she arrived the police had already arrived. The trial court recalled that at the earlier hearing on Mrs. Jenkins’ motion for a temporary restraining order and ex parte change of custody, the police officer had testified that when they arrived at the scene, Mr. Orrill was coherent, responsive, and was not slurring his speech or stumbling.

In the second incident on May 25, 2007, Mrs. Jenkins claimed that J.O. called her several times that evening, beginning at 7:30 p.m., concerned that his father was drinking. Worried about her son, she decided to go to Mr. Orrill’s house to check on J.O. Mr. and Mrs. Jenkins drove across the Causeway Bridge, stopping for 15 minutes to wait for the police escort which Mrs. Jenkins had requested. When Mrs. Jenkins arrived at Mr. Orrill’s home at 11:30 p.m., J.O. was outside of the house in the street. Mr. Orrill admitted that he had had two or three glasses of wine with Dr. Jones and Dr. Montano earlier that evening. Although the police officers at the scene had some difficulty waking Mr. Orrill, when he was awakened he was coherent and responsive. Further, blood pressure and glucose readings taken at the scene by the emergency medics were described as being within normal limits. The trial court questioned why Mrs. Jenkins waited 15 minutes for a police escort, knowing that J.O. was in the street on the phone.

|[2In the third incident the court noted that Mrs. Jenkins called the police because Mr. Orrill put Godiva chocolate liqueur on J.O.’s ice cream. Unaware that the chocolate was in fact alcohol, Mr. Orrill put only a small spoonful on the ice cream. He testified it was an honest mistake. The fourth incident involved Mrs. Jenkins bringing J.O. to the police station on June 14, 2007, to ask if the officers involved in the April and May 2007 incidents would testify at trial.

Elaborating on the four incidents, the trial court found that J.O.’s alleged “fear” of his father’s drinking was created in his mind by the actions of his mother. The trial court determined that in connection with his parents’ divorce, Mrs. Jenkins had unnecessarily exposed J.O. to the police adding more trauma to the child’s life. Her actions, the court stated, amounted to “parental alienation” and demonstrated her unwillingness to facilitate a close relationship between J.O. and his father.

The Lark Street Home Environment

One factor in considering what is in J.O.’s best interest is “[t]he length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.” La. Civ.Code art. 134(4).

Dr. van Beyer had thought that granting Mrs. Jenkins primary domiciliary custody would have allowed J.O. to spend more time with both of his parents, and obviated Mr. Orrill’s need for outside help taking care of J.O. while he was working during the week. The trial court concluded otherwise. Mrs. Olegea assisted the parties in caring for J.O. since the parties were married. After they divorced, Mrs. Oleaga picked J.O. up from school each day at 3:00 p.m. and cared for him until Mr. Orrill returned home from work, usually between 6:00 and 6:30 p.m. The court indicated there was contradictory testimony that J.O. spends less Intime with Mrs. Oleaga now than he did when his parents were married. Thus, the trial court found that continuing the existing custody arrangement did not unfairly limit the time J.O. spent with either parent. Moreover, Mrs. Oleaga’s interest and involvement in J.O.’s life supports the trial court’s determination that Mr. Orrill should be the primary custodial parent in evaluating J.O.’s best interest.

Overall Credibility Problem, of Mrs. Jenkins

Mrs. Jenkins made allegations of domestic violence. Curiously Mrs. Jenkins reported to Dr. Howze her claims of domestic abuse during the marriage, but made no such claims to Dr. van Beyer. This inconsistency, the trial court stated, “causes this Court to question her credibility.”

In summarizing its findings, the trial court stated:

The Court finds that the evidence presented does not support a finding of substance abuse or dependency and it does not support a pattern of violence or battering. Additionally, many of the other allegations made by Mrs. Jenkins were found to have no merit, when cross validation took place.
Considering all of the distractions present in Mrs. Jenkins’ life, i.e., the fact that her house note had not been paid in over 1½ years, a foreclosure lawsuit, the Adler’s lawsuit, a new marriage, a stepchild with ADD, a teenage son with ADD, it is the opinion of this Court that Mr. Orrill is in a better position to provide [J.O.] with the stability, structure, and organization that he needs to achieve and succeed. At this point, there are too many unpredictable variables in this new family structure that put [J.O.] at risk. Additionally, Mrs. Jenkins’ actions in exposing her son to unnecessary police intervention on at least four (4) separate occasions establishes to this Court an inability to facilitate and encourage a close and continuing relationship between [J.O.] and Mr. Orrill.
This Court finds it to be in [J.O.J’s best interest to resume a predictable, routine schedule with an educational support system in place at Country Day, as opposed to transferring to a new school, which will necessarily involve adjustments and changes.

