author: PICKETT, Judge. SAUNDERS, Judge,

text:
    Louis V. VIVIANO, et al. v. Cynthia BRIDGES, in her capacity as Secretary of the Department of Revenue, State of Louisiana.
    No. 11-1474.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    Rehearing Denied May 16, 2012.

      Mark T. Hennen, Jones, Walker, Wae-chter, New Orleans, LA, for Plaintiffs-Appellees, Louis B. Viviano and Christy L. Viviano.
    Elroy A. James, Louisiana Department of Revenue, Baton Rouge, LA, for Defendant-Appellant, Cynthia Bridges, Secretary of the Department of Revenue.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

|,The Louisiana Board of Tax Appeals (BTA) found that Louis B. Viviano and Christy L. Viviano owed $715,075.00 in income taxes for the years 1990, 1991, and 1992. Cynthia Bridges, Secretary of the Louisiana Department of Revenue, appeals a judgment of the district court that reversed the findings of the BTA.

STATEMENT OF THE CASE

In December 1994, the Vivianos, who are married, received Notice of Assessments from the Department of Revenue for unpaid individual income taxes for the tax years 1990, 1991, and 1992. The Department alleged that the Vivianos were indebted to the state for the following amounts:

Year Tax due Interest Penalties Total due
1990 $165,558.00 $ 91,162.03_⅜ 41,389.50 $298,109.53
1991 $166,650.00 $ 66,723.32_$ 41,662.50 $275,035.82
1992 $ 79,692,00_$ 19,973.62_$ 23,907.60_$123,573.22
Total $411,900.00 $177,858.97 $106,959.60 $696,718.57

Rather than pay the assessed taxes, the Vivianos timely filed an appeal with the BTA pursuant to La.R.S. 47:1565. In their Petition for Redetermination of Assessments, the Vivianos alleged that they were residents of and domiciled in Florida during the relevant tax years, and therefore not liable for Louisiana state income taxes. This action was consolidated by the BTA with the Vivianos’ appeal of the assessment for 1989 income taxes. After discovery and numerous continuances, the BTA heard the Vivianos’ appeal on December 3, 2002, February 5, 2003, and April 1, 2003.

At the conclusion of the hearing, the BTA determined that the Vivianos were Louisiana residents for the purposes of the income tax statutes and that they were domiciled in Louisiana. The BTA determined that the assessment for 1989 was untimely. The BTA did reduce the income taxes due for 1990, 1991, and 1992 based on the Vivianos’ settlement of certain issues with the Internal Revenue Service which required them to repay certain amounts. The BTA also waived all penalties assessed Lby the Department of Revenue. The BTA found that for the three years, the Vivianos were liable to the state for $258,899.00 plus accrued interest through December 15, 2003 of $456,592.00, less a credit of $416.00 paid in 1990, for a total amount due of $715,075.00.

The Vivianos appealed the BTA’s determination that they were residents of Louisiana and owed state income taxes for 1990, 1991, and 1992 to the district court pursuant to La.R.S. 47:1434. Alternatively, they asked the district court to reduce the amount of interest owed. The Secretary did not appeal the dismissal of the 1989 assessment, the reduction of the taxes due, or the abatement of penalties, and those issues are final. Following extensive briefing and a hearing on July 15, 2011, the district court reversed the BTA and found the Vivianos were residents of Florida in 1990, 1991, and 1992, and that they did not owe Louisiana state income taxes for those years. The Secretary, on behalf of the Department of Revenue, now appeals that judgment.

ASSIGNMENTS OF ERROR

On appeal, the Secretary argues that the district court erred in reversing the decision of the BTA absent a finding that the decision was not in accordance with the law and in interpreting a tax statute in a manner that would lead to absurd consequences.

DISCUSSION

The supreme court enunciated the standard of review in appeals from decisions of the BTA in International Paper, Inc. v. Bridges, 07-1151, pp. 9-10 (La.1/16/08), 972 So.2d 1121, 1127-28 (footnotes omitted):

With regard to the appropriate standard of review for those decisions issued by the Board, La.Rev.Stat. § 47:1435 is instructive, as that statute provides that reviewing courts may reverse or modify decisions of the Board if those decisions are not in accordance with law. Further, this Court in St. Pierre’s Fabrication and Welding, Inc. v. McNamara, 495 So.2d 1295 (La.1986) stated:
|sThe standard of review of a decision of the Board of Tax Appeals is correctly enunciated in Collector of Revenue v. Murphy Oil Co., 351 So.2d 1234 (La.App. 4th Cir.1977). Judicial review of a decision of the Board is rendered upon the record as made up before the Board and is limited to facts on the record and questions of law. The Board’s findings of fact should be accepted where there is substantial evidence in the record to . support them and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record.
As the Murphy Oil Co. court annunci-ated:
In this type of case, the Board acts as a trial court, its findings of fact should be accepted where there is substantial evidence in the record to support them, and should not be set aside unless they are manifestly erroneous in view of the reliable, probative and substantial evidence on the whole record. If the Board has correctly applied the law and adhered to correct procedural standards, its judgment should be affirmed.

Thus, the district court is tasked with insuring that the BTA followed all procedural rules and followed the law. The district court may only reverse the factual findings of the BTA if those findings are manifestly erroneous. We apply the same standard of review in the court of appeal. Thus, we must determine if the BTA (1) followed the procedure outlined in Title 47, (2) correctly followed the applicable law in reaching its determination, and (3) had “substantial evidence in the record” to support its factual findings. Id. See also Am. Moving and Storage of Leesville, Inc. v. Bridges, 10-825 (La.App. 3 Cir. 12/8/10), 53 So.3d 581, writ denied, 11-47 (La.3/4/11), 58 So.3d 476. We are not required to afford deference to the opposite conclusions of the district court acting as a court of judicial review pursuant to La.R.S. 47:1435.

We begin our review of this case with the applicable law. Louisiana Revised Statutes 47:31(1) defines who is liable for individual income taxes:

Resident individuals. Every person residing within the state, or the personal representative in the event of death, shall pay a tax on net income from whatever source derived, except as hereinafter exempted.
14Every natural person domiciled in the state, and every other natural person who maintains a permanent place of abode within the state or who spends in the aggregate more than six months of the taxable year within the state, shall be deemed to be a resident of this state for the purpose of determining liability for income taxes under this Chapter.

In this case, the BTA, in its reasons for judgment, stated:

After a review of all the documents introduced and the testimony adduced at trial, it is obvious to the Board that both of the Vivianos are not domiciled in nor did they reside in Florida and were domiciled and resided in Louisiana. They are therefore “Resident Individuals” as contemplated by LAS-R.S. 47:31(1).

The Vivianos claim that they purchased and moved into a condominium in Florida in 1989, and remained there throughout the years in dispute in this appeal. To support their contention, they introduced evidence that they registered to vote in Florida and actually voted, had a home with a homestead exemption in Florida and paid property taxes on that home, paid intangible property taxes in Florida, and received mail in Florida.

To support its assessment of taxes on the Vivianos as residents of Louisiana, the Department of Revenue introduced evidence that the Vivianos maintained their much larger home in Opelousas and the homestead exemption thereon. Their young son was enrolled in school in Opel-ousas beginning in the fall of 1990 and throughout the remainder of the 1991 and 1992. Mr. Viviano’s flight logs from the planes that he leased showed that the plane was in Louisiana far more often that it was in Florida. The vast bulk of the Vivianos’ mail was received in Opelousas, including mail from Florida. Mr. Viviano maintained his law office in Louisiana and operated several Louisiana corporations which the Vivianos owned. He served as agent for service of process for many of these companies, and he signed annual reports listing his address as Opelousas. The Vivianos’ credit card statements and telephone bills also showed that the Vivia-nos were in Louisiana far more often than they were in Florida. The BTA discredited the testimony of Mr. Viviano that the family moved to Florida in |s1989 to operate his blood plasma business and because his best friend had moved there.

The district court, after reviewing the evidence presented to the BTA, determined that the BTA committed manifest error. It found that the evidence supported the Vivianos’ claim that in 1989 they purchased a home in Destín, Florida, and established their domicile there. The district court also found that the Vivianos did not maintain a permanent place of abode in Louisiana. Finally, the district court found that the Department of Revenue did not prove that the Vivianos spent “in the aggregate more than six months of the taxable year” in Louisiana.

Our review of the record convinces us that the BTA followed the applicable law and that its findings of fact, that Vivianos were domiciled in and were residents of Louisiana, were supported by the evidence. The district court, therefore, erred in reversing the BTA’s judgment. The Department of Revenue correctly assessed the Vivianos with individual income taxes in 1990,1991, and 1992, and interest thereon, in the amount of $715,075.00.

CONCLUSION

The judgment of the district court is reversed and the judgment of the Board of Tax Appeals is reinstated. Costs of this appeal are assessed to Louis B. and Christy L. Viviano.

REVERSED AND RENDERED.

SAUNDERS, Judge, concurs in the result and assigns written reasons.

SAUNDERS, Judge,

concurring.

hi concur with the result of the majority opinion. However, I do not agree with the majority opinion wherein it finds that “the [BTA’s] findings of fact, that [the] Vivianos were domiciled in and were residents of Louisiana, were supported by the evidence.”

Louisiana Revised Statutes 47:31(1) states:

There shall be levied, collected, and paid for each taxable year a tax upon the net income of residents and nonresidents, estates, trusts and corporations, as hereinafter provided.
(1) Resident individuals. Every person residing within the state, or the personal representative in the event of death, shall pay a tax on net income from whatever source derived, except as hereinafter exempted.
Every natural person domiciled in the state, and every other natural person who maintains a permanent place of abode within the state or who spends in the aggregate more than six months of the taxable year within the state, shall be deemed to be a resident of this state for the purpose of determining liability for income taxes under this Chapter.

