author: EDWARDS, J. h CHEHARDY, J.,

text:
    Patricia Marshall SCHULER v. Raymond Gerard SCHULER.
    No. 04-CA-91.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 26, 2004.

      Jane E. Booth, New Orleans, Counsel for Plaintiff/Appellant.

      Don C. Gardner, Harahan, Counsel for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   EDWARDS, J.

Plaintiff/Appellant, Patricia Marshall Schuler, appeals the trial court’s ruling in favor of her former husband and defendant, Raymond Gerard Schuler, which assessed a rental reimbursement against Ms. Schuler on the family home, awarded interim spousal support to Mr. Schuler, and suspended child support payments by Mr. Schuler for the Schuler’s minor child until further orders of the court. For the following reasons, we affirm in part, and reverse and remand in part.

FACTS AND PROCEDURAL HISTORY

Plaintiff/Appellant, Patricia Marshall Schuler (Ms. Schuler), and defendant, Raymond Schuler (Mr. Schuler), were married on February 26, 1983, and thereafter established a matrimonial domicile in Jefferson Parish. On July 16, 2003, Ms. Schuler filed a Petition for Divorce, A Rule for Child Custody and Child Support, A Request for Exclusive Use and Possession of the Family Home and Vehicle, A Request for Temporary Restraining Orders, as well as a Petition for Partition of Community Property. By order of the Domestic Hearing | Commissioner, Ms. Schuler’s Rules for Child Custody and Child Support, Temporary Restraining Orders, and Request for Exclusive Use and Possession of the Family Home and Vehicle were set for August 19, 2003. Prior to the hearing date, Mr. Schuler also filed his own Rule for Spousal Support.

On August 19, 2003, Ms. and Mr. Schu-ler received a recommendation of a hearing officer regarding the issue of child support. The hearing officer found, based on a $44,457 earning capacity by Mr. Schu-ler, that Mr. Schuler should pay $405 per month in child support, 38% of any medicals, and 38% of school tuition, including mandatory and registration fees. On September 16, the Honorable Judge Robert Pitre signed an Interim Order submitted by the Domestic Commissioner that mirrored the recommendations of the hearing officer.

On August 19, 2003 a Consent Judgment was entered in which the parties stipulated that Ms. Schuler would have exclusive use and occupancy of the family home, subject to Mr. Schuler’s reservation of rights for reimbursement. The parties agreed as to the exclusive use of family vehicles and to not alienate or encumber any of the community property existing between them. Ms. and Mr. Schuler also agreed to a custody arrangement for their minor child, reserving their respective rights to litigate domiciliary parent and visitation rights issues.

On August 20, 2003, Mr. Schuler filed an Objection To the Ruling Of the Commissioner, requesting a full evidentiary hearing. The hearing on Mr. Schuler’s Objections was held on October 24, 2003 on the issues of Rental Assessment, Spousal Support and Child Support. On November 3, 2003, the trial court issued a judgment that set a rental assessment in favor of Mr. Schuler in the amount of $1151.00 and monthly spousal support from Ms. Schuler to Mr. Schuler in the amount of $200.00 per month until the divorce decree was rendered. The trial court also suspended the payment of child support by Mr. Schuler, based on a finding that his income was “insufficient to justify the continuing payment.”

It is from this judgment that Ms. Schu-ler has timely filed the present appeal.

LAW AND ANALYSIS

On appeal, Ms. Schuler raises four assignments of error: l)The trial court erred in assessing a rental reimbursement on October 24, 2003 as Louisiana Law requires that the rental assessment be determined contemporaneously with an award of use and occupancy of the family home; 2)The trial court erred in setting the rental assessment at $1,150.00 ($629.00 at another place in the Judgment) as defendant failed to present any credible evidence to support or substantiate the rental value set by the court; 3)The trial court erred in awarding Mr. Schuler interim spousal support in the amount of $200 because the court failed to consider his income earning potential, and; 4)The trial court erred in suspending child support for the minor child until further orders of the court.

We first address Ms. Schuler’s assignments of error pertaining to the issue of rental reimbursement. As this Court noted in Gravois v. Gravois:

LSA-9:374(C) states in pertinent part:
C. A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court.
Jurisprudence has interpreted this section to require that such an agreement or court order be made at the time use and occupancy is awarded; rental payments may not be retroactively assessed. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280.

