author: CLARENCE E. McMANUS, Judge.

text:
    ADVANCED COMMERCIAL CONTRACTING and Edward J. Hartson v. POWELL INSURANCE AGENCY.
    No. 09-CA-758.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Christopher J. Aubert, David M. Gold, The Aubert Law Firm, Attorneys at Law, Covington, LA, for Plaintiff/Appellant.
    Max J. Cohen, James T. Busenlener, Lowe, Stein, Hoffman, Allweiss & Hauver, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

^Plaintiff, Advanced Commercial Contracting and Edward J. Hartson (“ACC”), appeals from a judgment of the trial court granting an exception of res judicata and dismissing its suit against Powell Insurance Agency (“Powell”). For the reasons that follow, we affirm the decision of the trial court.

On May 9, 2005, ACC filed a petition for damages against Powell. In its petition, ACC alleged that it contacted Powell for the purpose of obtaining certain types of business insurance, and that Powell obtained business insurance for it from Pacific Insurance Company, Limited. The policy originally provided blanket coverage for potential business interruption and for personal property of others and no coinsurance clause. At some point Powell neglected to forward a questionnaire to ACC, with the result that insurance coverage was changed to ACC’s detriment, in that the blanket coverage for business interruption was no longer provided, and a 100% co-insurance coverage was also added to the business interruption coverage.

On May 14, 2004, a fire occurred at ACC’s business and ACC made a claim under the Pacific policy. At that point, ACC learned of the changes that had been made to the policy, with the result that ACC was severely underinsured or uninsured for the damages it sustained in the fire.

|sACC argued that Powell breached its duty as insurance agent, resulting in insufficient insurance coverage at the time that a fire destroyed ACC’s property. ACC contends that it was uninsured/underin-sured for lost business income and property replacement value, and lacked umbrella coverage for any excess damages and liabilities. It further contended that it paid premiums for, but was not provided with, full insurance coverage, including but not limited to umbrella coverage, proper blanket business interruption coverage, and proper blanket coverage for property of others. ACC contended that Powell breached its duty by failing to deliver the questionnaire, failing to notify ACC of changes in insurance coverage, failing to obtain agreed on types and amounts of insurance coverage, and other acts of negligence and fault.

On August 11, 2005, Powell filed exceptions of res judicata, or alternatively transaction and compromise, and of no cause or right of action. In support of its exception of res judicata or transaction and compromise, Powell referenced an agreement entered into between the parties on August 20, 2004. Powell re-urged his exception of res judicata on November 26, 2008.

On February 10, 2009, the trial court rendered judgment sustaining Powell’s exception of res judicata, and dismissing ACC’s claims. This appeal followed. In this appeal, ACC alleges that the trial court erred in granting the exception of res judicata. ACC’s brief in this Court presents the following allegations of error:

1. The trial court erred in finding that res judicata barred Plaintiffs claims against Powell since the governing Agreement between the parties only released Powell from claims arising out of the subject fire at ACC’s immovable property.
2. The trial court erred in finding no evidence of mistaken intent sufficient to look beyond the language of the governing Agreement between the parties.
3. The trial court erred in not denying Powell’s exception under the doctrine of contra non valentem.
|,t4. The trial court erred in not interpreting the governing Agreement between the parties against Powell on the grounds the Agreement is ambiguous. 5. The trial court erred in dismissing the individual claims of Eddie Hartson, since he did not sign the governing Agreement between the parties in his individual capacity.

ANALYSIS

LSA-R.S. 13:4231 provides that:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

In Hines v. Smith, 44,285 (La.App. 2 Cir. 8/12/09), 16 So.3d 1234, 1237-8, the standard of review for a determination of the res judicata effect of a compromise was set forth as follows:

A valid compromise can form the basis of a plea of res judicata. Ortego v. State, Dep’t of Transp. & Dev., 96-1322 (La. 2/25/97), 689 So.2d 1358; Marsh v. USAgencies Cas. Ins. Co., 42,176 (La.App. 2d Cir. 5/16/07), 957 So.2d 901, writ denied, 2007-1286 (La.10/26/07), 966 So.2d 575. The purpose of the doctrine of res judicata is to promote judicial efficiency and the final resolution of disputes. Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.7/2/96), 676 So.2d 1077; Hawthorne v. Couch, 41,603 (La.App.2d Cir.12/20/06), 946 So.2d 288, writ not considered, 2007-0173 (La.3/16/07), 952 So.2d 685. The doctrine of res judi-cata is stricti juris, and any doubt concerning application of the principle of res judicata must be resolved against its application. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210; Hawthorne, supra.
|fiThe party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. If there is any doubt as to its applicability, the exception must be overruled. Davis v. Home Depot, 96-850 (La.App. 5th Cir. 2/22/97), 690 So.2d 208, writ denied, 97-0728 (La.5/1/97), 693 So.2d 740, citing State, Dept. of Social Services v. Matthews, 615 So.2d 1112 (La.App. 5th Cir.1993). The standard of review of a ruling sustaining an exception of res judicata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties. State ex rel. Murphy v. Haren, 42,098 (La.App.2d Cir.5/16/07), 957 So.2d 869, writ denied, 2007-1285 (La.9/21/07), 964 So.2d 345; Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993.
The purpose of a compromise is to prevent or put an end to litigation. The essential elements of a compromise are: (1) mutual intention of putting an end to the litigation and (2) reciprocal concessions of the parties in adjustment of their differences. Rivett v. State Farm Fire & Cas. Co., 508 So.2d 1356 (La.1987); Thompson v. Jackson Parish Police Jury, 36,497 (La.App.2d Cir.10/23/02), 830 So.2d 505.

In this case, the settlement agreement between ACC and Powell states that

Powell has the right to be released from all claims by ACC related to the fire upon paying to ACC (1/2) of the difference between the amount the insurer are or become willing to pay regarding the building and contents claim at 2860 Arts Street and $250,000.
To the extent Powell pays under ¶ 2 of this document, Powell is subrogated to the rights of ACC, prorata to ACC’s uninsured tort claims against third parties.

On appeal, ACC first contends that the Agreement is not applicable in this case because the claims at issue are not those that arise out of the fire. It contends that the instant suit sets forth a claim for actions that occurred well before the fire at issue, “when Powell purchased insurance for ACC and, solely through the fault of Powell, failed to send ACC the paperwork necessary to provide adequate coverage.” Appellant also contends that this agreement is ambiguous and therefore should be interpreted against Powell.

| fiAppellee contends that the settlement language is unambiguous and clearly releases Powell for not only property damage, but also “with regard to any other claim by ACC against Powell, arising out of the fire ...” which language encompasses the claims made by ACC in this suit.

The trial court reviewed the language of the compromise agreement and found “specific language in the release which indicates that the plaintiffs intended to release all claims against defendant ... Plaintiffs neither reserved any rights nor made their release a narrow one.” During the hearing on this matter, the parties agreed that they were each represented by counsel when the release was confected and executed, and had the parties intended to except any cause from the release they could have done so. In our review, we find no error in this decision of the trial court. Accordingly, these allegations of error lack merit.

Appellants next contend that if the Agreement operated to release Powell, there was mistake in fact sufficient to negate the contract. They contend that they did not intend to release those claims relating to Powell’s failure to transmit the questionnaire, and therefore the court should have considered evidence of the parties’ intent in reaching the compromise agreement. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” LSA-C.C. art. 2046; Green v. New Orleans Saints, 00-0795 (La. 11/13/00), 781 So.2d 1199. Accordingly, the trial court did not err in failing to consider extrinsic evidence of the intent of the parties in its interpretation of the Agreement.

Next appellants argue that Powell’s exception of res judicata should have been denied under the doctrine of contra non valentem. The doctrine of contra non valentem provides that prescription does not run against one who is ignorant of the facts upon which their cause of action is based, and is an exception to the | statutory prescriptive period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues. Jackson v. Jefferson Parish Clerk of Court, 07-963 (La.App. 5 Cir. 4/15/08), 981 So.2d 156, writ denied, 08-1150 (La.10/31/08), 993 So.2d 219. This doctrine is inapplicable in this matter.

Finally, appellants argue that the trial court erred in dismissing the individual claims of Eddie Hartson, because he signed the release only on behalf of ACC, and not in his individual capacity. However, Hartson filed suit on behalf of ACC, as the president and owner of ACC, and did not assert any individual claims in his petition. We find no error in the trial court’s ruling dismissing the suit against Powell.

For the above discussed reasons, the trial court’s ruling granting the exception of res judicata, and dismissing plaintiffs’ suit against Powell is affirmed. All costs are assessed against appellant.

AFFIRMED.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Demarco R. WASHINGTON.
    No. 09-CA-618.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.
    Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Brandon Kinnett, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    William Noland, Attorney at Law, Brandon, MS, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, Jude G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|2Appellant, Safety National Casualty Corporation (Safety), appeals the trial court’s judgment rendered on April 17, 2009 denying its Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment. For the following reasons, we vacate the trial court’s judgment of April 17, 2009 denying Safety’s Motion to Set Aside and remand this matter for the signing of a proper judgment.

FACTS AND PROCEDURAL BACKGROUND

The record reflects that the defendant, Demarco R. Washington, was charged on March 6, 2007 by bill of information with a violation of LSA-R.S. 14:95.1, felon in possession of a firearm. On October 9, 2007, Safety, through its agent, # 1 Bail Bonds, executed an appearance bond with Mr. Washington as principal. Mr. Washington failed to appear for a hearing as noticed on May 27, 2008. On May |:i30, 2008, Mr. Washington appeared in court. At that hearing, the trial court reset Mr. Washington’s case for trial on June 18, 2008.

