author: McClendon, j.

text:
    Roxanne F. HORRIGAN v. Roy Patrick HORRIGAN, Jr.
    No. 2010 CA 1377.
    Court of Appeal of Louisiana, First Circuit.
    June 14, 2011.

      Carole G. Gillio, Slidell, LA, for Plaintiff/Appellee Roxanne F. Horrigan.
    Rebecca N. Robichaux, Raceland, LA, for Defendant/Appellant Roy Patrick Hor-rigan, Jr.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   McClendon, j.

| pin this appeal, a former spouse appeals the judgment of the trial court that found a consent judgment to be a valid contract of support between the parties. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Roxanne F. Horrigan and Roy Patrick Horrigan, Jr. were married on May 7, 1996, and thereafter established their matrimonial domicile in St. Tammany Parish. Five children were born of the marriage and Mr. Horrigan also adopted Ms. Horri-gan’s oldest child. On July 24, 2003, Ms. Horrigan filed a Petition for Divorce, Custody, Support and Incidental Matters in the 22nd Judicial District Court. Mr. Hor-rigan filed an answer through counsel on September 4, 2003.

Thereafter, on September 7, 2004, the parties filed into the record a Motion and Consent Judgment as to Custody, Support and Visitation and Property Settlement. Pertinent to this matter was the provision that Mr. Horrigan would pay Ms. Horri-gan $1,500.00 a month “as spousal support to commence August 1, 2004 and to continue through August 1, 2014, unless sooner terminated by death or remarriage of ‘Roxanne.’ ” The motion was signed by both parties individually “after careful review” and approved as to content and form, and the consent judgment was signed by the trial court on September 10, 2004.

No further action was taken in this matter until June 25, 2008, when Ms. Horrigan filed a Rule for Contempt, alleging that Mr. Horrigan had not made a spousal support payment since the last week of February 2008, notwithstanding the terms of the 2004 consent judgment. Thereafter, on October 8, 2008, the trial court rendered judgment on the contempt rule in favor of Ms. Horrigan for arrearages, attorney fees, and court costs. The court further ordered Mr. |sHorrigan to immediately resume spousal support payments as set forth in the prior judgment and ordered that all prior judgments and orders of the court remain in full force and effect.

On October 23, 2008, Mr. Horrigan filed a Motion to Set Aside Judgment and/or Annul Judgment or in the Alternative, Motion and Order for New Trial, regarding the October 8, 2008 judgment, asserting insufficient service of process. He further alleged that the spousal support award in the September 10, 2004 judgment expired by operation of law. Specifically, Mr. Hor-rigan asserted that because the divorce petition filed pursuant to LSA-C.C. art. 102 did not conclude with the filing of a rule to show cause within two years of the service of the original petition as required by LSA-C.C.P. art. 3954, the suit and all incidental issues, including the consent judgment, were abandoned. Mr. Horrigan also maintained that jurisdiction and venue of the parties was in Lafourche Parish in connection with the divorce action he filed on January 22, 2008, and that the issue of spousal support was pending therein. Attached to said motion was copy of the judgment of divorce between Mr. Horrigan and Ms. Horrigan granted pursuant to LSA-C.C. art. 103(1) on May 8, 2008 in the Lafourche Parish proceeding.

On February 17, 2009, the trial court set aside the October 8, 2008 judgment on the rule for contempt due to insufficient service of process on Mr. Horrigan and granted the motion for new trial. Thereafter, following a hearing on September 29, 2009, the trial court ruled that although the divorce action filed in St. Tammany Parish was abandoned, the parties entered into a valid and binding contract of support. Further, the court determined that the contract was by a consent judgment and not a considered decree, and, therefore, as a contract, it did not fall with the case. Therefore, the trial court concluded that Mr. Horrigan owed support to Ms. Horri-gan as provided in the 2004 consent 1 ¿judgment. Judgment to that effect was signed on December 21, 2009, and Mr. Horrigan appealed.

DISCUSSION

In his appeal, Mr. Horrigan makes several arguments. He contends that the trial court improperly concluded that the support clause in the 2004 consent judgment was a valid contract. He asserts that because the divorce action in this matter was abandoned, the consent judgment pertaining to spousal support was abandoned as well. Mr. Horrigan also asserts that the support clause in the 2004 consent judgment was a modification of the matrimonial regime, which required court approval. According to Mr. Horri-gan, because the trial court did not make a finding that the agreement was in the parties’ best interest, it is a relative nullity. Lastly, Mr. Horrigan makes the argument that he was “unclear as to his responsibilities” regarding the 2004 consent judgment, which he signed without representation by counsel, until he was advised by his present counsel in February 2008, at which time he ceased making any further support payments. He argues that payments made by him until that time were not entirely voluntary and, therefore, cannot be considered tacit confirmation of the agreement, because he believed that there was a valid court judgment rendered against him. Mr. Horrigan contends that because he was unrepresented when he entered into the contract, he never fully understood the nature of the consent judgment.

Louisiana Code of Civil Procedure Article 3954 A specifically provides that a divorce action instituted under Civil Code Article 102 is abandoned if the rule to show cause provided by that article is not filed within two years of the service of the original petition or execution of written waiver of service of the original petition. It is not disputed that the divorce action in this matter under LSA-C.C. hart. 102 was abandoned and that the parties were divorced in Lafourche Parish pursuant to LSA-C.C. art. 103.

Initially, we recognize that the judgment in this matter was not merely a judicial decree. Rather, it was a consent judgment reached by the parties. Spouses are now free to contract with each other before or during a marriage as to all matters that are not prohibited by public policy, and the incapacities based on marital status have been removed. See LSA-C.C. Art. 2329, Revision Comment (a).

A consent judgment is a bilateral contract between the parties by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. Hebert v. Drewitz, 09-0798, p. 3 (LaApp. 1 Cir. 10/27/09) 29 So.3d 607, 608. See also LSA-C.C. art. 3071. A consent judgment, as opposed to other final judgments rendered against a party without their consent, may be annulled or rescinded for an error of fact or of the principal cause of the agreement. Stroscher v. Stroscher, 01-2769, p. 5 (La.App. 1 Cir. 2/14/03), 845 So.2d 518, 524. See also LSA-C.C. arts. 3082 and 1948, et seq. Further, interpretation of a consent judgment, i.e., a contract between parties, is a determination of the common intent of the parties, and when the words of the contract are clear and explicit and lead to no absurd consequences, the intent of the parties is to be determined by the words of the contract. LSA-C.C. art. 2045; Richardson v. Richardson, 02-2415, p. 4 (La.App. 1 Cir. 7/9/03), 859 So.2d 81, 84-85.

Thus, in the case sub judice, the binding force of the contract is from the parties’ acquiescence, rather than from the court’s judgment. Accordingly, unless there is some error of fact or of the principal cause of the agreement, it may not be annulled or rescinded.

Consent to a contract may be vitiated by error, fraud, or duress. LSA-C.C. art. 1948. Error vitiates consent only when it concerns a cause without which | athe obligation would not have been incurred and that cause was known or should have been known to the other party. LSA-C.C. art. 1949. Error may concern a cause when it bears on the thing that is the contractual object or a substantial quality of that thing. LSA-C.C. art. 1950. Cause is defined as the reason why a party obligates himself. LSA-C.C. art. 1967.

Prior to the signing of the consent judgment, Mr. Horrigan abandoned the matrimonial domicile. At the time he signed the agreement, Mr. Horrigan undoubtedly recognized his continuing obligation to provide financial assistance to his spouse with whom he was no longer living, as well as the potential of a future award of interim and possibly final spousal support. Thus, he agreed to provide pre-divorce and post-divorce support, as the agreement provided for spousal support for ten years unless sooner terminated by the death or remarriage of Ms. Horrigan.

Clearly, there was no error as to the principal cause of the contract. The parties had a meeting of the minds, and consent was freely given. Mr. Horrigan entered into a bilateral contract, the principal cause of which was to provide support to Ms. Horrigan during the estrangement and after the divorce, which divorce was ultimately granted, without any reconciliation having occurred. However, Mr. Horrigan argues that he did not comprehend what he was signing. The contract before us is not ambiguous or complicated. Further, there is no evidence of any impairment at the time of the signing of the consent judgment. A court cannot relieve an able party of an obligation which he freely and voluntarily entered into absent evidence of a vice of consent. See Gray v. Gray, |737,884, p. 3 (La.App. 2 Cir. 12/12/03), 862 So.2d 1097. Mr. Horrigan has not shown error sufficient to vitiate his consent.

Furthermore, we disagree with Mr. Horrigan’s argument that the judgment was abandoned when the time limits set forth in LSA-C.C.P. art. 3954 A expired. Once the consent judgment was signed by the trial court within the two-year period set forth in LSA-C.C.P. art. 3954 A, the ancillary issues were no longer pending, but were reduced to judgment.

We additionally note that even had this not been a consent judgment, a judgment, whether it results from the assent of the parties or is the result of a judicial deter-initiation after a trial on the merits, is and should be accorded sanctity under the law. Plaquemines Parish Government v. Getty Oil Co., 95-2452, p. 6 (La.5/21/96), 673 So.2d 1002.

The law affords a party several means in which to attack a judgment. A party may sue to have the judgment declared a nullity for vices in either form or substance. LSA-C.C.P. art. 2001, et seq. Under Article 2002 a final judgment shall be annulled if it is rendered against an incompetent person not properly represented as required by law, against a defendant who has not been properly served with process and who has not entered a general appearance, or against whom a valid judgment by default has not been taken, or by a court which does not have proper jurisdiction over the subject matter of the litigation. In an action for nullity, the specific requirements of article 2002 must be met. Cheramie v. Vegas, 468 So.2d 810, 813 (La.App. 1 Cir.1985). The only ground arguably applicable in this case under LSA-C.C.P. art. 2002 is the third one regarding the lack of subject matter jurisdiction. However, the consent judgment was signed by the court on September 10, 2004, well within the two-[year8 time limitation of LSA-C.C.P. art. 3954. Hence, none of the grounds set forth in LSA-C.C.P. art. 2002 are present.

