author: McDonald, j. WHIPPLE, J.,

text:
    Karen DILLARD and Delvin Portier v. LOUISIANA STATE UNIFORM CONSTRUCTION CODE COUNCIL.
    No. 2010 CA 1977.
    Court of Appeal of Louisiana, First Circuit.
    June 7, 2011.

      Paul E. Schexnayder, Stephen Quidd, Baton Rouge, LA, for Defendant/Appellant The Louisiana State Uniform Construction Code Council.
    Darlene S. Ransome, J. Marvin Montgomery, Baton Rouge, LA, for Plaintiff/Appellee Karen Dillard.
    Charles L. Dirks, III, Baton Rouge, LA, for Plaintiff/Appellee Delvin Portier.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McDonald, j.

| gThis appeal questions whether the Louisiana State Uniform Construction Code Council (appellant in this appeal) has the authority to hold an administrative hearing over a third-party provider, pursuant to the Louisiana State Uniform Construction Code Law, LSA-R.S. 40:1730.21, et seq. The district court issued a permanent injunction prohibiting the Council from hearing the matter, agreeing with third-party providers, Ms. Karen Dillard and Mr. Delvin Portier, (appellees in this appeal) that the law requires administrative hearings to be in accordance with LSA-R.S. 49:992, et seq., and by the Division of Administrative Law. For the following reasons, we reverse the judgment of the district court and vacate the injunction.

FACTS

After the destruction of and damage to buildings and structures in Louisiana from Hurricanes Katrina and Rita in 2005, the legislature enacted LSA-R.S. 40:1730.21, et seq., to provide for a State Uniform Construction Code by Acts 2005, 1st Extraordinary Session, Number 12, effective November 29, 2005. The intent of the statute, as published, stated that “[t]he public policy of Louisiana is to maintain reasonable standards of construction in buildings and other structures in the state consistent with the public health, safety, and welfare of its citizens.” LSA-R.S. 40:1730.21 A. The legislature further clarified its intent, and the statute provides in pertinent part:

D. To further clarify the intent of the legislature, this Part continues to apply to a person who may act under authority of the Department of Public Safety and Corrections and that the allocation of inspection duties among local officials is not dictated by this Part but remains a matter for the local authority.
E. To secure these purposes, the Louisiana State Uniform Construction Code Council shall certify a person performing building codes enforcement including building officials, plans reviewers, and inspectors.

|sThe act originally provided that LSA-R.S. 40:1730.21 through 40:1730.39, the State Uniform Construction Code, was to be effective on January 1, 2007. House Concurrent Resolution No. 36 of the 2006 Second Extraordinary Session was passed urging and requesting that the governor, by Executive Order, suspend the statewide effective date of the Louisiana State Uniform Construction Code until July 1, 2007. According to the Resolution, as of December 15, 2006, local governments throughout the state did not have adequate funding or personnel to effectively enforce the provisions of the statute by the January 1, 2007 effective date.

In order to perform their statutorily required function, Lafourche and Terre-bonne parishes contracted with the South Central Regional Planning and Development Commission, a governmental entity, to provide a building code enforcement officer for the two parishes. Mr. Michael Wich was appointed by the commission as building code enforcement officer for both parishes. Ms. Dillard and Mr. Portier are third-party providers who work in the two parishes. Mr. Wich filed numerous complaints with the Council against Ms. Dillard and Mr. Portier regarding their work as third-party providers.

In September 2009, the Council’s administrator sent a letter to Ms. Dillard and Mr. Portier, respectively informing them that the Council had received a formal complaint from Mr. Wich and that Ms. Dillard and Mr. Portier may have violated specified provisions of the Louisiana Administrative Code. These provisions were enacted by the Council to provide published rules to enforce the statute. In accordance with these rules, the Council instituted an “informal hearing” for the purpose of resolving the complaints against the appellees. The hearing was conducted by the Code Enforcement Advisory, a subcommittee |4composed of members of the Council. Both appellees, as well as Mr. Wich, the complainant, participated. At the conclusion, the committee addressed letters to Ms. Dillard and Mr. Portier advising that it was the recommendation of the committee that action, specified in the letters, be taken against them. Neither Ms. Dillard nor Mr. Portier agreed to the action proposed by the committee.

Thereafter, on December 16, 2009, letters were addressed to Ms. Dillard and Mr. Portier advising that the Council voted at its monthly meeting on December 9, 2009, to accept the recommendation of the committee with regard to their registration as third-party providers. Ms. Dillard’s third-party provider registration was partially suspended for a period of six months, during which time she was prohibited from performing any plan reviews or inspections on commercial projects. It was also proposed that Ms. Dillard complete 40 hours of training in commercial plan review and inspections and provide proof of attendance. The letter advised that Ms. Dillard’s registration would be renewed upon completion of these conditions. Mr. Portier’s third-party provider registration was suspended for a period of six months, during which time he was prohibited from performing any plan reviews or inspections on residential and commercial projects. Mr. Portier was advised that the registration would be considered for reinstatement at the end of the six-month suspension.

Ms. Dillard and Mr. Portier both refused to accept the action of the Council, resulting in the Council filing formal charges against each of them on January 25, 2010. The hearing of the charges against Mr. Portier was set for Wednesday, February 24, 2010, and the hearing regarding the charges against Ms. Dillard was set for Thursday, February 25, 2010. On February 22, 2010, a Petition for In-junctive Relief was filed jointly by Ms. Dillard and Mr. Portier, which included a request for declaratory judgment on questions regarding the authority of the Council. A temporary restraining order (TRO) and a preliminary injunction were | ^requested to prevent the Council from proceeding with the scheduled hearings until a trial and a decision by the district court on the permanent injunction.

The district court granted the TRO and set a hearing on the preliminary injunction for March 10, 2010. At the March 10th hearing the parties agreed that the hearing would also serve as the trial on the permanent injunction. After receiving evidence and hearing testimony and argument, the court took the matter under advisement. On June 3, 2010, the district court issued written reasons and ruled that the hearing on the charges against Ms. Dillard and Mr. Portier was to be conducted by the Division of Administrative Law and granted the request for injunction. The district court did not address the other issues raised by the plaintiffs.

The Council has appealed, raising two assignments of error: (1) the trial court erred in issuing a permanent injunction prohibiting the Louisiana State Uniform Construction Code Council from presiding over an administrative hearing regarding third-party providers; (2) the trial court erred in ruling that any administrative hearings held pursuant to administrative actions of the Louisiana State Uniform Construction Council be referred to the Division of Administrative Law. The plaintiffs answered the appeal, raising several issues on which the district court failed to rule. This appeal will only address the issue decided by the district court, whether the statute creating the Council gave it the right to hold adjudicatory hearings.

LAW AND ANALYSIS

The district court found that the Council exceeded its authority by attempting to conduct an adjudicatory hearing. The court believed that hearings were to be conducted in accordance with LSA-R.S. 49:992, by the Division of Administrative Law. The Council argued that it is authorized to adjudicate issues regarding its registrants, including third-party providers, because, among other | (¡reasons, it is a “professional and occupational licensing board” and thus exempt from the provisions of LSA-R.S. 49:992, as noted in LSA-R.S. 49:992(D)(5), which states, “State professional and occupational licensing boards shall be exempt from the provisions of this Chapter.” The district court specifically found that the Council should not be considered a professional or occupational licensing board. We agree that the Council is not a typical licensing and regulatory board. However, this finding does not lead us to conclude that the Council is not authorized to hold adjudicatory hearings. An examination of the statute creating the Council causes us to find that the Council is empowered to adjudicate matters relating to third-party providers.

Generally, Title 37 provides for the regulation of professions and occupations. Limitations on disciplinary proceedings by professional or occupational boards or commissions in general are provided in LSA-R.S. 37:21, followed by specific statutes applying to an extensive number of professions or occupations from Chapter 2, Accountants, through Chapter 58, Allied Health Professionals. These chapters typically begin with a policy statement and definitions, dictate how the board or commission is appointed, and delineate their power and authority. Requirements for licensure or certification are provided, as well as disciplinary procedures for failure to follow the law or rules regulating the applicable group. The regulating body promulgates rules applicable to the body that it is charged with regulating in accordance with the Administrative Procedure Act.

The law pertaining to the Louisiana State Uniform Construction Code Council is provided in Title 40, designated for statutes dealing with Public Health and Safety. These statutes provide for a myriad of organizations whose functions affect the public health or safety, including the Department of Public Safety, with provisions for various boards under its auspices, as well as the State Police, and the |7statutes authorizing and empowering local housing authorities. Dealing as they do with many differing organizations, the statutes follow varying procedures regarding the functioning of the group. We do not believe that the registrants regulated by the Council are a “profession or occupation” as is contemplated by LSA-R.S. 49:992(D)(5). However, we find that in creating the Council, the legislature intended to and gave the Council the authority to discipline its registrants.

We reach this conclusion from the wording of the statute, and irrespective of the fact that typically occupational licensing and regulatory boards are empowered to pass and enforce rules relative to their participants. We recognize that the legislature is presumed to enact each statute with deliberation and full knowledge of all existing laws on the same subject. Thus, legislative language will be interpreted on the assumption the legislature was aware of existing statutes, well established rules of statutory construction and with knowledge of the effects of their acts and a purpose in view. Hays v. La. State Board of Elementary and Secondary Education, 09-1386, pg. 8 (La. 1 Cir. 6/11/10), 39 So.3d 818, 823. The legislature, in passing LSA-R.S. 40:1730.21, was primarily concerned with “maintain[ing] reasonable standards of construction in buildings and other structures in the state consistent with the public health, safety, and welfare of its citizens.” It designated the Louisiana State Uniform Construction Code Council as the body ultimately responsible for “securing] these purposes,” LSA-R.S. 40:1730.21(E), although the “allocation of inspection duties among local officials is not dictated by this Part but remains a matter for the local authority.” LSA-R.S. 40:1730.21(D) and (E).