In the present case, there was not a court order in existence at the time that Ms. Schuler was awarded exclusive use and occupancy of the family home. However, on the day that the consent judgment was read into the record, counsel for Mr. Schuler stated before the court:

COUNSEL:
... Ms. Patricia Schuler shall have the exclusive use and occupancy of the family home at 117 Hibiscus Place in River Ridge, that the parties reserve Mr. Schuler’s rental reimbursement value.

Later, in the proceedings on August 19, 2003, the Domestic Commissioner sought a clarification on Mr. Schuler’s reservation of rights regarding rental reimbursement:

THE COURT:
As I understand, then, what you’re doing is when you say reserve his rental claim, under McCarroll, that he’s requested or is requesting a rental reimbursement and that the issue of that is reserved until partition. But is that what you’re saying?
COUNSEL FOR MR. SCHULER:
It is, Your Honor, and I am going to file my rental reimbursement rule tomorrow.
THE COURT:
I understand that, for the purpose of establishing the start date. But today you’re agreeing that she has the provisional use and occupancy of the home.
COUNSEL FOR MR. SCHULER:
Correct, Your Honor.
THE COURT:
And she is agreeing that his right to a rental reimbursement is reserved under McCarroll for the purposes of determining, one, an entitlement, and, number two, the amount of the entitlement, if any. Is that correct?
COUNSEL FOR MS. SCHULER:
Correct.

Ms. Schuler now argues that Mr. Schu-ler was required procedurally to make his own request for use and possession and alternatively, for rental reimbursement, prior to the time that the court awarded use and possession to her. Ms. Schuler further argues that, as indicated in portions of the trial transcript included above, she reserved her right to challenge Mr. Schuler’s entitlement to rental reimbursement. Conversely, citing Gravois, supra, Mr. Schuler asserts that although the parties in this case did not have an award of rent in the consent judgment, they did have an agreement concerning rent, which was executed contemporaneously with the award of use and occupancy in the form of a consent judgment that was read into the record.

After a review of the record, we find that the consent judgment between the parties was a sufficient “agreement” as contemplated by LSA-R.S. 9:374(C), to reserve Mr. Schuler’s right to seek rental reimbursement from Ms. Schuler. As this Court found in Gravois, supra, in this case, though no award of rent was made in the oral August 19, 2003 Consent Judgment, it cannot be said that an order regarding rent does not exist contemporaneous with Ms. Schuler’s award of use and occupancy.

In Ms. Schuler’s next assignment, she argues that the trial court erred in setting the rental assessment at $1,150.00, indicated as $629.00 at another place in the Judgment.

We note that the judgment, on its face, is unclear as to the actual rental amount awarded to Mr. Schuler. However, the record indicates that testimony and evidence was presented at the October 24, 2003 proceedings in support of Mr. Schu-ler’s Rule For Rental Assessment. First, Mr. Schuler testified that he is currently a licensed real estate agent. As a licensed real estate agent, Mr. Schuler stated that he has access to a Multiple Listing Service, whereby he can obtain comparables on homes for sale or rent. Mr. Schuler testified that, based on his research, in his opinion the rental value of a home with similar location, square footage and amenities was between $1,300 and $1700. Schu-ler further stated that both dwellings that he used for comparable rental value were within one mile of the residence occupied by Ms. Schuler. Mr. Schuler indicated that the monthly mortgage note on the property is $629.00 a month.

The trial court indicated that it would not qualify Mr. Schuler as an expert in the valuation of homes. On cross examination, Mr. Schuler admitted that he had never been hired to appraise homes for rental value, and that he had never spoken to a licensed real estate appraiser regarding the rental value of the home.

Ms. Schuler offered no evidence at the hearing as to the possible rental value of the home.

In Otterstatter v. Otterstatter; the Third Circuit reversed an award of rent that was based on what the court considered to be a lack of “competent evidence.” Specifically, the court held it to be an error for the trial court to assess a rental award based on testimony made by a party who did not have any particular experience or expertise in real estate rentals, and whose figure for the rental was “merely a guess.”

Similarly, in this case, we find that the evidence presented to the trial court regarding the rental value of the Schuler’s home to be speculative at best, and therefore insufficient for the purposes of determining an award to Mr. Schuler. Accordingly, we reverse the trial court’s judgment on this issue and remand for a rehearing on the rental value of the home.