On June 18, 2008, because Mr. Washington failed to appear in court, the trial court issued an attachment for his arrest. The State then made an oral motion for forfeiture of Mr. Washington’s bond. The bond forfeiture hearing was held on that date. According to the minute entry in the record, the State presented at least one witness, a deputy clerk of court, at the bond forfeiture hearing. Following the hearing, because Mr. Washington failed to appear in court on that date, the trial court granted the bond forfeiture. A judgment to that effect was rendered and signed on that date. Notices of the signing of this judgment were mailed to all parties on June 24, 2008, per LSA-R.S. 15:85(3)(a).

Four months later, on October 29, 2008, Safety filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment. This motion was filed as a summary proceeding in Mr. Washington’s criminal matter. This motion argued that Mr. Washington’s failure to appear in court on May 27, 2008 required the State to issue a notice to the surety or its agent (Safety or # 1 Bail Bonds, respectively) for Mr. Washington’s subsequent court date of June 18, 2008, as required by LSA-C.Cr.P. art. 344(B), and that the State had failed to issue such required notice to Safety or its agent. In an “amended” motion filed by Safety on December 3, 2008, Safety further argued that Mr. Washington failed to appear in court on June 18, 2008 because he was ill, a “nonforfeiture situation” under LSA-R.S. 15:87.

Safety’s Motion to Set Aside was briefly argued before Judge Regan, the trial judge, on January 16, 2009, whereupon Judge Regan took the matter under advisement. On January 29, 2009, the parties again appeared before Judge Regan, who, in open court, orally denied Safety’s Motion to Set Aside, ruling that the |4matter was “done properly.” A written judgment to that effect was signed by Judge Rowan on April 17, 2009. This timely appeal followed.

On appeal, Safety argues that the trial court erred in not finding that 1) the State was required to issue a notice to the surety of Mr. Washington’s court date as per LSA-C.Cr.P. art. 344(B); 2) the trial court erred in finding that the State, at the bond forfeiture hearing, had placed into evidence proof of notice to Safety, or to its Agent, for Mr. Washington’s June 18, 2008 court appearance date, as required by LSA-R.S. 15:85(1); and 3) the trial court erred in denying Safety’s Motion to Set Aside because the State failed to produce at the bond forfeiture hearing proper evidence of notice given to Safety, or its agent, of Mr. Washington’s June 18, 2008 court appearance date.

The State argues in brief that Safety’s Motion to Set Aside was untimely under LSA-R.S. 15:85(5) and (9). Regarding the merits of Safety’s argument, the State noted that the appellate record was incomplete in that it failed to include the return on the subpoena that established that Safety had in fact received notice of Mr. Washington’s June 18, 2008 court date. The State thereupon moved to supplement the appellate record with the return of such subpoena that appears in the district court record. This court granted the State’s motion to supplement the appellate record. The State argues that the supplemented appellate record shows that Safety was in fact served with proper notice of Mr. Washington’s June 18, 2008 court date.

In its reply brief, Safety opposed the granting of the State’s motion to supplement the appellate record, arguing that the return on the subpoena that the State sought to include in the appellate record was not, as required by LSA-R.S. 15:85(1), actually introduced into evidence by the State at the bond forfeiture hearing conducted on June 18, 2008. Safety further argues that the motion to set |saside the bond forfeiture was timely, having been brought pursuant to LSA-C.C.P. arts. 2001-2004. Lastly, Safety argues that the April 17, 2009 written judgment that is the subject of this appeal is null and void because it was signed by a judge different from the judge who pi-esided over the hearing on the motion and who orally ruled on the matter in open court.

DISCUSSION

As indicated above, the record clearly shows that Safety’s Motion to Set Aside was argued to Judge Regan on January 16, 2009, who took the matter under advisement, and who orally denied the motion in open court on January 29, 2009. On April 17, 2009, the written judgment denying Safety’s Motion to Set Aside was, however, signed by Judge Rowan. Citing Louisiana Paving Co., Inc. v. St. Charles Parish Public Schools, 593 So.2d 892 (La.App. 5 Cir. 1992), Safety argues in its reply brief that the April 17, 2009 judgment signed by Judge Rowan denying its Motion to Set Aside is an absolute nullity because of the fact that it was signed by a judge (Judge Rowan) other than the judge who heard the motion, took the motion under advisement, and orally ruled on the motion (Judge Regan).

Safety’s argument on this issue has merit. LSA-C.C.P. art. 1911 has been held to require that the judge who heard the matter and took it under advisement is the judge who is required by law to sign the judgment, unless the law provides otherwise. Bankers Ins. Co. v. State, 32,460 (La.App. 2 Cir. 10/27/99), 743 So.2d 870, for example, held that a judgment of bond forfeiture must be signed by the same judge who ordered the bond forfeited. Though the judgment at issue here is on a motion to set aside a bond forfeiture, the situation here is very similar to that in Bankers. We have found no case or statute that suggests the law provides | (¡otherwise for the type of judgment under consideration here. As such, the April 17, 2009 judgment denying Safety’s Motion to Set Aside is an absolute nullity. This matter must accordingly be remanded to the trial court for the signing of a proper judgment.

CONCLUSION

For the above reasons, the trial court’s judgment of April 17, 2009 denying Safety’s Motion to Set Aside is hereby vacated. This matter is hereby remanded to the trial court for the signing of a proper judgment. All other issues raised in this appeal are hereby pretermitted.

JUDGMENT VACATED; REMANDED.

      . LSA-C.C.P. art. 1911 provides, in pertinent part: Except as otherwise provided by law, every final judgment shall be signed by the judge....


text:
    STATE of Louisiana v. Ken M. GEORGE.
    No. 09-KA-617.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Shannon Swain, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellant.
    Frazilia Wiggins, Attorney at Law, Michael J. Rocks, Attorney at Law, Gretna, Louisiana, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|2The State appeals from the trial court’s decision granting a motion to quash, and dismissing prosecution against the defendant. For the reasons that follow, we reverse the decision of the trial court, reinstate the bill of information and remand for further proceedings.

Defendant, Ken George, was charged by bill of information with one count of distribution of cocaine in violation of LSA-R.S. 40:967(A). He was arraigned on February 28, 2000 and pled not guilty. A trial date was set for April 4, 2000. Defendant failed to appear and an attachment was issued.

Defendant was subsequently arrested over five years later on July 5, 2005, and trial was reset for August 15, 2005. Trial was continued until the next day at which time defendant filed a motion to quash the bill of information claiming that the prosecution was untimely because the two-year time period to commence trial under LSA-C.Cr.P. art. 578 had expired. A hearing on the motion to quash was set for September 14, 2005, but Hurricane Katrina closed the court. After several continuances, the hearing was held on May 13, 2009, at which time the trial court granted defendant’s motion to quash. The State timely appeals the granting of the motion to quash.

Because of the posture of the ease, the facts of the charged offense were never developed in the record. The bill of information alleges defendant distributed cocaine on December 16, 1999. The arrest register, which appears in the record, indicates defendant sold two rocks of cocaine to an undercover agent.

| ;,In the sole assignment of error, the State, as appellant, contends that the trial court erred in granting the defendant’s Motion to Quash based upon untimely prosecution pursuant to LSA-C.Cr.P. art. 578. The State maintains that the trial court failed to recognize that the prescriptive period of Article 578 was interrupted under LSA-C.Cr.P. art. 579(A)(3) when defendant failed to appear for the April 4, 2000 court date (for which he had actual notice), and that prescription ran anew from the date the attachment was recalled on July 14, 2005. As a result, the State had until July 14, 2007 to bring defendant to trial, and defendant’s motion to quash, which was filed on August 16, 2005, was premature. Furthermore, the filing of the motion to quash suspended the prescriptive period of Article 578 until the motion was ruled upon by the court.

Defendant responds that at the time he failed to appear for trial in April 2000, the law imposed on the State an affirmative duty to search for defendant and bring him to trial, which it did not do. Defendant relies on State v. Malone, 610 So.2d 148, 150 (La.App. 2 Cir.1992).

As a general matter, the State has two years from the institution of prosecution to commence a trial in a non-capital felony ease. LSA-C.Cr.P. art. 578(A)(2). The Louisiana Supreme Court has explained that the “statutory periods of limitation ‘enforce the accused’s right to a speedy trial and ... prevent the oppression caused by suspending criminal prosecutions over citizens for indefinite periods of time.’” State v. Romar, 07-2140 (La. 7/1/08), 985 So.2d 722, 725 (per curiam), quoting State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284, 1286. The date of institution of prosecution is the date when the bill of information is filed. State v. Smith, 07-959, p. 5 (La.App. 5 Cir. 3/11/08), 982 So.2d 831, 834.

Upon expiration of the time limitation, the court shall, on motion of the defendant, dismiss the indictment and there shall be no further prosecution against |4the defendant for that criminal conduct. LSA-C.Cr.P. art. 581. Amotion to quash is the proper procedural vehicle for asserting an expiration of the time limitations. LSA-C.Cr.P. art. 532(7); State v. Smith, 07-959 at 6, 982 So.2d at 834.

Once a defendant shows that the State has failed to commence trial within the time periods specified by the general rule governing time limitations for commencement of trial, the State bears a heavy burden to demonstrate that either an interruption or a suspension of the time limit tolled prescription. State v. Morns, 99-3235, (La. 2/18/00), 755 So.2d 205 (per curiam).

In the present case, defendant filed a motion to quash on August 16, 2005, claiming the time period for prosecuting him under LSA-C.Cr.P. art. 578 had expired. On its face, defendant’s motion to quash appeared meritorious. Although prosecution was timely instituted, trial was not commenced within the two-year period provided by LSA-C.Cr.P. art. 578(A)(2). Thus, the State bears the burden of proving an interruption or suspension of the time limit.