The statute specifically addresses the enforcement of building codes by municipalities and parishes in LSA-R.S. 40:1730.23, which provides:

|SA. Notwithstanding any other law to the contrary relating to the authority of local governments to enforce construction codes, all municipalities and parishes in this state shall enforce only the construction codes provided for in this Part. All municipalities and parishes shall use building code enforcement officers or certified third-party providers contracted by the municipality, parish, or regional planning commission to act in the capacity of a building code enforcement officer to enforce the provisions of this Part. Enforcement procedures by building code enforcement officers or third-party providers acting in the capacity of a building code enforcement officer shall include examination or review of plans, drawings, or specifications; the conducting of inspections; and the issuance, denial, or revocation of permits. A building code enforcement officer, third-party provider, or third-party provider contracted by a jurisdiction as provided for in R.S. 40:1730.24(A) shall not conduct plan review or inspections on a commercial or residential structure if such officer or provider owns any interest in the legal entity that constructed such commercial or residential structure or receives any compensation from the legal entity other than the fees that are charged for plan review or inspections. Nothing in this Subsection shall be construed to prevent a commercial or residential contractor or homeowner from using a third-party provider as provided for in R.S. 40:1730.24(B). Nothing in this Subsection shall be construed to prevent a commercial contractor or commercial owner from using the office of state fire marshal as a third-party provider as provided for in R.S. 40:1730.24(B) on commercial structures in any parish within the state with a population of less than forty thousand and whose boundaries lie completely north of the one hundred ten mile per hour wind line, as shown in the American Society of Civil Engineers (ASCE-7) basic wind speeds map published in the latest edition of the International Building Code.
B. Nothing in this Part shall conflict with the Federal Department of Housing and Urban Development’s regulations regarding manufactured housing construction or the provisions of R.S. 51:912.21 et seq., as it relates to manufactured housing installation. Further, it is the intent of the legislature than any service, renovation, repair, or warranty work performed on a manufactured home shall be handled under the appropriate federal standards governing manufactured housing construction or state standards governing installation, and all such work be under the jurisdiction of the Louisiana Manufactured Housing Commission. Additionally, the exemption for manufactured housing provided for in this Subsection shall extend to and include driveways, steps, decks, or other similar accessory structures or work, but shall not include any additional living area or other type of heated and cooled space outside of the original footprint of the manufactured home.
C. In connection with the construction of any building, structure, or other improvement to immovable property, neither the performance of any enforcement procedure nor any provision of a building code shall constitute or be construed as a warranty or guarantee by a governmental enforcement agency as to durability or fitness, or as a | nwarranty or guarantee by a governmental enforcement official or a third-party provider who contracts with a municipality or parish as provided for in R.S. 40:1730.24(A), that said building, structure, or other improvement to immovable property or any materials, equipment, or method or type of construction used therein is or will be free from defects, will perform in a particular manner, is fit for a particular purpose, or will last in any particular way. In the enforcement of any provision of a construction code provided for in this Part, or any regulations governed by R.S. 33:4771 et seq., the performance or non-performance of any procedure by a governmental enforcement agency, contract employee or official shall be subject to the provisions of R.S. 9:2798.1.
D. (1) Notwithstanding any provision of Title 33 of the Louisiana Revised Statutes of 1950 or any other law to the contrary, no municipality or parish shall require that residential building plans for one and two family dwellings be prepared or stamped by a certified architect or engineer if the dwelling falls within the prescriptive standards of the latest edition of the International Residential Code or its referenced amendments as provided for in R.S. 40:1730.28.
(2) The provisions of this Section shall be effective for both the duration, of the emergency wind and flood mitigation provisions as provided for in R.S. 40:1730.27 and after this Part becomes effective statewide as provided for in R.S. 40:1730.28(33)....

[Emphasis added.]

Third-party providers are addressed in LSA-R.S. 40:1730.24:

A. Municipalities and parishes may establish agreements with other governmental entities of the state or certified third-party providers to issue permits and enforce the state uniform construction code in order to provide the services required by this Part.... The council may assist in arranging for municipalities, parishes, or certified third-party providers to provide the services required by this Part to other municipalities or parishes if a written request from the governing body of the municipality or parish is submitted to the council.
B. Commercial and residential contractors and homeowners who are excepted from the contractor licensing law under R.S. 37:2170 may establish agreements with certified third-party providers to conduct plans review and inspections and enforce the state uniform construction code. On and after January 1, 2007, a third-party provider shall meet the requirements imposed by the council for certificates of registration; however, beginning January 1, 2008, upon application and fulfillment of all other requirements necessary to obtain a certificate of registration, a third-party provider who is a Louisiana licensed architect or engineer shall be granted a certificate of registration without certification by a recognized code organization. Once the council meets for the first time, certified third-party providers shall notify the council of their intention to do |10business within the state, and the council shall maintain a listing of all certified third-party providers.
[Emphasis added.]

It is clear that the legislature intended the Council to hold hearings consistent with its duty to enforce the uniform standards set by the Council, as authorized in LSA-R.S. 40:1730.34. The appellees concede that the Council does have power to adjudicate matters concerning building code enforcement officers, but contend that this authority does not extend to third-party providers. The fact that “third-party providers” are not specifically mentioned, leading appellees to conclude they were not covered, does not suggest to us that they were outside of the Council’s enforcement duties. The law considers the functions, duties, and qualifications of these reviewers and inspectors to be the same. We find nothing in the statute to cause us to conclude that third-party providers are exempt from the authority of the Council.

Finally, in considering appellees’ argument that failure to include excludes, we note that LSA-R.S. 40:1730.34(B) states that the “council and its members shall be subject to the Open Meetings Law, the Public Records Law, and the Code of Governmental Ethics.” The Council is not subject to the Administrative Procedure Act or Administrative Law. This statute, however, allows the Council to promulgate regulations under the Administrative Procedure Act for enforcement purposes if the Council chooses to do so, and it has.

Appellees concede that references to the Administrative Procedure Act can be read as giving the Council authority to promulgate rules to conduct proceedings; however, they argue that this authority cannot be extended beyond any authority statutorily conferred. We agree that the Council cannot create by rule authority not intended by the legislature. However, we do not agree with the appellees’ Ininterpretation of references to the Administrative Procedure Act as requiring the proceedings to be conducted in accordance with administrative procedures established in the Division of Administrative Law. We note that all public bodies promulgate rules in accordance with the Administrative Procedure Act. Government bodies responsible for licensing, certifying, etc. promulgate rules detailing the procedure that is to be followed in disciplinary hearings, as was done by the council in the Louisiana Administrative Code.

We do not address appellees’ arguments that adjudication by the Council is a violation of due process, because the district court did not address the constitutionality of the statute.

CONCLUSION

Accordingly, the injunction issued by the district court in this matter is vacated, the decision of the district court is reversed, and we hold that LSA-R.S. 40:1730.21 et seq. authorizes the Louisiana State Uniform Construction Code Council to hold adjudicatory hearings in accordance with its duly promulgated rules regarding third-party providers, Ms. Karen Dillard and Mr. Delvin Portier. Costs of this appeal are assessed equally to Ms. Karen Dillard and Mr. Delvin Portier.

INJUNCTION VACATED, JUDGMENT REVERSED AND RENDERED.

WHIPPLE, J., concurs and assigns reasons.

McCLENDON, J., concurs for reasons assigned by Judge WHIPPLE.

WHIPPLE, J.,

concurring.

| TWhile I do not find that the statute relied upon by the majority, ie., LSA-R.S. 40:1730.34, is as clear as the majority finds in demonstrating a legislative intent that the Council hold hearings with regard to third-party providers, I do find that reading LSA-R.S. 40:1730.35(E) together with the statutes quoted and cited by the majority supports the ultimate result reached herein. Louisiana Revised Statute 40:1730.34(B) does authorize the Council to “conduct hearings ... considered necessary by the [Cjouncil.” Moreover, pursuant to LSA-R.S. 40:1730.24(B), on and after January 1, 2007, a third-party provider “shall meet the requirements imposed by the [Cjouncil for certificates of registration,” and LSA-R.S. 40:1730.35(E) authorizes the Council “to suspend or revoke certificates of registration upon any violation of this Part after notice and a proper hearing.” Thus, reading the statutes relied upon by the majority together with LSA-R.S. 40:1730.35(E) supports the result reached herein, which is to recognize the Council’s authority to hold adjudicatory hearings in accordance with its promulgated rules to suspend or revoke certificates of registration of third-party providers.

For these reasons, I respectfully concur.

      . The statute does not provide a definition for "third-party provider”; however, in the discussion following this recitation of facts, the status and duties of third-party providers will be addressed.

      . Effective January 1, 2008, upon application and fulfillment of all other requirements necessary to obtain a certificate of registration, a third-party provider who is a Louisiana licensed architect, or engineer shall be granted a certificate of registration without certification by a recognized code organization. LSA-R.S. 40:1730.21(B).


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Tommy McCAIN v. Joanna CASSIDY.
    No. CA 11-124.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.

      Anna E. Dow, Gonzales, LA, Billy Lynn West Jr., Natchitoches, LA, for Plaintiff/Appellant, Tommy McCain.
    Fred L. Herman, Thomas J. Barbera, George W. Jackson, Jr., New Orleans, LA, John C. Guillet, Corkern, Crews & Guillet, Natchitoches, LA, for Defendant/Appellee, Joanna Cassidy.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   EZELL, Judge.

| ¶ Tommy McCain appeals a trial court judgment which dismissed his lawsuit to annul a 2008 Natchitoches City Court judgment based on an exception of prescription filed by Joanna Cassidy. He also appeals the trial court’s award of attorney fees in the amount of $2,500.00 to Ms. Cassidy.