Ms. Schuler next argues that the trial court erred in awarding Mr. Schuler interim spousal support in the amount of $200, asserting that the court failed to consider the income earning potential of Mr. Schuler. Likewise, in her final assignment of error, Ms. Schuler claims that the trial court erred in suspending child support for the minor child until further orders of the court. Both of these assignments necessarily relate to the trial court’s finding that Mr. Schuler was not voluntarily under employed.

In addressing Ms. Schuler’s assignment related to interim spousal support, we note that La. C.C. art. Ill provides, in relevant part:

In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on the needs of that party and the ability of the other party to pay...

We first review the record as it pertains to Mr. Schuler’s employment status at the time that the awards in question were made.

Mr. Schuler testified that prior to August 2003 he had been an employee of BellSouth, working in the Coin Telephone Department division and earning an annual salary of $49,430.44. In January of 2003, Mr. Schuler was informed that Bell-South was going to close down his division, and he was presented at that time with an option from BellSouth to either accept a position in Morgan City, Louisiana or to retire early. Mr. Schuler testified that he and Ms. Schuler discussed his options at that time and that Ms. Schuler agreed that he should take the retirement. In consideration of his early retirement, Mr. Schu-ler received a lump sum payment of $233,000.00, and approximately $90,000.00 in a 401K. These assets were frozen by the court at the time of the hearing, and therefore Mr. Schuler could. not utilize that money for any of his living expenses.

Also, prior to their separation, Mr. and Ms. Schuler also discussed the fact that Mr. Schuler would become a real estate agent as an alternate source of income. While the Schulers were still married, Mr. Schuler stated that he too’k several real estate tests, and received training from Latter and Blum, where he later went to work.

In terms of his physical condition, Mr. Schuler testified that in 1994 he had three back surgeries that resulted from “improper lifting” in connection with his job at BellSouth. At the time of trial, Ms. Schu-ler said that he still suffered pain on a daily basis as a result of the surgeries. Mr. Schuler said that the condition of his back was a factor in his retirement'that was discussed with Ms. Schuler. Mr. Schuler said that he was under Doctor’s instructions to self treat his back by maintaining an exercise regimen.

Mr. Schuler stated that upon his retire^ ment, he and Ms. Schuler agreed that they would “reverse” their roles in meeting the family expenses, with Ms. Schuler assuming responsibility for the majority of the family’s bills. Mr. Schuler said that Ms. Schuler did not object to his retirement, and that they had discussed that there would be some “down time” until he got his real estate business started. Ms. Schuler said that approximately one month after his retirement from BellSouth, he and Ms. Schuler separated. Mr. Schuler testified that from May through October, 2003 he earned $5,722.00 as a real estate agent, and had business expenses of $1,785.40 during that same time period. Mr. Schuler testified that he worked approximately 40 to 50 hours a week as a real estate agent.

At the time Mr. and Ms. Schuler separated, Mr. Schuler borrowed $27,000.00 from a line of home equity in order to cover his living expenses, but later returned all but $7,700.00 at the request of Ms. Schuler’s attorney. He testified that he had been living off of that $7,000, as well as his earnings as a real estate agent. Mr. Schuler testified that his monthly rent is $1,000.00 per month, but that his landlord has allowed him to live there some months without requiring payment up front. While Mr. Schuler estimated his monthly net income at $656.10, Mr. Schu-ler’s total monthly expenses amounted to $2,804.00.

Ms. Schuler testified that she, her major son, and her minor son all lived in the former community home. Ms. Schuler stated that she pays expenses, including tuition, for her adult son who is in college, and allows him to live at the residence rent free. Ms. Schuler is employed as an x-ray technician, and made $58,762.65 in 2002. Ms. Schuler estimated that while her gross monthly income is $3,195.60, her total monthly expenses were $3,841.50. She did, however, increase her contribution to her retirement system since she and Mr. Schuler separated, and stated that she was depositing $600.00 a month from her paycheck into a credit union account. Ms. Schuler testified that since Mr. Schuler’s back surgeries, he can do any activities that he did before the surgeries, as long as he works out. She did not recall any conversations with Mr. Schuler about moving to Morgan City to continue working for BellSouth, but did recall that they had discussed his retirement from BellSouth.