LSA-C.Cr.P. art. 579 provides for the interruption of the time limitation for commencing trial, as follows:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or (3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

1 t;The record in this case shows that defendant was given notice on February 28, 2000 to appear in court for trial on April 4, 2000. Defendant’s signature appears on the notice. Therefore, under LSA-C.Cr.P. art. 579(A)(3), the two-year time period of limitation of Article 578 was interrupted on April 4, 2000 when defendant failed to appear for a court proceeding for which he had actual notice.

The time period did not commence to run anew until the date the cause of interruption ceased to exist, or until defendant was arrested on the attachment and appeared in court in either July or August 2005. LSA-C.Cr.P. art. 579(B); State v. Romar, 985 So.2d at 727. As such, the State had until July or August 2007 to bring defendant to trial and therefore the trial court erred in granting defendant’s motion to quash claiming untimely prosecution, which was filed on August 16, 2005.

Defendant argues that the trial court did not err in granting his motion to quash because at the time he failed to appear for trial, the State has a due diligence requirement to do something to bring him to trial, and that it failed to do anything except rely on the attachment. Contrary to defendant’s assertion, the State had no obligation to find defendant after he failed to appear in court after receiving actual notice of the court date. In State v. Romar, 07-2140 at 6, 985 So.2d at 726, the Louisiana Supreme Court explained that LSA-C.Cr.P. art. 579(A)(3) “does not impose on the state the affirmative duty to search for a defendant who has failed to appear | (iibr trial after receiving actual notice.” The Supreme Court explained that subsection 3, added by a 1984 amendment, made a defendant’s failure to appear for trial after receiving notice a ground of interruption of the time limits in Article 578 without regard to whether he intended to avoid prosecution by rendering himself a fugitive from justice or whether he otherwise placed himself beyond the control of the state to secure his presence for trial. Id.

Defendant argues that under State v. Malone, 610 So.2d 148 (La.App. 2 Cir. 1992), the State was required to exercise due diligence to determine his whereabouts and secure his presence for trial. Defendant recognizes that State v. Malone was abrogated by State v. Romm; but contends that Romar is inapplicable, because it changed the law and because the facts of his case occurred prior to Romar being decided.

We disagree, and do not believe that there has been a change of law in LSA-C.Cr.P. arts. 578 and 579 since prosecution was instituted against defendant when the bill of information was filed on February 9, 2000. While the Second Circuit may have required due diligence in determining the whereabouts of a defendant who had been served but failed to appear for trial, as evidenced by its decision in Malone, supra, other courts had held that no such due diligence was required. See State v. Buckley, 02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193, where the Third Circuit found the State did not bear the burden of finding and re-serving the defendant after he failed to appear after receiving actual notice under LSA-C.Cr.P. art. 579(A)(3). The Supreme Court in State v. Romar, supra, did not change the law, but simply settled a split in the circuits of whether the State bears the same burden under LSA-C.Cr.P. art. 579(A)(3) of showing that it exercised due diligence in determining the whereabouts of the defendant and securing his presence for trial as it does under LSA-C.Cr.P. art. 579(A)(1) and (A)(2), and concluded that it did not. State v. Romar, 07-2140 at 6, 985 So.2d at 726.

|7In his appellee brief, defendant also asserts arguments regarding his Sixth Amendment right to a speedy trial and maintains the five-year delay from November 30, 2005 and April 20, 2009 is presumptively prejudicial. It appears defendant is attempting to argue that the time delay to hear the motion to quash violated his speedy trial rights. This argument was not presented to the trial court, and therefore is not considered by this Court. Additionally, defendant’s motion to quash was filed before the events of which defendant complains. Events that occurred after defendant filed his motion to quash for untimely prosecution have no bearing on the merits of the motion to quash and the facts and circumstances upon which the motion to quash was based.

In summary, based on the foregoing, we find that the trial court erred in granting defendant’s motion to quash. The time limitation for bringing defendant to trial under LSA-C.Cr.P. art. 578 was interrupted on April 4, 2000, under LSA-C.Cr.P. art. 579(A)(3), when defendant failed to appear at trial for which he had actual notice, proof of which is in the record. The period of limitation began to run anew when defendant was arrested on the open attachment and appeared in court in either July or August 2005. Thus, at the time defendant’s motion to quash was filed on August 16, 2005, the time limitation had not expired. Additionally, once defendant filed the motion to quash, the time limitation under LSA-C.Cr.P. art. 578 was suspended until the trial court ruled on the motion. LSA-C.Cr.P. art. 580.

Accordingly, we vacate the trial court ruling granting the motion to quash, reinstate the bill of information charging defendant and remand this matter for further proceedings.

JUDGMENT VACATED; CASE REMANDED.

      . In Romar, the defendant failed to appear for trial, for which he received actual notice, and an attachment for his arrest was issued. Eight years passed before defendant was arrested on the attachment and appeared in court. The Supreme Court explained that an arrest warrant "remains in effect until executed” and "does not become ‘stale’ with the passage of time.” State v. Romar, 07-2140 at 7, 985 So.2d at 727. The Supreme Court further explained that Louisiana law allows an attachment to remain open and serve as a "trip wire against the day when a defendant again comes to the attention of the authorities.” Id. The Supreme Court stated that even though defendant was arguably "locatable” during the eight years, the State did not have an affirmative duty to search for him. The Supreme Court concluded that the period of limitation for bringing defendant to trial was interrupted and did not run anew until defendant was arrested on the open attachment and appeared in court. Id. at 6-7, 985 So.2d at 726-27.

      . The attachment, was issued on April 4, 2000.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Harry PERKINS v. Mike CARTER, Fleming Construction Company, L.L.C., Gray Insurance Company, Howard Woo and United Services Automobile Association.
    No. 09-CA-673.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Chad A. Aguillard, Attorney at Law, New Roads, LA, for Plaintiff/Appellee.
    Michael R. Sistrunk, Matthew J. Garver, Attorneys at Law, Covington, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICEA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12This appeal arises from a negligence action involving a motor vehicle accident in which the plaintiff/appellee guest passenger Harry Perkins filed a Direct Action suit against defendant/appellant United Services Automobile Association (USAA), the alleged tortfeasor’s insurer. In this bench trial, at the conclusion of the plaintiffs case, USAA moved to dismiss based on the plaintiffs failure to meet his burden of proving USAA insured the alleged tort-feasor Dr. Howard Woo for this accident. USAA also argued that the plaintiff had no legal right to bring a Direct Action against USAA since Dr. Woo, although a named defendant, had never been served nor had service been attempted. The trial judge denied USAA’s motion for dismissal and ultimately granted judgment in favor of Mr. Perkins and against USAA awarding the plaintiff $12,230, interest and costs. USAA has appealed. At issue herein is whether the trial judge erred in denying the motion for dismissal. Finding no error in the trial judge’s denial of the motion, we affirm.

|,Direct Action/No Right of Action

Mr. Perkins filed a petition for damages for negligence against various defendants and insurers. He alleged that on October 30, 2006, he sustained injuries from a motor vehicle accident as a result of being a guest passenger in a Ford truck that was driven by Mike Carter. He alleged that the truck was owned by Fleming Construction Company and insured by The Gray Insurance Company. Mr. Perkins asserted that the truck was struck by a Toyota car driven by Dr. Woo and insured by USAA. Before the case went to trial, Mr. Perkins had filed a motion to dismiss Mr. Carter, Fleming Construction Company, and The Gray Insurance Company, which the trial judge granted. Later, a bench trial proceeded against USAA. USAA orally moved for an involuntary dismissal at the conclusion of the plaintiffs case. In essence, USAA argued as it now does in its brief before this court that the plaintiff had no right of action against USAA under the Direct Action Statute. USAA did not file a formal pleading urging the exception of no right of action in the district court or in this court. We recognize that an exception of no right of action is a pleading which must be in writing pursuant to La. C.C.P. art. 852. Although the oral motion was improper, a trial court or an appellate court may notice the failure to state a cause of action on its own motion. La. C.C.P. art. 927(B). Thus, it would have been proper for the trial court to notice the exception of no right of action on its own motion.

Despite appellee’s assertions to the contrary, USAA argued below as a ground for dismissal that the plaintiff had never requested service on Dr. Woo and Dr. Woo had never been served, thus alluding to the failure to meet a requirement |4of the Direct Action Statute. Consequently, the exception of no right of action was argued below. Plaintiffs counsel had the opportunity to respond to the argument below and did so. He responded that Dr. Woo was named in the petition and that USAA through its contract of insurance, was required to provide a defense. The trial judge denied the motion without giving any reasons for finding that the plaintiff could proceed under the Direct Action Statute. We find the record shows that Mr. Perkins has demonstrated a basis for proceeding against USAA under the Direct Action Statute. Thus, the trial judge did not err in evidently denying the exception and concluding there was no basis for dismissal on this ground.

Louisiana’s Direct Action Statute, La. R.S. 22:1269(B)(1), allows a person who is not an insured under the insurance contract to proceed directly against the insurer under certain circumstances dictated by the statute. R.S. 22:1269(B)(1) pertinently provides: “The injured person or his or her survivors or heirs mentioned in Subsection A', at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido[.]” (Footnote added). However, such action may be brought against the insurer alone only under certain enumerated conditions. The condition pertinent here is that “Service of citation or other process cannot be made on the insured[.]” R.S. 22:1269(B)(l)(c).