FACTS

The facts leading up to this dispute are found in the city court’s reasons for judgment as follows:

Mr. McCain performed painting services for Ms. Cassidy from approximately September of 2006 through December, 2006. During this time period, he would submit his bill weekly for his and the other painters, and Ms. Cassidy would pay the bill. Sometime around the end of 2006, Mr. McCain was let go by Ms. Cassidy.
Beginning in March, 2007, Mr. McCain again began to do certain work at Ms. Cassidy’s Natchitoches residence, both painting and acting as a pseudo contractor for the other trades. Here is where the dispute develops. Mr. McCain says he was to be paid for this work, but was withholding billing her until it was complete because Ms. Cassi-dy was running short of money to complete the renovation. Ms. Cassidy’s version is that she and Mr. McCain had developed an intimate and personal relationship and his work was a reflection of that relationship and that he did not expect payment.

In ruling on the dispute, the trial court explained:

The evidence shows that the nature of their relationship changed around March, 2007. This was evidenced by Mr. McCain not billing her weekly as he had done in the past. At some point in time, he moved into the defendant’s home and used her vehicle when she was out of town. He had other jobs going on during this entire time period, and testified that he worked on Ms. Cassidy’s home at night and weekend[s]. He still did not bill her until October 1, 2007, even after they split up in July, which gives the impression that it was an after thought [sic].
Mr. McCain explains away his not billing her during the work by claiming she was short of funds. However, Mr. McCain’s own evidence showed that she borrowed $100,000.00 in May of 2007, so certainly she had access to funds to pay him during the disputed period.
|?The evidence paints a picture of Mr. McCain doing the work from March to July, 2007[sic] as result of their relationship, not as a result of getting paid for said work. Plaintiff did not bear his burden of proof, and therefore, the Court denies the relief he has prayed for and orders his petition to be dismissed, at his cost.

Following the city court ruling, a judgment was signed on July 15, 2008. There was no other action concerning the issue until Mr. McCain filed a petition in Natchi-toches District Court on June 18, 2010. At that time, Mr. McCain sought to annul the city court judgment and sought payment of $9,292.50 for services rendered to Ms. Cassidy. In response, Ms. Cassidy filed an exception of prescription and a motion for attorney fees. A hearing on the exception was held on October 28, 2010.

The trial court granted Ms. Cassidy’s exception of prescription and ordered the case dismissed. Attorney fees in the amount of $2,500.00 were also awarded to Ms. Cassidy. It is from this judgment that Mr. McCain appeals.

PRESCRIPTION

When “evidence is introduced at the hearing on [a] peremptory exception of prescription, the [trial] court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review.” Carter v. Haygood, 04-646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. “If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

The city court’s reasons for judgment, the judgment itself, and a portion of the transcript of the testimony from the city court case were introduced into evidence at the hearing on exception of prescription. The attorneys also presented argument to the court. Therefore, we must decide if the trial court was clearly wrong in its determination that Mr. McCain’s action to nullify the city court judgment has prescribed.

JjNULLITY

Louisiana Code of Civil Procedure Article 2002

Mr. McCain claims that the trial court erred in not finding that he was entitled to bring this nullity action pursuant to La. Code Civ.P. art. 2002(A)(3), contending that city court judgment is an illegal judgment. An action to annul a judgment under the provisions of Article 2002 can be brought at any time. La.Code Civ.P. art. 2002(B).

The basis for Mr. McCain’s nullity action is the city court’s finding that there was an intimate relationship between he and Ms. Cassidy which was consideration for the work performed by him. Citing Schwegmann v. Schwegmann, 441 So.2d 316 (La. App. 5 Cir.1983), writ denied, 443 So.2d 1122 (La.1984), cert. denied, 467 U.S. 1206, 104 S.Ct. 2389, 81 L.Ed.2d 347 (1984). Mr. McCain claims that the city court’s reasons indicate the existence of an unenforceable contract. It is Mr. McCain’s position that the trial court found that this was a “sex for services” contract, although he denies that there was ever any such type of contract. Mr. McCain argues that since the city court judgment is based on an absolutely null contract, it is an absolutely null judgment which does not prescribe and may be attacked at any time citing Bass v. Laporte, 95-867 (La.App. 1 Cir. 4/4/96), 672 So.2d 1121, writ granted in part and judgment set aside on other grounds, 96-1651 (La.10/25/96), 681 So.2d 344.

As can be seen from the quoted reasons for judgment above, the city court did not find that there was a sexual relationship in exchange for work performed. The city court found that a personal relationship had developed between Mr. McCain and Ms. Cassidy. During this time, he worked on her house, never billing her as before. He did not submit a bill until some three months after the relationship ended. This is not a case of an illicit “sex for services” issue, and the city court did not find so.

|4In the presence of a gratuitous intent on the party of a party performing services, circumstances which would otherwise give rise to a quasi-contractual obligation to pay for the services rendered give rise merely to an imperfect obligation incapable of enforcement in a court of law. Webb v. Webb, 01-1577 (La.App. 1 Cir. 11/8/02), 835 So.2d 713, writ denied, 02-3001 (La.3/14/03), 839 So.2d 37 (citing Martin v. Bozeman, 173 So.2d 382 (La. App. 1 Cir.1965)). The city court simply found that the evidence established that Mr. McCain intended to perform his services for free during this time period and did not expect payment.

The judgment in the city court is not an absolute nullity. The trial court did not err in finding that Article 2002 is not applicable to this case.

Louisiana Code of Civil Procedure Article 200k

Mr. McCain also asserts that his claim was timely under the one-year per-emptive period of La.Code Civ.P. art. 2004. Mr. McCain alleges that the city court judgment was based on fraud and ill practices. He claims that on June 9, 2010, he became aware of a pattern by Ms. Cassidy to claim an intimate and personal relationship as a defense against another alleged obligation.

An action for nullity is “not a substitute for an appeal from a judgment that might be erroneous due to insufficient evidence or a misinterpretation of substantive law but is a separate remedy designed to afford relief to a party against a judgment procured by methods viewed with disdain by the judiciary.” Andrus v. Chrysler Fin. Corp., 99-105, p. 7 (La.App. 3 Cir. 6/2/99), 741 So.2d 780, 784, writ denied, 99-1968 (La.10/15/99), 748 So.2d 1150. The criteria used to determine whether a particular judgment has been obtained by fraud or ill practices are: “(1) when the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief, and (2) when the enforcement of the judgment would be |sunconscionable and inequitable.” Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983). “Conduct which prevents an opposing party from having an opportunity to appear or to assert a defense constitutes a deprivation of his legal rights.” Id.

Mr. McCain’s assertion that Ms. Cassidy used the same defense in another lawsuit, indicating a pattern of behavior, is not an allegation amounting to fraud or ill practices. It is simply a defense to a claim filed in court and does nothing to prevent any party from having an opportunity to appear and challenge that defense to her claim.

We agree with the trial court that Mr. McCain’s action for nullity of the July 15, 2008 city court judgment under Article 2004 was prescribed when he filed the petition for nullity on June 18, 2010.

ATTORNEY FEES

The trial court awarded Ms. Cassi-dy $2,500.00 in attorney fees. Mr. McCain claims that this was in error because there was no evidence introduced to support the award and the trial court gave no reason for awarding the sum of $2,500.00.

“The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.” La.Code Civ.P. art. 2004(C).

“Regardless of the language of the statutory authorization for an award of attorney fees or the method employed by the trial court in making an award of attorney fees, courts may inquire as to the reasonableness of attorney fees.... ” Rivet v. State, Dep’t. of Transp. and Dev., 96-145, p. 11 (La.9/5/96), 680 So.2d 1154, 1161. Factors to be considered include the ultimate result obtained; the responsibility incurred; the importance of litigation; the amount of money involved; the extent and character of the work performed; the legal knowledge, attainment, and skill of | ^attorneys; the number of appearances involved; the intricacies of facts involved; the diligence and skill of counsel; and the court’s own knowledge. Id.

At the hearing on the matter, counsel for Ms. Cassidy stated that $2,500.00 was the amount of attorney fees Ms. Cassidy had incurred in the case. No argument was made disputing this amount. Furthermore, the record indicates that answers and exceptions were filed, in addition to memorandum supporting the exceptions. We find no error in the trial court’s award of $2,500.00 in attorney fees.

Ms. Cassidy has requested an additional award of attorney fees for work performed on the appeal. When an appel-lee neither appeals nor answers the appeal, she is not entitled to additional attorney fees for legal services rendered on appeal. La.Code Civ.P. art. 2133; Dugas v. Aaron Rents, Inc., 02-1276 (La.App. 3 Cir. 3/5/03), 839 So.2d 1205. Although Ms. Cassidy requested additional attorney fees in her brief, she is not entitled to additional attorney fees since she did not follow proper appellate procedure.

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Tommy McCain.

AFFIRMED.


author: AMY, Judge.

text:
    STATE of Louisiana in the Interest of G.O.
    No. 10-571.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.
    Writ Denied July 21, 2011.

      Jo Ann Nixon, Glenda August & Associates, Iberia, LA, for Appellant, M.L.
    Reule P. Bourque, Kaplan, LA, for Ap-pellees, G.R. and N.R.
    Gregory Bryan Dean, Dean Law Office, Opelousas, LA, for Appellees, S.B. and K.B.
    Diane Elaine Cote, Lafayette, LA, for Appellee, State of Louisiana, Department of Social Services.
    Nicole M. Guidry, Abbeville, LA, for Appellee, R.O.
    Bart A. Broussard, Abbeville, LA, for Appellee, G.O.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   ON REMAND FROM THE LOUISIANA SUPREME COURT

AMY, Judge.

| iThe State instituted proceedings against the appellant, M.L., seeking to terminate her parental rights. After a trial, the trial court entered judgment terminating M.L.’s rights. M.L. appealed, asserting that the trial court erred in: (1) finding that she did not substantially comply with her case plan; (2) terminating her parental rights; (3) finding that termination was in the best interests of the child; (4) failing to monitor the actions of the State to assure that the trial court’s orders regarding reunification were followed; and (5) permitting certain placement of the child while he was in the State’s custody. This court vacated the judgment of the trial court on procedural grounds and remanded the matter to the trial court for further proceedings. The Supreme Court of Louisiana granted the State’s writ application and remanded the matter to this court for consideration of the merits of M.L.’s appeal. We affirm.