A final judgment may also be annulled if obtained through fraud or ill practices. LSA-C.C.P. art. 2004. However, Mr. Hor-rigan has made no allegations of fraud or ill practices. Mr. Horrigan has not filed a petition to annul the judgment and appears to be improperly attacking it collaterally.

Nor do we find merit to Mr. Horrigan’s argument that the support clause in the 2004 consent judgment was a modification of the parties’ matrimonial regime requiring court approval pursuant to LSA-C.C. art. 2329. The agreement between them was never intended to modify or terminate the matrimonial regime. See LSA-C.C. art. 2328.

The September 10, 2004 consent judgment satisfied the elements of a valid and binding contractual agreement voluntarily entered into by the parties. It is also a valid judgment maintaining the effect of the law between the parties. Accordingly, we find that the judgment of the trial court is correct, and we affirm that judgment.

CONCLUSION

For the above and foregoing reasons, the December 21, 2009 judgment of the trial court is affirmed. Costs of this appeal are assessed to Roy Patrick Horrigan.

AFFIRMED.

      . The motion indicated that Ms. Horrigan was represented by counsel and that Mr. Horrigan was in proper person.

      . The consent judgment also provided for custody, visitation, and child support. Additionally, it provided that " ‘Roy’ will quitclaim any and all interest he has or may have in the property/family home ... to 'Roxanne', and will execute all necessary documentation to facilitate the same within sixty (60) days of the signing of this document.”

      . This is the matter entitled Roy Patrick Horrigan, Jr. v. Roxanne Francis Horrigan, Docket Number 108413 of the 17th Judicial District Court for the Parish of Lafourche, State of Louisiana.

      . Louisiana Civil Code Article 102 provides:
      Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause.
      The motion shall be a rule to show cause filed after all such delays have elapsed.

      . Married persons owe each other fidelity, support, and assistance. LSA-C.C. art. 98. See also LSA-C.C, arts. 113 (regarding interim spousal support allowance pending final support award) and 112 (regarding determination of final periodic support).

        . Clearly, the cause of the contract was not limited to a pending LSA-C.C. art. 102 rule for divorce, but rather was in an anticipation of the parties obtaining a judgment of divorce.

      . Because we find a valid and binding contract, we need not address Ms. Horrigan’s arguments that based on prior payments made under the agreement, Mr. Horrigan is estopped from contesting the validity of the agreement or that he confirmed the agreement.

      . LSA-C.C.P. art. 3954 specifically applies only to the claim for a divorce under LSA-C.C. art. 102. See Veal v. Veal, 45,100 (La.App. 2 Cir. 3/3/10), 32 So.3d 349.

      . Louisiana Civil Code Article 2328 provides:
      A matrimonial agreement is a contract establishing a regime of separation of property or modifying or terminating the legal regime. Spouses are free to establish by matrimonial agreement a regime of separation of property or modify the legal regime as provided by law. The provisions of the legal regime that have not been excluded or modified by agreement retain their force and effect.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Wade A. MATTHEWS.
    No. 2010-KA-1507.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 15, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, Sr., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

hThe Appellant, Wade Matthews, appeals his conviction for the illegal use of a firearm and sentence of two years active probation. We affirm the conviction and sentence of Matthews, finding the district court did not err.

In February of 2010, Wade Matthews was charged with a violation of LSA-R.S. 14:94(F), the illegal discharge of a firearm during the commission of a violent crime. Matthews entered a plea of not guilty. The defense filed pre-trial motions to suppress evidence, suppress statement, suppress identification, and for a preliminary hearing. The district court denied the motions and found probable cause for the illegal use of a firearm under 14:94(A), the lesser included offense of 14:94. Following a one day trial, the district court found Matthews guilty of the illegal discharge of a firearm, and sentenced Matthews to two years imprisonment, which was suspended. Matthews was placed on two years active probation and ordered to attend anger management classes. | ¡¡He filed post-conviction motions for post-verdict judgment of acquittal, for a new trial, in arrest of judgment, to correct illegal sentence, to reconsider sentence, and for an appeal. The district court denied all defense motions except for his motion for an appeal.

Mr. Hicks Sellers testified at trial, that in December of 2009, he returned home one evening and heard loud music as he entered the neighborhood. Mr. Sellers testified that when he reached his residence, his wife informed him that their neighbor, Matthews, had been playing music loudly the entire day.

Mr. Sellers testified that later that evening another neighbor, Ms. Buceola called him to inform him that his dog, Roxie, was loose and currently in front of her yard. Ms. Buceóla resided in a home on a thirty foot wide lot located between the home of Mr. Sellers and the double where Matthews lived. All three homes were built along their respective property lines. Mr. Sellers testified that he then stepped outside of his home and called out for his dog, and that Roxie came from underneath his van, which was parked in his driveway. Mr. Sellers testified that while he was outside he and Matthews began a brief verbal altercation. According to the testimony of Mr. Sellers, Matthews told Mr. Sellers that he did not like Mr. Sellers and that Matthews threatened him by Rsaying, “I’m going to show you.” Mr. Sellers testified that after the altercation he heard the cock of a gun followed by a shot while he was standing on a landing at the rear of his residence, but that he could not see where Matthews pointed his gun when he fired. At this point, Mr. Sellers testified that he went back inside of his home, retrieved a weapon and dialed 911. Mr. Sellers testified that he remained in the home until the police arrived, and that on the day following the incident he found a shell casing in the middle of the driveway of Ms. Buceóla. Mr. Sellers testified that he then informed the police, and a different set of officers later came to the property to retrieve the shell casing.

Mr. Sellers also testified that he and Matthews had several uncomfortable encounters prior to the shooting incident. He testified that after a verbal altercation, Matthews used a blower to spray a white powdery substance onto the pool of Mr. Sellers. Mr. Sellers also testified that on another occasion his daughter observed Matthews place a video camera facing their property while she was in their backyard playing.

Officers Anthony Polidore and Brian Frank were both called to the scene the day of the incident. Both officers testified that when they arrived at the scene, they first spoke with Mr. Sellers and then went to Matthews’ residence to speak with him. They further testified that Mr. |4SeIlers told them that his dog was standing next to him when Matthews fired his gun. Officer Frank testified that Mr. Sellers also told the officers that Matthews shot at Mr. Sellers and his dog. However, Mr. Sellers later testified that he could not determine where Matthews pointed his gun. Officer Polidore, who authored the police report, testified that he added a hand written note in the report indicating that the incident happened “in the rear of the driveway at 8509 Belfast Street.” However, Officer Polidore testified that his assertion that the incident occurred in the rear of the driveway was solely based on the statements of Mr. Sellers. According to the testimony of Officer Polidore, Matthews told the reporting officers that he fired his weapon in the air in order to prevent Roxie from entering his yard.

Officer Polidore testified that he and Officer Frank then placed Matthews under arrest and asked Matthews where the gun he fired was located. Officer Polidore testified that Matthews allowed the officers to retrieve the weapon after the officers asked for Matthews to consent to a search of his residence for the weapon. Office Polidore then testified that Officer Frank and Matthews relocated to the bedroom of the residence where Officer Frank located a 9mm Ruger semiautomatic handgun. Officer Polidore testified that the officers then located a live [ ¿round in the front portion of the driveway of Matthews, which was illuminated at the time by a porch light. Officer Frank testified that the shell casing found by Mr. Sellers was of the same brand as those found in Matthew’s gun and the live round found in the front of Matthews’ driveway.

In his sole assignment of error, Matthews argues that the State failed to establish that the gun was fired where it was foreseeable that death or great bodily harm could result from the firing. Specifically, Matthews argues that no evidence was presented to show that it was foreseeable that a human being would be seriously injured or killed when he fired his weapon.

In determining whether evidence is sufficient to support a ruling, the appellate court must decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). However, the reviewing court must review the entire record, not just evidence which supports the prosecution’s case, because “a rational trier of fact would consider all of the evidence.” State v. Mussall, 523 So.2d 1305, 1309 (La.1988). If rational triers of fact could disagree as to the interpretation of the evidence, the reviewing | ecourt must view the evidence in a light that favors the prosecution. Id., 523 So.2d at 1311. Therefore, a reviewing court’s discretion will only be used to correct irrational judgments that violate the defendant’s due process protection.

Additionally, the reviewing court will not make decisions about the creditability of a witness; this is a role for the trier of fact. State ex rel. Graffagnino v. King, 436 So.2d 559, 563 (La.1983).

Furthermore, in State v. Madison, the Louisiana Supreme Court ruled that the trier of fact has the discretion to convict a defendant of a lesser included offense. 319 So.2d 912, 915 (La.1975).

LA.C.Cr.P. Art. 8Í5 provides that, in cases which are not found in LA.C.Cr.P. Art. 814, a defendant may be found guilty of a lesser and included grade of the offense. Matthews was charged with LSA-R.S. 14:94(F), and found guilty of LSA-R.S. 14:94(A), the lesser included offense of LSA-R.S. 14:94(F). LSA-R.S. 14:94 is not included in LA.C.Cr.P. Art. 814, so LA.C.Cr.P. Art. 815 applies.

Matthews was convicted of LSA-R.S. 14:94(A), the illegal discharge of a weapon, which is defined as: (1) the intentional or 17criminally negligent discharge of a firearm, where (2) it is foreseeable that the discharge may result in death or great bodily harm to a human being.

In State v. Mickel, the Fifth Circuit affirmed the conviction of a defendant who fired his automatic weapon in a residential neighborhood where children were playing outside. 581 So.2d 404 (La.App. 5 Cir. 1991). The court determined that it was unimportant that the witness was unable to see in which direction the defendant aimed. Id., 581 So.2d at 405. Because the defendant fired his weapon in a residential neighborhood the court found that there was enough evidence to show that it was foreseeable that a human being may be seriously injured or killed. Id.

In State v. Ordner, the Third Circuit upheld the conviction of a defendant who discharged his weapon in the air at a late night outdoor party. 2006-1054, p. 15 (La. App. 3 Cir. 2/14/07), 951 So.2d 508, 518. The court determined that because between twenty-five and fifty people were attending the party when the defendant fired his weapon in the air it was foreseeable that the defendant’s discharge may cause serious injury or death to a human being. Id., 2006-1054, p. 8, 951 So.2d at 514.