On appeal, Mr. Perkins relies on the pretrial order in which USAA failed to raise as a contested issue whether the plaintiff could proceed with a Direct Action against USAA. Additionally, Mr. Perkins argues that the Direct Action Statute only applies when the action is brought against the insurer alone. Appellee asserts pthat because he filed suit against Dr. Woo and USAA, he was not filing an action solely against USAA and therefore the Direct Action Statute did not apply. Appellee argues that since Dr. Woo is still a party and was never dismissed, the Direct Action Statute is inapplicable. We disagree because appellee only has a right of action against the alleged tortfeasor’s insurer under the Direct Action Statute.

There is no privity of contract between the plaintiff and the alleged tort-feasor’s insurer. Clark v. Durbin, 590 So.2d 633, 635-36 (La.App. 3 Cir.1991). Therefore, the plaintiff must establish a right of action through the Direct Action Statute which “was enacted to give special rights of action to injured tort victims.” Arrow Trucking Co. v. Continental Ins. Co., 465 So.2d 691, 700 (La.1985). The Direct Action Statute extends a conditional right to file suit, to some parties under some circumstances. Foltmer v. James, 01-1510, pp. 4-5 (La.App. 4 Cir. 9/12/01), 799 So.2d 545, 548, writ denied, 01-2777 (La.1/4/02), 805 So.2d 213. The reason the right is conditional is that no privity of contract exists between a plaintiff injured by a tortfeasor and that tortfeasor’s insurance company. Id. An injured party obtains a right of action against another person’s insurance company only if all the requirements of the Direct Action Statute have been fulfilled. Id. Accordingly, an insurance company that proves that the requirements of the Direct Action Statute have not been fulfilled is entitled to dismissal of the claim against it on an exception of no right of action. Id.

In this case, the applicable requirement is that service of citation or other process cannot be made on the insured. R.S. 22:1269(B)(l)(c). It is undisputed that no service was attempted on the insured. In addition, there was no written [(¡waiver of citation and service in the record. However, a party can also waive an objection to the jurisdiction by an appearance of record. Glass v. Alton Ochsner Medical Foundation, 02-0412, p. 12 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 410, writs denied, 02-2977, 02-3018 (La.3/14/03), 839 So.2d 36, 37 (Citation omitted).

An appearance of record includes filing a pleading, appearing at a hearing, or formally enrolling as counsel of record. Poret v. Billy Ray Bedsole Timber Contractor, Inc., 31,531, p. 2 (La.App. 2 Cir. 1/22/99), 729 So.2d 632, 633, citing, La. C.C.P. art. 1671, Official Comment.

In Abbasi v. State Farm Ins. Co., 04-44, p. 6 (La.App. 5 Cir. 5/26/04), 875 So.2d 988, 993, writ denied, 04-2076 (La.9/24/04), 882 So.2d 1135 (footnote omitted), this court recognized jurisprudence holding that when the insured is dismissed, there is no direct right of action against the insurer. The court found that those cases were inapplicable because in that case, as in the present one, although the insured defendant was never served, the insured was not dismissed. The court held that the insured waived an objection to the jurisdiction by making an appearance of record. In that case, the defendant insurer filed an answer on its behalf and on behalf of its insured. Also, the insured personally appeared before the court at trial.

This case is similar. Here, USAA filed a formal pleading in this record on its behalf and on behalf of Dr. Woo making a time-limited offer of judgment pursuant to La. C.C.P. art. 970. In addition, Dr. Woo testified at trial on his own behalf. This pleading together with Dr. Woo’s appearance at trial on his own behalf constituted an appearance in the record by Dr. Woo, thereby waiving service. Therefore, the plaintiff had a right of action to proceed under the Direct |7Action Statute against USAA and the trial court properly denied the motion to dismiss on this ground.

Insurance Coverage

La. C.C.P. art. 1672(B) provides for involuntary dismissal at the close of a plaintiffs case in a nonjury case. The trial court has much discretion in determining whether to grant a motion for involuntary dismissal. Treen Const. Co., Inc. v. Schott, 03-1232, p. 5 (La.App. 5 Cir. 1/27/04), 866 So.2d 950, 954 (Citations omitted). An appellate court may not reverse a ruling on a motion for involuntary dismissal unless it is manifestly erroneous or clearly wrong. Id. In determining whether an involuntary dismissal should be granted after the plaintiff has completed the presentation of his evidence during a bench trial, the appropriate standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish his claim by a preponderance of the evidence. Id. The trial court is not required to review the evidence presented in the light most favorable to the plaintiff. Id.

The burden of proof is on the plaintiff to establish every fact essential to his claim and that his claim is within the insurance policy coverage. Regency Motors of Metairie, L.L.C. v. Hibernia-Rosenthal Ins. Agency, L.L.C., 03-1312, p. 5 (La.App. 5 Cir. 2/23/04), 868 So.2d 905, 908, writ denied, 04-0753 (La.5/7/04), 872 So.2d 1087 (Citation omitted).

Mr. Perkins did not introduce the insurance policy into evidence at the trial. At the beginning of trial, counsel for USAA stated that the plaintiff and defendant had agreed that they would submit in globo all of their exhibits. The trial judge stated that he would accept all stipulations at that time as well. There was no | ^stipulation that USAA insured Dr. Woo for the alleged damages resulting from the accident.

In its motion for dismissal, counsel argued that the plaintiff had not entered into evidence any insurance contract that would provide liability on the part of USAA.

The trial judge reviewed the pretrial order and noted that the automobile policy of insurance from USAA for the insured vehicle being driven by the defendant Dr. Woo was listed as an admissible exhibit. He denied the motion based on the pretrial order.

On appeal USAA argues that the trial judge erred in denying the motion because the plaintiff failed to introduce the policy.

Appellee responds that attorneys are entitled to rely on representations made in pretrial orders that are agreed to by both parties. In this regard, he asserts that there was no need to introduce the insurance policy because the issue of coverage was not raised in the pretrial order. Furthermore, he states that it was stipulated by both parties that the policy would be admitted without objection as to admissibility and authenticity. USAA, however, contends that the pretrial order is insufficient to eliminate the need to admit the policy because there was no stipulation that the policy provided coverage for ap-pellee’s losses. USAA maintains that a stipulation as to admissibility and authenticity simply waives evidentiary arguments as to hearsay and the authenticity of the exhibits and nothing more.

In his petition for damages, Mr. Perkins alleged that Dr. Woo was insured and/or the vehicle Dr. Woo was driving, was insured under an automobile liability policy of insurance or other form of insurance issued by USAA. USAA answered the petition denying the allegations set forth in that paragraph and stated: “[T]he allegations ... make reference to a policy of insurance; said policy, which is the Rbest evidence of its contents, including all of the terms, conditions, limitations and exclusions of said policy, is pled as if copied herein in extenso.”

On January 29, 2009, the trial judge issued an order following a telephone status conference in which both counsel participated. Among other things, he ordered the parties to submit a joint pretrial order in the form attached to the judge’s order. On March 18, 2009, counsel for Mr. Perkins and counsel for USAA filed the required pretrial order in the record with both counsel signing the order. Section II identified the parties as follows (emphasis added):

Harry Perkins, was the front seat passenger in a 2007 Ford F350 being driven by Mike Carter.
USAA is a reciprocal inter-insurance exchange authorized to do and doing business in this state and parish. USAA insured Mr. Howard Woo.
Mr. Woo is a domiciliary of Jefferson parish. Harry Perkins has filed a captioned suit against USAA.

Section III(B), CASE STATEMENT, Contested Issues of Fact and Law provides the following:

The fault, if any, of the plaintiff;
The fault, if any, of the defendant, Howard Woo;
The fault, if any, of Mike Carter and Fleming Construction Company;
The extent of injury, if any, of plaintiff.
The amount of damages, if any, of the plaintiff.

Section IV(A), STIPULATIONS, WITNESSES, AND EXHIBIT LISTS provide the stipulations of counsel as follows:

This matter does not exceed $50,000. Plaintiff is not asserting a lost wage claim.
Plaintiff is not asserting a claim for loss of earning capacity.
Plaintiff is not asserting a claim for future medical care.

Section IV(C) provides: “Exhibits admitted without objection as to admissibility and authenticity, although objections to relevance are deferred to trial[.]” One of the exhibits listed by the plaintiff is “AUTOMOBILE POLICY OF INSURANCE FROM UNITED SERVICES AUTOMOBILE ASSOCIATION | inFOR INSURED VEHICLE BEING DRIVEN BY DEFENDANT, HOWARD WOO.” The defendant’s exhibit list did not include the insurance policy. Both parties reserved the right to amend the pretrial order to include any additional documentary evidence upon proper notice to the court and opposing counsel.

Although both counsel signed the statement that USAA insured Mr. Woo, the statement did not express that on the day of the accident at issue, USAA insured Mr. Woo. And the stipulations did not include the stipulation that USAA provided insurance coverage for this accident. However, the stipulations did not list as a contested issue whether or not there was insurance coverage.

One of the principal purposes of pretrial proceedings is to narrow the issues of the litigation to those which are contested and to dispense with proof on the issues which are not contested. Navarro v. Bommarito, 367 So.2d 74, 76 (La.App. 4 Cir.1979), writ denied, 369 So.2d 458 (La.1979) citing La. C.C.P. art. 1551. In Navarro, the defendant argued that the plaintiff failed to produce evidence of vicarious liability. The court found that in their pretrial pleadings the defendants, by expressly stating the only contested issues, implicitly notified the plaintiff that vicarious liability was no longer a contested issue. Id. The plaintiff relied on the pretrial order and omitted evidence of vicarious liability. The court held that since the issue of vicarious liability was excluded from the contested issues listed in the pretrial order which controlled the course of the proceeding, and since there was no suggestion prior to or during trial that the pretrial order should be modified in the interest of justice, the court declined to consider the issue raised now on appeal by new counsel. Id.