114The record in this case clearly reflects that the trial court discredited much of Mrs. Jenkins’ testimony. It further demonstrates that the court accepted and found more credible the expert testimony, evaluation report and recommendations given by Dr. Howze in rendering its judgment. Giving deference to the trial court’s credibility determinations, as to lay and expert witnesses and as among all witnesses, see Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), we find the trial court did not abuse its discretion in granting the parties joint custody, with Mr. Orrill designated as the domiciliary parent, and awarding visitation to Mrs. Jenkins on three weekends per month. This simply maintained the existing arrangement. The testimony and documentary evidence in the record clearly support the trial court’s findings.

Exclusion of Police Report Evidence

In her second assignment of error, Mrs. Jenkins argues that the trial court erred in not allowing her to introduce into evidence at the hearing on the motion for a temporary restraining order and preliminary injunction a copy of the written police report relating to the May 25, 2007 incident. That proceeding was in connection with her efforts to obtain at first an ex parte change of custody or, in effect, to enjoin Mr. Orrill’s exercise of his custodial rights. During that proceeding Mrs. Jenkins did not, in the face of the trial court’s ruling that the police report was inadmissible, proffer the police report. La. C.E. art. 103(A)(2). Mrs. Jenkins did not seek supervisory writs to seek a review of the trial court’s evidentiary ruling. La. C.C.P. art. 2201. Most importantly, she did not appeal the July 9, 2007 judgment denying the preliminary injunction, which was an 11Rappealable judgment. La. C.C.P. arts. 1841 and 3612(B). The judgment of July 9, 2007 is now final. La. C.C.P. art. 3612(C). Thus, Mrs. Jenkins cannot obtain relief from any ruling related to that judgment in the present appeal.

DECREE

Accordingly, for the reasons set forth in this opinion, the January 11, 2008 judgment of the trial court is affirmed.

AFFIRMED.

      . Her second assignment of error does not concern this judgment before us on appeal. It is treated in the section on "Exclusion of Police Report Evidence”.

      . We recognize in this case that there had been prior evidentiary hearings which had resulted in expressly provisional judgments regarding interim arrangements, although for extended periods. In relying on Bergeron and some other "change of custody” decisions in this opinion for more general standards, we, like the trial court, have not applied the following Bergeron "burden of proof rule”: "When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” Bergeron, 492 So.2d at 1200.

      . Even if Dr. van Beyer had been the only expert witness recognized by the court, the court would still remain free to accept or reject the expert's conclusions. State v. Smith, 1996-261 (La.App. 3 Cir. 12/30/96), 687 So.2d 529.

      . "Ultimately, the weight to be given expert testimony is dependent upon the facts on which it is based as well as the professional qualifications and experience of the expert. If the opinion is based on facts not supported by the record, the opinion may be rejected.” Meany v. Meany, 94-0251 (La.7/5/94), 639 So.2d 229, 236.

      . La. C.E. art. 103(A) requires that a party establish that "a substantial right of the party is affected” as a condition for predicating an error. The record indicates that Mrs. Jenkins desired to use the police report to impeach a police officer who was not the witness and who had not prepared the report.


author: McClendon, j.

text:
    Larry and Rosie ADAMS v. RHODIA, INC. and Exxon Mobil Corporation.
    No. 2007 CA 0897R.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Aidan C. Reynolds, Christopher L. Whittington, Baton Rouge, Louisiana, for Plaintiffs/Appellees, Larry and Rosie Adams.
    Melissa A. Hemmans, L. Victor Gre-goire, Baton Rouge, Louisiana, Michael Cash, Justin J. Presnal, Pro Hac Vice, Houston, Texas, for Defendant/Appellant, Exxon Mobil Corporation.
    Before GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

|2On remand from the Louisiana Supreme Court, defendant, Exxon Mobil Corporation (Exxon) appeals the trial court’s assessment of the majority of the court costs to Exxon. Exxon argues that the costs should have been apportioned more in line with the jury’s assessment of fault. Finding an abuse of the trial court’s discretion, we modify the allocation of costs.