Finally, in State v. Dumaine, this court affirmed the district court’s conviction of a defendant who fired his weapon across a highway at a vacant lot. 534 So.2d 32 (La.App. 4 Cir.1988). The court determined |sthat because the defendant fired the weapon in a well-populated urban area when several neighbors, including children, were outside, it was foreseeable that someone may be injured by the defendant’s discharge. Id., 534 So.2d at 34.

In the instant case, Mr. Sellers testified that he was outside of his home, about thirty feet away from Matthews’ residence, when he heard Matthews fire his gun. Mr. Sellers and Matthews live in the Carrollton neighborhood of New Orleans, a densely populated urban area. Although Mr. Sellers testified that he could not see in which direction Matthews fired his weapon, both Officer Frank and Polidore testified that Matthews told the officers that he fired the weapon in the air. Matthews argues it was not foreseeable that serious injury or death would occur because no one was milling about in the neighborhood, and he did not fire in the direction of a person or residence. However, the prosecution did offer evidence that showed that Mr. Sellers was outside when Matthews admittedly fired his weapon. Furthermore, the Third Circuit in State v. Ordner determined that it is foreseeable that serious injury or death may occur even if the defendant did not fire his weapon in the direction of a person or persons. 2006-1054, p. 8, 951 So.2d at 514. Also, the Fifth Circuit determined that the victim having seen in which direction the defendant fired was unimportant. State v. Michel, 581 So.2d at 405. Lastly, Matthews fired his weapon at night; the lack of sunlight makes it more difficult for potential victims or persons in the area to avoid falling bullets. Thus, it is a matter of common knowledge that bullets tend to fall back to earth when fired in the air, and a reasonable person could have foreseen that firing a weapon in a densely populated area may cause serious harm or death. Mr. Sellers had testified that Ms. Buceóla was at home when the shooting occurred, as were his wife and daughter. The firing of the weapon presented a danger to anyone of these individuals who could have been struck by the failing bullet.

The defendant’s reliance on State v. Cain is erroneous. In State v. Cain, the Third Circuit reversed the conviction of a defendant who fired a warning shot at an approaching police car on his residence which was located on a large tract of land in a rural area of the state. 2009-390, pp. 1-2 (La.App. 3 Cir 11/4/09), 21 So.3d 1104, 1105-06. The court determined that because (1) defendant fired the weapon in a rural area where only he and the officer were nearby; (2) the defendant only fired one shot in the air and; (3) the defendant cooperated with the officer once the officer identified himself it was not foreseeable that death or serious injury to a person could occur from the defendant’s firing. Id., 2009-390, p. 8, 21 So.3d at 1109.

| ipHere, Matthews’s residence was located on a thirty foot lot which abutted the property line. According to Mr. Sellers’s testimony, Matthews was only thirty feet away from Sellers when he fired weapon and much closer to his next door neighbor, Ms. Buceola. Thus, the facts in the present case are distinguishable from State v. Cain.

The defendant’s reliance on State v. Powell is also erroneous. 95A24, p. 1, 664 So.2d at 610. In State v. Powell, the Third Circuit reversed the conviction of a defendant who fired his weapon from a moving vehicle while traveling along a highway. State v. Powell, 95-424, p. 1 (La.App. 3 Cir. 11/2/95), 664 So.2d 608, 611. The highway was bounded on one side by residential homes and on the other side by a set of railroad tracks. Id., 95-424, p. 1, 664 So.2d at 610. The defendant fired his weapon in the direction of the railroad tracks. Id., 95-424, p. 5, 664 So.2d at 610. The court determined that because the defendant fired in the opposite direction of the victim it was not foreseeable that death or serious injury could occur from the defendant’s actions. Id., 95-424, p. 5, 664 So.2d at 611. Here, both Officer Frank and Polidore testified that Matthews stated that he fired his weapon in the air, and not into an unpopulated or heavily wooded area.

This court has found that it is foreseeable that serious injury or death to a person will result from the defendant’s firing of a firearm if |nthe defendant fires the weapon in an urban area while people are outside, even if the defendant did not fire in the direction of a person or persons. Here, Matthews fired his weapon outside of his Carrollton neighborhood while Mr. Sellers was outside of his home only thirty feet away. Thus, it was foreseeable that serious injury or death could occur due to when Matthews admittedly fired his weapon. This assignment of error is without merit.

There are no errors patent in the record.

DECREE

For the forgoing reasons, the conviction and sentence of Wade Matthews is affirmed.

AFFIRMED

      . Ms. Buccola’s first name does not appear in the record.

      . The police report was not included in the record.

      . LA.C.Cr.P. Art. 815:
      In all cases not provided for in Article 814, the following verdicts are responsive: (1) Guilty; (2) Guilty of a lesser and included grade of the offense even though the offense charged is a felony, and the lesser offense a misdemeanor; or (3) Not Guilty.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Elodie Granier ROME and Donald Francis Rome v. ASBESTOS DEFENDANTS; Northrop Grumman Shipbuilding, Inc., (formerly Avondale Industries, Inc., and formerly Avondale Shipyards, Inc.) and its Executive Officers, et al.
    No. 2010-CA-1645.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 16, 2011.

      Gerolyn P. Roussel, Perry J. Roussel, Jr., Jonathan B. Clement, Lauren R. Clement, Roussel & Clement, Laplace, LA, for Plaintiffs/Appellants, Elodie Granier Rome and Donald Francis Rome.
    Judy Y. Barrasso, H. Minor Pipes III, Susan M. Rogge, Barrasso Usdin Kupper-man Freeman & Sarver, LLC., New Orleans, LA, for Appellee, Liberty Mutual Insurance Company.
    Deborah D. Kuchler, Leigh Ann Schell, Joseph H. Hart IV, Sophia L. Lauricella, Kuchler Polk Schell Weiner & Richeson, L.L.C., New Orleans, LA, for Defendant/Appellee, Dover Engineered Systems, Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ,PIaintiffs-appeIlants, Elodie Granier Rome and Donald Francis Rome, appeal the August 5, 2010 summary judgment dismissal of their asbestos related personal injury claims against the defendants-appel-lees, Dover Engineered Systems, Inc. (hereinafter “Dover”) and Sargent Aerospace, Inc., along with them alleged liability insurer Liberty Mutual Insurance Company. We affirm.

Liberty Mutual filed an appellee brief noting that it was sued solely in its capacity as the alleged insurer of Dover and adopting the arguments made in the Dover brief.

The plaintiffs’ original petition was filed on September 17, 2009, by Elodie Granier Rome and her husband, Donald Francis Rome, claiming personal injury damages in connection with Elodie Rome’s contraction of mesothelioma from exposure to asbestos. Plaintiffs allege that Elodie Rome was exposed to asbestos through the work of her husband, Donald, her father-in-law, Joseph Orlando Rome, and her brother-in-law, Joseph Roger Rome, all of whom allegedly came into contact with asbestos while working at Avondale Shipyards, Inc. As relates to this appeal, the plaintiffs argue asbestos exposure arising out of “as-bestosjcontaining2 products manufactured, sold, distributed and handled by Arnot Marine, among others.” The plaintiffs’ petition names numerous defendants, but the only ones involved in this appeal are those dismissed by the trial court from this suit as a result of the partial motion for summary judgment in favor of Dover Corporation, Dover Engineered Systems, Inc. (formerly known as Dover Diversified, Inc.), and Sargent Aerospace, Inc., which, along with Liberty Mutual Insurance Company, are hereinafter sometimes referred to collectively as “Dover” or simply the “defendants.”

Pursuant to a joint motion filed by the plaintiffs and the defendants in this Court, Dover Corporation, Sargent Aerospace, Inc., and Liberty Mutual Insurance Company, this Court issued an Order on February 8, 2011, dismissing this appeal as it pertains to Dover Corporation, Sargent Aerospace and Liberty Mutual Insurance Company in its capacity as the alleged insurer of Dover Corporation and Sargent Aerospace, Inc. In the same Order, this Court maintained this appeal as it pertains to Dover Engineered Systems, Inc. and Liberty Mutual Insurance Company in its capacity as the alleged insurer of Dover Engineered Systems, Inc., which are now the only appellees remaining.

The pivotal issue raised by the plaintiffs in their petition regarding the defendants is their allegation that the Dover defendants were successors in interest to “Arnot Marine,” and on that basis were successors to Arnot Marine’s asbestos liability for exposing the plaintiffs to asbestos. The motion for summary judgment which forms the basis for this appeal is premised on the defendants’ contention that they are not the successors in interest to Arnot Marine which they allege to be a totally unrelated entity. The trial court agreed with the Dover defendants and dismissed the plaintiffs’ claims against them.

^Earlier in the proceedings below, the defendants moved for summary judgment arguing that the plaintiffs could not prove causation. That motion for summary judgment was denied.

In conducting our de novo review of the summary judgment now on appeal, the following summary judgment principles are particularly relevant to the record before us:

First, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 at pp. 16-17 (La.2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion”); See also Hebert v. St. Paul Fire and Marine Ins. Co., 99-0333 (La. App. 4th Cir.2/23/00), 757 So.2d 814.

Willis v. Medders, 00-2507, p. 1 (La.12/8/00), 775 So.2d 1049, 1050:

However, as this Court stated in Moody v. City of New Orleans, 99-0708, pp. 1-2 (La.App. 4 Cir. 9/13/00), 769 So.2d 670, 671:

[According to La. C.C.P. 966(C)(2), the mover need not negate all essential elements of the adverse party’s claim, action, or defense, but rather need point out to the court that there is an absence of factual support of one or more elements of the claim. Once the movant negates such a necessary element(s) of the adverse party’s claim, the burden then shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Lozier v. Security Transfer and Inv. Corp., 96-2690 (La.App. 4 Cir. 4/30/97), 694 So.2d 497. The effect of the legislature’s 1996 amendment to La. C.C.P. art. 966 is that the non-moving party is not allowed to rely on the allegations of its pleadings in opposition to a properly supported motion for summary judgment. Oakley v. Thebault, 96-0937 (La. App. 4 Cir. 11/13/96), 684 So.2d 488.

|4According to the plaintiffs, Dover evolved as the successor of Arnot Marine Division of Kahr Bearing Corporation through the following chain of events:

1. Kahr Bearing Corporation was incorporated in February 1960.
2. In January of 1961, Kahr Bearing Corporation acquired the Arnot Marine Division of Aetna Steel Products Corporation.
3. Kahr Bearing Corporation was sold to General Acceptance Corporation in 1967.
4. In 1969, General Acceptance Corporation sold Kahr Bearing Corporation to Sargent, Inc.
5. In 1973, Kahr Bearing Corporation was merged into Sargent Industries, Inc.
6. In 1987, Sargent Industries, Inc. changed its name to Dover Sargent.
7. In 1990, Dover Sargent changed its name to Dover Diversified.
8. Dover Diversified is now known as Dover Engineered Systems, Inc., the defendant in this case.