In this case, USAA did not raise the issue of insurance coverage in the pretrial order. Also, there was no hint anywhere in USAA’s pretrial order submission that USAA denied issuing a policy of insurance to Dr. Woo that [¶ provided liability coverage for the accident at issue. In Malloy v. Vanwinkle, 94-2060, pp. 2-4 (La.App. 4 Cir. 9/28/95), 662 So.2d 96, 99, the Fourth Circuit concluded that under similar circumstances, although the insurance policy was not introduced into evidence, the parties were entitled to rely on the pretrial order wherein the insurer did not contest insurance coverage. In Mal-loy, the insurer argued that the plaintiff did not prove it provided his parents (and him) UM coverage because the insurance policy was not introduced into evidence. In that case, the plaintiff lived with his parents and the record contained an insurance policy renewal notice to the plaintiffs parents, which meant that it did appear the parents were insured by the defendant insurer. The court reasoned that the insurer “would have records of whether it had issued a policy with UM coverage to [the plaintiffs] parents and should have raised the issue in the pretrial order if it had grounds to do so.” 94-2060 at 3, 662 So.2d at 99. Furthermore, the court expressed: “To allow [the insurer] to raise an issue as to UM coverage on appeal, when it was not raised in the pretrial order, would be unfair to [the plaintiff].” Id.

USAA argues that Malloy is distinguishable because the record contained a policy renewal notice and testimony regarding the plaintiffs residency. Thus, USAA asserts that the Malloy court did not solely rely on the pretrial order, which failed to state that insurance coverage was an issue.

In Malloy, there was an indication in the record that it appeared that there was insurance based on the declaration page. This case is similar because USAA signed a joint pretrial order that contained the stipulation it provided insurance coverage for Dr. Woo. Thus, as in Malloy, it appears that there was an insurance policy and the joint pretrial order properly reflected the fact that insurance coverage was not a contested issue in this trial. Therefore, there was sufficient | ^evidence in the record at the time USAA moved for involuntary dismissal to support a denial of that motion.

Decree

For the reasons set forth above, the judgment is affirmed.

AFFIRMED

      . This was a nonjury trial. Although styled as a motion for directed verdict, the motion was more properly a motion for involuntary dismissal pursuant to La. C.C.P. art. 1672(B). A motion for a directed verdict applies to a civil jury trial. La. C.C.P. art. 1810.

      . The article pertinently provides:
      The pleadings allowed in civil actions, whether in a principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers.

      . The statute was formerly designated as R.S. 22:655 but renumbered by 2008 La. Acts, no. 415, § 1, effective Jan. 1, 2009.

      . This section refers to the parties in a survival action provided by La. C.C. art. 2315.1

      . La. C.C.P. art. 1201(B) provides that a defendant "may expressly waive citation and service thereof by any written waiver made part of the record.”

      . We also note that Dr. Woo later testified on behalf of the defense. He testified that after the accident occurred he placed a telephone call to his insurance company-USAA.


author: SUSAN M. CHEHARDY, Judge.

text:
    Susan Eby NELSON v. Robert Allan NELSON.
    No. 09-CA-479.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.
    Susan Eby Nelson Brown, New Orleans, LA, Plaintiff/Appellee, In Proper Person.
    Mitchell J. Hoffman, Mark S. Stein, John J. Steger, IV, Melanie Lockett, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., Attorneys at Law, New Orleans, LA, for Defendant/Appellant, Robert Allan Nelson.
    Panel composed of Judges EDWARD A. DUFRESNE, JR, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

| ¡.The issue on this appeal is interpretation of the language of a trust document regarding disbursement of the trust funds. We affirm the district court’s ruling that held the trust funds should be last in a hierarchy of payment sources for the needs of the child involved.

The suit arises in post-divorce child support proceedings between Susan Eby Nelson (now Susan Eby Brown, but referred to herein as “Ms. Nelson”) and Robert Allan Nelson (“Mr. Nelson”). The parties were married in December 1990 and two children were born of their marriage, both of them daughters, Regan and Sydney. Sydney Nelson was born with cerebral palsy as a result of medical malpractice. Sometime prior to August 4, 2000, the parties entered into a settlement agreement and judgment with the Louisiana Patient’s Compensation Fund (“PCF”), settling all their malpractice claims.

As part of the settlement the Nelsons received $400,000.00. On August 4, 2000, the Nelsons created the Sydney L. Nelson Special Needs Trust (hereafter “the Special Needs Trust”), funded with the settlement proceeds, with Ms. Nelson and Mr. Nelson as co-trustees. The Special Needs Trust was established in | -¡accordance with federal law to distribute money for Sydney’s special needs, while maintaining her eligibility for certain governmental benefits.

The parties were divorced on March 11, 2003. On February 26, 2004, the parties signed a Consent Judgment Relating to Support, which was amended by the parties on October 6, 2004. All references to “Consent Judgment” hereafter pertain to the Amended Consent Judgment Relating to Support, dated October 6, 2004.

On February 23, 2007, Ms. Nelson filed a Rule to Show Cause against Mr. Nelson, seeking to compel him to reimburse certain unpaid school and medical expenses incurred on Sydney’s behalf. These included, among other things, purchase of an electric wheelchair, a wheelchair van, wheelchair van and lift maintenance, and medical equipment.

According to Ms. Nelson, Mr. Nelson paid all of Sydney’s medical expenses not covered by the PCF or private insurance until April 2006, when he abruptly stopped paying. Ms. Nelson thereupon filed the rules to show cause.

At a conference on January 29, 2009, the domestic hearing officer recommended that a hierarchy of medical payments be established, in the following order: First, the PCF; second, private insurance; third, the Special Needs Trust; last, Mr. Nelson.

Ms. Nelson objected to the hearing officer’s recommendations, asserting that the Consent Judgment made Mr. Nelson the primary obligor for all unreimbursed medical expenses. She argued that the Consent Judgment’s provision for the Special Needs Trust’s earnings up to $20,000 per year to be paid to Ms. Nelson was not for Sydney’s general special needs, but as a salary to Ms. Nelson for her services as Sydney’s caregiver. Ms. Nelson pointed out that the transcript of the proceeding at which the Consent Judgment was confect-ed shows that Mr. Nelson’s |4counsel stated that the Trust proceeds were to be paid to Ms. Nelson “for Ms. Nelson’s benefit.”

On February 12, 2009, the district court heard Ms. Nelson’s objections to the recommendations of the domestic hearing officer’s ruling of January 29, 2009. The court set aside the hierarchy of payments recommended by the hearing officer, and ruled that Sydney’s medical expenses shall be paid according to the following hierarchy: first, the PCF, if applicable; second, private insurance; third, Mr. Nelson; last, the Special Needs Trust. Mr. Nelson appeals.

On appeal Mr. Nelson asserts the trial court erred in holding that Sydney Nelson’s medical expenses should be paid according to a hierarchy that requires Mr. Nelson to exhaust his private funds before utilizing the Special Needs Trust.

Mr. Nelson argues the express language of the Consent Judgment and the Act Creating Irrevocable Trust runs contrary to the hierarchy articulated in the March 11, 2009 judgment. He asserts the Consent Judgment provides a hierarchy for Sydney’s medical payments that does not obligate Mr. Nelson to exhaust his private funds prior to utilizing the Special Needs Trust for its intended purpose; that the hierarchy in the Consent Judgment is in harmony with Section 3.1 of the Special Needs Trust; and that the hierarchy within the Consent Judgment is consistent with the purpose of the Special Needs Trust and does not create any undue burden on the Special Needs Trust.

The trust document sets out its purpose as follows:

Purpose: This trust is established pursuant to 42 U.S.C. § 1396 p(d)(4)(A) for the beneficiary, a disabled person as defined under the Social Security Act. The purpose of this trust is to maximize the resources available for the beneficiary by providing for those supplemental needs of the beneficiary without jyeopardizing the beneficiary’s eligibility or continued qualification under such existing and future programs.

Section 3.1 of the Special Needs Trust document delineates the types of distributions that were proper under the trust document:

The following enumerates the kinds of supplemental, non-support disbursements that are appropriate for the Trustees to make from this trust or for the benefit of the beneficiary, but such examples are not exclusive: medical, dental, and diagnostic work and treatment for which there are not private or public funds otherwise available; medical procedures that are desirable in the Trustee’s discretion even though they may not be necessary for life saving; supplemental nursing care and rehabilitation services; differentials in cost between housing and shelter for shared private rooms in institutional settings; appropriate care for the beneficiary that assistance programs may not or do not provide; expenditures for travel, companionship and cultural experiences, including but not limited to specially designed cars or vans to accommodate the beneficiary’s disabilities, and computers and assistive technologies. [Emphasis added.]

The Consent Judgment provides in pertinent part as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Susan Nelson will be entitled to receive and use the net income from the Special Needs Trust held for the benefit of Sydney Nelson accruing after January 1, 2004 in an amount up to Twenty Thousand Dollars ($20,000) annually. For purposes of this use, “net income” is defined as all income less expenses, as calculated monthly. The parties are co-trustees of that account and are joint signatories on all checks and distributions from the account. On the fifteenth day of each month, $1,666.67 will be transferred from that account to Susan Nelson’s account at Am South Bank. If at any point either party determines that the net income from the Special Needs Trust will be less than $20,000 in the calendar year, the monthly distribution to Susan Nelson will be adjusted so that the total year-to-date payments do not exceed net income.

The Consent Judgment also provides that Mr. Nelson will pay certain direct expenses of the children, as listed in the judgment, specifically including “3) The children’s health insurance and all uncovered medical expenses.”