PROCEDURAL BACKGROUND

Plaintiffs, Larry and Rosie Adams, filed suit against Exxon and Mr. Adams’s employer, Rhodia, Inc. (Rhodia), for damages arising from an accident at the Rhodia plant that physically injured Mr. Adams. Rhodia was dismissed before trial, which left Exxon as the only remaining defendant. After the trial, the jury awarded $4,461,000.00 of damages, and assigned two percent of the fault to Mr. Adams, ten percent to Exxon, and eighty-eight percent to the absent defendant, Rhodia. The trial court rendered judgment accordingly. By a separate judgment, the trial court assessed ninety-eight percent of the court costs, which totaled $144,200.00, to Exxon; thus requiring Exxon to pay $141,316.00 in costs.

LAW

The general rule is that costs are to be paid by the party cast in judgment. LSAC.C.P. art.1920; Stockstill v. C.F. Industries, Inc., 94-2072, p. 28 (La.App. 1 Cir. 12/15/95), 665 So.2d 802, 822, writ denied, 96-0149 (La.3/15/96), 669 So.2d 428. However, the trial court is vested with great discretion to assess costs against any party in a manner deemed equitable by the trial court. LSA-C.C.P. art.1920; Stockstill, 94-2072 at p. 28, 665 So.2d at 821. The trial court may even assess costs against a party who prevails to some extent on the merits. Stockstill, 94-2072 at p. 28, 665 So.2d at 821-22.

|sWhile the trial court, in its discretion, may assess some costs against a prevailing plaintiff found to be partially at fault, the trial court may also, if equitable, assess ail the costs against the defendant cast in judgment despite a finding of some fault on the part of the plaintiff. Stocks-till, 94-2072 at p. 29, 665 So.2d 822. The trial court’s assessment can be reversed only upon a showing of an abuse of that court’s discretion. Steadman v. Georgia-Pacific Corporation, 95-1463, p. 15 (La. App. 1 Cir. 4/6/96), 672 So.2d 420, 428, unit denied, 96-1494 (La.9/20/96), 679 So.2d 440.

Special considerations arise when the suit involves one or more defendants who are dismissed before trial. If the absent defendant is found to be at fault, especially for a substantial amount, the trial court must then determine what effect the court’s lack of authority to impose costs on that defendant will have on the culpable parties remaining in the suit.

In Hebert v. Brown Bottling Group, Inc., 98-0924, p. 3 n. 6 (La.10/30/98), 719 So.2d 1043, 1045 n. 6, appellant, Shop Rite, Inc., assigned error to the court of appeal’s reversal of the trial court’s allocation of fault and costs. The trial court in Hebert had assigned 80% of the fault to a defendant, who had settled prior to trial, and 20% to another defendant, Shop Rite, Inc., who participated in the trial. No fault was assessed to the plaintiff. Hebert, 98-0924 at p. 2, 719 So.2d at 1045. Court costs were taxed in the same proportion. On review, the court of appeal found the absent defendant and Shop Rite, Inc. to be equally at fault. However, all costs from the lower court were taxed to Shop Rite, Inc. and its insurer. Hebert, 98-0924 at p. 3, 719 So.2d at 1045. The supreme court granted certiorari “primarily to determine whether the court of appeal erred in reversing the trial court’ allocation of fault.” Hebert, 98-0924 at p. 1, 719 So.2d at 1044.

After review of the facts and law, the supreme court reversed the court of appeal and reinstated the trial court’s allocation of eighty percent of the fault to the absent defendant and twenty percent to Shop Rite, Inc. Hebert, 98-0924 at pp. 5-6, 719 So.2d at 1046-47. On the issue of costs, the supreme court, citing LSA-C.C.P. art.1920, initially stated that the trial court’s assessment of eighty percent of the costs to a defendant who was not a party at the time of judgment was technically defective. Id. |4The court then found, without comment on the issue of equity or the discretion of the trial court afforded by LSA-C.C.P. art.1920, that the intent of the trial court was to assess costs in the same percentage as its allocation of fault. Thus, the court reinstated the 20% assessment of costs to Shop Rite, Inc. Finally, again without any analysis or comment on equity, the supreme court noted that the plaintiff, who had been assigned no fault, would be the one to absorb eighty percent of the costs. Hebert, 98-0924 at p. 5, 719 So.2d at 1047.