Factual and Procedural Background

The record indicates that M.L. is the mother of the minor child, G.O., born on July 12, 2003. M.L. and R.O., G.O.’s father, entered into a “consent judgment” on March 8, 2004, which provided that custody of G.O. would be shared by his paternal step-grandfather (S.B.), maternal grandmother (G.R.), biological mother (M.L.), and biological father (R.O.). The record indicates that, in practice, G.O. stayed with S.B. during the week and with G.R. on the weekends. On July 13, 2007, the Louisiana Department of Social Services, Office of Community Services of Vermilion Parish (OCS) received a report that G.O. was being sexually abused by G.R.’s husband, N.R. |2G.O. was placed in the legal custody of the State on July 27, 2007, and subsequently adjudicated a child in need of care.

Thereafter, case plans were implemented for M.L. and R.O. in order for them to work towards reunification with G.O. However, on April 22, 2009, the State filed a Petition for Termination of Parental Rights and Certification for Adoption, alleging termination was justified due to the parents’ failure to substantially comply with their respective case plans. The State further asserted that there was no reasonable expectation of significant improvement in the parents’ conduct in the near future.

After a two-day trial, the trial court executed judgment terminating M.L.’s and R.O.’s parental rights with regard to G.O.

M.L. appealed, asserting as error:

1.The Appellant assigns error to the actions of the trial court in terminating the [sic] her parental rights ... for substantial non-compliance when she had complete[d] several components of the case plan and was actively involved in mental health treatment.
2. The Appellant assigns error to the actions of the trial court in terminating her parental rights where there had been improvement and expectation for further improvement with appropriate and adequate treatment.
3. The Appellant assigns error to the actions of the trial court in finding that termination was in the best interest of the child considering the relation of the child to his mother.
4. The Appellant assigns error to the actions of the trial court in failing to monitor the actions of the state to assure that the order[s] of the court directed toward reunification of the child with his mother were followed.
5. The Appellant assigns error to the placement of the child during the term that the child was in the care of the state with the reporting party.

| sHowever, on review, this court vacated the judgment of the trial court on procedural grounds and remanded the case to the trial court for further proceedings. State in the Interest of G.O., 10-571 (La. App. 3 Cir. 12/22/10), 54 So.3d 782, rev’d and remanded, 11-499 (La.4/25/11), 62 So.3d 98. Thereafter, the Louisiana Supreme Court granted the State’s writ application, vacating this court’s judgment and remanding the matter to this court for consideration on the merits. See State in the Interest of G.O., 11-499 (La.4/25/11), 62 So.3d 98.

Therefore, we now consider M.L.’s assignments of error.

Discussion

Burden of Proof

In order to terminate one’s parental rights the State must first prove, by clear and convincing evidence, the existence of at least one ground for termination under La.Ch.Code art. 1015. La.Ch.Code art. 1035(A). See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). After the State establishes at least one statutory ground for termination, the trial court must also find that termination is in the best interests of the child. La.Ch.Code art. 1039.

Grounds for Termination

In the present case, M.L.’s parental rights were terminated pursuant La.Ch. Code arts. 1015(5), 1036(C), and 1036(D). The trial court, in its judgment, stated that M.L.:

[Has] failed to substantially comply with [her] respective case plan including but not limited to failing to have and maintain stable housing with a drug free environment, failing to maintain stable employment, failing to complete drug treatment aftercare, failing to maintain sobriety/drug free life, continued problems with the criminal justice system by the mother, lack of bonding between the mother and child, [and] a pattern of behavior by the mother that is unsafe for the child and clearly not in his best interest; that there is no reasonable expectation of 14significant improvement in said parents’ condition or conduct in the near future; that termination of the parents’ parental rights is in the best interest of the minor child[.]

In her first three assignments of error, M.L. argues that the trial court erred in terminating her parental rights under La.Ch.Code art. 1015(5). She first questions the determination that she did not substantially comply with her case plan when “she had eomplete[d] several components of the case plan and was actively involved in mental health treatment.” She also contends that “there had been improvement and expectation of further improvement with appropriate and adequate treatment.” Finally, in her third assignment of error, M.L. disputes the finding that “termination was in the best interest of the child considering the relation of the child to the mother.”

Louisiana Children’s Code Article 1015(5) provides that:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Louisiana Children’s Code Article 1036(C) sets forth the evidence which may be considered in determining whether there is a lack of compliance with the case plan under Article 1015(C). It states, in pertinent part:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting Isthe parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

Further, La.Ch.Code art. 1036(D) provides that a lack of any reasonable expectation of significant improvement under La.Ch. Code art. 1015(5) may be evidenced by one or more of the following:

(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Substantial Compliance with Case Plan

A trial court’s factual determinations as to whether there has been substantial compliance with a case plan, whether a significant indication of reformation has been shown, and whether the parent is likely to reform will not be set aside unless the | (¡record reflects that the trial court was clearly wrong. State ex rel. T.L.B., 00-1451 (La.App. 3 Cir. 4/4/01), 783 So.2d 626.

In its judgment, the trial court found that M.L. had failed to comply with her case plan by:

failing to have and maintain stable housing with a drug free environment, failing to maintain stable employment, failing to complete drug treatment aftercare, failing to maintain sobriety/drug free life, continued problems with the criminal justice system by the mother, lack of bonding between the mother and child, [and] a pattern of behavior by the mother that is unsafe for the child and clearly not in his best interest.

The trial court issued lengthy reasons for judgment, which further discuss the trial court’s concern over M.L.’s housing and employment. The reasons for judgment state:

[M.L.] has not maintained stable housing. She’s lived from pillar to post with different men, some of whom have been in [sic] drugs. Now she lives in the front yard of the grandparents who were part of the source of all these problems from the very beginning.
.... She’s gone from job to job. That job that she has now is by the good graces of her mother. I’m convinced that it’s all designed to help get this child back. And then what happens after that?”
Her employment? I think she’s made efforts at that, but there are still these aspirations and dreams that are unrealistic. I don’t know that she will ever be able to complete any kind of career education or maintain any job that’s not family supported for very long because of her problems with substance abuse.

In regard to housing, the State provided the testimony of Veronica Azard, M.L.’s OCS caseworker. She testified that M.L.’s housing was not “stable throughout this two-and-a-half-year period. She’s kind of moved around. She has been incarcerated, and she’s been in different places, so it hasn’t been stable.” The record reflects that M.L. lived in four residences throughout the two-and-half-year 17period G.O. was in the State’s custody, not including two periods of incarceration in November 2007 and March 2008.

With regard to employment, M.L. testified that she was working part-time at a restaurant, which her mother managed, making $7.25 an hour. M.L. testified that she was entering cosmetology school in the fall. When asked whether M.L.’s current employment would provide substantial wages to support G.O., Ms. Azard stated that it was “[p]robably not even enough to support one individual, let alone a child.”

As to completing parenting classes, the record indicates that while incarcerated on a probation violation, M.L. completed a parenting class called Project Hope. Ms. Azard testified that M.L.’s case plan required she also complete a parenting program at Gulf Coast, which was not fulfilled at the time of trial. In its reasons for judgment, the trial court stated on this point:

The parenting programs, sure, she completed a program while incarcerated. She didn’t go to Gulf Coast as recommended. And its not surprising, nor is it out of character, that [M.L.] would complete a program while incarcerated. That’s what she does. She straightens up, usually when she’s denied access to drugs.

M.L.’s case plan required that she maintain a drug-free lifestyle which included attending Narcotics Anonymous meetings, counseling, and random drug screens. The case history of the present matter reveals that in 2007, when G.O. was first taken into the State’s custody, M.L. was attending inpatient drug rehab. M.L. again entered inpatient rehab in 2009. The record reveals that in February 2008, M.L. was on probation for a drug offense. M.L. was asked to present herself for drug testing, and she refused. Consequently, she was required to place a GPS tracker on her ankle to monitor her whereabouts. In March 2008, OCS received a report that M.L. cut the GPS tracking device off her ankle, remained missing for three weeks, turned herself bin, and was incarcerated. OCS records indicate that M.L. admitted using drugs throughout the three weeks that she was missing.

Ted Gallagher, a counselor with Lafayette Addictive Disorders Clinic (LADC), testified that he began working with M.L. in September 2009 after M.L. had completed an inpatient drug rehab program. He explained that the LADC aftercare program consists of weekly sessions with a counselor and periodic drug screens if requested by the counselor. His testimony described M.L.’s attendance at those meetings as “sporadic.” Mr. Gallagher further testified that M.L. tested positive for amphetamines and methamphetamines on January 6, 2010. Kelly Hardy, M.L.’s probation officer, testified that M.L. tested positive for methamphetamines on July 22, 2009. M.L. was also drug tested on the first day of trial in the instant case, and that test came back positive for amphetamines and methamphetamines. Ms. Azard testified that M.L. has shown “habitual noncompliance” with regard to her case plan’s requirement to maintain a drug-free lifestyle. She explained that M.L.’s case plan required that she attend, at minimum, weekly Narcotics Anonymous meetings, however, M.L. only provided documentation for attendance at less than ten meetings during a two-year period of time.