In this manner, the plaintiffs contend that the defendant is the successor in interest to any asbestos liabilities attributable to the Arnot Marine Division of Kahr Bearing Corporation. We note that there is substantial evidence in the record to support this theory of corporate succession. We find that the plaintiffs raised the issue of successor liability through the Ar-not Marine Division of Kahr Bearing in the trial court and, therefore, have the right to argue it again here on appeal. Additionally, it is also significant that Dover does not deny that it is the successor to Kahr Bearing Corporation. Therefore, there is an issue of fact as to whether Dover is the successor of the Arnot Marine Division of Kahr Bearing. However, this issue of fact is only material if there is also in the record a genuine issue of material fact concerning whether the plaintiffs’ asbestos exposure can be attributed Rto the Arnot Marine Division of Kahr Bearing. If this Court were to assume for purposes of argument that Dover was indeed the successor to the Arnot Marine Division of Kahr Bearing Corporation, it would be irrelevant and immaterial if it could be shown that the asbestos exposure of which the plaintiffs complain is attributable to the Arnot Marine Corporation and not to the Arnot Marine Division of Kahr Bearing Corporation.

In its brief on appeal, Dover asserts that there are three undisputed material facts:

(1) The “Arnot Marine” entity which Plaintiffs claimed worked as a joiner subcontractor at Avondale and allegedly caused Plaintiffs’ injuries was a New York corporation named Arnot Marine Corporation;

(2) Defendants never succeeded, either expressly or by operation of law, to the alleged liabilities of Arnot Marine Corporation.

(3) Plaintiffs failed to present evidence necessary to generate a genuine issue of material fact for trial, or to otherwise support what Dover describes as their “belated” theory that the Arnot Marine to which the plaintiffs refer in their pleadings is the unincorporated Arnot Marine “Division” of Kahr Bearing Corporation, rather than the Arnot Marine Corporation. The plaintiffs contend that Dover is the successor to Kahr Bearing, and as such the successor to the asbestos liability of the Arnot Marine Division of Kahr Bearing.

The fact that Arnot Marine Corporation and the Arnot Marine Division of Kahr Bearing have confusingly similar names seems to be the main source of controversy in this case. This confusion is compounded by the fact that the plaintiffs in their original petition refer simply to “Arnot Marine” and make no reference to either “Arnot Marine Corporation” or to the “Arnot Marine Division |fiof Kahr Bearing.” For example, in the first paragraph of the plaintiffs original petition, plaintiffs stated in pertinent part that:

In addition, tortious conduct of Eagle, Inc., Arnot Marine, and Taylor-Seiden-bach, Incorporated occurred in the Parish of Orleans. Also, during the years of its tortious conduct, Arnot Marine was domiciled in Orleans Parish. [Emphasis added.]

It is important to bear in mind that the plaintiffs do not contend that Arnot Marine Corporation and the Arnot Marine Division of Kahr Bearing are the same entity. Dover stresses that the plaintiffs do not base their claim on successor liability to Arnot Marine Corporation. Instead the plaintiffs contend that Dover is the successor to the liability to the Arnot Marine Division of Kahr Bearing.

Dover sets up the following three part argument to counter the plaintiffs’ contention:

(1) Dover asserts that the plaintiffs have alleged that the asbestos exposure that forms the basis of the plaintiffs’ suit occurred in proximity to work done by certain persons.

(2) Dover asserts that those persons were shown by the plaintiffs’ own evidence to be employees of Arnot Marine Corporation.

(8) Therefore, Dover concludes that any exposure the plaintiffs had to asbestos is attributable to Arnot Marine Corporation and the plaintiffs do not claim that Dover is a successor to Arnot Marine Corporation.

In fact, the plaintiffs argued in the trial court in their opposition to the defendants’ motion for summary judgment that is the subject of this appeal that:

... Arnot Marine Division of Kahr Bearing Corporation performed the joiner work at Avondale, not Arnot Marine Corporation. The Dover defendants have not submitted any evidence whatsoever establishing that they are not the successor to the Arnot Marine |7Division of Kahr Bearing Corporation. [Emphasis added.]

Likewise in their original brief on appeal, the plaintiffs argue that:

It is the Dover defendants that have “created a new theory” by misrepresenting that plaintiffs alleged that Arnot Marine Corporation was succeeded by the Dover defendants when, in fact, plaintiffs do not.

Therefore, consistent with the position taken by the plaintiffs and the defendants, we find that, for purposes of this appeal, Dover is not the successor to Arnot Marine Corporation, and that the plaintiffs’ asbestos exposure was not caused by both Arnot Marine Corporation and the Arnot Marine Division of the Kahr Bearing Corporation. Thus, it follows in the context of this appeal that if the plaintiffs were exposed to asbestos, and that exposure is attributable to Arnot Marine Corporation, then it is not attributable to the Arnot Marine Division of the Kahr Bearing Corporation. Therefore, as the plaintiffs have conceded that Dover is not the successor to Arnot Marine Corporation, if the plaintiffs’ exposure was the same as the exposure experienced by employees of Arnot Marine Corporation, then Dover cannot be responsible, even if it is the successor to the Arnot Marine Division of Kahr Bearing Corporation.

The plaintiffs filed in the trial court a “Plaintiffs’ Opposition to the Motion for Summary Judgment Regarding Causation Filed on Behalf of Defendants, Dover Corporation, Dover Engineered Systems, Inc., and Sargent Aerospace, Inc.” (sometimes referred to as “Plaintiffs’ Opposition Based on Causation”) in opposition to a motion for summary judgment filed by the defendants denying causation. This summary judgment motion of the defendants was denied prior to the time the summary judgment that is the subject of this appeal came before the court, but the plaintiffs incorporated the Opposition by reference in their trial court |sopposition to the summary judgment motion that is the subject of this appeal. In that Opposition, the plaintiffs made the following relevant statements:

In addition, Donald Rome recalled working with Ellis Falgoust. (Exhibit “3” deposition of Donald Rome, Volume 2, (3/19/10) at pp. 518-519.) Ellis Fal-goust worked for Arnot Marine at Avon-dale Shipyards from 1963 through 1964. (Exhibit “7” Social security Itemized statement of Earnings for Ellis Fal-goust; ...
Roy Rose also worked for Arnot Marine at Avondale Shipyards during 1963 and 1964 doing both insulation and welding work on vessels. (Exhibit “9” Deposition of Roy Rose (1/14/04) at pp. 34-36, and 44-45; Exhibit “10” Deposition of Roy rose (8/10/09) at pp. 31, 34-35, 43, and 95; Exhibit “11” Deposition of Roy Rose (12/4/90) pp. 19-20, 51-52, and 80-81.) Mr. Rose recalled Arnot employees installing asbestos-containing paneling. ...
Norris Babin, who also worked for Arnot Marine at Avondale in 1963 and 1964, testified that Arnot Marine did the same type of work that Hopeman Brothers, Inc. (“Hopeman Brothers”) did at Avondale, and would have used the same type of panels that Hopeman Brothers used. [Underlining in the original.]

In all instances the plaintiffs refer to only one “Arnot Marine” and it is the Arnot Marine for which Ellis Falgoust, Roy Rose and Norris Babin worked. There is only one way to read the Plaintiffs’ Opposition Based on Causation, and that is that the Arnot Marine that employed Ellis Falgoust, Roy Rose and Norris Babin is the same Arnot Marine that is responsible for the plaintiffs’ exposure to asbestos. According to the records of the Social Security Administration admitted into evidence in connection with the defendants’ motion for summary judgment now before this Court, Messrs. Falgoust and Rose both worked for a company named “Arnot Marine Corp, 229 Park Avenue S, New York, New York 10003-0000,” which was identified as “Employer Number 13-1926154.” While Mr. Babin’s Social Security Earnings Statement was not made part of the record in this case (the defendants state that they were unable to obtain a copy of it since they were |9not made a party to Mr. Babin’s asbestos case), it is clear from Plaintiffs’ Opposition Based on Causation that Mr. Babin was employed at Avondale by the same company that had employed Messrs. Falgoust and Rose. The plaintiffs own submissions and arguments contend that their exposure to asbestos is attributable to the company for which Messrs. Falgoust, Rose and Babin worked. In this regard, the record permits of only one conclusion: Messrs. Fal-goust, Rose and Babin were employed by Arnot Marine Corporation. As plaintiffs do not contend that Dover is the successor to Arnot Marine Corporation, Dover cannot be responsible for the plaintiffs’ exposure to asbestos.

The plaintiffs argue that it is possible that the Social Security records of Mr. Falgoust and Mr. Rose could be in error or that Arnot Marine Corporation was used merely to carry out the payroll obligations of another company and was not the actual employer of Messrs. Falgoust and Rose. The fact that something is possible, in the sense that anything is possible, is not sufficient to create a genuine issue of material fact. Additionally, after the defendants have come forward with these Social Security records, the burden shifts to the plaintiffs to show something more specific than merely speculating that another alternative but unsupported mere possibility exists. As this Court noted in Kelly v. West Cash & Carry Bldg. Materials Store, 99-0102, p. 25 (La.App. 4 Cir. 10/20/99), 745 So.2d 743, 759:

It takes more than the existence of a mere possibility to prove a fact by the preponderance of the evidence, and plaintiff has offered no evidence that she will ever be able to prove anything more at a trial on the merits. In the absence of anything more than plaintiffs mere conjecture on this issue, we find no genuine issue of material fact concerning Jimenez’s actions.