IrAt the hearing on the objections to the hearing officer’s recommendations, Ms. Nelson called an expert witness to interpret the language of the Special Needs Trust. Carole C. Neff, a board-certified specialist in estate planning and administration with the law firm of Sessions, Fish-man, Nathan & Israel, L.L.P., testified that it is impermissible to use the Special Needs Trust to offset Mr. Nelson’s obligation to pay all of Sydney’s uncovered medical expenses:

[A] Special Needs Trust ... is intended to supplement what would be available to this disabled person from other sources.... [T]he document just reiterates the fact that distributions are not [to] be made if they are available from other sources. And it makes reference to private fund[s] otherwise available. And I think ... the hearing officer’s hierarchy ... seems to require distributions to be made by the Special Needs Trust before private sources that are available are actually utilized. So I would say that would be in violation of the terms of the Special Needs Trust.

Ms. Neff further testified that the hierarchy proposed by the hearing officer could disqualify the Trust as a Special Needs Trust, because it “could exhaust the trust so that there is nothing available for the beneficiary.”

In her ruling the trial judge revised the hierarchy to place the Special Needs Trust last because “putting the trust ahead of other private sources is not in compliance with the terms of the Special Needs Trust.”

Reviewing the language of the trust document and the language of the Consent Judgment, we find no error in the trial court’s determination. We find the parties contemplated that the Special Needs Trust would be used to cover expenses not covered by any other entity available. Despite Mr. Nelson’s reference to “express language” in the Consent Judgment that contradicts the hierarchy set out by the district court, we do not find the language expressly sets the Special Needs Trust ahead of Mr. Nelson as obligor for medical expenses. Rather, the Consent Judgment states Mr. Nelson is responsible for “all uncovered medical expenses.”

17Accordingly, the judgment is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.

      . In re: Administration of Estate of Sydney Laws Nelson, a Minor, No. 559-423 on the docket of the 24th Judicial District Court, Parish of Jefferson.

      . According to her brief, Ms. Nelson has ceased accepting payments from the trust income to avoid any possibility of the trust being disqualified as a Special Needs Trust under federal law.


text:
    STATE of Louisiana v. John Mark HEARN.
    No. 09-KA-434.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Thomas F. Daley, District Attorney, Rodney A. Brignac, Assistant District Attorney, Parish of St. John the Baptist, Edgard, Louisiana, for Plaintiff/Appellee.
    John W. Reed, Glass & Reed, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and MARC E. JOHNSON.
   CLARENCE E. McMANUS, Judge.

|2Pefendant, John Mark Hearn, was charged by bill of information with twelve counts of pornography involving juveniles in violation of LSA-R.S. 14:81.1(A)(3). He pled guilty as charged to counts one and two, and the State nolle prossed counts three through twelve. Defendant was sentenced to 100 months imprisonment with the Department of Corrections on each count, concurrent, at hard labor and without benefit of parole or suspension of sentence. After the denial of his motion for reconsideration of sentence, he was granted an out-of-time appeal.

Since there was no trial in this matter, the pertinent facts relating to the charged offenses must be gleaned from the bill of information, which alleged that in St. John the Baptist Parish, on August 4, 2005, defendant was in possession of pornography involving juveniles.

In his sole assignment of error, defendant alleges that his sentence is excessive. Defendant pled guilty to two counts of pornography involving juveniles. LSA-R.S. 14:81.1(E) provides that “Whoever commits the crime of pornography involving juveniles shall be fined not more than ten thousand dollars and be imprisoned at hard labor for not less than two years or more than ten years, without benefit of parole, probation, or suspension of sentence.” Defendant | ^received two 100-month sentences (eight years and four months) with the Department of Corrections, to be served concurrently.

In this appeal, defendant argues that his near maximum sentence of eight years and four months (100 months) is constitutionally excessive because he was a 51-year old first offender with an exemplary record who accepted responsibility and embarked on treatment. Defendant notes that the offense was possession, and that there was no allegation that he sold or distributed any pornography or was involved in the production or reproduction of child pornography. He adds that there were no allegations that he acted inappropriately towards any child or person. Defendant contends that the punishment is inappropriate in light of his background, including his community involvement, education, work, and military background. Defendant disagrees with the judge’s reasons for the sentences imposed, and argues that other child pornography cases offer no support to the sentences imposed upon defendant.

The State responds that in light of the extensiveness of defendant’s collection of child pornography, the substantial benefit defendant received from his plea bargain, the fact that the sentence was within the statutory range, and because the trial court took into consideration the Pre-Sen-tence Investigation (PSI), the sentencing guidelines, and all mitigating factors, defendant’s sentence is not excessive. The State points out that defendant substantially benefited from the plea in that ten of the twelve counts were nolle prossed, eliminating potentially 100 14years of imprisonment. The State further argues that the sentence was carefully considered and should not be disturbed.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Pearson, 07-832, p. 15 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 655. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id.

In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice. Pearson, 07-332 at 15, 975 So.2d at 655-56. A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. State v. Dorsey, 07-67, p. 5 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Pearson, 07-332 at 15-16, 975 So.2d at 656.

Article 894.1(C) requires the trial judge to state for the record the considerations taken into account and the factual basis when imposing the sentence. However, when there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in LSA-C.Cr.P. art. 894.1 does not require a remand for resentencing. State v. Sanders, 98-855, p. 5 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La.1/7/00), 752 So.2d 175. Further, there is no requirement that specific matters be given any particular weight at sentencing. State v. Bolden, 04-1000, p. 5 (La.App. 5 Cir. 3/1/05), 901 So.2d 445, 448-49, writ denied, 05-2030 (La.4/28/06), 927 So.2d 279.

The trial judge referenced LSA-C.Cr.P. art. 894.1, which sets forth factors the judge should consider in imposing a sentence of imprisonment, and specifically stated that he believed defendant’s sentence was required because of an undue risk that defendant would commit another crime, because of the need of correctional treatment or a custodial environment, and because he believed a lesser sentence would deprecate the seriousness of the crime.

In sentencing defendant, the trial judge gave the following reasons:

Okay. One of the most difficult points of this job is to come to sentencing of matters that are particularly sensitive in this community. That’s why I called for a presentence investigation in this matter. I would have called for it regardless. And it obviously sheds a great deal of light on the aspects of Mr. Hearn’s life. Even though, Mr. Becnel, I’ll take it to heart, there was not a whole lot of reference to the appendage in the actual report. I took the time to read every document. I take away from that, a study in contrast. Most of this is describing a family and a man that are just total opposites of what he is accused of committing today. I’ll make a brief note. A lot of it is addressed to his father Bishop Hearn. And just as an aside there. Bishop Hearn and Mrs. Hearn, the elder, is, they are held in incredibly high regard in a great segment of society that is expressed here. It’s something certainly commendable. Beyond commendable. I mean, it’s stunning, is the word that comes to mind. It cuts the other way that unfortunately however stunning it might be, it’s just not transferable. The other documents in support of the defendant are not as stunning. But they provide insight to a relatively exemplar life. Again, I just cannot get the juxtaposition of the crime accused and the man described. I’m trying to get my head around it. And it is just very difficult to come to grips with. And the P.S.I. makes reference to a law in what I need to take into account when I sentence an individual. And in the sentencing guidelines, the law tells me, under 894.1, that I should sentence in a certain manner and that would be here in the sentence of imprisonment if I find that there is an undue risk that under a suspended sentence or probation that the defendant would commit another crime. I’m not satisfied that this risk has been alleviated. He has needed, I believe that he does need some correctional treatment for custodial environment which would be effectively his commitment in an institution. In a lesser sentence, inother-words, [sic] a sentence other than what I’m going to announce in a few moments, which certainly deprecates the seriousness of the crime. Mrs. Graug-nard’s comments are also taken well in that it’s | ¿very concerning the magnitude of the crime here. The matter was pled down to two counts and I was privy to a great deal of this information very early on in the case, and just of late, received the extensive nature of the crime. That is a paramount concern, a troubling concern that comes to mind. I’m not going to hold you in suspense anymore. My decision is one hundred months with the Department of Corrections. There can be no benefit of suspension, parole or diminution of sentence. The Department of Corrections regulations may afford him better treatment. Inother-words, [sic] something less than that amount.

The defendant in this case was a first felony offender and was in his early 50’s. According to the PSI, defendant had no juvenile record, and had not been arrested prior to the instant offenses. Prior to sentencing, defense counsel made a statement to the court in which he noted defendant had served in the U.S. Naval Academy from 1980 to 1986 as a Nuclear Submarine Technician and had received an honorable discharge. Counsel further told the court that defendant had been employed as an operator at a nuclear plant in St. Charles Parish and that defendant performed his job without any negative commendations until his arrest. Further, the PSI, which the judge read, included defendant’s employment history as well as his military background. As such, the judge was aware of defendant’s military background as well as his employment history at the time of sentencing.

Other cases given for pornography involving juvenile offenses fail to show abuse of the trial court’s discretion. See State v. Horton, 42,199 (La.App. 2 Cir. 6/20/07), 962 So.2d 459, writ denied, 07-1819 (La.1/25/08), 973 So.2d 755 (sentence of seven years for pornography involving juveniles was not constitutionally excessive; court considered involvement with pornography over a long period of time and a misdemeanor conviction, which occurred 16 years prior, involving actions with a child that could have resulted in felony charges against the defendant); State v. Kujawa, 05-470 (La.App. 1 Cir. 2/22/06), 929 So.2d 99, writ denied, 06-0669 (La.10/6/06), 938 So.2d 65 (the defendant was a priest who was |7convicted of 15 counts of possessing child pornography. He was originally sentenced to 4 years, consecutive, on each count. The trial court suspended the sentences and ordered probation. The sentence was vacated as illegal, and defendant was resen-tenced to 10 years on each count, concurrent. During the period between the first and the second sentencing, defendant pled guilty in federal court to possession of child pornography. The concurrent 10 years sentences were found not excessive); State v. Stapleton, 40,772 (La.App. 2 Cir. 3/8/06), 924 So.2d 453, (defendant was sentenced to five years for one count of possession of child pornography, after seizure of computer discs containing 102 images of child pornography and 69 images of child erotica. The issue of excessive sentence was not raised on appeal).