The trial court, in its reasons for judgment, correctly points out that there are three classes of persons that are deemed a resident of Louisiana so as to be subjected to a tax on the income from whatever source derived. They are:

|¾1. Any natural person that is domiciled in the State of Louisiana, or
2. Any natural person who maintains a permanent place of abode within the State of Louisiana, or
3. Any natural person who spends in the aggregate more than six months of the taxable year within the State of Louisiana.

Further, the trial court correctly interpreted the statute in stating, “it is not necessary for a natural person to meet all of the previously mentioned classes, but rather, as long as a natural person falls into one of the three classes listed above[,] said person shall be considered to be a resident individual of the State of Louisiana.” As the trial court once again correctly points out, if one does fall into one of the three categories, he or she “shall be subjected to [Louisiana’s] tax laws.”

The majority opines that the BTA’s finding of fact that the Vivianos were domiciled in the State of Louisiana was supported by the evidence in the record. I disagree.

Louisiana Civil Code Article 38 states, “[t]he domicile of a natural person is the place of his habitual residence.” Louisiana Civil Code Article 39 (emphasis added) states, “[a] natural person may reside in several places but may not have more than one domicile. In the absence of habitual residence, any place of residence may be considered one’s domicile at the option of persons whose interests are affected.” Our Louisiana Supreme Court, in Russell v. Goldsby, 00-2595, p. 5 (La.9/22/00), 780 So.2d 1048, 1051, stated the following:

it is well settled that residence and domicile are not synonymous, and a person can have several residences, but only one domicile. La. Civ.Code art. 38; Messer [v. London, 438 So.2d 546 (La.1983) ]; Autin v. Terrebonne, 612 So.2d 107 (La.App. 1st Cir.1992). A person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain. The question of domicile is one of intention as well as fact, and where it appears domicile has been acquired in another place, the party seeking to show it has been changed must overcome the legal presumption that it has not been changed by | »positive and satisfactory proof of establishment of a domicile as a matter of fact with the intention of remaining in the new place and of abandoning the former domicile. Pattan v. Fields, 95-1936 (La.App. 1st Cir.1995), 669 So.2d 1233. Absent declaration to change domicile, proof of this intention depends upon circumstances; there is a presumption against change of domicile. Messer, 438 So.2d at 547; Herpin v. Boudreaux, 98-306 (La.App. 3d Cir.3/5/98), 709 So.2d 269, writ denied, 98-0578 (La.3/11/98), 712 So.2d 859.

I feel that the evidence in the record is such that the Vivianos overcame the legal presumption that they did not intend to change their domicile from Louisiana. I feel that the trial court’s reasons for judgment on this issue are correct. There, he analyzes this issue quite thoroughly in stating:

The facts and record establish that the [Vivianos’] domicile [ ] changed when they acquired a residence in Florida along with the intent to remain there indefinitely. The [Vivianos’] acquired a residence, consisting of physical presence, in Florida when they purchased a condominium at Sandestin Resort in Destín. The final analysis is whether [the Vivianos] had the intent to remain in Florida. This court recognizes that purchasing a home and supplying it with the common utilities that homes have, such as electricity and water, it not in and of itself enough to prove intent to remain in any particular state. However, this evidence!,] in combination with the fact that the couple registered to vote in Florida, discontinued to voting in Louisiana, opened a post office box and a checking account in Florida, paid Florida property taxes, started a new business in Florida, and filed Florida intangible personal property tax returns required of Florida residents during the taxable periods at issue[,] is sufficient to prove that the [Vivianos] did establish intent to remain in Florida and to make Florida their domicile.

To me, the question of whether the Vivi-anos are natural people who maintain a permanent place of abode within the State of Louisiana, the second classification, is less clear. However, I would note that the trial court gave due consideration to the issue, and I would agree with his result. His analysis follows:

[The Vivianos] argue that they did not have the intent to remain in Louisiana even though they kept a house located in Opelousas, Louisiana. This is evidenced by two facts. First, upon moving to Florida, [their] oldest son, Charlie, a major, lived in the house while he was employed by [them]. Next, Mr. Vivi-ano’s mother’s health was deteriorating; therefore, they made the decision to keep the house. They enrolled their son in school in Louisiana due to the proximity to Mr. Viviano’s mother due to her failing health and state of depression. |4Mrs. Viviano did spend time in Louisiana; however, [the Vivianos’] arguments[,] as discussed in proving their domicile had changed from Louisiana to Florida[,] are also relevant in the determination whether [ ] Louisiana constituted [their] permanent place of abode during the applicable tax periods.
Although Louisiana bears no statute explaining or defining the phrase “permanent place of abode,” the Louisiana Supreme Court has held that “[residence and place of abode are synonymous.” Taylor v. State Farm Mut. Auto Ins. Co. [248 La. 246, 178 So.2d 238], (La.1965). Additionally, Black’s Law Dictionary defines “permanent abode” as “the place at which a person is physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.”
This court acknowledges that [the Vi-vianos,] in this case, did in fact have a physical residence in the state of Louisiana in that they owned a house in Opel-ousas, Louisiana. However, it is this court’s opinion that the term “permanent place of abode,” a term of art, implies something more than merely owning a house and living in the state on a temporary basis. Read literally, the term implies that there must be some permanence attached to the residence. Nothing in the record suggests a high enough degree of permanence to the residence in Louisiana in order to reach the conclusion that Louisiana is [the Vi-vianos] permanent place of abode. According to the testimony of [the Vivia-nos], Mrs. Viviano and her son were in Louisiana due to the illness of Mr. Vivi-ano’s mother and because Mrs. Viviano had to be close to her mother-in-law, they decided to enroll their child in a Louisiana school. Based upon the record, it is clear that Mrs. Viviano did not intend to permanently reside in Louisiana.
This court, in determining whether Louisiana was [the Vivianos] permanent place of abode during the Taxable Years, also takes into consideration the purpose for which [the Vivianos] moved to Florida. According to the record, Mr. Vivi-ano was in the business of plasma fore-sis, a process used to obtain plasma from various donors. One of Mr. Vivi-ano’s companies, Louisiana Biologicals[,] obtained a contract with the State of Louisiana Department of Corrections in 1981 to operate a plasma foresis program in each of the five prison facilities and then later obtained separate contracts for each of the facilities. Mr. Viviano testified that a negative perception grew towards plasma obtained from prison inmates when AIDS and questions of the reasons behind its transmission arose to the forefront of concern. It is Mr. Viviano’s testimony that he learned people became concerned that plasma coming from Louisiana was prison plasma. In his attempt to divert the attention from Louisiana, [the Vivianos] decided to move to Florida and establish another company, CBC International. CBC International bought the plasma from the | ¡-(Louisiana companies as well as other companies around the world and then proceeded to resell the plasma. According to Mr. Viviano’s testimony, moving to Florida was not only for business reasons, but Florida was chosen among all other states due to personal reasons. Mr. Viviano’s best friend also lived in Florida which contributed heavily to their decision.
Taking into consideration the fact presented above as well as the purpose and reasons for moving to Florida set forth by [the Vivianos], this court concludes that Louisiana was not [the Vivianos’] permanent place of abode.

I would note that another of the personal reasons of Mr. Viviano is likely that Florida currently has no personal income tax and has a corporate income tax of five (5%) percent. However, this fact would also seemingly weigh in favor of finding that the Vivianos intended to change their domicile as well as their permanent place of abode to Florida.

Where I disagree with the trial court, which ultimately results in my concurrence with the result reached by the majority, is in regards to the third classification. I agree with the majority that the BTA was not manifestly erroneous in finding that the Vivianos were natural persons who spent in the aggregate more than six months of taxable year within the State of Louisiana.

The trial court, in his analysis, on the third classification, correctly points out that whether hours, days, or months are to be considered in making a determination on this issue is vague. However, the trial court focused nearly entirely on the time spent in Louisiana by Mr. Viviano.

To me, it is clear from the record that Mrs. Viviano spent at least (75%) of her time in Louisiana given that her son was in school here for nine (9) months in a given year and she was here to tend to the needs of her sick mother-in-law who was apparently sick for the entire twelve (12) months the taxable years at issue. I agree with the trial court that a finding that Mr. Viviano spent more than six (6) months of those taxable years in Louisiana was a very close issue. However, I feel |fithe trial court should have considered the combination of Mr. and Mrs. Viviano’s time here. My reading of the record suggests that the combination clearly exceeds fifty (50%) percent of their time in the taxable years.

Accordingly, as I cited earlier from the trial court’s reasons for judgment, “it is not necessary for a natural person to meet all of the previously mentioned classes, but rather, as long as a natural person falls into one of the three classes listed above[,] said person shall be considered to be a resident individual of the State of Louisiana.” As such, I feel that the BTA was reasonable in finding that the Vivianos spent “in the aggregate more than six months of the taxable year within the State of Louisiana.” Therefore, I agree with the result reached by the majority to reverse the trial court’s judgment.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Clarence JONES, Sr.
    No. 11-1520.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Brandon Guillory, Attorney at Law, Opelousas, LA, for Defendant/Appellee, Clarence Jones, Sr.
    Ladonte A. Murphy, 27th Judicial District Court, Assistant District Attorney, Opelousas, LA, for PlaintiffiAppellant, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

11 This is a child support case dealing with social security benefits which raises the issue of whether payments in excess of the non-custodial parent’s child support obligation should have been credited toward his State Family Independence Temporary Assistance Programs (FITAP) arrears. The trial court found that they should. We reverse.

