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Murillo v. Hernandez10/31/2000
smissal a dismissal with prejudice and in requiring the church and its insurer to bear their own costs. Further, they seek damages for frivolous appeal.
We find merit to the first two arguments; the judgment of dismissal should have been entered with prejudice. Dampeer v. Dampeer, 96-0708 (La. 5/3/96), 672 So.2d 176. Further, it is the general rule that the party cast in judgment is taxed with all costs of a proceeding, although the trial judge may assess the costs of a suit in any equitable manner and his assessment of costs can be reversed only upon a showing of abuse of discretion. Lynch v. Hanover Ins. Co., 611 So.2d 121, 125 (La.App. 5 Cir. 1992); Courtney v. Winn-Dixie Louisiana, Inc., 447 So.2d 504 (La.App. 5 Cir.), writ denied 449 So.2d 1359 (La.1984). "Jurisprudence has established that when a prevailing party is taxed with the costs of litigation, it is usually because the party in some way incurred additional costs pointlessly or engaged in other conduct which justified an assessment of costs against that litigant." Lynch, supra. Our review of the record provides no equitable basis for requiring the prevailing parties here, the church and its insurer, to pay their own costs.
We find no merit, however, to the argument that the appeal was frivolous and will award no damages for such.
For the foregoing reasons, the judgment granting the motion for involuntary dismissal is amended to provide that it is a dismissal with prejudice. The judgment is further amended to provide that the costs of Amor Viviente, Inc. and Church Mutual Insurance Company are assessed against plaintiff, Norma Murillo, individually and as natural tutrix of her minor child, Rodolpho Joshua Murillo. In all other respects the judgment is affirmed. Costs of this appeal are assessed against the appellant.
AMENDED AND AFFIRMED.
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