ANALYSIS

This is not a case where all parties assessed with fault appeared at trial, or the plaintiffs fault significantly outweighed the fault assigned to a defendant. See, e.g., Sallinger v. Robichaux, 98-2160 (La. App. 1 Cir. 6/23/00), 762 So.2d 761. This is a case with an absent defendant, Rhodia, found to be 88% at fault. The only remaining defendant at trial, Exxon, was allocated 10% of the fault; an obviously much lower percentage than Rhodia, but five times more than the plaintiffs allocation of 2%. We also note that Exxon was not assessed with all the costs. A reduction was made for the 2% fault of Mr. Adams.

Unfortunately, it is not clear in Hebert, the case with a dismissed culpable defendant, whether the supreme court considered the fairness or equitability of the amount of costs that would be absorbed by the plaintiff, who did not appear as an appellant or answer the appeal. Nor did the supreme court reveal the precise argument made by Shop Rite, Inc. on the issue of costs. Thus, while we know that the court of appeal allocation was found to be in error, we know not whether the supreme court was correcting the technical error as to the assessment to the absent defendant, and merely reinstating the trial court’s assessment to Shop Rite, Inc., or whether the court was approving the result of an 80% absorption by the plaintiff of the costs.

Certainly, a trial court may consider the effect of a dismissed defendant, especially one found to be primarily at fault. However, we can find no legal precept mandating the trial court to ignore a trial defendant found liable, and, in all cases, require a plaintiff found even minimally at fault to absorb the costs assigned to the absent, substantially culpable defendant. Despite the ambiguity in Hebert, the ^decision is clearly not an enunciation of a general rule revoking the trial court’s discretion provided by law. See LSA-C.C.P. art.1920; Stockstill, 94-2072 at p. 28, 665 So.2d at 821. Each case stands on its own peculiar facts.

In this appeal, unlike Hebert, the trial court’s allocation of costs was the only issue on appeal. And, from our review, it does appear that the trial court abused its discretion by inequitably assigning 98% of the substantial costs to a defendant found to be only 10% at fault. However, while recognizing that the plaintiff did agree to dismiss Rhodia, an assignment of 90% of the costs to the plaintiff with the lowest assignment of fault, also seems inequitable. To achieve a more just result, some modification more reflective of the ratio of fault between these parties assessed with the costs by the trial court must be made.

The trial court allocated a combined total of 12% of the fault to Mr. Adams and Exxon. When the ratio of that assignment between those parties is calculated, Mr. Adams’ share is 17% of the total fault assessed to the parties remaining in the suit, and Exxon’s is 83%. In light of all these considerations, we modify the assessment of costs to Exxon from 98% to 83%, thereby more fairly recognizing the interrelationship of the fault between Mr. Adams and Exxon, the parties actually cast with the costs by the trial court.

CONCLUSION

For these reasons, the judgment of the trial court is amended to assess 83% of the costs to Exxon and 17% of the costs to Mr. Adams. The costs of the appeal are assessed equally to defendant-appellant, Exxon Mobil Corporation, and plaintiff, Mr. Larry Adams.

AFFIRMED AS AMENDED.

      . In the original appeal, this court reversed the judgment in favor of plaintiffs and the trial court's assessment of costs to Exxon. Adams v. Rhodia, Inc., 2006-1803 (La.App. 1 Cir. 9/26/07), 971 So.2d 1084; Adams v. Rhodia, Inc., 2007-0897 (La.App. 1 Cir. 12/21/07), 973 So.2d 181 (unpublished tables). On the issue of fault, the supreme court reversed the first circuit decision and reinstated the jury’s apportionment of fault. Adams v. Rhodia, Inc., 2007-2110 (La.5/21/08), 983 So.2d 798. In light of the reinstatement, the issue of costs was remanded. Adams v. Rhodia, Inc., 2008-0185 (La.9/19/08), 992 So.2d 968.

      . The record on appeal contains no evidence of the underlying facts or particulars of the dismissal.