FACTS AND PROCEDURAL HISTORY:

This matter originally came before the 27th Judicial District Court Hearing Officer on a rule for contempt of court for failure to pay court ordered child support, establishment of arrears obligation, and a modification of child support award. On June 22, 2011, the hearing officer recommended that Clarence Jones, Sr.’s (Jones) child support obligation be terminated effective August 2008 and reopened July 2010, and terminated again once Jones was certified for Social Security Disability in August 2011. The hearing officer also found that Jones had an outstanding arrears balance of $19,973.85 of which $13,932.26 is owed to the State and $5,752.99 is owed to the custodial parent on behalf of the child. Further, the hearing officer found that the child had received a lump sum payment of $2,304.00 in Social Security payments. Thereafter, the hearing officer recommended that Jones be given a credit for all lump sum and future social security payments in excess of his child support obligation.

The State appealed to the trial court that upheld all of the hearing officer’s findings and followed all of the hearing officer’s recommendations. The State timely filed this appeal, alleging one assignment of error.

DISCUSSION OF THE MERITS:

The State, in its sole assignment of error, contends that the trial court erred in giving Jones credit for social security payments paid on behalf of the minor |2children in excess of his basic support obligation against his State owed FITAP arrearages in violation of La.R.S. 9:315.7 and La.R.S. 46:236.1.5. We find merit to this contention.

The Louisiana Legislature has a clear intent that trial courts have great discretion to determine child support matters. Camacho v. Camacho, 06-330 (La.App. 3 Cir. 9/27/06), 940 So.2d 190, writ denied, 08-2538 (La.12/19/08), 996 So.2d 1137; Rougeau v. Rougeau, 02-484 (La.App. 3 Cir. 10/30/02), 829 So.2d 1125; Stelly v. Stelly, 2-113 (La.App. 3 Cir. 6/26/02), 820 So.2d 1270.

Generally, an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. A conclusion is “capricious” when there is no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence.

Jones v. LSU/EA Conway Med. Ctr., 45,410, p. 6 (La.App. 2 Cir. 8/11/10), 46 So.3d 205, 210 (quoting Burst. v. Bd. of Com’rs, Port of New Orleans, 93-2069, (La.App 1 Cir. 10/7/94), 646 So.2d 955, 958).

However, the State has framed its assignment of error so as to raise a question of law.

[A]ppellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.

Platinum City, L.L.C. v. Boudreaux, 11-559, p. 2 (La.App. 3 Cir. 11/23/11), 81 So.3d 780, 783 (quoting Conagra Poultry Co. v. Collingsworth, 30,155, p. 2 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280, 1281-82); Genusa v. Genusa, 09-917 (La.App. 1 Cir. 12/23/09), 30 So.3d 775.

|3In brief, the State argues that the combination of La.R.S. 9:315.7 and La. R.S. 46:236.1.5 dictates:

|4when a child’s parent has received State assistance through FITAP for support and maintenance of that child, any child support obligation and/or payments will belong to the State as reimbursement.
Therefore, in the case at bar, the child support arrears that [the] trial court decided to give [Jones] an offset credit for, are not entirely owed to the child but are instead owed the State as FI-TAP Arrears. Thus, any and all lump sum and future social security payments in excess of the child support obligation that may be received by the child cannot be credited against the State owed FI-TAP Arrears.

We agree with the State that the credit that Jones was granted towards his child support arrears are not entirely owed to the child but are instead owed to the State as FITAP arrears. In fact, the judgment of the trial court recognizes this fact, as it dictates that Jones had an outstanding arrears balance of $19,973.85 comprised of $13,932.26 that is owed to the State and $5,752.00 that is owed to the custodial parent on behalf of the child.

The issue that the State raises on appeal is the result of the trial court’s judgment pursuant to the judgment. The State points out that the lump sum and future social security payments in excess of Jones’ child support obligation will be received by the child and not the State while those payments will be credited against the FITAP arrears that Jones owes to the State.

The State argues that the trial court was legally incorrect in its application of La. R.S. 9:315.7 and La.R.S. 46:236.1.5, and, as such, we should reverse the trial court’s judgment. Louisiana Revised Statutes 9:315.7(D) only mandates that the social security benefits are credited “as child support to the parent upon whose | ^earning record it is based, by crediting the amount against the potential obligation of that parent.” It is silent as whether those social security benefits in excess of the child support are to be credited towards that parent’s arrears. We infer from this silence that the decision whether to do so is discretionary.

Louisiana Revised Statutes 9:315.7(E) only requires that an evidentiary hearing be held “before any arrearage is reduced based upon any lump sum payments received by the child.” Id. This sole requirement was met in this case. Therefore, we disagree with the State’s position that the trial court erred as a matter of law. There is no language in either statute cited to this court by the State that prevents the trial court from reaching the conclusion that Jones is entitled to a credit to offset his child support arrearages.

However, we do find that the result that the trial court reached is an abuse of the great discretion it is afforded in determining child support matters given the circumstances of this particular ease. The trial court’s ruling relieves a debtor of a portion of a debt by paying that debt to someone other than the creditor.

Should we affirm the trial court’s finding, Jones will get credit towards a debt he has to the State by payment of his social security benefits to his child. Jones incurred the debt via the State supporting his child when he failed to do so. The trial court’s judgment results in Jones receiving credit relieving him of portions of that debt to the State without the State actually receiving any reimbursement. Such a result is clearly inequitable so as to be deemed arbitrary given that it disregards the resulting effect on the State’s rights as Jones’ creditor. While the nonpayment of a debt owed to the State is clearly inequitable, still, extraordinary circumstances might exist in some cases that would justify such a result. No such circumstances exist in the record before us.

|ñWe note that included in the record are the reasons for judgment written by Judge Doherty in a case similar to the one before us. In those reasons, Judge Doherty notes that states are divided on whether excess Social Security payments should be credited against the debtor’s arrearages. He writes, “[s]ome states give the credit. Others note that once the obligation is met, any payments over and above the obligation is a gift to the child.” Judge Doherty goes on to recognize that Mississippi, Hawaii, New Jersey, Indiana, and Alabama hold that the Social Security benefits are ultimately deemed a gratuity to the child. He went on to state that this result “fosters and promotes the well-being and the best interest of the child.”

No jurisprudence or statutes cited to this court can be interpreted to mandate such a bright-line rule in this state. Rather, jurisprudence dealing with this issue either occurred prior to La.R.S. 9:315.7’s amendment in 2006 and/or simply find no abuse of discretion in the trial court’s determination, regardless of the result reached by the trial court. See Genusa, 30 So.3d 775; Salles v. Salles, 04-1449 (La.App. 1 Cir. 12/2/05), 928 So.2d 1; Camacho, 940 So.2d 190; Rougeau, 829 So.2d 1125; and Stelly, 820 So.2d 1270.

Given the reasoning above, we find that the trial court abused its discretion by finding that Jones is entitled to a credit for all lump sum and future social security payments in excess of his child support obligation towards his State FITAP arrears. As such, we reverse the portion of the trial court’s judgment related to this issue. This results in no change to the trial court’s finding that Jones is entitled to a credit towards his arrears that he owes to the child custodial parent on behalf of the minor child or any other portion of its judgment.

| .CONCLUSION:

The State raises a single assignment of error that the trial court erred in crediting Clarence Jones, Sr. for all lump sum and future social security payments in excess of his child support obligation towards his State FITAP arrears. We reverse the portion of the trial court’s judgment related to this issue. All costs of these proceedings are assessed to Clarence Jones, Sr.

REVERSED.

      . Louisiana Revised Statutes 9:315.7 states:
      A. Income of the child that can be used to reduce the basic needs of the child may be considered as a deduction from the basic child support obligation.
      B. The provisions of this Section shall not apply to income earned by a child while a full-time student, regardless of whether such income was earned during a summer or holiday break.
      C. The provisions of this Section shall not apply to benefits received by a child from public assistance programs, including but not limited to Family Independence Temporary Assistance Programs (FITAP), food stamps, or any means-tested program.
      D. Notwithstanding the provisions of Subsection C of this Section, social security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent.
      E.In cases where there is a child support arrearage, the court shall grant an evidentiary hearing before any arrearage is reduced based upon any lump sum payments received by the child.

      . Louisiana Revised Statutes 46:236.1.5 states:
      A. By accepting FITAP for or on behalf of himself or another individual, the applicant or recipient shall be deemed, without the necessity of signing any document, to have made an assignment to the department of his entire right, title, and interest to any support obligation such applicant [or] recipient may have in his own behalf or on behalf of any family member for whom the applicant is applying for or receiving FITAP which has accrued at the time of the certification for FITAP and which accrues during the time FITAP is furnished. The assigned support rights shall constitute an obligation owed to the department by the person responsible for providing such support, and said obligation shall be established by an order of a court of competent jurisdiction, and the department may thereafter collect by appropriate process any outstanding debt thus created. Voluntary child support payments made to the applicant or recipient at the time of certification for FITAP or during the time FITAP is furnished shall be deemed to have been assigned to the department, unless such assignment is contrary to a valid court order. The department may thereafter collect such support payments by appropriate process.
      B.The applicant or recipient shall also be deemed, without the necessity of signing any document, to have consented to the designation of the department as payee in an initial or amended order of support and to have appointed the SES program administrator as his or her true and lawful attorney-in-fact to act in his or her name, place, and stead to perform the specific act of endorsing any and all drafts, checks, money orders, or other negotiable instruments representing support payments which are received on behalf of such individual or his caretaker. The department shall be an indispensable party to any proceeding involving a support obligation or arrearages owed under this Subpart. The provisions of this Subpart shall apply retrospectively to all support rights assigned, whether by written assignment or by operation of law, prior and subsequent to October 1, 1981.
      C. The applicant or recipient of services shall also be deemed without the necessity of signing any document to have appointed the Support Enforcement Services Program administrator as his or her true and lawful attorney-in-fact to act in his or her name, place, and stead to perform the specific act of endorsing any and all drafts, checks, money orders, or other negotiable instruments representing support payments which are received on behalf of such individual or caretaker.
      D. No applicant or recipient who has accepted FITAP for or on behalf of himself or another individual shall be permitted to enter into a contract for the collection of support pursuant to R.S. 51:1441 et seq. Any such contract shall be considered a violation of public policy and shall be void.


author: AMY, Judge.

text:
    STATE in the Interest of T.L.M.
    No. 12-23.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.
    James C. Downs, District Attorney, Alexandria, LA, for Appellant, State of Louisiana.
    Richard E. Lee, Pineville, LA, for Appellants, State of Louisiana, P.G.
    Camille J. Giordano, Giordano & Giorda-no, Alexandria, LA, for Appellee, T.L.M.
    R.M., In Proper Person, Olla, LA.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hThe State and the minor child’s mother jointly sought to terminate the parental rights of the child’s father, asserting that the father failed to visit or communicate with the child for a period of two years. The trial court denied the requested termination. The State and the mother appeal. For the following reasons, we affirm.