The trial court is afforded wide discretion in determining sentences, and a court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. Pearson, 07-332 at 15, 975 So.2d at 656. See also LSA-C.Cr.P. art. 881.4(D) (appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed). The review of sentences under La. Const, art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is most appropriate in a given case. State v. Williams, 07-1111, p. 1 (La.12/7/07), 969 So.2d 1251, 1252 (per curiam). Further, when an appellate court is reviewing a sentence, the relevant question is not whether another sentence might have been more appropriate, but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462 (per curiam).

As previously mentioned, defendant faced a maximum sentence of ten years imprisonment on each count, and received a sentence of eight years and four | ^months on each count, to run concurrently. As such, defendant’s sentence was within the statutory range. Defendant’s sentence was less than the sentence recommended in the PSI. Further, the State nolle prossed ten of the twelve counts of pornography involving juveniles after defendant pled guilty to two of the counts as charged, eliminating sentencing exposure. According to the PSI, the evidence collected in this case included an overwhelming number of images and movies; a total of 7637 images and 642 movies were collected. We note that a defendant who intentionally possesses child pornography can be charged on a separate count, and sentenced separately for each count upon which the defendant is convicted, for each child in each sexual performance captured within photographs, films, videotapes, and/or other visual reproductions that comprise the defendant’s collection of child pornography. State v. Fussell, 06-2595, p. 25 (La.1/16/08), 974 So.2d 1223, 1238.

We further note that although defendant appears to argue his crime was one of mere possession, indicating that his offenses are less egregious and warrant lesser sentences than the other offenses provided in the statute, the legislature has made no such distinction. As stated by the Louisiana Supreme Court in Fussell, 06-2595 at 19-20, 974 So.2d at 1235,

Through its enactment of La. R.S. 14:81.1, the legislature intended to prevent any child from ever being victimized by punishing equally any of four types of offenders for each action that contributes to that child’s sexual exploitation, including a defendant who intentionally possesses child pornography. Simply stated, preventing any child from being sexually victimized is the end to be achieved, and punishing both producers and consumers of child pornography equally is the legislature’s chosen means by which to achieve this end.

Based on the foregoing, we find that the trial judge did not abuse its discretion in sentencing defendant to eight years and four months imprisonment. [3The trial judge stated for the record the considerations taken into account and the factual basis when imposing the sentences, complying with LSA-C.Cr.P. art. 894.1. The judge was made aware of mitigating factors and considered them prior to imposing defendant’s sentence, even though he might not have mentioned each factor considered. Finally, the record, including the PSI, supports the punishment, and the sentences do not appear grossly disproportionate to the seriousness of the offenses and are not a purposeless and needless infliction of pain and suffering.

We find defendant’s allegation of error to be without merit.

We have reviewed the record for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and address the following errors.

The trial court failed to impose the mandatory fine. Defendant should have received a fine of “not more than ten thousand dollars.” LSA-R.S. 14:81.1(E). While this Court has held that such a statute, providing for a fine for “not more than” a specified amount, does require a mandatory fine, the matter is not free from doubt. State v. Kerlec, 06-838, p. 8 (La.App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ denied, 07-1119 (La.12/7/07), 969 So.2d 626. The State did not object at the time of sentencing, and does not address this issue in brief to this Court.

The Louisiana Supreme Court has held that an appellate court has the authority to correct an illegally lenient sentence that fails to impose a mandatory fine. State v. Decrevel 03-0259 (La.5/16/03), 847 So.2d 1197 (per curiam). However, this Court is not required to take such action and has, in certain circumstances, refrained from amending the defendant’s sentence to impose a fine. State v. Kerlec, supra; State v. Turner, 08-1188, p. 7 (La.App. 5 Cir. 5/12/09), 13 So.3d 695. We decline to amend the defendant’s sentence in this matter.

ImFurther, defendant’s sentence was imposed without the benefit of parole or suspension of sentence. However, LSA-R.S. 14:81.1(E) also provides for a restriction of probation. It appears this error does not require corrective action because under State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799 and LSA-R.S. 15:301.1(A), the “without benefits” provision is self-activating.

Finally we note that, after reviewing the waiver of rights form and the transcript of defendant’s guilty pleas, there appears to be a discrepancy in the December 10, 2007 minute entry. The minute entry reflects that the guilty pleas were made under LSA-C.Cr.P. art. 893. However, the waiver of rights form and the transcript do not reflect the pleas were made under LSA-C.Cr.P. art. 893. Since there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter to order the trial court to correct the minute entry.

For the above discussed reasons, the defendant’s conviction pursuant to his guilty plea, and his sentence, are affirmed. The matter is remanded for correction of the minute entry to delete the reference to C.C.P. art. 893.

AFFIRMED AND REMANDED.

      . LSA-C.Cr.P. art. 881.2(A)(2) provides that “ff]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” This provision applies both to plea agreements involving specific sentences and sentencing caps. State v. Young, 96-0195, p. 5 (La. 10/15/96), 680 So.2d 1171, 1174; State v. Jackson, 07-975, p. 7 (La.App. 5 Cir. 4/15/08), 985 So.2d 246, 250-51. In the present case, although defendant pled guilty to two counts of pornography involving juveniles, the record does not reflect that defendant agreed to a specific term or a cap regarding his sentences. Instead, he was made aware of the sentencing range for the offense when he pled guilty and was not sentenced until after the PSI was completed and reviewed by the court. Since no specific sentence was agreed upon in the plea agreement and no sentencing cap was set, it appears defendant is not precluded from seeking review of his sentence under LSA-C.Cr.P. art. 881.2(A)(2). See State v. Allen, 03-1205, p. 3 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 878.


text:
    RAUCH-MILLIKEN INTERNATIONAL, INC. v. Jay Bernard HALPRIN, Andersen Group Worldwide LLC.
    No. 09-CA-723.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 29, 2009.

      Wayne M. Babovich, Attorney at Law, New Orleans, LA, for Appellant, Rauch-Milliken International, Inc.
    Joelle F. Evans, Kyle Schonekas, Attorneys at Law, New Orleans, LA, for Appel-lees, Jay Bernard Halprin, The Anderson Group Worldwide, L.L.C., and Tammy P. Osborne.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2In this appeal, Rauch-Milliken International, Inc. (“Rauch-Milliken”) seeks review of the costs awarded to the prevailing parties, Jay Bernard Halprin, Tammy Osborne, and the Anderson Group (“Anderson Group”). For the following reasons, we affirm.

On October 20, 2008, trial of the underlying matter commenced. On December 15, 2008, Judge Zeno entered judgment in favor of the Anderson Group, dismissing Rauch-Milliken’s lawsuit at its cost. Reasons for Judgment were not supplied.

On December 29, 2008, the Anderson Group filed a Motion to Tax Costs. Shortly after the motion, the original trial judge retired from the bench.

On March 16, 2009, the newly-elected judge heard the Motion to Tax Costs. At the costs hearing, the Anderson Group introduced testimony from trial counsel, Joelle F. Evans, and expert witnesses, John McMahon, and J. Stuart Wood. Ms. IsEvans testified to the veracity and authenticity of the documents submitted reflecting defendants’ costs for depositions, copying, and court filings. Mr. McMahon, who is an accounting expert appointed by the trial court, testified about his work on the case and subsequent fees. Mr. Wood, an economist retained by the Anderson Group, also testified as to his work and fees. Thereafter, the trial judge awarded costs of $60,144.40 to the Anderson Group.

Subsequently, Rauch-Milliken filed a Petition for Appeal of the April 14, 2009 Judgment and a Motion for New Trial and Nullity of Judgment. The trial court immediately granted the appeal. Rauch-Mil-liken’s Motion for New Trial and Nullity of Judgment was set for hearing and continued at Rauch-Milliken’s request to August 31, 2009. Anderson Group opposed the Motion for New Trial, which the trial court denied after a hearing.

On appeal, Rauch-Milliken seeks reduction of the trial court’s award to the Anderson Group for costs. In five assignments of error, Rauch-Milliken challenges the award of expert witness fees, court filing fees, document copying costs and deposition costs.

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

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 trial judge has great discretion in awarding costs, and his assessment of costs can be reversed by the appellate court only upon a showing of an abuse of discretion. Westley v. Allstate Ins. Co., 05-100 (La.App. 5 Cir. 5/31/05), 905 So.2d 1127; Treen Const. Co., Inc. v. Schott, 03-1232 (La.App. 5 Cir. 1/27/04), 866 So.2d 950, 957-958; Cajun Electric Power Coop, v. Owens-Coming Fiberglass Corp., 580 So.2d 465 (La.App. 5 Cir.1991).

In this matter, the underlying judgment is in favor of the Anderson Group, “dismissing Plaintiffs petition at their costs.” For clarity, we will address each category of costs challenged by Rauch-Milliken, rather than addressing its assignments of error in the order listed in its brief.

Expert Witness Fees

La. R.S. 13:4533 reads, “The cost of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” Furthermore, La. R.S. 13:3666, which codifies procedures for taxing expert witness fees, reads in pertinent part:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

| ,-,The amount fixed for expert fees is a matter within the discretion of the trial court and should not be disturbed on appeal, absent a showing of manifest abuse of that discretion. Ellis v. Allstate Ins. Co., 453 So.2d 1209 (La.App. 5 Cir.1984).