Considering the above, we conclude that there is no genuine issue of material fact that: (1) The defendants are not the successors to Arnot Marine | ^Corporation, and (2) that if the plaintiffs were exposed to asbestos by any Arnot Marine, it was Arnot Marine Corporation and not the Ar-not Marine Division of Kahr Bearing.

Plaintiffs also assign as error the failure of the trial court to admit some of the evidence they offered as well the trial court admission of certain evidence offered by Dover to which the plaintiffs objected, chief among which were the Social Security records of Messrs. Falgoust and Rose. Though the trial court’s decision to grant or deny a motion for summary judgment is subject to this Court’s de novo review, the trial court’s evidentiary rulings are subject to an abuse of discretion standard. For example, see Dumas v. Angus Chemical Co., 31,399, p. 3 (La.App. 2 Cir. 1/13/99), 729 So.2d 624, 627, where the abuse of discretion standard is applied. We find no abuse of the trial court’s discretion in its decision to admit the Social Security records.

The plaintiffs also object to the admission of certain exhibits tending to show that Dover is the successor to Kahr Bearing. We find that the trial court did not abuse its discretion in this regard, but more importantly, as we have found that if either of the Arnot Marine entities is the responsible party, then it would be the Arnot Marine Corporation — and Dover is not the successor to Arnot Marine. Therefore, the trial court would have been more than justified in rejecting the plaintiffs’ exhibits relating to the Arnot Marine Division of the Kahr Bearing Corporation on the basis of irrelevancy alone.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . At the time this litigation arose, Northrop Grumman Shipbuilding, Inc. was Avondale's corporate successor.


author: BROWN, Chief Judge.

text:
    Jerry STARR, individually and on behalf of his minor daughter, Jamie Starr, Plaintiff-Appellee v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant. John M. Byrd, Eugene Moore, Chris Navarro and Joseph Michael Williams, Plaintiffs-Appellees v. State of Louisiana, through the Department of Transportation and Development, Defendant-Appellant.
    Nos. 46,226-CA, 46,227-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 17, 2011.
    Rehearing Denied Aug. 4, 2011.

      Louisiana Department of Justice by Victoria R. Murry, Alexandria, LA, Leanne M. Broussard, for Appellant.
    Mixon and Carroll, PLC, Columbia, LA, by James L. Carroll, James E. Mixon, Brian E. Frazier, McKeithen, Ryland, Champagne & Domangue, Columbia, LA, by Louis V. Champagne, Dina F. Do-mangue, Ashley P. Thomas, for Appellees.
    Before BROWN, MOORE, and LOLLEY, JJ.
   BROWN, Chief Judge.

|]The State of Louisiana, Department of Transportation and Development (“DOTD”), appeals from a judgment entered in accordance with a jury verdict finding it to be at fault and 24% liable for damages sustained by consolidated plaintiffs, John Byrd, Eugene Moore, Chris Navarro, Joseph Williams, the Estate of Jamie Starr, and Jerry Starr. Plaintiffs answered, appealing the allocation of 76% of the fault to John Byrd. For the reasons stated herein, we affirm in part and reverse in part.

Facts and Procedural Background

This single automobile accident occurred on September 17, 2004, at approximately 12:09 a.m. John Byrd was driving southbound on Louisiana Highway 851 (hereinafter “Hwy. 851”) in rural Caldwell Parish when his 1996 Dodge Ram pickup truck was unable to negotiate a sharp left curve. The truck left the roadway and struck a number of trees before coming to a rest on its right passenger side and eventually bursting into flames.

Riding with Byrd at the time of the accident were Jamie Starr, Chris Navarro, Joseph Williams, and Eugene Moore. Ms. Starr and Navarro, her flaneé, were riding in the cab of the truck, while Williams and Moore were riding in the bed of the truck. Ms. Starr died at the scene of the accident. Navarro and Williams sustained serious injuries, and Moore suffered a catastrophic brain injury. Byrd reported no injuries at the scene, but was later treated for superficial facial lacerations at Citizens Rural Clinic in Columbia, Louisiana.

Trooper York, the state trooper investigating the accident, and his training officer, Trooper Cox, arrived at the scene at approximately 1:09 12a.m. Upon their arrival, Trooper York smelled a moderate odor of alcohol about Byrd’s person, so he conducted a field sobriety test. After he performed the test, Trooper York placed Byrd under arrest, handcuffed him, and placed him in his patrol car to await the arrival of Trooper Heard. Trooper Heard arrived at the scene, took custody of Byrd, and transported him to the Caldwell Parish Sheriffs Office for blood alcohol testing, as required by law for all fatality accidents. According to the printout slip of the Intoxilyzer 5000, at 2:45 a.m. Byrd had a blood alcohol content (“BAC”) level of .046g%.

The Estate of Jamie Starr and Jerry Starr filed suit against DOTD alleging, inter alia, that the lack of sufficient warning regarding the sharp left-curve on Hwy. 851 was the cause of the accident. At the time of the accident the signage for southbound travelers consisted of a single 90-degree left turn sign. Setting forth nearly the same allegations as Mr. Starr’s petition, Byrd, Moore, Williams, and Navarro filed suit against DOTD shortly thereafter. DOTD answered the suits asserting, primarily, that Byrd’s gross negligence was the cause of the accident. These actions were consolidated for trial.

A jury trial was held between November 2 — November 10, 2009. Thereafter, the jury rendered a verdict assessing 24% liability to DOTD and 76% liability to Byrd, and a judgment in accordance therewith was signed on February 17, 2010. After the signing of the judgment, DOTD filed a motion for new trial and plaintiffs filed a JNOV. After a hearing on these matters, the trial court denied DOTD’s motion for new trial and granted, in Rpart, a JNOV increasing the past wages award to Moore. The amended judgment set total (general + special) damages in the following amounts, which have been reduced to reflect DOTD’s 24% liability: Moore— $2,266,475.92; Navarro — $72,286.89; Byrd — $12,000.00; Williams — $18,618.95; Estate of Ms. Starr — $36,000.00; Mr. Starr — $6,000.00. Additionally, the judgment made the future medical expenses of Moore, which amounted to $1,392,000.00 and are to be paid out of the Future Medical Care Fund, subject to a privilege and/or lien for his attorney’s fees.

DOTD now appeals, setting forth seven assignments of error: 1) the trial court erred in failing to grant DOTD’s motion for mistrial; 2) the jury erred in allocating 24% of the liability to DOTD; 3) the trial court erred in allowing Dr. Joseph Citron to testify as an expert in the field of toxicology; 4) the jury erred in awarding damages to Moore for past and future wage benefits; 5) the trial court erred in granting plaintiffs’ JNOV, increasing the amount awarded to Moore in past wages; 6) the trial court erred in ruling that the Future Medical Care Fund could be made subject to a privilege and/or lien for Moore’s attorney’s fees; and 7) the trial court erred in casting DOTD with 100% of the costs of court when it was only cast with 24% of the liability.

Plaintiffs answered the appeal asserting that the jury erred in allocating 76% of the liability to Byrd.

| ¿Discussion

Assignment of Error No. 1

An inordinate amount of DOTD’s appellate argument is centered on the trial court’s denial of its motion for mistrial. After a review of the very lengthy and extensive facts and/or allegations set forth in the appellate briefs and in the record, the following are the relevant facts: counsel for DOTD informed the trial court and counsel for plaintiffs that they were going to be calling Ronald Lafferty as a witness; counsel for the Estate of Jamie Starr sent its private investigator to the Laffertys’ residence to interview Mr. Lafferty; due to allegations regarding the possible intimidation and/or stalking of the Laffertys, the trial court sent the Caldwell Parish Sheriff, Sheriff Steven May, to the Laffer-tys’ home to investigate the matter; later that evening Mr. Lafferty had to be checked into the hospital, leaving him unavailable to testify the next day.

On the final day of the trial, DOTD moved for a mistrial on the grounds of interference with a witness and improper communication with a sequestered witness. DOTD alleged during the hearing and on appeal that Mr. Laffertys unavailability was the result of plaintiffs’ investigator’s interference. Further, DOTD contended that Mr. Laffertys testimony was a crucial component to its case since he was the first witness on the scene, and his testimony would have directly impeached the testimony of Byrd regarding his alleged actions in the aftermath of the accident. Thus, DOTD argued, a mistrial was the only remedy that would afford it relief.

|fiThe trial court heard testimony from counsel representing DOTD and plaintiffs, as well as from Sheriff May. Relying on the testimony of Sheriff May, that his investigation led him to believe that the Laf-fertys were not intimidated, and the well-known reluctance of Mr. Lafferty to testify, the trial court ruled that DOTD’s case was not prejudiced by the actions of plaintiffs’ investigator.

We note that DOTD was well aware of Mr. Laffertys fragile mental state, and that the accident at issue and the subsequent, unrelated suicide of his son were the causes of his vulnerable state. Nonetheless, at no point during the six intervening years from the time of the accident until the trial did DOTD depose Mr. Laf-ferty. Had it done so, DOTD could have sought to present the deposition testimony when Mr. Lafferty became unavailable.

Because a mistrial results in the discharge of one jury and the empaneling of another to try the case anew, it is a drastic remedy. Spencer v. Children’s Hosp., 432 So.2d 823 (La.1983). Broad discretion is vested in a trial court to grant a mistrial where no other remedy would afford relief, or where circumstances indicate that justice may not be done if the trial continues. Burks v. McKean, 559 So.2d 921 (La.App. 2d Cir.1990), writ denied, 566 So.2d 398 (La.1990).

Out of an abundance of caution, the trial court had the intimidation and stalking allegations of DOTD investigated. After holding a hearing in which Sheriff May testified that the Laffertys were not intimidated or threatened by plaintiffs’ investigator, the trial court denied DOTD’s motion |fifor mistrial. We do not find this to be an abuse of the trial court’s broad discretion.