The above evidence supports the trial court’s determination that M.L. has not resolved her substance abuse issues. In its reasons for judgment, the trial court stated:

I don’t know if her substance abuse is just an addiction or if it’s actually symptoms of something deeper, but she’s played the game of doing what was asked of her to do when she knew that it counted, that it might count; but then when she thought it didn’t count, she would lapse — she lapses right back into the problems.
Now, I heard from her probation officer, Ms. Hardy, talk about the issues that she’s had. She tested positive for methamphetamines the day of the trial, on Monday. That’s a devastating indictment against any hope for rehabilitation. I mean, I would have expected, from the past, |9[M.L.] to at least be clean when she was coming to see me in court, and she can’t even do that anymore.

As provided in La.Ch.Code art. 1036(C), and cited by the trial court in its judgment, the failure to comply with a case plan can be evidenced in a number of ways, including proof of “[t]he parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.” La.Ch.Code art. 1036(C)(5). From our review of the record as set forth above, we find no manifest error in the trial court’s determination that M.L. failed to substantially comply with her case plan.

Expectation of Further Improvement

M.L. argues that termination of her parental rights is improper here, “where there had been improvement and expectation for further improvement with appropriate and adequate treatment.” In its reasons for judgment, the trial court stated:

Is there any hope for the future with [M.L.] and this child, which is the third prong? Again, Article 1036 of the Children’s Code says that lack of any reasonable expectation of significant improvement can be evidenced by one or more of the following, and there are three of them: (1) is any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to substantial risk of serious harm based upon expert opinion or based upon an established pattern of behavior.
That’s what I’ve just finished talking about. I have tried and tried and tried over the past two years to break the behavior of substance abuse. Dr. Ber-geron and Dr. Gallagher have tried. There’s been counseling. It just hasn’t been enough. She’s been in and out of rehab. But that’s not enough. There have to be results.
And again, am I saying that [M.L.] is a bad person? No. That’s not the issue. I wouldn’t say it anyway. I don’t think she is a bad person. I think she’s got a substance abuse problems and issues, that she has demons that she’s been fighting with maybe all of her life, and I | ]ndon’t believe that she — she has not been able to overcome them. I don’t think she will overcome them any time in the near future.
The second requirement is a pattern of repeated incarceration of a parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time. By her own admission, [M.L.] has been hindered by her efforts by incarceration. She is currently on probation. She has perhaps violated that probation. So that element is satisfied.
And thirdly, any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home based upon expert opinion or based upon an established pattern of behavior. Clearly, [M.L.’s] pattern of behavior would indicate that she just can’t provide a permanent home for [G.O.] that’s adequate. She just doesn’t have the tools to do it. She’s got to kick this addiction first before anything else happens.
I want to be very careful also in talking about substance abuse to note that I also realize that substance abuse alone may not be enough to terminate parental rights. I’m aware of that, and I’m not doing that. I’m not saying substance abuse is the reason for termination. I’m saying that substance abuse has created a pattern of behavior that is unsafe for the child, and clearly not in his best interest.

While the likelihood of reformation is based at least in part on the parent’s compliance with the case plan, for the purposes of making a finding as to whether parental rights should be terminated, “the reformation of a parent means more than a parent’s mere cooperation with agency authorities.” State ex rel. T.L.B., 783 So.2d at 633. “Instead, a showing of ‘a significant, substantial indication of reformation is required, such as altering or modifying in a significant way the behavior which served as a basis for the State’s removal of the child from the home.’ ” Id., quoting State in the Interest of EG, 95-0018, p. 5 (La.App. 1 Cir. 6/23/95), 657 So.2d 1094, 1097, writ denied, 95-1865 (La.9/1/95), 658 So.2d 1263. In light of the evidence regarding M.L.’s employment history, history of unstable housing, and continued drug use, we find no error in the trial court’s determination that M.L. has not shown a significant indication that reformation is expected in the near future.

In Best Interests of the Child

For the reasons above, we find that the record supports a finding, by clear and convincing evidence under La.Ch.Code art. 1015(5), that the statutory grounds for termination exist in this case. While only one statutory ground for termination need be proven, the trial court must also find that termination is in the best interests of the child. La.Ch.Code art. 1039. Further, the trial court is required under La.Ch.Code art. 1037 to enter written findings concerning the child’s best interests and “shall include consideration of the child’s attachment to his current caretakers.”

As shown in its reasons for judgment, the trial court considered termination to be in G.O.’s best interests, finding that M.L.’s drug abuse “renders her unable or incapable of exercising her parental responsibilities without exposing the child to undue danger.” Further, the trial court credited the testimony of Dr. Annie Spell, a licensed clinical psychologist with a specialization in child and adolescents and G.O.’s therapist, that G.O. was attached to his current caretakers.

Dr. Spell’s testimony was that M.L.’s drug use disrupted the bonding that could have happened between herself and the child. She further explained that her mental health difficulties “create a lot of obstacles for her in the day-in/day-out that would be necessary in the parenting and caretaking of a child.” Dr. Spell explained that G.O. had an “ideal situation” with his current caretakers “in terms of consistency of routine” which she stated “is very, very critical to young children.” See La. Ch.Code art. 1037.

In light of the evidence regarding M.L.’s ability to care for the child and G.O.’s stability with his current caretakers, we find no error in the trial court’s determination that termination of M.L.’s parental rights is in G.O.’s best interests. Therefore, |12M.L.’s assignments of error concerning the trial court’s factual findings with regard to the termination of her parental rights are without merit.

State’s Efforts to Assist in Reunification

In her fourth assignment of error, M.L. argues that prior to termination the trial court erred in failing to monitor the actions of the State to assure that court orders directed toward reunification of the child were completed. In its reasons for judgment, the trial court addressed this argument, stating:

[M.L.’s] attorney has eloquently argued that the State hasn’t done enough to help her, that the State should have done more. Maybe they could have done more. Maybe they could have been more interested in helping her with her rehabilitation, but their requirement is reasonable efforts. Their requirement is all of the efforts that would be expected of the State in the best interest of the child.
I think the State on several occasions during the last two years — has known the feelings of this court and has responded to the feelings of the Court by trying to satisfy, if not anybody else, at least the Court, to show that they were, in fact doing everything reasonably possible.

Indeed, before a parent’s rights can be terminated, the record must reflect that the State must undertake reasonable efforts to assist that parent in reunification. State ex rel. A.T., 06-501 (La.7/6/06), 936 So.2d 79. In brief, M.L. provides a list of court orders it alleges were never fulfilled by the State. The record reflects that OCS sent M.L. to inpatient rehab facilities, counseling, and ordered parenting classes. M.L., however, continued to test positive for drugs, participate inconsistently in counseling, and neglected to go to the ordered parenting classes and Narcotic Anonymous meetings. In light of the record as a whole, we find no error in the trial court’s determination that the State made reasonable efforts to assist M.L. in reunification with her son.

Accordingly, this assignment of error lacks merit.

hsG.O.’s Placement While In State Custody

Lastly, M.L. asserts the trial court erred in placing G.O., during the time in which he was in the custody of the State, with the party who reported the allegations of sexual abuse. The State Department of Social Services, not the trial court, has sole authority over the placement of children within their custody, and thus it is improper for M.L. to assign G.O.’s placement as an error of the trial court. La.Ch.Code art. 672; State ex rel. R.A., 06-2380 (La.12/15/05), 944 So.2d 1262. Further, the judgment currently appealed states only that G.O. is free and eligible for adoption and is to remain in the custody of the State until G.O. is authorized for adoption, thus issues in regard to his placement are not properly before this court on appeal.

Accordingly, this assignment of error lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court terminating the parental rights of M.L. to the minor child, G.O. is affirmed. All costs of this appeal are assessed to M.L.

AFFIRMED.

      . Pursuant to the Uniform Rules-Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.

      . R.O. has not joined in this appeal and thus the termination of his parental rights as to G.O. will not be discussed herein.

      . Pursuant to La.R.S. 46:56(F)(8)(b), the identity of the reporting person is confidential.


author: COOKS, Judge.

text:
    Patrick E. PHILLIPS, Jr., et al. v. G & H SEED CO., et al.
    No. 10-1484.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 2011.
    Elwood C. Stevens, Jr., Domengeaux Wright Roy & Edwards, LLC, Lafayette, LA, Jerald Edward Knoll, Sr., The Knoll Law Firm, LLC, Marksville, LA, Andre’ F. Toce, The Toce Firm, A.P.L.C., Lafayette, LA, for Plaintiffs/Appellees, Patrick E. Phillips, et al.

      Gary A. Bezet, Robert E. Dille, Carol L. Galloway, Allison N. Benoit, Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, L.L.P., Baton Rouge, LA, Terrence D. McCay, Kean, Miller, Hawthorne, D’Ar-mond, McCowan & Jarman, L.L.P., Lake Charles, LA, for Defendants/Appellants, Bayer CropScience LP, Michael Redlich, G & H Seed Company, Inc., Crowley Grain Drier, Inc., Nolan J. Guillot, Inc., and Mamou Rice Drier and Warehouse, Inc.
    Raymond P. Ward, Adams and Reese, L.L.P., New Orleans, LA, for Defendants/Appellants, Bayer CropScience LP and Michael Redlich.
    Michael T. Pulaski, McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel, PC, Covington, LA, for Defendants/Appellants, Allianz Global Risks and U.S. Insurance Company.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

| ]This is an appeal from a judgment in a civil action which cast costs against the prevailing party. The Defendants, Bayer CropScience, LP, and its employee, Michael Redlich, were ordered to pay court costs of $326,307.09, even though it garnered a favorable verdict in the court of appeals and a subsequent denial of writs by the Louisiana Supreme Court. Phillips v. G & H Seed Co., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339, writ denied, 09-1504 (La.10/30/09), 21 So.3d 284. “A ‘costs’ judgment against a defendant is a separately appealable judgment where the amount of expert witness fees taxed as costs are substantial and where, following a judgment on the merits, the trial court takes the matter of costs under advisement and conducts additional hearings on such matter.” Hoyt v. State Farm Mut. Auto. Ins. Co., 623 So.2d 651 (La.App. 1 Cir.1993), (citing Louisiana Resources Company v. Fiske, 343 So.2d 1219 (La. App. 3 Cir.1977)).