In this ease, the trial court determined in its Judgment:

The court determines that Mr. Schu-ler is not voluntarily unemployed, nor voluntarily underemployed. Due to no fault of his own, Mr. Schuler’s position with South Central Bell was phased out and his offer for a change of position was declined. Both Raymond and Patricia Schuler were part of the decision to discontinue work for South Central Bell. Mr. Schuler’s decision to begin working as a real estate agent was made before the couple separated and was not a voluntary underemployment for the purpose of impoverishing himself to obtain spousal support...
Mrs. Schuler stated that she is voluntarily putting $600 a month in a savings account and that $320.00 a month is deducted from her salary for retirement purposes. Because Patricia Schuler has the means to help provide for the living expenses of Raymond Schuler a monthly award of $200.00 shall be paid until the final divorce decree is rendered.

The trial court is vested with much discretion in determining awards of spousal support, and such determinations will not be disturbed absent a clear abuse of discretion. After a review of the record, we find the trial court’s award of $200.00 a month to Mr. Schuler to be reasonably-supported.

In regard to the setting of child support, this Court recently stated in State, Dept. of Soc. Ser., ex rel. S.McC. v. J.A.McC.

La.R.S. 9:315(6)(b) states, “A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.”
“Voluntary underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error.” State v. Battson, 36,336, p. 5 (La.App. 2 Cir. 9/18/02), 828 So.2d 132, 135.
Voluntary underemployment is a question of good faith on the part of the obligor spouse. Havener v. Havener, 29,785, p. 10 (La.App. 2 Cir. 8/20/97), 700 So.2d 533, 539. The trial court, however, has wide discretion in determining the credibility of the witness; whether the obligor spouse is in good faith in ending or reducing his income is a factual determination which will not be disturbed absent an abuse of discretion. Id.

In this case, the trial court stated in its Judgment:

Previously, child support was set using an income level for Mr. Schuler at his previous employment level with South Central Bell. Because this Court has determined that Mr. Schuler is neither voluntarily unemployed or underemployed, child support shall be suspended until further order of the Court. Mr. Schuler’s income level is insufficient to even cover his own basic needs much less that of the minor child. Mr. Schu-ler’s income is completely insufficient to justify the continuing payment until his income level has increased or the community property has been partitioned.

A parent’s child support obligation is a primary continuous obligation. It cannot be renounced or suspended. Neither the parents nor a court decree can permanently set aside the duty of support.

Courts have also found, however, that the obligation to support children “is conjoint upon the parents and each must contribute in proportion to his or her resources.” As Planiol noted, “This obligation is solidary because each parent is bound for the entirety. Thus, if one of them has nothing, or if one of them dies, the other is obligated to support alone all the expenses.”

The trial court’s order of child support is entitled to great weight and will not be disturbed on appeal absent clear abuse of discretion. Accordingly, based upon our review of the record, we find that the trial court did not abuse its discretion in finding that Mr. Schuler was not voluntarily unemployed or underemployed, and that his income was temporarily insufficient to continue child support payments pending further order of the court.

For the foregoing reasons, the portion of the trial court’s judgment related to the rental value of the community home is reversed and remanded. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

CHEHARDY, J., CONCURS IN PART AND DISSENTS IN PART.

h CHEHARDY, J.,

Concurs in Part and Dissents in Part.

I concur with the majority opinion on the issues of rental reimbursement and interim spousal support. I vigorously dissent, however, regarding the suspension of child support.

The trial court decreed that “the order for child support be suspended until further order of the court.” In my view, any ruling that permits suspension of a child support obligation is dangerous. In this case, I find it completely unacceptable that Mr. Schuler’s child support obligation was suspended altogether, even “pending further order” of the district court.

Child support can neither be renounced nor suspended, although the parents may agree to suspend the right to compel collection of this obligation. Dubroc v. Dubroc, 388 So.2d 377 (La.1980). A parent’s child support obligation is a primary, continuous obligation. Fink v. Bryant, 01-0987 (La.11/28/01), 801 So.2d 346, 349. A parent who proves he is unable to provide child support may obtain a reduction or discharge by showing that he has experienced a change in circumstances from the time of the previous award. La.C.C. art. 232. However, the parent is not relieved of his obligation unless he not only is unemployed, but also is unemployable. Singletary v. James, 02-1074 (La.App. 3 Cir. 2/5/03), 838 So.2d 115, 117.

Louisiana law “abhors a gap in the support of one in need” and the substantive right to support, whether it be a spouse’s or a child’s, “clearly begins, fluctuates and ends in accordance with his needs and the debtor’s ability to pay.” Hogan v. Hogan, 549 So.2d 267, 272-273 (La.1989). A court should not grant relief to an obli-gor whose joblessness is the result, either in whole or in part, of his or her own doing. Singletary v. James, 02-1074 (La.App. 3 Cir. 2/5/03), 838 So.2d 115, 117.