Assignment of Error No. 2

Louisiana law allows a plaintiff to proceed against a public entity, such as the State through DOTD, under a theory of negligence based on La. R.S. 9:2800. Plaintiff must prove that: (1) the thing that caused her damages was in DOTD’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) DOTD possessed actual or constructive notice of the defect, and failed to take corrective measures to remedy the defect within a reasonable period of time; and (4) the defect was a cause-in-fact of plaintiffs injuries. Critton v. State, Dept. of Transp. and Development, 43,328 (La.App.2d Cir.06/04/08), 986 So.2d 207, writ denied, 08-1493 (La.10/03/08), 992 So.2d 1019.

An appellate court can only reverse a factfinder’s determinations when it finds from the record that there is not a reasonable factual basis for the finding, and it further determines that the record establishes that the finding is manifestly erroneous. Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

The issues set forth in this assignment of error are whether the jury erred in failing to find that Byrd was the sole cause-in-fact of the accident, and, alternatively, whether the jury erred in apportioning DOTD with 24% of the fault. In addition, plaintiffs answered asserting that the jury erred in allocating 76% of the fault to Byrd. From the outset, we find that, in the interest of both brevity and simplification, it is important for us to clarify |7what the parties have and have not contested in their briefs. DOTD did not contest its custody of Hwy. 851, Hwy. 851’s defectiveness, or that it had notice thereof; DOTD, however, contends that adequate warning of the defect was in place at the time of the accident, and were it not for the gross negligence on the part of Byrd the accident would not have occurred. Plaintiffs, meanwhile, do not contest the jury’s finding that Byrd was a cause-in-fact of the accident; they merely contend that the proven negligent conduct of DOTD was either equal to or greater than the proven negligent conduct of Byrd.

DOTD’s Liability

DOTD has a general duty to maintain the public highways in a condition that is reasonably safe not only for persons exercising care and reasonable prudence, but also for those who are slightly exceeding the speed limit or who are momentarily inattentive. Ledbetter v. State, Dept, of Transp. and Development, 502 So.2d 1383 (La.1987). This general duty includes in its scope the more specific duty of providing proper safeguards or adequate warnings of dangerous conditions on the highway. Stephens v. State, Dept. of Transp. and Development, 440 So.2d 920 (La.App. 2d Cir.1983), writ denied, 443 So.2d 1119 (La.1984); Bullard v. State, Dept. of Transp. and Development, 98-1942 (La. App. 1st Cir.11/05/99), 744 So.2d 212, writ denied, 99-3468 (La.02/11/00), 754 So.2d 939.

The jury in the case sub judice found that DOTD was negligent in its signing of Hwy. 851, and that this negligence was a cause-in-fact of the accident.

|sThe initial inquiry to determine if a party may be liable under the duty-risk analysis is cause-in-fact. Netecke v. State, Dept. of Transp. and Development, 98-1182 (La.10/19/99), 747 So.2d 489. A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. Id. The act is a cause-in-fact in bringing about the injury when the harm would not have occurred without it. Lasyone v. Kansas City Southern Railroad, 00-2628 (La.04/03/01), 786 So.2d 682; Netecke, supra. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Lasyone, supra; Netecke, supra. Whether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfinder. Boykin v. Louisiana Transit Co., 96-1932 (La.03/04/98), 707 So.2d 1225.

It is undisputed that on the date of the accident the signage for cars traveling southbound on Hwy. 851 consisted of a yellow and black diamond sign depicting a 90-degree left turn. There was no speed advisory plate attached thereto, nor were there any chevrons in place to warn southbound drivers entering the curve. Both Don Moore and Kelly Adamson, plaintiffs’ and DOTD’s experts in traffic engineering and accident reconstruction, respectively, testified that the speed limit on Hwy. 851 was 55 mph, the comfort speed of the curve at issue was 26 mph, and the critical speed of the curve was 52 mph.

Based upon his examination of Hwy. 851, Don Moore concluded that an adequate signing package would entail, at a minimum, a left turn sign, a 25 mph advisory speed plate, and at least two chevrons for the southbound 19direction. Don Moore stated that this conclusion was based upon, among other things, the curve’s vertical alignment and adverse banking. The vertical alignment, Don Moore testified, would likely have prevented Byrd’s headlights from displaying the pavement, thereby limiting his view of the curve.

DOTD contends that the left turn sign alone was adequate warning of the impending curve. To support this contention DOTD attempts to rely upon the testimony of Don Moore, plaintiffs’ expert. DOTD states in its brief that Don Moore “testified that the turn sign that was in place at the time of the accident indicates to drivers that they should reduce their speed to 30 mph or lower.” This, however, is a misrepresentation of Don Moore’s testimony.

Don Moore testified that a left turn sign, as opposed to a left-curve sign, represents that the approaching curve has a design speed of 30 mph or less. The Manual on Uniform Traffic Control Devices states that a turn sign is intended to be used when the design speed for a curve is 30 mph or less and that speed is equal to or less than the speed limit, and a curve sign may be used when the design speed of the curve is greater than 30 mph and equal to or less than the speed limit. Don Moore further testified that the reason that advisory speed plates have become so important is that most people do not usually make the distinction between the turn sign and the curve sign. Don Moore continued, stating that with regard to the particular curve at issue, an advisory speed plate was necessary to let the unaware motorist [ 10know that there was a fairly radical speed difference between the highway’s speed limit of 55 mph and the 26 mph comfort speed of the curve.

In fact, the testimony of DOTD’s own expert, Kelly Adamson, seems to indicate that the signing package was inadequate. Mr. Adamson testified that “there should have been a twenty-five (25) mile-per-hour placard on this sign, that is a given, we do know that.... There’s not a problem with [the curve], as long as you do warn. And that’s what we’re faced with in this case is, we just didn’t have the twenty-five (25) mile-per-hour sign there at the time of the accident.”

Our review of the record and the testimony of both party’s experts convinces us that there was a reasonable factual basis for the jury to find that DOTD breached its duty to provide adequate warning of the defective curvature of Hwy. 851. This breach, coupled with the negligence of Byrd, was found to be a substantial contributor in bringing about the accident, and we do not find this determination to be manifestly erroneous.

Apportionment of Fault

DOTD further asserts that it should not be held liable to plaintiffs due to Byrd’s impairment, inattentiveness, and excessive speed. Plaintiffs answer conversely, contending that the proven negligent conduct of DOTD equals or outweighs the proven negligent conduct of Byrd.

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (8) the significance of what Inwas sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and, (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985).

The trier of fact is owed deference in the allocation of fault since the finding of percentages of fault is also a factual determination. Petre v. State, Dept, of Transp. and Development, 01-0876 (La.04/03/02), 817 So.2d 1107. Absent manifest error, appellate courts can not reverse a factfinder’s allocation of fault. Id.; Reid v. State, Dept. of Transp. and Development, 25,778, 25,870 (La. App.2d Cir.05/04/94), 637 So.2d 618, writ denied, 94-1415 (La.09/16/94), 642 So.2d 198.

DOTD contends that the evidence, taken as a whole, clearly shows that Byrd was impaired at the time of the accident. Throughout the initial investigation and the proceeding, DOTD asserted that plaintiffs inconsistently recounted how much they had to drink and when and where they consumed the alcohol. According to Byrd’s testimony at the trial, he had 3 or 4 beers throughout the entire day and night preceding the accident. DOTD, however, submits that the arrest report of Trooper York and the subsequent “DWI Interview” report of Trooper Heard counter Byrd’s testimony. According to both reports Byrd stated that he had consumed approximately a 12-pack of beer prior to the accident.

hJn addition to the inconsistent statements regarding how much Byrd had to drink, DOTD puts forth the opinion of Dr. Michael Hlastala, its expert in physiology and the Intoxilyzer 5000. Dr. Hlastala testified that based upon Byrd’s Intoxilyzer 5000 reading of .046g% BAC, two and one-half hours after the accident, using retrograde extrapolation with an average burn-off rate of .017g% per hour, at the time of the accident he calculated Byrd’s BAC level to be in the range of .07g%— .09g%. Based upon this, Dr. Hlastala concluded that Byrd was in fact impaired at the time of the accident. When cross-examined on the role shock plays in one’s burn-off rate, Dr. Hlastala admitted that if Byrd were suffering from shock in the aftermath of the accident his burn-off rate would have been lower due to a decrease in blood flow to the liver. Dr. Hlastala stipulated, however, that he could not say for sure if Byrd was in shock.

Dr. Joseph Citron, plaintiffs’ expert in toxicology, ophthalmology and the Intoxi-lyzer 5000, stated that he used the industry standard burn-off rate of .015g% per hour to conclude that Byrd had a BAC level of .07g%, with a 20% plus or minus margin of error, at the time of the accident. Dr. Citron testified further that based upon his review of the information submitted to him, Byrd was likely in shock and concussed in the aftermath of the accident. If such were the case, Dr. Citron opined, there is a possibility that Byrd’s BAC level at the time of the accident was as low as the .046g% he registered on the Intoxilyzer 5000. Regardless, in Dr. Citron’s expert opinion, he did not believe that Byrd was impaired at the time of the accident.

1 ^Intoxication alone is not enough to automatically prevent a plaintiff from recovering for DOTD’s fault. It is merely a factor to consider in Louisiana’s comparative negligence scheme. Toston v. Pardon, 03-1747 (La.04/23/04), 874 So.2d 791; Petre, supra. To prove negligence on the part of a person who has admittedly consumed alcoholic beverages prior to operating a vehicle, there must be a showing that the person’s mental and physical faculties were materially impaired at the time of the accident. Jones v. Continental Casualty Co. of Chicago, Illinois, 246 La. 921, 169 So.2d 50 (La.1964); Bullard, supra.