FACTS AND PROCEDURAL HISTORY

This case has a long history, including two prior appeals and a concurrent appeal. We set forth the relevant facts and procedural history in the concurrent appeal, Phillips v. v. G & H Seed Co., 10-1405 (La.App. 3 Cir. 5/11/11), 66 So.3d 507:

This protracted and contentious litigation had its genesis in the late 1990’s, when Bayer CropScience LP and its employee, Michael G. Redlich, marketed the insecticide ICON in Louisiana. Certain companies purchased ICON, applied it to rice seed, and sold the ICON-coated rice seed to rice farmers in Louisiana. Many of these rice farmers also raised crawfish in their rice ponds.
Essentially, Plaintiffs allege the ICON coated rice seed was introduced into the rice fields/crawfish ponds of South Louisiana in 1999. The active ingredient in ICON was fipronil, which is a chemical used to control arthropods and is used in a variety of compounds to control insects such as termites, fleas, mole crickets and the rice water weevil. According to the plaintiffs, the introduction of ICON killed and/or sterilized the crawfish, both wild and pond-raised. According to the plaintiffs, as a result of the contamination, Louisiana’s annual farm-raised crawfish crop dropped from over 60 million pounds to ^approximately 10 million pounds.
Defendants argued the use of ICON is not incompatible with crawfish farming, provided the farmer allows for a suitable waiting period between planting the ICON-treated rice seed and introducing crawfish tot he rice field. Defendants also argued the record breaking drought in Louisiana during the time in question was the reason for the decline in craw-fish production.
In 1999, a class action lawsuit was filed on behalf of all crawfish farmers in Louisiana, Craig West, et al. v. G & H Seed Co., et al., No. 99-C-4984-A in the Twenty-Seventh Judicial District Court, Parish of St. Landry. That lawsuit was eventually settled.
Thereafter a class action suit was initiated on behalf of Patrick Phillips and Atchafalaya Processors, Inc, individually and on behalf of all others similarly situated. Essentially, this class action suit was brought by crawfish buyers, processors and resellers. Named as Defendants were Bayer CropSeience LP and Michael Redlich. Also named as Defendants were the companies who purchased the ICON, applied it to the rice seed, and sold it to the farmers: G & H Seed Co., Inc., Crowley Grain Drier, Inc., Delhi Seed Co., Inc., Terral Seed Co., Inc., Mamou Rice Drier & Warehouse, Inc.
Plaintiffs eventually abandoned their efforts to certify either a plaintiff or defendant class. Thereafter, through a series of supplemental and amending petitions, the matter proceeded as a cumu-lation of individual actions comprising the claims of approximately 72 individual crawfish buyers, resellers and processors.
Bayer filed an exception of no cause of action, contending in order to maintain a delictual action against a manufacturer for property damage caused by a defective product, the claimants must have some proprietary interest in the damaged property. Bayer argued that since none of the plaintiffs in this litigation are crawfish farmers, and none of them had any ownership in the damages crop, they could not demonstrate the required proprietary interest. Plaintiffs argued there were existing joint ventures between the crawfish farmers and buyers/processors during the time the craw-fish crop was damaged. The trial court overruled the exception, rejecting the per se exclusionary/proprietary interest rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 308, 48 S.Ct. 134, 72 L.Ed. 290 (1927), in favor of the policy driven duty/risk analysis espoused in PPG Industries, Inc. v. Bean Dredging, 447 So.2d 1058 (La.1984). The trial court found in applying a duty-risk analysis, the law extended a remedy to the buyer/processor plaintiffs. Bayer applied for writs to this Court. Writs were denied.
Because of the enormity of trying all 72 actions at once, the trial court determined it would be best to try the actions of four plaintiffs, three to be chosen by the plaintiffs and one chosen by the defense. This Rnumber was eventually reduced to three plaintiffs: Patrick Phillips (d/b/a Phillips Seafood), James Bernard (d/b/a J. Bernard Seafood Processors, Inc.), and Lisa Guidry (d/b/a Guidry’s Crawfish).
After a full trial on the merits, Plaintiffs filed a Motion for Directed Verdict on whether the Defendants duty extended to these buyer/processor plaintiffs. Finding there was an “ease of association from farmer to wholesale” such that farmers and processors are “inextricably interwoven and symbiotic in their relationships,” the trial court granted the Motion for Directed Verdict. The jury then returned a verdict in favor of each of the three plaintiffs, assigning 94% fault or causation to Bayer, 1% to Bayer salesman Michael Redlich, and 4% to the drought that occurred in South Louisiana. It awarded $900,000 to plaintiff Phillips, $750,000 in damages to plaintiff Bernard, and $100,000 to plaintiff Gui-dry.
Defendants timely filed a Motion for Judgment Notwithstanding the Verdict, New Trial, and Remittitur. The motions were denied and Defendants filed an appeal with this Court.
A five judge panel of this Court reversed the trial court’s directed verdict on scope of duty and set aside the jury’s verdict. Phillips v. G & H Seed Co., 08-934 (La.App. 3 Cir. 4/8/09), 10 So.3d 339 (hereafter referred to as Phillips I). The majority reasoned that since “the plaintiffs in this case failed to prove a proprietary interest in the crawfish crop destroyed by the use of ICON .... the plaintiffs cause must fail.” Id. at 344. The majority did not undertake a duty-risk analysis or apply the PPG factors as done by the trial court. Instead it applied the per se exclusionary/proprietary interest rule of Robins Dry Dock. Plaintiffs also note the majority did not explain what would be “sufficient” to establish a proprietary interest under Louisiana law.
Judge Saunders dissented from the majority opinion, finding it contradicted the Louisiana Supreme Court’s finding in 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), that “the PPG case abrogated] the rule that flatly prohibited recovery for intangible economic loss produced by negligent conduct.” Judge Saunders found “the only conclusion a reasonable juror could reach was that Bayer had reckless disregard for the potential ramifications to this state’s crawfish industry, as a whole, when crawfish farmers used ICON.” Phillips I, 10 So.3d at 345. This callousness, Judge Saunders concluded, was sufficient to support the trial court’s directed verdict on scope of duty. Further, Judge Saunders noted that even if one interprets PPG as the majority does, it was factually distinguishable from the present case. In PPG, the plaintiff had an alternative source to get the natural gas it needed, whereas the buyers/processors here had no other source for the crawfish they contracted to receive from the crawfish farmers. This interwoven, symbiotic relationship between crawfish farmers and crawfish buyers/processors was different than that present in PPG.
^Plaintiffs Application for Rehearing to this Court was denied. Similarly, the application for a Writ of Review to the Louisiana Supreme Court was denied. Phillips v. G & H Seed Co., 09-1504 (La.10/30/09), 21 So.3d 284. Following these denials, Bayer filed Motions for Summary Judgment against all the remaining buyer/processor plaintiffs based on the proprietary interest requirement espoused by this Court’s opinion in Phillips I.

While the appeal in Phillips I was pending, Plaintiffs filed a motion to tax their trial-court costs against Defendants. That motion remained dormant until after the decision in Phillips I, when Defendants filed their own motion to tax trial-court costs. Plaintiffs responded by re-urging their motion to tax costs.

Both motions were heard on May 10, 2010. At the hearing the trial court expressly stated he was taking judicial notice of all proceedings and of “everything that was on the record.” The trial court, in lengthy oral reasons for judgment, determined that based on its evaluation of the overall circumstances presented and the conduct of the parties involved, fairness and equity required that Defendants pay all costs. Specifically, the trial court gave the following reasons for this conclusion:

The big question is, ultimately, what’s equitable? I look at [La.Code Civ.P. art.] 1920 ... the trial court may assess costs in any equitable manner and its assessment will not be reversed on appeal, but as Mr. Dille says, its not unfettered discretion, in the absence of an abuse of discretion. I understand that Judge Domengeaux pretty much said, as I noted earlier, there’s not much of a threshold that I have to reach in exercising my discretion, but it does say what’s equitable. I find both sides, as I said, skirted right at the edge of the envelope sometimes. . That’s what good lawyers do. That’s how new law is made. I indicated in — I took the lawyers into conference. I want to state this,for the record for the Court of Appeal to indicate to them that my lean at the time after reading everything but before arguments where I would leave it open to be convinced otherwise was to let each side just pay their own costs. There was litigation — it was expensive. And if you went at the level that needed this case to be presented, it’s going to be expensive. In considering the equities involved, I understand both sides hre asking for about the same amount. I awarded, and I’ll be candid, I awarded costs against the defendants because the plaintiffs were the prevailing party. I never gave a second thought to whether there was any equity involved or not, just said they lost, they get to pay. The shoe is on the other foot as it were now. And defendants, to their credit, didn’t say, wait, wait, wait, wait. They knew they had time to look at what the costs would be | fland to make the arguments. Plaintiffs are out of time now. It’s here. I have to determine what’s equitable. I wasn’t impressed with Alfred E. King’s top-down economic application theory. I wasn’t sometimes impressed with this Court ordered discovery. As I recall, seventeen people lost their cases because discovery wasn’t produced. Discovery on a motion to compel by the defendants against the plaintiffs. I dismissed those cases with prejudice. It’s easy to point the fingers. It’s a lot harder to determine what equity is. I was offended by the letter to the scientific journal. I was offended by the accurate but misleading response when asked if any counsel knew of this correspondence. I was riot pleased at all. That’s when I think the edge got crossed. I wasn’t happy.when Mr. Toce threw his pen on that table because he got angry with one of my rulings. My goodness, what lawyer worth his salt wouldn’t get angry at a judge when he— looking the way you guys looked and you don’t get your way. But you don’t get to behave poorly. But behaving poorly and throwing a pencil is a little bit different than some of the actions I saw. I’m struggling with doing something that is almost never done. You know what’s coming. Granting costs or casting costs against the prevailing party. But I don’t want to do all the costs of the plaintiff which is why I was looking for some form of barometer as to the activities that you take issue with, some of which I agree with. I would have liked to have known what effort was required to combat and I don’t have that benefit. I don’t want to postpone this. It’s time to get it behind us. I’m coming to the end. I believe when it’s all said and done that the appeal in Wiltz is going to remain as it’s posited right now. I believe when it’s all said and done that the Fifth Circuit is likely to rule without certifying the question out of the federal court. I think this case is basically over, hard fought as it was, well presented as it was. I take all of that into consideration. I take into consideration the fact that I believe it’s unfair to have three plaintiffs carrying, and I accept the 6.3 percent figure, of what started out as a class action and what was in agreement test cases, not bellwether in the technical sense because the defendants did not agree that the results of the trial would be utilized to settle all the remaining cases. But I think its just unfair to make those three plaintiffs carry the ball and I think with the appellate court, certainly under 2164, I like that, that they cast appellate costs and they certainly could have reversed me on trial costs and that looming as large as anything, I cast defendant, the prevailing party, with all costs of these proceedings.