There was no agreement between appellant and appellee to suspend payment of child support. Further, the appellee is not in such dire circumstances that he should be relieved of his obligation to support his minor child. In my view the trial court abused its discretion regarding the child support obligation.

Accordingly, I dissent insofar as the majority opinion upheld the trial court’s ruling on child support.

      . The rental assessment is set at $629.00 on another page of the judgment.

      . 03-559 (La.App. 5 Cir. 10/15/03), 860 So.2d 90.

      . 1999-1481 (La.App. 3 Cir. 3/1/00), 758 So.2d 298.

      . McDermott v. McDermott, 32,014 (La.App. 2 Cir. 6/16/99), 741 So.2d 186, 188.

      . 03-108 (La.App. 5 Cir. 5/28/03), 848 So.2d 121.

      . Fink v. Bryant, 01-987, p. 5 (La.11/28/01), 801 So.2d 346, 349.

      . Dubroc v. Dubroc, 388 So.2d 377 (La.1980).

      . Dubroc, supra n. 3.

      . Hogan v. Hogan, 549 So.2d 267 (La.1989).

      . 1 M. Planiol, Civil Law Treatise, pt. 2 § 1683.

      . Campbell v. Campbell, 95-1711, p. 4 (La.App. 1st Cir.10/10/96), 682 So.2d 312, 316.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    Joyce SONNIER v. MEDICAL CENTER OF LOUISIANA IN NEW ORLEANS Through the LSU MEDICAL CENTER HEALTH SERVICE DIVISION.
    No. 2004-CA-0001.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2004.

      Sumpter B. Davis, III, Baton Rouge, LA, for PlaintiffAppellant, Joyce Sonnier.
    Charles C. Foti, Jr., Attorney General, Kathy Lee Torregano, Special Assistant Attorney General, E. John Litchfield, Special Assistant Attorney General, Karen B. Sher, Special Assistant Attorney General, New Orleans, LA, for Defendant/Appellee, Medical Center of Louisiana in New Orleans through the LSU Medical Center Health Service Division.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

In this case, the trial court granted a motion for summary judgment filed by the defendant. The plaintiff is now appealing the trial court’s decision.

STATEMENT OF FACTS AND PROCEDURAL HISTORY.

The plaintiff, Joyce Sonnier, was treated at Charity Hospital in New Orleans for Mdney stones. She underwent a successful emergency medical procedure designed to alleviate her pain and to enable her to pass the kidney stones. As part of the procedure a left ureteral stent was placed inside her body. Approximately two weeks after the procedure was performed, Ms. Sonnier returned to the hospital for an out-patient visit. The following notation was made on her chart at this visit: “PLAN F/U 2 wks ~ KUB.” Ms. Sonnier was to return to the hospital within two weeks for a KUB, which is an x-ray of the urinary tract, but she neglected to do so.

A year after the emergency procedure during which the ureteral stent had been placed inside her body, Ms. Sonnier did return to the hospital complaining of flank pain and urinary tract discomfort. Ms. Sonnier was informed that the ureteral stent had to be removed, and she was also scheduled to have a lithotripsy procedure approximately a week later. Ms. Sonnier did not keep her appointment for the lithotripsy and did not return to the hospital until approximately three months later. When she finally returned to the hospital, the stent was successfully removed.

Because the stent was not removed when it should have been, Ms. Sonnier was required to undergo a more complicated procedure to have the stent removed than would have normally been required. As a result, Ms. Sonnier suffered additional pain and urological complications.

A medical review panel was convened pursuant to the Medical Liability for State Services Act, La. R.S. 40:1299.39.1, to evaluate Ms. Sonnier’s claim that the hospital deviated from the applicable standard of care by failing to advise her that the stent that had been placed inside her body was temporary and would have to be removed. The medical review panel issued their opinion that the defendant had not failed to meet the applicable standard of care in Ms. Sonnier’s case.

The medical review panel gave the following reasons for their decision:

(1) Ms. Sonnier did not return to the hospital for the urinary tract x-ray that she was supposed to have two weeks after her initial follow-up visit;
(2) She did not return for the lithotrip-sy that had been scheduled when she returned to the hospital a year after her original procedure;
(3) When she finally went back to the hospital almost three months after missing her appointment for the li-thotripsy, the appropriate tests were done, and the results were negative; and
(4) When the stent was ultimately removed, there was no urological se-quela .