We note the supreme court’s decision in Petre, supra. In Petre, Ms. Petre was traveling down La. Hwy. 107 with her 10-year-old daughter at an approximate speed of 40-45 mph, when her right tires went off the side of the road. At the time and location of the accident there was a curve warning sign with an attached 40 mph speed advisory plate. Ms. Petre tried to reenter the roadway, but before she was able to she hit a culvert and a driveway, which caused her car to become airborne. As a result of the accident, Ms. Petre suffered serious injuries and, unfortunately, the death of her daughter. Two hours after the accident a blood alcohol test of Ms. Petre yielded a BAC level of ,247g%. The trial court “found that along with the plaintiffs intoxication, the defective curvature and shoulder of the highway as well as the absence of chevrons delineating the curve were all substantial contributors in bringing about the accident....” Fault was equally assessed between Ms. Petre and DOTD. The Third Circuit affirmed the trial court’s decision, finding that there was a reasonable factual basis for the [ utrial court’s holding and that intoxication should not prevent Ms. Petre’s proportionate recovery in light of DOTD’s fault. Finding cause for concern in an intoxicated driver recovering from the state, the supreme court granted DOTD’s writ application. Finding that the law does not allow the prohibition of a plaintiff to recover in part from DOTD because of intoxication, the supreme court held that the tidal court’s findings were not manifestly erroneous.

DOTD also asserts that a preponderance of the evidence shows that Byrd was going in excess of 52 miles per hour at the time of the accident, the speed at which Don Moore and Kelly Adamson agreed was the critical speed of the curve. To support this contention DOTD notes the accident report of Trooper York, in which he estimated Byrd’s speed to be 65 mph, and Byrd’s voluntary written statement, which states in pertinent part: “I was driving down the road with my friends ... and was not paying attention to what I was doing. I came upon a curve and was going too fast to take the curve. The truck went off of the road and hit a tree.”

Plaintiffs counter DOTD’s proof of excessive speed by pointing out errors and inconsistencies in Trooper York’s accident report, and his testimony that his estimation of speed was not arrived at by any scientific means. Moreover, plaintiffs contend that Byrd’s statement that “he was going too fast to take the curve,” does not indicate that Byrd was in fact exceeding the speed limit, but rather that at the speed at which he was traveling he was unable to negotiate the curve.

| ^Plaintiffs also heavily rely upon the testimony of Don Moore to show that Byrd’s speed was not excessive. Don Moore testified that the curve consisted of five radii, and that Byrd failed to fully negotiate the second to last radius (radius two). According to Don Moore, Byrd successfully navigated approximately 3.5 radii, or 70% of the overall curve. Based upon this, Don Moore calculated Byrd’s speed at the time of the accident to have been “in the speed range somewhere in the forties [40 +/-].” Had Byrd been going 60-65 mph, Don Moore testified, he would have yawed out of control earlier in radius two.

Insofar as DOTD argues that Byrd’s inattentiveness was a cause-in-fact of the accident, it again relies on the accident report of Trooper York and Byrd’s written admission that he “was not paying attention to what I was doing.” Plaintiffs, however, counter this admission with the testimony of Dr. Simoneaux, plaintiffs’ forensic psychologist. Dr. Simoneaux testified that due to Byrd’s emotional state in the aftermath of the accident that took the life of one friend and severely injured the others, Byrd was “manning up” and taking responsibility for the accident. According to Dr. Simoneaux, given the circumstances, “anything [Byrd] would’ve said, would’ve been suspicious with regard to its accuracy ... he was filtering everything through emotions.”

The trier of fact is charged with determining what credibility it assigns to expert witnesses and then deciding which expert among those testifying that it finds more credible. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.01/29/96), 666 So.2d 1073. When findings are based on ^determinations regarding the credibility of witnesses, lay and expert alike, the manifest error standard demands great deference to the trier of fact’s findings. Lasyone, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

In this case there was a multitude of lay and expert witness testimony for the jury to weigh. Whether they found any one witness more or less convincing, however, is outside our purview. The jury completed the jury interrogatories submitted, and with specificity it found that DOTD was negligent in its signing of Hwy. 851. On the other hand, the jury interrogatory regarding Byrd’s negligence broadly stated “Do you find that John Byrd’s negligence was a cause of the accident that occurred on September 17, 2004?”, to which the jury answered in the affirmative. We do not know if the jury’s finding Byrd negligent, and its apportionment of fault therefrom, is based on his alleged impairment, inattentiveness, or excessive speed, or a combination thereof. Nonetheless, based on our review of the record in its entirety, and in consideration of the deference owed the trier of fact in its allocation of fault, we do not find that the jury’s apportionment of fault, 76% to Byrd and 24% to DOTD, was manifestly erroneous. This finding is reasonably supported by the record.

In the dead of the night, plaintiffs, most of whom were underage and had been drinking throughout the day, decided to go for a drive on a dark, rural highway, with multiple curves, and on which Byrd had only previously driven once — it was about a year before and during the day traveling the opposite direction. None of the occupants were wearing seatbelts, and two were riding in the bed of the truck. While there seems to be little Insignificance sought by plaintiffs’ conduct, there was a great deal of a known risk involved. On the other hand, DOTD was or should have been aware of the danger posed by the road, but failed to remedy it with adequate signage. Entering the curve from the northbound direction there was a right turn warning sign with an attached 25 mph speed advisory plate, and, although the record does not reflect it with 100% certitude, there may also have been a northbound chevron. This makes it apparent that the state, in its superior capacity, was aware of the need for a 25 mph speed advisory plate and chevrons, but failed to install them for southbound drivers. Again, considering these facts and the Watson, supra, factors, we do not find that the jury was manifestly erroneous in its allocation of fault.

Assignment of Error No. 3

DOTD next contends that the trial court erred in allowing Dr. Joseph Citron to testify as an expert in the field of toxicology. Dr. Citron was a board certified ophthalmologist with no formal education in the field of toxicology.

If a witness who is qualified as an expert has scientific, technical, or other specialized knowledge which will assist the trier of fact to understand the evidence or to determine a fact at issue, the witness may testify in the form of an opinion or otherwise. La. C.E. art. 702. The trial court has wide discretion to decide whether a particular witness will be allowed to testify as an expert, and its judgment will not be disturbed by an appellate court unless it is manifestly erroneous. Mistich, supra; Johnson v. English, 34,322 (La. App.2d Cir.12/20/00), 779 So.2d 876.

1 Although Dr. Citron is not board certified in toxicology, he testified to his more than 20 years of studying toxicology through medical education seminars, his numerous publications and presentations on the subject, and his acceptance as an expert in the field in a number of states, including Louisiana. Considering this, and his extensive curriculum vitae, we do not find the trial court’s acceptance of Dr. Citron as an expert in the field of toxicology to be manifestly erroneous. See Sandbom v. BASF Wyandotte, Corp., 95-0335 (La.App. 1st Cir.04/30/96), 674 So.2d 349.

Assignments of Error Nos. 4 and 5

With these assignments of error, DOTD asserts that the jury erred in awarding Moore past and future earnings, and the trial court erred in granting plaintiffs’ JNOV to increase the amount of the past earnings.

Past Loss of Earnings

It is the plaintiffs burden to prove past lost earnings. Boyette v. United Services Automobile Assoc., 00-1918 (La.04/03/01), 783 So.2d 1276. In order to be awarded past lost wages, the plaintiff must prove positively that he would have been earning the wages but for the accident in question. Id; Hunt v. Board of Sup’rs of Louisiana State Univ. and Agric, and Mechanical College, 522 So.2d 1144 (La.App. 2d Cir.1988).

Awards for past lost wages are not susceptible to the great discretion given the factfinder, because lost income is subject to mathematical calculation. Davis v. Foremost Dairies, 45,835 (La.App.2d Cir.02/16/11), 58 So.3d 977, writs denied, 11-0538, 11-0568 (La.04/25/11), 62 So.3d 97; Bassett v. Toys “R” Us Delaware, Inc., 36,434 (La.App.2d Cir. p.2/30/02),19 836 So.2d 465, writ denied, 03-0560 (La.04/25/03), 842 So.2d 408. Although lost earnings need not be precisely proven, they must be shown with reasonable certainty. Richard v. Wal-Mart Stores, Inc., 29,926 (La.App.2d Cir.10/31/97), 702 So.2d 79, writ denied, 97-3002 (La.02/06/98), 709 So.2d 744. Lost earnings can be computed on the amount the plaintiff would in all probability have been earning at the time of trial. Davis, supra; Bassett, supra.

The jury interrogatories list an award to Moore for “Past Loss of Earnings.” The jury originally awarded Moore $42,700. The trial court granted plaintiffs’ JNOV and amended that amount to $146,600. Moore was being compensated for a loss of past wages based upon the flawed premise that he was actually employed as a roofer at the time of the accident.

The evidence shows that Moore dropped out of school after completing the seventh grade. Within the year or two preceding the accident, Moore spent at least two months at a mental health hospital seeking help for anger/depression issues. Moore did not submit a single pay stub or any other evidence reflecting how much, if at all, he had ever been paid for any work. Moore’s lack of proven employment history, especially at the time of the accident, was further revealed during the direct examination of his father, Buddy Moore:

Q: All right. And uh, tell me a little bit about Eugene before we go any further, uh, what did he do uh, on a day-to-day basis, what was his daily activity?
A: Ah, he liked to hunt, fish, at the time he wasn’t working. (Emphasis added).

12nThis was a lengthy trial, there were approximately 23 witnesses, examined by counsel for three separate parties, and 60 exhibits admitted into evidence. The jury did its best to absorb all of the information presented. For it to seemingly latch onto the testimony of plaintiffs’ vocational rehabilitation expert, Ashley Bryars, who concluded that Moore was a roofer, is understandable. We note, however, that Ms. Bryars’ assessment was based on information communicated to her that Moore had previously done roofing work and on her review of Moore’s education and family work history; and further, this assessment, and the line of questions it was in response to, clearly pertained more to Moore’s future earning capacity. Ms. Bryars was not presented with actual proof that Moore was employed as a roofer at the time of the accident, and, likewise, no proof of any employment was ever presented at trial. Obviously the jury overlooked the statement of Buddy Moore that at the time of the accident his son was not working. Thus, since there was insufficient proof offered to show that Moore had any employment history, much less that he was actually employed at the time of the accident, he cannot receive lost past wages. See Hunt, supra.