Factual and Procedural Background

The minor child at issue in this proceeding, T.L.M., was born in February 2002 to P.G., the mother, and R.M., the father. The couple’s relationship ended after the child’s birth. The record indicates that the child has lived his entire life with his mother, with limited contact with his father.

In a joint petition, the State of Louisiana and P.G. instituted the present matter to terminate the parental rights of R.M., asserting that he “failed to maintain any contact with the child by visiting him or communicating with him for a period of two (2) years.” At the resulting hearing, the mother presented her own testimony, along with that of her mother and her sister. Each reported minimal contact between the child and R.M. over the years. Each denied receiving telephone inquiries from R.M. regarding the child or regularly seeing him at family events such as birthdays or holidays, particularly in recent years. P.G. denied that T.L.M. spoke about his father or sought time with him. P.G. acknowledged, however, that R.M. paid child support.

When the trial court inquired as to why P.G. sought termination, she responded that she wanted to be able to designate a “legal guardian” for the child in the event of her death rather than have R.M. care for the child. She stated that:

[I]f something was to ever happen to me I want my mother and my sister to take him because they are his life. If you separate him from his grandmother and his sister [sic] and then also — I mean, it’s facts, [R.M.] hasn’t had anything to do with him. I mean, he doesn’t know his life, heJjjdoesn’t know anything about him except for he is his son, he plays ball. He doesn’t know him as a child and I want the best for my son.

R.M. represented himself at the hearing and asserted that work commitments and the wishes of P.G. prevented more significant contact with the child. He disputed testimony that he had not provided gifts and testified that he regularly purchased birthday and holiday gifts for the child or that he provided money to his brother so that gifts could be purchased. In this regard, testimony indicated that P.G. routinely provided R.M.’s brother and sister-in-law with weekend “visitations” with the child. She testified that, even in the event of termination of parental rights, she would permit this contact to continue. R.M. also confirmed that he provided child support.

Ultimately, the trial court denied the request for termination, making a particular finding that termination of parental rights was not in the best interests of the child.

T.G. and the State appeal, asserting that:

The Trial Court committed legal and manifest error when it found that [R.M.] testified that “there was no excuse to justify his not being involved in the past” but found that it would not be in [T.L.M.’s] best interest to remove the obligation of child support.”

Discussion

Burden of Proof

A “petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence.” La.Ch.Code art. 1035(A). See also La.Ch.Code art. 1015 (providing the grounds for termination). Thereafter, the trial court must also find that termination is in the best interests of the child. See La.Ch.Code art. 1039.

On review, an appellate court employs the manifest error standard in considering a trial court’s findings as to whether parental rights should be terminated. State ex rel. H.A.S., 10-1529 (La.11/30/10), 52 So.3d 852.

\$Louisiana Children’s Code Article 1015(ti(c)

The ground for termination at issue in this case is provided by La.Ch.Code art. 1015(4)(c), which provides that:

(4) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

In this regard, the trial court did not explicitly determine whether clear and convincing evidence established a lack of significant contact for a period of six consecutive months. Although the trial court acknowledged R.M.’s failure to regularly communicate or visit with the child, it noted that R.M.:

presented testimony to contradict the testimony of [P.G.]. [R.M.] stated that he has maintained contact with his son when [T.L.M.] has visited with his brother, some of such visits occurring within the last two years. [R.M.] further testified that he has not done the best job in reaching out to [P.G.] about visits with his child, but he has relied upon his brother to secure visits since he and [P.G.] have not had any ongoing contact.
While testifying [R.M.] further claimed that there have been obstacles in visiting [T.L.M.] that he thinks are directly a result of [P.G.] not wanting him to see [T.L.M.]. He testified that he did not know where the child was currently in school and that [T.L.M.] may have possibly been enrolled at approximately five different schools in the past. He claimed that his brother brought to his attention that [P.G.] did not want [R.M.] to see [T.L.M.] and that the brother reported that [R.M.] was not allowed to take [T.L.M.] to his home. [R.M.] explained that he believed that he could only visit [T.L.M.] when [T.L.M.] was visiting at his [u]ncle’s home.

Ultimately, the trial court explained that it found “it hard to ignore testimony from both [P.G.] and [R.M.] that perhaps two years did not go by without any contact or visitation by [R.M.]”

RP.G.’s and the State’s argument reflects a belief that the trial court found insufficient evidence to satisfy the requirements of La.Ch.Code art. 1015(4)(c). However, the trial court’s above terminology is not in alignment with the specific elements of La.Ch.Code art. 1015(4)(c) insofar as it references “any” contact rather than “significant contact” and as it addresses the period at issue as being “two years” rather the six months required by the statutory ground. Instead, it appears from the reasons for ruling that the trial court more fully considered the extent of the contact in its evaluation of the second requirement for termination of parental rights, i.e., that the action is in the best interests of the child. Accordingly, we turn to consideration of that element.

Best Interests of the Child

Louisiana Children’s Code Article 1037(B) provides:

When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentia-ry standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child’s attachment to his current caretakers.

(Emphasis added.)

As referenced above, the trial court concluded that R.M. had made contact, at least to some extent, with the child and that, perhaps, further contact had been hampered in light of the lack of relationship between the parents. Additionally, the trial court acknowledged P.G.’s concerns regarding the care of the child in the event of her death. However, the trial court remarked that:

Although the relationship with [P.G.J’s mother and sister may be very important in [T.L.M.’s] life, and certainly would be necessary in the unfortunate event of [P.G.J’s death, these relationships could at no time replace a relationship between [T.L.M.] and a father figure. Fortunately [fin this case the person asserting a desire to be that father figure for [T.L.M.] is [his] biological father, [R.M.].

The trial court further noted that R.M. was current on his child support obligation and had not requested a reduction in the obligation even when his salary changed. In this light, the trial court observed that a termination of parental rights would end R.M.’s obligation in this regard. The court explained that: “Although [P.G.] testified that she is financially secure, this Court cannot find how removing the obligation of child support could in the long term view be in [T.L.M.J’s best interest.”

Additionally, the trial court credited R.M.’s testimony that he desires to be a part of the child’s life and further explained that:

[R.M.] testified that he felt there was no excuse to justify his not being more involved in the past, other than to explain that he felt at times that if he pushed the issue of visitation that [P.G.] would stop allowing the visits to [R.M.’s] brother. [R.M.] explained that [T.L.M.]’s visits with [R.M.’s] brother were currently the avenue through which [R.M.] was able to visit with [T.L.M.] and the visits were the means by which [R.M.] sent gifts to [T.L.M.]. [R.M.’s] testimony also indicated that he is admittedly not a perfect parent, but that he has a sincere desire to parent the still very young and impressionable [T.L.M.] and to be a positive part of [T.L.M.J’s life.

Considering these factors, the trial court concluded that “applying the best interest of the child standard by the testimony this court is keenly aware that having both parents actively participating and financially supporting in positive roles in a child’s life is unquestionably in that child’s best interest.” Thus, the trial court rejected the petition for termination of parental rights.

Our review of the testimony reveals no manifest error in the trial court’s determination in this regard. Instead, and as acknowledged by the trial court, maintaining R.M.’s financial obligation to the minor child is of significance given P.G.’s status as the single wage earner. Neither do we upset the trial court’s evaluation and assessment of R.M.’s credibility regarding his past contact with his |fichild and with his commitment to support the child. Nor do we discount the trial court’s weighing of this type of evidence against that presented by P.G. and the State which focused on the sole fear that R.M., the child’s biological father, would receive custody of T.L.M. in the event of P.G.’s death.

In short, we find that the record supports the trial court’s decision. We leave its denial of the petition for termination of parental rights undisturbed.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs of this proceeding are assessed to the appellants.

AFFIRMED.

      . This opinion uses the initials of the parties pursuant to the Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2.

      . The record includes several references to Article 1015(4)(b), which pertains to contributions to the child's care and support. However, these references appear to be in error as the parties and the trial court squarely address Subparagraph (c), which involves visitation and communication with the child.

      . This reference to a two-year period appears to reflect the period cited in the petition instituting this matter rather than the six-month period of La.Ch.Code art. 1015(4)(c).