After the medical review panel issued their opinion, Ms. Sonnier filed the instant suit against the hospital. The hospital subsequently filed a motion for summary judgment, and the trial court judge granted the motion without issuing any written reasons. Ms. Sonnier is now appealing the judgment granting the summary judgment in favor of the hospital.

DISCUSSION

Standard of Review

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-31, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... ” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

See also Shelton v. Standard/700 Associates, 2001-0587 (La.10/16/01), 798 So.2d 60.

Analysis

The crux of Ms. Sonnier’s complaint against the hospital consisted of two components. First, she claimed that she was never given oral or written discharge instructions advising her that the stent was temporary and would have to be removed at a later time. Second, she claimed that the failure of the hospital’s employees to inform her of this was below the appropriate standard of care for hospitals.

As the moving party in the summary judgment proceeding, the hospital had the burden of proof. For its motion for summary judgment to succeed, the hospital had to show that there was .no genuine issue of material fact. Therefore, the hospital had the burden of proving either (1) that Ms. Sonnier was, in fact, given discharge instructions or other information advising her that the stent was temporary and would have to be removed or (2) that the applicable standard of care for hospitals did not require that the temporary nature of the stent be disclosed to her.

In support of its motion for summary judgment, the hospital asserted that Ms. Sonnier had the burden of proving that the hospital deviated from the applicable standard of care by not advising her of the temporary nature of the stent. Because Ms. Sonnier did not produce an expert witness who was familiar with the standards of care in the local community to testify that she should have been told of the temporary nature of the stent when it was placed inside her body, the hospital argued that Ms. Sonnier failed to meet her burden of proof.

The hospital, not Ms. Sonnier, had the burden of proof in the motion for summary judgment, however. We find that the hospital did not meet its burden. The hospital failed to present any evidence that Ms. Sonnier was, in fact, advised that the temporary stent would need to be removed, and Ms. Sonnier presented affidavits that she was not so advised. Therefore, there is a genuine issue of material fact regarding what Ms. Sonnier was told. Because the hospital did not show that Ms. Sonnier received the information about the temporary nature of the stent, the hospital then had the burden of showing that under the applicable standard of care it was not required to advise Ms. Sonnier that the stent was temporary. The hospital failed to meet this burden. Therefore, genuine issues of material fact remain regarding the applicable standard of care.

CONCLUSION

For the foregoing reasons, we find that the judgment of the trial court granting summary judgment was in error. We hereby reverse the trial court judgment and remand this case for a trial on the merits.

REVERSED AND REMANDED.

      . Although the record in this case refers to a "left urethral stent”, we have assumed that the stent was, in fact, a left ureteral stent. While there is a single urethra in the human body, there are two ureters. The urethra is the passage through which urine leaves the body, whereas the ureters are the tubes that connect the kidneys to the bladder. There are two kidneys, one on the right side of the body and one on the left side, and the left ureter connects the left kidney to the bladder.

      . This is a tube-like device that is inserted in the ureter between the kidney and the bladder to relieve urinary tract obstructions. The stent keeps the ureter open and prevents it from narrowing so that obstructions, such as kidney stones, can pass from the kidney to the bladder.

      . The record does not reflect exactly when the ureteral stent should have been removed. We have assumed that it should have been removed prior to Ms. Sonnier's visit to the hospital a year after the original procedure had been performed, because the record indicates that at that time the stent had calcified.

      . Lithotripsy is a procedure whereby shock waves are used to crush kidney stones so that they can be expelled from the body more easily.

      . Sequela is any abnormality following or resulting from a disease, injury, or treatment.

      . Ms. Sonnier did produce an affidavit of a physician from out of state stating that "I believe the standard of care requires that a patient be told that an indwelling ureteral stent is a foreign body and must be removed at some point in the future.”


author: CHARLES R. JONES, Judge.

text:
    Jennifer SMITH, on Behalf of Molly SMITH, Heidi Smith and Robert Smith, and Letitia Nelson on Behalf of Ralensee Nelson v. STATE of Louisiana, DEPARTMENT OF HEALTH & HOSPITALS, Louisiana State Medical Center of New Orleans and Coroner Frank Minyard.
    No. 2003-CA-1845.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 26, 2004.