Defendants moved for new trial, asking the trial court to strike the cost of certain depositions not used at trial. The trial court refused to strike the cost of those depositions. At the new trial hearing, the trial court expounded on its reasons for assessing Defendants with all costs:

Now I’m going to tell you once again my reason for that ruling.... I understand this was hard fought litigation by hardball lawyers, but what ultimately caused me to cast the costs to the prevailing party in this | (¡particular instance was the behavior in some sense by the defendant with regard to Peter McCahon. I was quite taken aback by that and to me that was consistent with the behavior throughout these proceedings. Mr. McCahon was said to be unavailable for trial and he’s way, way too important to come all the way to Opelousas. He’s got to be in Germany somewhere because he’s the president of Bayer CropScience. And then when things didn’t go quite as well as might have been expected he shows up for trial. I didn’t like that. I did not like the methods utilized to attempt to debunk Dr. Schlenk with a peer-reviewed published article and then the response that I got, which I found to be less than forthcoming. That’s two of the reasons. I did not like that Dr. Roman Weil or whatever his name was, the PhD from Chicago was being called down here to — you can say what you want Mr. Dille and I know we disagree, but my impression at the time and its still my impression, that he was brought down here to tell me how I should apply the law in Daubert because he was not a Daubert expert economist, he was a Daubert expert on Daubert and I found that was a waste of time, effort and money and I found that it was overreaching by a defendant who had resources far greater than those who were presenting. I did not like that the young lady, I can’t even recall her name, the third bellwether, the smallest claim of the three bellwethers was served with a lawsuit in the middle of this trial, that her husband was subpoenaed and served with a lawsuit the day before he testified. I thought that was done solely for the purpose of intimidation and it offended me greatly. I find then that many of these costs could have been lessened by less than — less aggressive measures by the defendant. So for those reasons, along with all the reasons I mentioned at new trial — at the original trial on the fixing of costs, that’s why I did what I did and exercised the discretion, and again, I did not think it was fair to have three plaintiffs bear the burden of everybody when basically the way I looked at this and the way it developed was there was a general agreement that we would try these three and attempt to do something.

Defendants appealed the trial court’s assessment of costs, asserting the following assignments of error:

1. The trial court erred in failing to award the prevailing defendants their trial costs, and instead ordering the prevailing defendants to pay the losing plaintiffs’ costs.
2. In the alternative, in ruling on defendant’s motion for new trial, the trial court erred in refusing to strike from the cost award the $27,792.60 spent on depositions not used at trial.

ANALYSIS

Louisiana Code of Civil Procedure article 1920 provides for the taxing of costs after trial. While it is the general rule to tax the party cast in judgment, the article 17affords the trial court discretion in the matter, providing in pertinent part: “[e]x-cept as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” Louisiana Code of Civil Procedure article 1920 has been consistently interpreted to grant the trier of fact great discretion in apportioning costs as it deems equitable under the circumstances. See Doe v. Roman Catholic Church, 94-1476 (La.App. 3 Cir. 5/3/95), 656 So.2d 5, writ denied, 95-2076 (La.11/13/95), 662 So.2d 478; Gauthier v. Wilson, 04-2527 (La.App. 1 Cir. 11/4/05), 927 So.2d 383, writ denied, 05-2402 (La.3/31/06), 925 So.2d 1258; Westley v. Allstate Ins. Co., 05-100 (La.App. 5 Cir.5/31/05), 905 So.2d 1127; Mitter v. Touro Infirmary, 03-1608 (La.App. 4 Cir. 4/21/04), 874 So.2d 265; Hunter v. Bossier Medical Center, 31,026 (La.App. 2 Cir. 9/25/98), 718 So.2d 636. This court in Johnson v. Bucyrus-Erie Company, 476 So.2d 1074, 1075 (La.App. 3 Cir.1985), noted that the trial court’s “discretion is not unbridled but is restricted to the realm of what is equitable.” We further instructed that “[w]hat is ‘equitable’ can only be determined on a case-by-case basis which necessarily involves a review of the facts involved.” Id.

While it is the general rule under La.Code Civ.P. art. 1920 for costs to be assessed against the party cast in judgment, “[i]n some situations, the best interests of justice are served by casting the prevailing party with all costs.” Courtney v. Winn-Dixie Louisiana, Inc., 447 So.2d 504, 510 (La.App. 5 Cir.), writ denied, 449 So.2d 1359 (La.1984). The courts have given instruction on what is required to cast the prevailing party with costs, stating that a prevailing party may be taxed with costs “if that party in some way incurred additional costs pointlessly or engaged in other conduct which would equitably justify the prevailing party being assessed.” Williams v. Wiggins, 26,060, p. 6 (La.App. 2 Cir. 8/17/94), 641 So.2d 1068, 1074; see also Ford v. State Dept. of Public Safety, 00-1546 (La.App. 3 Cir. 6/5/02), 819 So.2d 1156, 1157; Westley v. Allstate Ins. Co., 05-100 (La.App. 5th Cir.5/31/05), 905 So.2d 1127; Rathey v. Priority EMS, Inc., 04-0199 (La.App. 4 Cir. 1/12/05), 894 So.2d 438, writ denied, 05-789 and 05-802 (La.5/6/05), 901 So.2d 1107, 1108; Morrison v. Gonzalez, 602 So.2d 1104 (La.App. 1 Cir.1992).

Although an exception to the general rule, the jurisprudence contains numerous cases where the prevailing party was cast with some or all costs. See Trahan v. Asphalt Associates, Inc., 01-311 (La.App. 3 Cir. 10/17/01), 800 So.2d 18; Doe v. Roman Catholic Church, 656 So.2d 5; Fanara v. Big Star of Many, Inc., 558 So.2d 316 (La.App. 3 Cir.1990); Johnson v. Bucyrus-Erie Company, 476 So.2d 1074; Lee v. Constar, Inc., 05-633 (La.App. 5 Cir. 02/14/06), 921 So.2d 1240, writ denied, 06-880 (La.6/2/06), 929 So.2d 1263 (wherein appellate court affirmed trial court’s casting of all costs against prevailing party based strictly on trial court’s vast discretion, even without finding the prevailing party incurred additional costs pointlessly or engaged in other conduct justifying the assessment of costs against it); Wendelboe v. Exxon Shipping Co., 08-1846 (La.App. 1 Cir. 2/13/09), 6 So.3d 882; Courtney v. Winn-Dixie Louisiana, Inc., 447 So.2d 504.

The record before us indicates the trial court in this case was well aware of the law applicable to the assessment of costs, and specifically noted he was doing something that “is almost never done,” i.e., assessing all costs against the prevailing party. The record further establishes the trial court used its discretion to cast costs in the manner it did because it believed Defendants’ counsel engaged in conduct which would equitably justify the assessment of costs against the prevailing party.

It should be noted that the trial court presided over this case for ten years and was fully aware of all aspects of the litigation. The trial court assessed costs in this Inmatter bases on its “sense of equity.” As set forth earlier in the opinion, the trial court specifically listed a number of examples of improper behavior by Defendants’ counsel during these proceedings. Not surprisingly, Defendants take exception with the trial court’s characterization of these acts. We will examine them in turn.

A. Letter to the Scientific Journal.

The trial court stated he was “offended” by a letter written by Defendant Bayer’s in-house counsel to the editor of a scientific journal, the Journal of Environmental Toxicology. Apparently, Bayer became aware Dr. Dan Schlenk, plaintiffs’ retained environmental toxicology expert, was submitting an article for publication based largely on a report he prepared for Plaintiffs in advance of trial. Bayer’s in-house counsel submitted a letter seeking to repudiate Dr. Schlenk’s proposed article based largely on the deposition taken of Dr. Schlenk by Defendants’ trial counsel. The journal initially pulled the article from publication until the scientific anomalies claimed in Bayer’s letter were found not to exist.

When this letter to the scientific journal became a subject at trial during Dr. Schlenk’s testimony, counsel for Defendants initially denied its existence. This trial court referenced this “misleading response when asked if any counsel knew of this correspondence.” Defendants contend nothing Bayer “did in connection with this letter increased cost or vexatiousness of the Phillips litigation.” The record would indicate otherwise. As Plaintiffs note, the jury stood idle for an entire day and an instanter deposition of Dr. Schlenk was required in the middle of trial. Dr. Schlenk’s testimony dragged on for days, requiring him to return to California over a weekend for a previously scheduled event. Further, the editor of the Journal of Environmental Toxicology had to be located to furnish a copy of the letter, which then necessitated a special hearing held in the middle of the trial concerning its admissibility. Plaintiffs |instress that the similarity of the points raised in the letter and the points probed in Dr. Schlenk’s deposition demonstrate that Defendants were undoubtedly aware of the letter’s existence. The trial court agreed and found the answers by Defendants counsel were less than forthcoming at trial, and added unnecessary delay and expense to an already voluminous and complex trial.