      . R.M. testified:
      Your Honor, first of all I love my child, I want to get that straight. This seeming to make me out to be the bad parent, I mean, it was never — it has never been said that me having to work, I worked offshore, I did police work for twelve years. With these birthday parties, I might not have been there to some of them but I sent gifts. You know, every time [P.G.] would bring my child to my brother she would say, you know, don't let him go with his dad, you know, because — of what reason I don't know. My brother would tell me, my sister-in-law would tell me these things. I would respect her decision on not — you know, not — I want to see my son. And, you know, as far as the interaction, you know. I’ve been to his school, that wasn't said. I’ve been [to] Doughnuts with Dads once or twice. I don’t — I don’t know where my son attends school at right now because I think he has been in five different schools, for what I don’t know. The contacts, it was stated that I never had contact with [P.G.] since he was three years old. When my son was born I was there as much as I could. I had to work, I was — I was in law enforcement at will. We talked, we planned on getting married, that wasn’t never said, but everything went downhill so she says and so her witnesses said. That’s not the case. Also if she didn’t call me by nine o'clock I called her by nine o'clock for about four years and something was wrong if that wasn’t the case. I know that seems strange.... I mean, it’s not — I take care of my child. I have three other kids, I work. I’m current on my child support. It took me a while. I would go from making eighty thousand dollars a year you’re going to get behind on your bills. But I never asked for a reduction. Went to court when I was supposed to. Everything was hunky-dory. And for me to sign my child away, I would never do that.


author: COOKS, Judge.

text:
    ASSOCIATED DESIGN GROUP, INC. d/b/a Terry Gaudet & Associates v. Rickey ALBERT, et al.
    No. 11-1555.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 2012.

      Kenneth W. DeJean, T.A., Law Offices of Kenneth W. DeJean, Lafayette, LA, for Plaintiff/Appellant, Associated Design Group, Inc.
    Craig L. Kaster, Teresa D. Cop, Craig L. Kaster & Associates, LLC, Zachary, LA, for Defendants/Appellees, Rickey Albert, et al.
    Court composed of Judges SYLVIA R. COOKS, MARC T. AMY and PHYLLIS M. KEATY.
   COOKS, Judge.

|, FACTS AND PROCEDURAL HISTORY

Associated Design Group, Inc. d/b/a Terry Gaudet & Associates (ADG) filed suit on December 9, 2005 against Rickey Albert d/b/a The Albert Group (Albert). ADG alleged it entered into a written contract with Albert in 2002 for professional architectural services on a project in Colorado. It allegedly provided services valued at $11,731.25 for which it was not paid. Albert alleged that ADG did not perform any services for him, and further alleged, in his reconventional demand, that ADG over-billed for its services on the project resulting in a claim against it for $25,167.47. After service on Albert, ADG agreed to an informal extension of time in which to file an answer as the parties were attempting to amicably resolve the matter. The parties were unable to reach an amicable resolution. Albert filed an answer and recon-ventional demand on August 28, 2006 along with requests for discovery to ADG.

Neither party took any further action in the matter until February 11, 2008. On that date ADG filed a motion to set for trial. ADG attached a certificate of readiness to its motion certifying that “all issues have been joined, all depositions, interrogatories and other discovery have been completed, all exceptions and motions have been disposed of, and the parties have seriously discussed a settlement of the action, without avail, and that this case is ready for trial.” This certification was not truthful as ADG had not responded to discovery propounded by Albert in 2006. The trial court set the matter for trial for July 14, 2008.

Less than two months later, on April 2, 2008, ADG filed an unopposed motion to continue the trial date “due to the fact that counsel for plaintiffs has prior professional commitments.” The trial court signed an order continuing the trial without date.

RNo further action was taken in the matter for over three years by any party. On April 14, 2011, ADG filed its second motion to set the case for trial, again certifying the case was ready for trial and that all discovery had been completed. Once again, this representation was false. In fact, ADG did not respond to Albert’s discovery until May 9, 2011, after Albert filed his motion to dismiss for failure to prosecute. Trial was set for September 26, 2011.

On April 20, 2011, counsel for Albert sent a letter to counsel for ADG acknowledging that he had received notice of the setting for trial, and informing opposing counsel that he had still not responded to discovery propounded in 2006 contrary to his representations to the court in his certificate of readiness. The letter further stated:

Please contact me so we can have a telephone conference in an effort to amicably resolve your client’s failure to respond to discovery. This request is being made pursuant to District Court Civil Rule 10.1. Please contact me within 5 days. Otherwise I will proceed with filing the rule to compel in order to obtain the discovery.

Having received no response from ADG, Albert sent another letter to ADG dated May 2, 2011 informing counsel for ADG that he did not need to submit responses to discovery “because the defendants intend to file a motion to dismiss for lack of prosecution.” On that same date counsel for Albert also mailed a motion and order for dismissal for failure to prosecute to the clerk of court. The motion to dismiss for failure to prosecute was filed on May 9, 2011. Albert asserted the case was abandoned by operation of law pursuant to the provisions of La.Code Civ.P. art. 561 as no steps had been taken in the prosecution or defense of the matter for over three years.

After a hearing on the motion to dismiss, the trial court dismissed the suit for lack of prosecution at Plaintiffs cost. ADG appeals asserting the trial court erred as a matter of law in dismissing the suit as abandoned based on its finding that _Jjletters sent by Albert after the case was abandoned did not constitute a waiver of Albert’s right to claim abandonment.

LAW AND DISCUSSION

Louisiana Code of Civil Procedure Article 561(A)(1) provides in pertinent part: “An action, except as provided in Subpara-graph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.... ” The Code further provides at La.Code Civ.P. art. 561(A)(3):

This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

Since ADG filed suit in 2005, it has done little to pursue its claim against Albert except for setting the case for trial. On the first occasion when ADG set the case for trial it shortly thereafter filed a motion to continue the trial without date based on its counsel of record having conflicting “prior professional commitments.” ADG remained idle for over three more years, taking no action to pursue the matter or in any manner moving the action forward. There is no indication in the record, nor does ADG claim, that it ever propounded any discovery in the matter. ADG did not answer Albert’s discovery requests, which had been outstanding since 2006, until after the time for advancing the ease expired. When ADG set the matter for trial the second time, the case was already abandoned by operation of law.

The Louisiana Supreme Court has held that Article 561 is self-executing; it occurs automatically upon the passing of three years without either party taking a step, and it is effective without a court order. Clark v. State Farm Mutual Automobile Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779, 784. It is unnecessary for a defendant to file a motion to dismiss with the court in order to make a plaintiffs abandonment of the case effective. Washington v. City of 4Baton Rouge, 99-1987 (La.App. 1 Cir. 2/18/00), 752 So.2d 367, 369.
Article 561 imposes three legal requirements: (1) a party must take some step toward the prosecution or defense of the lawsuit; (2) the step must be taken in the trial court and, with the exception of formal discovery, must appear on the record; and (3) the step must be taken within the legislatively-prescribed time period from the last step taken by either party. James v. Formosa Plastics Corporation of Louisiana, 2001-2056 (La.4/3/02), 813 So.2d 335, 338. A party takes a “step” when it takes formal action before the trial court intended to hasten the matter to judgment. James, 813 So.2d at 338.

Compensation Specialties, L.L.C. v. New England Mut. Life Ins. Co., 08-1549, p. 5 (La.App. 1 Cir. 2/13/09), 6 So.3d 275, 279, writ denied, 09-575 (La.4/24/09), 7 So.3d 1200.

As previously mentioned, prior to filing his written motion and order for dismissal, Defendant Albert sent a letter to ADG’s attorney reminding him that he had not responded to discovery despite his certification to the court in his motion to set for trial that all discovery was complete. Albert’s attorney further informed ADG’s counsel in the letter that he was requesting a Rule 10.1 telephone conference precedent to filing a motion to compel. ADG’s attorney did not comply with the request. Albert did not file a motion to compel discovery. Instead, Albert filed a written motion and order to dismiss for failure to prosecute seeking a formal judgment of dismissal.

There is no argument that the case was abandoned by operation of law due to ADG’s failure to pursue the matter before ADG filed its motion to set for trial. ADG seeks to avoid dismissal by asserting that Albert, by virtue of the letter sent to ADG’s counsel after the time for abandonment had passed, but before Albert sought an order of dismissal, waived his right to seek abandonment. We reject that argument.

We are asked to consider the application of the jurisprudentially created concept of acknowledgment or waiver as applied by the Louisiana Supreme Court Lin Clark and in its recent decision in Louisiana Depart. of Transp. and Development v. Oilfield Heavy Haulers, L.L.C., 2011-912 (La.12/6/11), 79 So.3d 978. In Heavy Haulers, the court held that sending a letter to all parties in the suit scheduling a discovery conference in conformity with Louisiana District Court Rules, Rule 10.1 is a “step” in the prosecution of an action as it is “an essential component of a motion to compel.” Id. at 10, 79 So.3d 978. The court found that Oilfield Heavy Haulers’ action met all three criteria set forth in Clark noting that OHH’s letter was sent before the three-year time period of inactivity lapsed. In the instant case, Albert did not send his letter to ADG until after the three-year time period lapsed. The question then is, whether this post-abandonment letter sent by Albert amounts to a waiver of his right to seek abandonment of the case.

In Clark, the Louisiana Supreme Court undertook an extensive analysis of the policy considerations which form the basis of our law on abandonment of actions.