In its first assignment of error, Rauch-Milliken argues that trial judge erred in awarding expert witness fees that were unrelated to the expert’s testimony and fees charged by experts for consulting with the Anderson Group’s attorneys. In their fourth assignment of error, Rauch-Milliken argues that the trial judge erred in awarding expert witness fees despite the Anderson Group’s failure to prove the testimony’s probative value.

Rauch-Milliken argues that expert testimony that has no probative value or is irrelevant is not taxable. Moreover, it argues that only work performed by the expert gathering information necessary for testimony may be taxed. According to Rauch-Milliken, Mr. McMahon and Dr. Wood acknowledged that they had no idea of the probative value the original trial judge gave to their experts’ testimony. Rauch-Milliken, relying on Allstate Enterprises, Inc. v. Brown, 39,467 (La.App. 2 Cir. 6/29/05), 907 So.2d 904 contends, that, ‘Without such determination, the granting of any of these items is impermissible pursuant to both the applicable statutes and the jurisprudence.”

First, we note that the appellant, Rauch-Milliken, designated the record for this appeal and chose not to include the transcript of the trial on the merits. The record as designated on appeal contains only the transcript of the hearing on the Anderson Group’s Motion to Tax Costs.

| ,At that hearing, John McMahon, an expert accountant who was appointed by the Court, testified regarding his extensive work on this case. He and a second Court-appointed expert categorized 61,000 potential, present, and past national and international clients of Rauch-Milliken and the Anderson Group, to determine whether Halprin and Osborne (now Anderson Group employees) breached the non-compete clauses of their employment agreements with Rauch-Milliken.

To determine if the agreement was breached, the two accountants researched the parties’ “top-secret” lists of national and international clients to determine if they overlapped, and then compiled reports on their findings. Mr. McMahon testified that he worked between 150 and 200 hours on this case over a five-year period at the direction of Rauch-Milliken and the Anderson Group. Although Rauch-Milliken argues that Mr. McMahon’s fees were not properly documented, we found copies of his bills that were introduced into evidence at the costs hearing that adequately substantiate Mr. McMahon’s hours and fees in this case.

Also, at the costs hearing, J. Stuart Wood, the Anderson Group’s expert economist, testified regarding his work on this ease. Dr. Wood, who holds advanced degrees in engineering, economics, and finance, testified that he was hired to review the expert accountants’ reports.

After review their reports, Dr. Wood determined that the accountants’ reports did not take into consideration that the non-compete agreement extended to only four parishes in Louisiana for the years 2001 and 2002. Further, the accountants’ report measured the “dollars placed” for collection, rather than the income allegedly lost by Rauch-Milliken. Furthermore, the accountants’ report set Rauch-Milliken’s damages for lost income without subtracting “the variable cost [i.e., overhead for salaries, office expenses, etc] that would have been incurred in generating the lost revenues.” In the end, Dr. Wood found that only two clients |7from the four parishes subject to the non-compete agreement that overlapped during the two-year non-compete period, which would mean a loss of “at most $370.00” to Rauch-Milliken.

Although Rauch-Milliken argues that Dr. Wood’s testimony was not probative and his fees were not properly documented, we cannot agree. First, the record contains copies of his bills that were introduced into evidence at the costs hearing that adequately substantiate Dr. Wood’s hours and fees in this case. Second, his testimony directly supports the Anderson Group’s defense against Rauch-Milliken’s claim regarding the quantum of damage it sustained as a result of contract breaches by Halprin and Osborne.

More to the point, the assessment of expert fees is based upon the unique findings and observations of the trier of fact. Smith v. Kansas City Southern R.R. Co., 02-1505 (La.App. 3 Cir. 5/28/03), 846 So.2d 980. The trial judge is afforded “great discretion .... in the taxing of expert fees.” Mitter v. Tourro Infirmary, 03-1608 (La.App. 4 Cir. 4/21/04), 874 So.2d 265, 272. While we agree that the amount of expert fees awarded in this case is substantial, we find that the record before us supports the trial court’s award of expert witness fees to Mr. McMahon and Dr. Wood and, as such, there is no showing that the trial court abused its great discretion. Yuspeh v. Koch, 02-1179 (La.App. 5 Cir. 5/28/03), 848 So.2d 96.

Filing fees

In its second assignment of error, Rauch-Milliken argues that the trial judge erred in awarding filing fees to the Anderson Groups. Rauch-Milliken contends that the Anderson Group sought reimbursement for any filing fees incurred in the eight-year-long litigation, which had not previously been taxed.

In its brief, Rauch-Milliken alleges that, the original trial judge did not grant costs related to the first summary judgment, when the motion was denied. Next, | xRauch-MiIliken alleges that the second trial judge awarded filings fees for the Anderson Group’s supervisory writ, which was eventually denied. Finally, Rauch-Milliken argues that the trial judge awarded costs for “housekeeping matters.”

The Anderson Group correctly points out that, “The law makes no distinction on the purpose of the fee paid with respect to taxing the fee as costs.” See Delaney v. Whitney Natl. Bank, 96-2144(La.App. 4 Cir. 11/12/97), 703 So.2d 709, 721 (all fees paid to the clerk of court are recoverable as “expressly granted by statute;” no “independent verifying proof’ is needed to prove the amount of clerk’s fees to be taxed.)

Furthermore, La. R.S. 13:4533 reads, in pertinent part, “The cost of the clerk, sheriff, ... and all other costs allowed by the court, shall be taxed as costs.” We see no error in the award of filing fees in this matter.

Copying costs

In their third assignment of error, Rauch-Milliken alleges that the trial judge erred in awarding costs for copies. According to Rauch-Milliken, counsel for the Anderson Group admitted, at the cost hearing, that she did not have an itemized list of copies her firm made in preparation for trial or for use at trial and submitted “what was copied that month.”

Our review of the transcript of the costs hearing reveals that Rauch-Milliken is mischaracterizing opposing counsel’s testimony. At the costs hearing, Anderson Group’s trial counsel stated that she submitted costs for copies made at her firm for this file for three months of this litigation, which she had been handling since January of 2006. Counsel stated that she submitted copying costs for February 2007, May 2007, and October 2008 because she knew that her firm reproduced documents including exhibits and bench books specifically used for motions and trial in those months.

IgAgain, La. R.S. 13:4533 reads, in part, that, “The cost of ... copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” The trial judge has great discretion in awarding costs, and his assessment of costs can be reversed by the appellate court only upon a showing of an abuse of discretion. Westley v. Allstate Ins. Co., 05-100 (La.App. 5 Cir. 5/31/05), 905 So.2d 1127. We see no abuse of the trial court’s discretion in awarding these copying costs in this litigation.

Depositions

In its final assignment of error, Rauch-Milliken argues that the trial judge erred in awarding deposition costs to the Anderson Group. However, the Anderson Groups points out that, in the Revised Evidentiary Stipulations dated October 28, 2008, the parties agreed to submit into evidence all deposition transcripts in lieu of live testimony. Furthermore, Anderson Groups notes that those deposition transcripts were filed into the record on October 29, 2008.

Again, La. R.S. 13:4533 reads, in pertinent part, that, “The cost ... of taking depositions ... shall be taxed as costs.” See, Samuel v. Baton Rouge General Medical Center, 99-1148 (La.App. 1 Cir. 10/2/00), 798 So.2d 126.

Conclusion

In conclusion, we find no error in trial court’s award of costs in this matter. The trial court judgment is, therefore, affirmed. All costs of the Motion to Tax Costs, Motion for New Trial, and this appeal are taxed solely against Rauch-Milliken.

AFFIRMED.

      . Rauch-Milliken sued Halprin, Osborne, and the Anderson Group (“Anderson Group”) for breach of employment contract, breach of fiduciary duty, misappropriation of trade secrets, unfair trade practices, and unjust enrichment. On October 20, 2008, trial commenced. Several experts testified and numerous documents and deposition testimony were presented by joint stipulation. After Rauch-Milliken rested its case, the Anderson Group moved for involuntary dismissal. The trial judge took the matter under advisement to review the evidence and the parties' post-trial memoranda. Although the trial judge subsequently denied Anderson Group's motion for involuntary dismissal, he granted judgment on the merits in favor of Anderson Group and dismissal of “Plaintiff's petition at their[sic] costs.”

      . Specifically, Rauch-Milliken asserts: (1) the trial court erred in awarding expert witness costs, including costs for communication with counsel and costs unrelated to testimony; (2) the trial court erred in awarding costs, including costs that had previously been denied, costs for unsuccessful filings by the Anderson Group, and costs for “housekeeping” matters for which costs may not be granted; (3) the trial court erred in awarding copying costs for documents not shown to be used at trial; (4) the trial court erred in awarding expert witness fees for testimony despite the Anderson Group’s failure to prove the testimony’s probative value; and (5) the trial court erred in awarding costs of depositions despite the Anderson Group’s failure to prove the use or probative value of such depositions.

      . Mount Mariah Baptist Church, Inc. v. Pannell’s Associated Elec., Inc., 36,361 (La.App. 2 Cir. 12/20/02), 835 So.2d 880, 892; Smith v. Roussel, 00-1672 (La.App. 1 Cir. 6/22/01), 808 So.2d 726, 730.

      . State, Through Dept. of Highways v. Colby, 321 So.2d 878, 883 (La.App. 1st Cir.1975) (‘‘[expert witness] fees are not recoverable ... unless incurred in the presentation of evidence which aids the court in determining an issue or issues involved in the litigation.”).

      . Wampold v. Fisher, 01-0808 (La.App. 1 Cir. 6/26/02), 837 So.2d 638, 640; State Dept. of Highways v. Whitman, 313 So.2d 918, 925 (La.App. 2d Cir.1975).