Accordingly, we find that the jury erred in awarding Moore damages for “Past Loss of Earnings.” Consequently, based upon our finding that Moore was erroneously awarded past wages, discussion of the issue of whether the trial court erred in granting plaintiffs’ JNOV is now moot, and the trial court’s judgment granting such is reversed.

| ^Future Loss of Earnings/Loss of Earning Capacity

Loss of earning capacity refers to a person’s potential and is not necessarily determined by actual loss. Quinn v. Wal-Mart Stores, Inc., 34,280 (La.App.2d Cir.12/06/00), 774 So.2d 1093, writ denied, 01-0026 (La.03/09/01), 786 So.2d 735. Damages may be assessed for what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. Hobgood v. Aucoin, 574 So.2d 344 (La.1990); Folse v. Fakouri, 371 So.2d 1120 (La.1979). Such damages are calculated on the person’s ability to earn money rather than on what he actually earned before the injury. Hobgood, supra; Hunt, supra.

Awards for loss of future income are inherently speculative, and are intrinsically insusceptible of being calculated with mathematical certainty. Lewis v. State Farm Ins. Co., 41,527 (La.App.2d Cir.12/27/06), 946 So.2d 708. Some of the factors to be considered in determining the amount awarded for loss of future earning capacity include the plaintiffs physical condition before and after his injury, his past work record and the consistency thereof, the amount plaintiff probably would have earned absent the injury complained of, the probability he would have continued to earn wages over the balance of his working life, and discount and inflation rates. Brandao v. Wal-Mart Stores, Inc., 35,868 (La.App.2d Cir.12/19/01), 803 So.2d 1039, writ denied, 02-0493 (La.04/26/02), 814 So.2d 558; Morgan v. Willis-Knighton Medical Center, 456 So.2d 650 (La.App. 2d Cir.1984).

|mAs previously stated, Ms. Bryars, plaintiffs’ vocational rehabilitation expert, did a thorough assessment of Moore’s future earning capacity. Ms. Bryars conducted an in-home interview with Moore and his family. She assessed not only his educational and personal background, but also the education and work history of his parents and brother. As a result of her review, Ms. Bryars concluded that Moore had the capacity to earn the wages of a roofer. Ms. Bryars researched the available statistical data to determine the average and median wages for a roofer in Louisiana, as well as the national wage averages for white males with and without a high school diploma. The average annual wages were $29,340.00, $28,020.00, $36,753.00, and $23,556.00 respectively. Based upon the totality of her research, Ms. Bryars concluded that Moore’s future earning capacity would likely have fallen within the range of the average roofer in Louisiana. Lastly, Ms. Bryars testified that as a result of the accident Moore suffered a complete and permanent loss in his wage earning capacity.

Taking into account the testimony of Ms. Bryars, the testimony of Moore’s physician, Dr. Operario, regarding Moore’s extensive disabilities, and the testimony of Charles Theriot, plaintiffs’ expert economist, about Moore’s work-life expectancy and discount and inflation rates, we find no error in the jury’s award to Moore of $706,680 for his loss of future income.

| ^Assignment of Error No. 6

DOTD contends that the trial court erred in ruling that the future medical expenses of Moore could be subjected to a privilege and/or lien in favor of his attorney for his contingent attorney’s fees. Particularly, DOTD takes issue with the apparent finding of the trial court that the Future Medical Care Fund, in as much as it could limit an attorney’s ability to collect his contracted contingent fee therefrom, is unconstitutional.

La. R.S. 13:5106 B(3)(c) provides:

In any suit for personal injury against the state or a state agency wherein the court pursuant to judgment determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that all medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund as provided in R.S. 39:1533.2. Medical care and related benefits shall be paid directly to the provider as they are incurred. Nothing in this Subparagraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided but with the requirement that they shall be paid in accordance with this Subpara-graph. (Emphasis added).

La. R.S. 13:5106 D(l) provides:

“Medical care and related benefits” for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.

La. R.S. 39:1533.2 states:

A. There is hereby established in the state treasury the “Future Medical Care Fund”, hereinafter referred to as the “fund”. The fund shall consist of such monies transferred or appropriated to the fund for the purposes of funding medical care and related benefits that may be incurred subsequent to judgment rendered against the state or a state agency as provided by R.S. 13:5106 and as more specifically provided in R.S. 13:5106(B)(3)(c). All costs or expenses of administration of the fund shall be paid from the fund.
|24B. The fund shall be administered by the treasurer on behalf of the office of risk management for the benefit of claimants suing for personal injury who are entitled to medical care and related benefits that may be incurred subsequent to judgment. Except for costs or expenses of administration, this fund shall be used only for payment of losses associated with such claims. At the close of each fiscal year, the treasurer shall transfer to the Future Medical Care Fund from the Self-Insurance Fund an amount equal to the monies expended from the Future Medical Care Fund during that fiscal year. Monies in the fund shall be invested by the state treasurer in the same manner as monies in the state general fund. Interest earned on investment of monies in the fund shall be deposited in and credited to the fund. All unexpended and unencumbered monies in the fund at the end of the fiscal year shall remain in the fund. (Emphasis added).

The trial court, in its ruling to uphold the portion of the judgment which subjected the Future Medical Care Fund to a privilege and/or lien in favor of Moore’s attorney, stated:

My concern is that if I take the, the wordage of the State literally, what we have effectively done is limited Mr. Carroll’s ability to, to get an attorney fee. I don’t see any other mechanism — uh, I don’t see any other way around it. And when we do that, then we have effectively limited a plaintiffs, any plaintiffs ability to seek redress in court under a contingency fee. And to the extent that that limits Mr. Byrd or whomever’s ability to file suit for future medical, I, I just think that the very wordage of the Statutes would be unconstitutional to that extent.

In Isire v. Meche, 00-1316 (La.10/17/00), 770 So.2d 776, 779, the Louisiana Supreme Court stated:

Generally, a court should not reach the question of a statute’s constitutionality when its unconstitutionality has not been placed at issue by one of the parties to a proceeding. A judge should not declare a statute unconstitutional until the issue of its constitutionality has been presented because a judge’s sua sponte declaration of unconstitutionality is a derogation of the strong presumption of constitutionality accorded legislative enactments. While there is no single procedure for assailing the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. This court has articulated this burden as composed of three tiers: “First of all, the plea of unconstitutionality must first be made in the trial court. Next, the plea of unconstitutionality must be specially pleaded. |2sFinally, the grounds outlining the basis of unconstitutionality must be particularized.” These procedural rules exist to afford interested parties sufficient time to brief and prepare arguments defending the constitutionality of the challenged statute. This opportunity to fully brief and argue the issue provides the trial court with thoughtful and complete arguments relative to the issue of constitutionality and furnishes reviewing courts with an adequate record upon which to adjudge the constitutionality of the statute. (Citations omitted).

In the instant case there was no pleading filed concerning the unconstitutionality of any statute. Considering that the constitutionality of no statutes was specially pleaded, the apparent declaration of the trial court regarding the potential unconstitutionality of the Future Medical Care Fund as it relates to the payment, or nonpayment, of an attorney’s contingency fee, was erroneous. Nowhere in the statutes pertaining to the Future Medical Care Fund does it provide for an attorney’s contingency fee to be paid therefrom. Attorney’s fees are not “medical care and related benefits” as provided by the statutes.

Thus, where the language of a statute is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; La. R.S. 1:4. Accordingly, we find that the clear language of the law does not provide a mechanism by which the Future Medical Care Fund could be subjected to a privilege and/or lien in favor of Moore’s attorney. Therefore, that portion of the trial court’s judgment subjecting Moore’s future medical expenses to a privilege and/or lien in favor of his attorney is hereby vacated.

12(Assignment of Error No. 7

Lastly, DOTD contends that the trial court erred in assessing it with 100% of the costs of court since it was only found to be 24% liable.

La. C.C.P. art. 1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

The allocation of court costs among the parties is a matter in which the trial court is afforded broad discretion. Saunders v. Hollis, 44,490 (La.App.2d Cir.08/19/09), 17 So.3d 482, writ denied, 09-2221 (La.12/18/09), 23 So.3d 945. While generally the party cast in judgment should be taxed with costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems equitable, even against the party prevailing on the merits. Spencer v. Red River Lodging, 37,390 (La.App.2d Cir.02/05/04), 865 So.2d 337. An appellate court may only reverse a trial court’s assessment of costs upon a showing of abuse of discretion. Saunders, supra; Spencer, supra.

In the instant case, DOTD filed a motion to tax court costs on January 4, 2010. The trial court set the matter for hearing on February 17, 2010; DOTD, however, failed to appear. Whether DOTD’s failure to appear had any bearing on the trial court’s decision to assess DOTD with 100% of the costs is unknown. Regardless, we do not find that the trial court abused its discretion by allocating 100% of the costs to DOTD. DOTD was the sole defendant, and while there were multiple plaintiffs only Byrd was [ 27apportioned any percentage of the liability. See Davis v. State, Dept. of Trans, and Development, 94-308 (La.App. 3d Cir.12/07/94), 647 So.2d 552, writ denied, 95-0034 (La.01/27/95), 649 So.2d 382 (wherein DOTD was found to be 40% at fault, but ordered to pay 100% of the court costs).

Conclusion

For the foregoing reasons, that portion of the judgment entered in accordance with the findings of the jury apportioning fault 76% to plaintiff, John Byrd, and 24% to defendant, the State of Louisiana, Department of Transportation and Development, is affirmed. Further, that portion of the judgment reflecting the jury’s award of future loss of earnings/loss of earning capacity to plaintiff, Eugene Moore, is also affirmed. That portion of the judgment reflecting the jury’s award (and the trial court’s increase via JNOV) to Moore for past lost earnings, however, is reversed. The trial court’s denial of DOTD’s motion for mistrial is affirmed; as is that portion of the judgment taxing DOTD with 100% of the costs of court. Lastly, that portion of the judgment which subjects the Future Medical Care Fund to a privilege and/or lien in favor of Moore’s attorney for his contracted contingency fee is hereby vacated.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . In accordance with La. R.S. 13:5106 B(3)(c) and La. R.S. 39:1533.2.

      . Petre v. State, Dept. of Transp. and Development, 00-0545 (La.App. 3d Cir. 12/29/00), 775 So.2d 1252.

      . The statistical data for the median and average wage of a roofer in Louisiana was obtained from the May 2006 Statewide Occupational Employment Survey Statistics: Louisiana. The statistical data for the national wage averages of a white male with and without a high school diploma was obtained from The 2008 Statistical Abstract.