Abandonment is a device that the Legislature adopted “ ‘to put an end to the then prevailing practice of filing suit to interrupt prescription, and then letting the suit hang perpetually over the head of the defendant unless he himself should force the issue.’ ” Sanders v. Luke, 92 So.2d 156 (La.App. 1st Cir. 1957). Indeed, Louisiana abandonment jurisprudence is rich in cases, like this one, illustrating how the practice of withholding service facilitates a period of litigation inactivity. We take judicial notice of recent legislation enacted to deal more directly with the period of litigation inactivity created by the tactic of filing suit to interrupt the running of prescription, yet withholding service. [Footnote omitted]
Abandonment functions to relieve courts and parties of lingering claims by giving effect to the logical inference that a legislatively designated extended period of litigation inactivity establishes the intent to abandon such claims. When the parties take no steps in the prosecution or defense of their claims during that legislatively ordained period, “the logical inference is that the party intends to abandon the claim and the law gives effect to this inference.” Young v. Laborde, 576 So.2d 551, 552 (La.App. 4th Cir.1991). The presumption of abandonment that arises under Article 561 as a result of three years of litigation inactivity, however, is not conclusive. As noted, two jurisprudential, prescription based ^exceptions are recognized. Moreover, given that dismissal is the harshest of remedies, the general rule is that “any reasonable doubt [about abandonment] should be resolved in favor of allowing the prosecution of the claim and against dismissal for abandonment.” Id.
Abandonment is not a punitive concept; rather, it [is] a balancing concept. Abandonment balances two equally sound, competing policy considerations: “on the one hand, the desire to see every litigant have his day in court, and not to lose same by some technical carelessness or unavoidable delay; on the other hand, the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription.” Sanders, 92 So.2d at 159. The latter policy consideration parallels those served by prescriptive statutes-promoting legal finality, barring stale claims, and 'preventing prejudice to defendants. Gary v. Camden Fire Insurance Co., 96-0055 (La.7/2/96), 676 So.2d 553. More precisely, the latter prescriptive periods on which abandonment is based promotes “the legislative intent and judicial policy of finality, requiring that suits not be permitted to linger indefinitely, that the legal process be expedited where possible, and that abandoned cases be removed from crowded dockets.” 1 Judge Steven R. Plotkin, West Practice Group: Louisiana Civil Procedure 359 (2001). Given the balancing function served by abandonment, “Louisiana’s jurisprudence tends to be inconsistent; no bright lines exist.” Id. (emphasis supplied).

Clark, 785 So.2d at 786-87(emphasis added). The court in Clark then examined the historical and theoretical bases of the concept of abandonment referring to it as “a species of prescription[.]” Id. at 791. In Clark, “the relevant prescriptive principle” was “acknowledgement.” Id. at 792. Reasoning that an acknowledgment is “ ‘a simple admission of liability resulting in the interruption of prescription that has commenced to run, but not accrued, and may be made on an informal basis[,Y” the court in Clark concluded that an unconditional tender made by defendant to plaintiff constitutes “an acknowledgment and thus within the waiver exception.” Id. at 792-93. The Clark court directs that:

In determining whether a waiver of the right to assert abandonment occurred, the jurisprudence has recognized the appropriateness of considering the qualitative effect of the defendant’s conduct. Articulating this standard one court stated:
Whether the step or steps taken by a defendant ... be termed as “affirmative” or as “definite” or “formal”, it is thejqualitative effect of the step(s) taken by a defendant which must be considered in a case to case approach to determine whether the defendant has waived the C.C.P. Art. 561 abandonment.
Middleton, 526 So.2d at 860-61.

Id. at 792.

The court in Clark reached its decision because the qualitative, or substantive effect of an unconditional tender serves to protect a defendant’s interest in avoiding its exposure to penalties and attorney fees in the event it was determined at trial that coverage under the defendant insurer’s policy existed. Applying the Clark analysis to the case at bar, we find that Albert’s attorney’s letter to Plaintiffs counsel indicating he made a misrepresentation to the court and requesting that he telephone him to discuss the matter as provided in the Rules of Court cannot be construed as an acknowledgment nor as an admission of liability. Thus, such action would not constitute a waiver of Albert’s right to request a formal judgment of dismissal based on abandonment. Albert’s attorney did not file a motion to compel discovery, which action would have constituted a post-abandonment waiver as it would have indicated Albert’s willingness to have a judicial resolution and would be a “step” in the defense of the matter. Instead, he filed a motion and order of dismissal seeking a formal judgment dismissing the matter which the law already deemed abandoned. Moreover, given that the case was instituted almost seven years prior but Plaintiff did very little to pursue the matter, propounded no discovery, failed to respond to Defendant’s discovery requests, and allowed three years to elapse without any intervening activity, we find Albert would be greatly prejudiced if this abandoned suit were allowed to be revived simply because Albert’s attorney sent an informal letter, off the record, after the period of abandonment lapsed, requesting long overdue responses to Isdiscovery. We understand the demands of practicing law and human inadvertence of a clerical worker may unfortunately result in a litigant’s losing the right to proceed with a case; but it may also result in a defendant’s losing his ability to respond to a claim made against him. He too has an equally compelling story to tell. During the pendency of this case, Albert was involved in a serious automobile accident and left totally disabled and unable to participate further in the matter. Such uncertainties of life exemplify the reasons why the law requires litigants to move forward in a timely fashion if they seriously intend to pursue a matter.

ADG has not lost its opportunity to have its day in court because of some “technical carelessness or unavoidable delayf.]” Sanders, 92 So.2d at 159. We find the competing policy consideration expressed in Sanders described as “the legislative purpose that suits, once filed, should not indefinitely linger, preserving stale claims from the normal extinguishing operation of prescription” weighs in favor of Albert under the facts of this case. Id. We therefore find no error of law, no manifest error, and no abuse of the trial court’s discretion in granting the motion to dismiss Plaintiffs action.

AFFIRMED.

AMY, J., concurs in the result.


author: RANDOLPH, Justice,

text:
    LOUISIANA EXTENDED CARE CENTERS, INC., Legacy Health Care Services, Inc., Magnolia Management Corporation, The Estate of Roberta Lane, by and through Alice Hayes, Administratrix, Georgia Smith, as Conservator for Eva Montgomery, Adams Community Care Center, LLC, Legacy Health Care Services, Inc., Louisiana Extended Care Centers, Inc., Legacy Care, Inc., Magnolia Management Corporation, John Stassi, David Stallard, Elton G. Beebe, Jr. and Edward E. Crow v. MISSISSIPPI INSURANCE GUARANTY ASSOCIATION.
    No. 2010-CA-00961-SCT.
    Supreme Court of Mississippi.
    Feb. 9, 2012.
    Rehearing Denied May 24, 2012.

      Mary Jane Perry, Michael Jay Fuller, Jr., attorneys for appellants.
    Clifford C. Whitney, III, R.E. Parker, Jr., Vicksburg, Penny B. Lawson, attorneys for appellee.
    Before DICKINSON, P.J., RANDOLPH and KITCHENS, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. The issue as presented to this Court is whether the Circuit Court of Madison County erred in granting summary judgment for the Mississippi Insurance Guaranty Association (“MIGA”), and in denying a cross-motion for summary judgment for nursing homes and nursing-home residents. The circuit court found that MIGA was entitled to a credit, which would reduce the amount MIGA must pay to indemnify nursing-home owners and operators for damage claims of two nursing-home residents that were allegedly caused by a series of negligent acts and omissions over the course of many years.

¶ 2. We find that the factual and legal predicates necessary to formulate an opinion on coverage issues are lacking, which would preclude any court from rendering a valid ruling on coverage. We can discern no legal obligation giving rise to a duty for MIGA to indemnify the nursing homes, based on what was presented to the trial court. A decision on the subject matter of this declaratory judgment action — whether MIGA is entitled to a credit to reduce such obligation — cannot be adjudicated in the absence of proof of a legal obligation to pay. Therefore, we reverse the judgment of the Circuit Court of Madison County granting MIGA’s motion for summary judgment and denying Lane’s and Montgomery’s cross-motion for summary judgment, and remand the case to the circuit court to enter orders denying both summary-judgment motions, consistent with this opinion.

FACTS

¶ 3. Two suits underlie this case: (1) the Estate of Roberta Lane filed an action in the Circuit Court of Sharkey County globally alleging negligent conduct from 1989 to 1998 (“the Lane case”); and (2) the Conservator for Eva Montgomery filed an action in the Circuit Court of Adams County globally alleging negligent conduct from June 1998 to July 2003 (“the Montgomery case”). The cases were filed against companies that own and operate the nursing homes where Lane and Montgomery resided, nursing-home administrators, and related unnamed persons (collectively, “nursing-home defendants”).

The Nursing-Home Defendants’ Insurance Coverage

¶ 4. During the periods when Lane and Montgomery resided in the nursing homes, multiple insurance policies insured the facilities, "with no overlap of coverage periods in which the nursing homes were covered by more than one primary policy. The nursing homes’ insurance coverage was as follows:

8/1/92-8/1/95 St. Paul Fire & Marine Insurance

8/1/95-9/1/99 Reciprocal of America (“ROA”)

9/1/99-6/18/00 Caliber One Indemnity Co.

6/18/00-1/1/01 Colony Insurance Co.

1/1/01-6/18/02 Lloyd’s of London

ROA became insolvent in 2003.

¶ 5. The ROA policy included a liability limit for each “medical incident” in excess of the cap for MIGA’s obligation to pay-under an insolvent policy. See Miss.Code Ann. § 88 — 23—115(1)(a)(iii) (Rev.2011) (limiting MIGA’s obligation to $300,000 per claim). The ROA policy provided that ROA:

will pay on behalf of the Insured all sums which the Insured shall be legally obligated to pay as damages because of injury to which this policy applies arising out of a Medical Incident, occurring during the Policy Period.

(Italics added). The policy defines “Medical Incident” as:

any act or omission:
1. in the furnishing of professional health care services including the' furnishing of food, beverages, medications, or appliances in connection with such services and the postmortem handling of human bodies, or
2. arising out of service by an Insured as a member of a formal accreditation, standards of review, or similar professional board or committee of the Named Insured or as an Insured charged with executing the directives of such board or committee.
3. Failure to comply with any right of a health care facility resident under any state law regulating the Named Insured’s business as a resident health care facility;
4. Failure to comply with any right of a resident as included in the United States Department of Heath and Human Services regulation governing participating of intermediate care facilities and skilled nursing facilities regardless of whether the Named Insured’s business is subject to such regulations; and
5.Any professional services performed by a beautician or barber working for the Named Insured but this COVERAGE does not apply to any person while engaged in the business or occupation of a beautician or barber.
Any such act or omission, together with all related acts or omissions in furnishing of such services to any one person shall be considered one Medical Incident.

The ROA policy further provided that the “policy does not apply ... to liability assumed by the Named Insured under any contract or agreement.”