B. Collection Efforts Against the Gui-drys.

Defendants acknowledge that “[djuring the Phillips trial, co-defendant G & H Seed Company undertook an ill-timed effort to collect a debt allegedly owed by plaintiff Lisa Guidry and her husband.” However, Defendants maintain these efforts were undertaken through a lawyer not involved in this litigation, and without its knowledge. Plaintiffs counter that at the time the collection efforts were commenced against the Guidrys, the same attorneys were in fact counsel for all Defendants, including G & H Seed Company. The trial court did not accept Defendants self-serving assertion that they were totally disassociated with the “ill-timed” collection efforts, particularly considering that Mr. Guidry was subpoenaed the day before he was scheduled to testify. The trail court specifically noted he believed this was done solely for intimidation purposes.

C. Unnecessary Depositions.

The trial court “didn’t like” that on the eve of trial, Defendants informed the court and Plaintiffs that Peter McCahon, a president of Bayer, would not be available for trial. Defendants informed the trial court that it would be noticing Mr. McCahon’s video deposition in lieu of his testimony. This required the trial court and Plaintiffs’ counsel to expend considerable time in reviewing the video to determine the permitted scope and admissibility of the deposition. Plaintiffs presented excerpts of Mr. McCahon’s deposition in its case in chief, only to have Mr. McCahon arrive near the | nend of trial and attempt to testify live.

The trial court also noted the last minute insertion of the deposition and testimony of Dr. Roman Weil contributed nothing to the trial and was, in its view, simply an attempt to add to the already voluminous record. The trial court specifically felt this last-minute addition “was a waste of time, effort and money and ... was overreaching by a defendant who had resources far greater than those [of plaintiffs] who were presenting.” The last minute noticing of Dr. Weil’s deposition required Plaintiffs’ attorneys to go to Dallas days before the trial to take an impromptu discovery deposition, followed immediately by a video trial deposition.

Defendants argue that they noticed and took the depositions in good faith, but acknowledge the trial court felt differently. Defendants do not quibble with those findings on appeal. Instead, they allege that, in the context of such a massive litigation, “two depositions are not an equitable reason to shift all costs to the prevailing party.” This argument would hold more merit if these two unnecessary depositions were the only reasons given for the trial court’s shifting of costs to the Defendants. However, the trial court listed other reasons for its decision to cast Defendants for all costs, and specifically noted the actions in reference to Mr. McCahon were “consistent with the behavior throughout these proceedings.”

Defendants also argued that because Plaintiffs were not able to separate the exact amount of additional expenses due to the Mr. McCahon and Dr. Weil situations, the trial court abused its discretion in awarding all costs to Plaintiffs. A review of the record indicates the trial court did broach the subject with counsel for Plaintiffs concerning whether they could carve out those particular expenses. Plaintiffs candidly acknowledged it would be difficult, if not impossible, to determine the exact itemization of these expenses. Defendants cite no case law which requires the trial |12court to itemize particular expenses which are required by specific acts. Rather, the trial court appears to have concluded, in the use of its statutorily authorized discretion, that the overall conduct of Defendants established a pattern of overreaching and unduly aggressive behavior that justified its assessment of costs. We cannot say this constituted an abuse of the trial court’s discretion.

D. Overall Aggressive Behavior.

Defendants assets that both sides were equally aggressive in representing their clients interests, and penalizing only one side for aggressiveness is inequitable. The trial court noted the aggressive actions by both sides, stating it “was hard fought litigation by hardball lawyers.”

A review of the trial court’s reasons clearly indicate while Plaintiffs’ counsel engaged in an aggressive pursuit of its clients’ interests, the trial court did not find the actions of both sides counsel were “equally” aggressive. The trial court found counsel for Defendants’ actions crossed the line from aggressive advocacy to certain unnecessary and delitorious actions. The trial court specifically noted a difference between the actions of Defendants’ counsel and those of counsel for Plaintiffs. While noting he was not pleased with that one of Plaintiff’s counsel threw a pencil because of his disappointment in one of the trial court’s rulings, the trial court stated “behaving poorly and throwing a pencil is a little bit different than the actions I saw.” The trial court, in discussing counsel for Defendants’ denial of knowledge of the letter sent to the scientific journal, specifically stated this was when it believed “the edge got crossed.”

E. Size of the Parties.

Defendants point to the fact that the trial court suggested he took into account the parties’ respective size and ability to pay into consideration when apportioning | imposts. The trial court stated:

[A]t the end of the day, I think size can matter and that’s what I’m asking you. We’ve got three plaintiffs who one of them for sure, Ms. Guidry, made [$48,-000] as I recall one year. If I slip her with in solido [$350,000] judgment, she’s going into bankruptcy. So I think size is a consideration. It deals with equita-bleness.

Defendants note that any equitable considerations taken into account when assessing costs under La.Code Civ.P. art. 1920 do not automatically translate into “[h]e pays who can best afford it.” Henderson v. Louisiana Downs, Inc., 566 So.2d 1059, 1064 (La.App. 2 Cir.1990). Plaintiffs agree that “equity” does not translate into the party in the superior economic position automatically pays.

However, contrary to Defendants’ assertion in brief, it is clear the trial court did not choose to award all costs against them “simply because of [their] ability to pay.” The trial court set forth numerous examples of behavior by Defendants’ counsel that it was not happy with. He also addressed the issue of “size” in the context of Defendants initiating several legal maneuvers because it possessed “resources far greater than [plaintiffs].” We find the trial court’s consideration of size was one of several valid considerations in addressing the equities involved.

F. Conclusion.

Our review of the record establishes the trial court believed that, under La.Code Civ.P. art. 1920, equitable considerations required that costs be assessed in this case against the prevailing party. Specific, multiple reasons were given by the trial court, ||4as well as a general conclusion that Defendants engaged in a pattern of behavior throughout the proceedings which caused additional costs to be incurred. After reviewing the record, we cannot say the trial court abused its vast discretion in its award of costs in the instant case.

Depositions Not Used at Trial.

In its second assignment of error, Defendants contend the trial court committed legal error in ordering them to pay Plaintiffs costs for depositions not used at trial. At the motion for new trial, Defendants pointed out that the trial court’s cost award included the cost of several depositions that were not used at trial. Defendants set the costs of these depositions at $27,782.60, a figure which has not been disputed by Plaintiffs.

Defendants state in brief that the trial court’s “reasons for taxing the costs of these depositions do not indicate any intention to sanction Defendants or their counsel for some form of gross misconduct.” We do not agree with this interpretation of the trial court’s reasons given at the hearing. The trial court’s gave the following oral reasons for keeping the costs of those depositions:

I’m going to leave those in and I’m going to leave those in and I’ll — the reason is this litigation in the wide panorama that it covered and the tortious route to get to get to trial commenced as a class action, then moved to mass joint, then went to three ostensible bellwethers and so a lot of these cost factors were the result of actions on discovery and the reason why I’m casting the costs as I have, I’ll make mention of that in a moment, but I’m going to leave those costs in.

The trial court’s reasons indicate he taxed the depositions in question as costs because it fell within the same pattern of behavior that led it to assess costs against Defendants.

Moreover, Defendants’ argument that the trial court was “without legal authority to tax the cost of these depositions” is incorrect. This Court in Brown v. American Honda Motor Co., Inc., 97-599 (La. App. 3 Cir. 12/3/97), 704 So.2d 1234, |1fiin affirming the trial court’s assessment of costs, which included depositions not used at trial, instructed:

Partially at issue in the case sub judi-ce is whether costs of depositions, not used at the trial, can be assessed against Honda. Clearly, under La.R.S. 13:4533 and Boutte v. Nissan Motor Corp., 94-1470 (La.App. 3 Cir. 9/13/95), 663 So.2d 154, they cannot. However, it is quite obvious that the trial court, in awarding costs to the Browns, that included the costs of depositions which were not used at trial and which are normally not recoverable, intended the award of costs to be a sanction for the misconduct of Honda’s counsel in the trial and the damage it caused to the Browns. The trial court was obviously motivated by the equities of this situation and the clear injustice that would result to the Browns by permitting Honda to totally escape liability for its counsel’s nefarious conduct in the trial court.

The trial court’s reasons indicate that it awarded the cost of these depositions because it fell within the same pattern of behavior exhibited by Defendants throughout the course of these proceedings which caused additional costs to be unnecessarily incurred. Much as in Brown, the trial court here was motivated by the “equities of the situation,” and we will not disturb its conclusion as to what costs are equitable.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Defendants-Appellants.

AFFIRMED.

      . In addressing possible alternative costs assessments the trial court could have ordered in this case, Defendants in brief posit that the "trial court could have allocated the costs pro rata or pro tanta against all plaintiffs — not just the three trial plaintiffs. Such a ruling would have been equitable because the trial of these three plaintiffs’ cases was undertaken for the benefit of all plaintiffs, not just the three.” This "helpful” suggestion by Defendants ignores the fact that Defendants refused to make the judgment in the trial of the three plaintiffs binding on the remaining plaintiffs. Further, despite the three plaintiffs being selected as “test/trial plaintiffs,” Defendants insisted on conducting full discovery against and depositions of all the named plaintiffs. These discovery requests culminated in seventeen (17) plaintiffs being dismissed for failure to comply. The trial court specifically noted he was not "impressed” with these discovery requests.