The Lane and Montgomery Cases

¶ 6. Lane was a resident at Heritage Manor of Rolling Fork nursing home from 1989 to 1998. Her residency overlapped the coverage periods of the ROA and St. Paul policies. Montgomery was a resident at Adams County Nursing Center from June 1993 to July 2003. Her residency bridged the ROA policy period and the coverage of all four other insurers.

¶ 7. The complaints in the underlying cases alleged that Lane and Montgomery were injured as a result of continuous and uninterrupted abuse and negligence while they were residents at the nursing homes. Neither complaint specified separate, independent, negligent acts and/or omissions that caused specific damages. Rather, the complaints alleged that the nursing-home defendants were negligent in the overall care and treatment of Lane and Montgomery, by breaching various duties of care, such as “to provide adequate and appropriate custodial care and supervision[;]” “to exercise reasonable care in providing care and services in a safe and beneficial manner[;]” “to deliver care and services that a reasonably careful person would have provided under similar circumstances by failing to prevent mistreatment, abuse and neglect....” Both complaints summarily alleged that “[a]s a direct and proximate result of the negligence of [the nursing-home defendants,]” Lane and Montgomery “suffered injuries including [certain listed injuries].”

¶ 8. The Amended Complaint filed by the Estate of Roberta Lane alleged that the nursing-home defendants “breached [then] duty” to “exercise reasonable care in providing care and services in a safe and beneficial manner” for Lane when she was a resident at Heritage Manor. Inter alia, the Lane complaint alleged that:

As a consequence thereof, ROBERTA LANE suffered catastrophic injuries, disfigurement, extreme pain, suffering and mental anguish. The scope of severity of the recurrent wrongs inflicted upon ROBERTA LANE while under the care of the facility accelerated the deterioration of her health and physical condition beyond that caused by the normal aging process and resulted in physical and emotional trauma which includes, but is not limited to:
a) pneumonia;
b) multiple falls;
c) consistently elevated blood glucose;
d) episodes of low blood sugar;
e) multiple pressure sores;
f) urinary tract infections;
g) ear infection;
h) symptomatic hyperglycemia;
i) fracture of 5th right finger;
j) fracture of left hip;
k) weight loss; and
1)anemia.

(Emphasis added.)

¶ 9. The Complaint filed by Georgia Smith, as Conservator for Eva Montgomery, alleged that the nursing-home defendants “breached [their] duty” to “exercise reasonable care in providing care and services in a safe and beneficial manner” for Montgomery “throughout [Montgomery’s] sta/’ at Adams County Nursing Center, inter alia, and that:

[a]s a consequence thereof, EVA MONTGOMERY suffered catastrophic injuries, disfigurement, extreme pain, suffering and mental anguish. The scope and severity of the recurrent wrongs inflicted upon EVA MONTGOMERY while under the care of the facility accelerated the deterioration of her health and physical condition ... and resulted in physical and emotional trauma which includes, but is not limited to:
a) malnutrition;
b) dehydration;
c) multiple falls;
d) urinary tract infections;
e) body rashes;
f) multiple bruises and skin tears;
g) lacerations requiring stitches;
h) fecal impactions with related complications;
i) upper respiratory infections;
j) poor hygiene;
k) contractures;
l) multiple pressure sores; and
m) loss of weight.

(Emphasis added.) The Montgomery complaint further alleged that “[t]he wrongs ... were of a continuing nature, and occurred throughout EVA MONTGOMERY’S stay at [the nursing-home defendants’] facility.” (Emphasis added.)

¶ 10. Discovery responses in both cases identified some alleged acts and omissions with specific dates, but Lane’s Estate and Montgomery’s Conservator did not abandon the language of the complaints claiming ongoing wrongful conduct throughout their stays. In response to an interrogatory, Lane’s Estate identified various dates of acts, omissions, and claimed injuries, but also reaffirmed acts and omissions that were continuous and uninterrupted, e.g., “[t]he incidents described in the Complaint were ongoing throughout Ms. Lane’s residency at [the nursing-home defendants’] facility and therefore each and every instance cannot be determined.” (Emphasis added.) In response to an interrogatory asking Montgomery’s Conservator to “state the factual basis for and itemize the amounts of all damages” sought, Montgomery’s Conservator identified various dates of acts, omissions, and claimed injuries. Montgomery’s Conservator also reverted to the continuous and uninterrupted language, e.g., “[t]he injuries sustained by Eva Montgomery were ongoing throughout her residency, so the Plaintiff is unable ... to name each and every instance of negligence.” (Emphasis added.) Thus, Lane’s Estate and Montgomery’s Conservator never abandoned their claims of ongoing wrongful conduct throughout the women’s residencies.

¶ 11. In 2006, the nursing-home defendants entered into separate settlement agreements with Lane’s Estate and with Montgomery’s Conservator, to which the solvent insurers were parties. MIGA was not a party to either settlement agreement. Under each settlement agreement, the solvent insurers agreed to pay all but $300,000 of the total settlement amount. The nursing-home defendants settled the Lane case for a total of $750,000, and the solvent insurers agreed to pay $450,000 in exchange for the Estate’s agreement to drop all claims, excepting the ROA coverage period. The Montgomery case settled for $1,300,000, with the solvent insurers agreeing to pay $1,000,000 in exchange for the Conservator’s agreement to drop all claims, excepting the ROA coverage period.

¶ 12. Both settlement agreements state that “the settlement value of any and all claims, causes of action and/or rights ... as a result of [i]ncidents that potentially implicate or otherwise fall within or arise under the ROA coverage period of the ROA Policies is at least $300,000.00.” Under each agreement, the nursing-home defendants would file a declaratory action to determine whether MIGA had a duty to pay the remaining $300,000, and if that effort was unsuccessful, no attempt would be made to execute on the property and assets of the nursing-home defendants, and the suit would be dismissed with prejudice.

ISSUES

¶ 13. The nursing-home defendants, Lane’s Estate, and Montgomery’s Conservator raised three issues on appeal:

1. Whether the Circuit Court erred in holding that MIGA is entitled to credit for payments by solvent insurers and in holding that MIGA is not required to indemnify the nursing-home defendants pursuant to Miss.Code Ann. § 83-23-123.
2. Whether the settled claims are not “covered claims” within the meaning of the Guaranty Act.
3. Whether there exists no solvent insurance for the injuries for which MIGA is obligated to pay.

¶ 14. MIGA formulates the issues slightly differently:

1. Whether this case involves a single “medical incident” and single “covered claim,” or whether there were separate occurrences and claims based on each incident occurring during the ten-year nursing home stay.
2. Whether MIGA is entitled to a credit under Miss.Code Ann. § 83-28-123(1) for payments to the claimant from solvent insurance policies covering the same continuing “medical incident.”

ANALYSIS

¶ 15. This case involves unresolved issues of fact and law, and, therefore, too much uncertainty remains for any ruling on the subject matter of this declaratory-judgment action. Mississippi Rule of Civil Procedure 57 provides that “[t]he court may refuse to render or enter a declaratory judgment where such judgment, if entered, would not terminate the uncertainty or controversy giving rise to the proceeding.” Miss. R. Civ. Proc. 57(a). Declaratory judgment would not terminate the uncertainty of this case, as no court has resolved the fundamental questions of the extent, cause, and time of Lane’s and Montgomery’s alleged damages; whether the nursing-home defendants have an obligation to pay; and, if the nursing homes are obligated to pay, for what portion MIGA is obligated to indemnify them.

¶ 16. MIGA’s obligation to indemnify the nursing-home defendants, up to its statutory limit, is determined by the insolvent insurer’s policy. See Miss.Code Ann. § 83—23—115(l)(b) (providing that MIGA “shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent”). MIGA could never have an obligation to indemnify under the insolvent insurer’s policy until the insured is legally obligated to pay. A legal obligation to pay under an insolvent insurers’ policy can arise in only two ways: (1) judgment is rendered holding the insured liable; or (2) the insurer (before insolvency) or MIGA (after the insurer becomes insolvent) enters into an agreement to indemnify the insured. We have reviewed the record and can find no existing legal obligation to pay. The nursing-home defendants’ voluntary settlement agreements in the Lane and Montgomery cases, without agreement by ROA or MIGA, do not confer a legal obligation to pay any amount. We find that the existence of an obligation is a sine qua non of MIGA being entitled to a credit, as it is impossible to determine whether MIGA is entitled to a credit to reduce a nonexistent obligation. In the absence of this essential element, ie., until a court renders judgment under which the nursing-home defendants must pay for covered damages suffered by Lane and Montgomery during the ROA policy period or MIGA enters into an agreement to indemnify the nursing-home defendants, the issues of whether this case involves one or more “covered claims” and whether MIGA is entitled to a credit are not ripe for adjudication.

¶ 17. The trial court erred in granting summary judgment on MIGA’s entitlement to a credit to reduce its obligation to pay, which has not been established. A declaratory judgment regarding credit, vel non, is not ripe for adjudication, until (1) MIGA has entered into an agreement to indemnify the nursing-home defendants for Lane’s and Montgomery’s alleged damages; or (2) a trial on the merits has determined: the extent, cause, and time of Lane’s and Montgomery’s damages; the extent of the nursing homes’ liability, if any; and the amount MIGA is obligated to indemnify the nursing homes under the ROA policy, if any.

¶ 18. Lane’s and Montgomery’s complaints alleged continuous, ongoing, wrongful conduct throughout their stays at the nursing homes. As Justice Kitchens noted at oral argument, the complaint pleaded a “seamless course of conduct,” and “this was pled the way it was, in the context of a continuing tort, for statute of limitations purposes.” However, once they settled their claims (with all but the insolvent ROA and MIGA), Lane and Montgomery attempted to jettison the seamless-course-of-negligent-conduct approach and adopted a contrary stance in their attempt to recover from MIGA. In them summary-judgment motion, and in this appeal, they now argue that their claims were for injuries that were “distinct, unrelated, and not part of the substantially same general harmful conditions,” creating a factual dispute that also precludes the granting of summary judgment.

CONCLUSION

¶ 19. The trial court erred in granting summary judgment, because the factual and legal predicates necessary to consider the grant or denial of summary judgment are not established in the record before this Court, which would preclude any court from rendering a valid ruling in this action. The underlying cases establish no legal obligation for which MIGA must indemnify the nursing-home defendants. Until a legal obligation has been established, the coverage issues raised in this action are not ripe. Therefore, we reverse the judgment of the Circuit Court of Madison County granting MIGA’s motion for summary judgment and denying Lane’s and Montgomery’s cross-motion for summary judgment, and remand the case to the circuit court to enter orders denying both summary-judgment motions for the reasons discussed herein.

¶ 20. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.

      . The nursing-home defendants disputed the date of Lane’s admission into Heritage Man- or, asserting that she entered the nursing home in August 1994. The precise start date does not affect our analysis, as Lane’s residency at Heritage Manor overlapped the policies of St. Paul (8/1/92-8/1/95) and ROA (8/1/95-9/1/99) with a beginning date of either 1989 or 1994.


author: WALLER, Chief Justice,

text:
    Marvin RHODA v. Edith W. WEATHERS.
    No. 2010-CT-00797-SCT.
    Supreme Court of Mississippi.
    March 8, 2012.
    Rehearing Denied May 24, 2012.

      Benjamin L. Taylor, attorney for appellant.
    Russell Barton Jordan, Hernando, Dawn Davis Carson, attorneys for appellee.
   ON WRIT OF CERTIORARI

WALLER, Chief Justice,

for the Court:

¶ 1. In 2004, Marvin Rhoda and Edith Weathers were involved in an automobile collision in Southaven, Mississippi. Rhoda sued Weathers, alleging negligence, and the jury returned a verdict for Weathers. The Court of Appeals affirmed the jury’s verdict, but reversed and remanded the trial court’s refusal to assess sanctions against Weathers for failing to admit to certain requests made by Rhoda in discovery. This Court granted Weathers’s petition for writ of certiorari to address only the issue of sanctions against Weathers. We now reverse the Court of Appeals on this issue and affirm the circuit court’s denial of Rhoda’s request for sanctions. All other issues addressed by the Court of Appeals, and not addressed by this opinion, are affirmed.

FACTS AND PROCEDURAL HISTORY

¶ 2. During discovery, Rhoda propounded a number of requests for admission to Weathers. Attached to these requests were copies of Rhoda’s medical bills and prescription receipts and records. The following is an example of Rhoda’s requests and Weathers’s responses relating to these documents:

15. Admit that the attached as Exhibit B is a true, correct and authentic copy of the original bill from Horn Lake EMS incurred because of the injury sustained by Plaintiff, Marvin Rhoda as a result of the accident which is the subject of this lawsuit.

RESPONSE: Denied; the defendant is without information to determine whether Exhibit B is a true, correct and authentic copy of the document which it purports to be.

16. Admit that the attached Exhibit B is an authentic business record for the purposes of Miss. R. Evid. 803(6).

RESPONSE: Denied; the defendant is without sufficient information as to the manner in which Exhibit B was generated and produced.

17. Admit that the Attached Exhibit B was necessary and reasonable treatment for the injuries sustained by Plaintiff, Marvin Rhoda, as a result of he accident which is the subject of this lawsuit.

RESPONSE: Denied. The defendant is not a medical doctor nor has any medical training and is unfamiliar with the charges of health care providers in the area.

18. Admit that the attached Exhibit B is admissible into evidence after all prejudicial insurance information, including but not limited to insurance information is redacted in its entirety.

RESPONSE: Denied. Only the court can decide what is admissible or not.

Rhoda requested Weathers to make these admissions on thirteen different medical bills or prescription receipts, and Weathers made nearly identical denials to all thirteen requests. Rhoda submitted authenticated copies of his medical bills at trial, and they were admitted without objection.

¶ 3. Rhoda filed a post-trial motion for expenses based on Weathers’s failure to admit to these and other requests. The trial court denied the motion. The court noted that the Mississippi Rules of Evidence provide procedures for authenticating medical records and entering them into evidence that do not involve the party opposite admitting to them. Further, the court recognized that Weathers “did not prepare the records ... [and] is not custodian or responsible for those records.”

¶ 4. The Court of Appeals reversed, holding that Mississippi Rule of Civil Procedure 37(c) mandated sanctions against Weathers. Rhoda v. Weathers, 87 So.3d 1067 (Miss.Ct.App.2011). The Court of Appeals denied Weathers’s motion for rehearing. Weathers then filed a petition for writ of certiorari, which this Court granted.

ISSUE

¶ 5. The sole issue before this Court on certiorari is whether the trial court abused its discretion in refusing to grant Rhoda’s post-trial motion for expenses based on Weathers’s failure to admit to Rhoda’s requests for admission.

STANDARD OF REVIEW

¶ 6. A trial court’s decision whether or not to impose sanctions for alleged discovery violations is reviewed for abuse of discretion. Jones v. Jones, 995 So.2d 706, 711 (Miss.2008). The trial court’s decision should be affirmed unless a reviewing court has a “definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.” Id. (quoting Cooper v. State Farm Fire & Cas. Co., 568 So.2d 687, 692 (Miss.1990)).

DISCUSSION

¶ 7. When a party fails to admit a matter or the genuineness of a document that is later proven at trial, the requesting party may move the court to require the other party to pay the reasonable expenses the requesting party incurred in proving the matter or document. M.R.C.P. 37(c). The Rule states that the court “shall” make the order, unless it finds: 1) that the request was objectionable under Rule 36(a); 2) that the admission sought was of no substantial importance; 3) that the party failing to admit had reasonable ground to believe he might prevail on the matter; or 4) that there was other good reason for the failure to admit. M.R.C.P. 37(c).

¶ 8. The Court of Appeals held that none of the exceptions listed above applied to the requests. Rhoda, 87 So.3d at 1073. The Court characterized Rhoda’s request as requesting that Weathers “admit the genuineness and admissibility of [Rhoda’s] medical records.” Id. However, the Court’s opinion did not specifically address what comprised these “medical records.” In fact, Rhoda requested that Weathers admit to the genuineness and admissibility of medical bills and various prescription receipts. However, the authenticity of these documents and their admissibility into evidence at a civil trial were matters outside of Weathers’s knowledge, thereby making her denials of the requests appropriate and not subject to sanction.

¶ 9. The purpose of requests for admission under Rule 36 is “to determine which facts are not in dispute.” DeBlanc v. Stancil, 814 So.2d 796, 802 (Miss.2002). “It is not intended to be used as a vehicle to escape adjudication of the facts by means of artifice or happenstance.” Id. ¶ 10. Mississippi Rule of Evidence 803(6) provides that business records may be admitted at trial. However, for the records to be admissible, the rule requires that the custodian or “other qualified witness” testify to their authenticity. M.R.E. 803(6). Otherwise, the document must be self-authenticating pursuant to Rule 902(11). M.R.E. 803(6). For a document to be self-authenticating, it must include a “written declaration under oath or attestation” from a custodian or other qualified witness that meets the authentication requirements of Rule 803(6). M.R.E. 902(11).

¶ 11. Had Rhoda attached proper attestation of the documents’ authenticity when he propounded his requests, then Weathers would have had no good reason to deny the documents’ genuineness and authenticity. However, in his request, Rhoda failed to attach to his medical bills any affidavits or other written declarations by the custodians of these bills, or any other qualified witnesses, attesting to' their authenticity. In essence, Rhoda’s requests sought to contravene the Mississippi Rules of Evidence. Rather than properly authenticating his medical bills according to the Rules of Evidence, he attempted to authenticate them by “artifice or happenstance.” As Weathers was neither the custodian of the documents nor a qualified witness, she did not have the requisite information to determine whether the bills were true, correct, and authentic copies of what they purported to be, nor did she have knowledge of how the bills were prepared. Weathers stated as much in her responses to the requests for admission. As such, she had “good reason” for failing to admit to Rhoda’s request. See M.R.C.P. 37(c); 8 Wright & Miller, Federal Practice and Procedure § 2290, 629 n.15 (“Since a statement of reasons why the party is unable truthfully to admit or deny is expressly permitted as a response to a request ... it would be quite anomalous if a party who has stated valid reasons why this is so should be required to pay his opponent’s expenses.”). Recognizing this, the trial court refused to sanction Weathers for failing to admit to Rhoda’s requests. Under these facts, it cannot be said that the trial court abused its discretion in denying Rhoda’s motion for expenses. See Estate of Bolden ex rel. Bolden v. Williams, 17 So.3d 1069, 1072 (Miss.2009) (“A trial court has considerable discretion regarding discovery matters.”).

CONCLUSION

¶ 12. For the reasons stated, we hold that the trial court did not abuse its discretion in denying Rhoda’s motion for expenses based on Weathers’s failure to admit to Rhoda’s requests for admissions. Accordingly, we reverse the Court of Appeals on this issue and reinstate and affirm the judgment of the DeSoto County Circuit Court. All other issues addressed by the Court of Appeals, and not addressed by this opinion, are affirmed.

¶ 13. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY IS REINSTATED AND AFFIRMED.

CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ„ CONCUR.

      . Certiorari was granted solely to review the issue of sanctions based on Weathers’s alleged discovery violations. As such, this Court's history of the case will be limited to the facts surrounding Rhoda’s request for admissions and Weathers’s responses. For farther factual discussion of this case, see the Court of Appeals’ opinion, Rhoda v. Weathers, 87 So.3d 1067 (Miss.Ct.App.2011).