      Jarvis J. Claiborne, Jarvis J. Claiborne, APLC, Opelousas, LA, Wanda A. Davis, Leefe, Gibbs, Sullivan, Dupre and Aldous, L.L.C., Metairie, LA, for Plaintiffs/Appellants.
    Darryl J. Foster, J. Don Kelly, Jr., Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee, Frank Min-yard, M.D., Coroner of Orleans Parish.
    Charles C. Foti, Jr., Attorney General, M. Chadwick Pellerin, Assistant Attorney General, Department of Justice, Litigation Division, New Orleans, LA, for Defendant/Appellee, Department of Health, LSU Medical Center.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, and Judge TERRI F. LOVE).
   CHARLES R. JONES, Judge.

The Appellants, Jennifer Smith, et. al., appeal the judgment of the district court granting two motions for summary judgment in favor of the Appellees, the State of Louisiana, on behalf of Charity Hospital in New Orleans (hereinafter “Charity”), and Coroner, Frank Minyard. For the reasons assigned, we affirm in part and reverse in part.

Facts and Procedural History

Robert Anderson was involved in a vehicle/pedestrian accident on May 1, 1997. He was transferred to Charity where he underwent nine days of surgeries and later died on May 9, 1997. Mr. Anderson’s body was transferred to the morgue at the Orleans Parish Coroner’s Office, where an autopsy was performed on May 10, 1997. After the autopsy was complete, his body was released and transported to the Owens-Thomas Funeral Home in Ville Platte, Louisiana.

The Appellants, Mr. Anderson’s surviving wife and children alleged that on May 16, 1997, an employee of the funeral home informed them that Mr. Anderson’s eyes had been removed. The Appellants filed suit in Civil District Court for the Parish of Orleans against Charity and the Coroner. Both Charity and the Coroner filed individual Motions for Summary Judgment. The district court [ gheard the motions on June 27, 2003. In oral reasons for judgment stated on the record, the district court found that the Appellants failed to meet their burden of proof and put forth ... “no evidence to suggest that either of these defendants are liable.” The motions for summary judgment were granted on August 8, 2003, dismissing Charity and the Coroner from the instant lawsuit with prejudice.

Appellants filed this timely devolutive appeal on September 2, 2003, arguing that the district court erred in granting the Motions for Summary Judgment. Charity answered the appeal on October 27, 2003, seeking attorney’s fees for Appellants’ filing a frivolous appeal.

Argument

In support of its Motion for Summary Judgment, the Coroner presented the autopsy protocol and the affidavit of Dr. Richard E. Tracy, the pathologist who performed the autopsy on Mr. Anderson. Charity, in support of its Motion for Summary Judgment, submitted the affidavit of Dr. William Newman, the Director of the Charity Hospital Morgue, and Mr. Anderson’s medical records while at Charity.

In connection with the opposition to the Motions for Summary Judgment, Mr. Anderson’s surviving spouse submitted her own affidavit, stating that: 1) Mr. Anderson’s eyes were present before his death, but missing when his body was brought to the funeral home; 2) The Coroner’s office had custody and control over Mr. Anderson’s body after his death; and, 3) “During that period of time, there were numerous complaints which documented that the eyes of several other corpses under the care, custody and control of the Orleans Parish Coroner had been ‘harvested’.”

At the hearing on the motions, the Appellants presented the district court with two additional affidavits prepared by employees of the Owens-Thomas Funeral Home. Although untimely, the district court accepted the documents into evidence. Both affiants stated that they were involved with the preparation of Mr. Anderson’s body and that they personally noticed both of Mr. Anderson’s eyes were missing.

Legal Analysis

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether the summary judgment is appropriate. Potter v. First Federal Savings & Loan Association of Scotlandville, 615 So.2d 318, 325 (La.1993). A summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991).

After the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. LA. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.C.C.P. art. 967.

The medical records, from both Charity and the Coroner, specifically state that Mr. Anderson’s eyes were in tact at the time he was pronounced dead and at the time the autopsy was performed. Additionally, the affidavits submitted by Drs. Newman and Tracy clearly state that neither of them, nor any one affiliated with Charity or the Coroner’s Office, removed Mr. Anderson’s eyes.

However, the record also supports the allegations that Mr. Anderson’s surviving spouse was unaware that Mr. Anderson’s eyes were missing until the funeral home contacted her. Although the district court suggests that the affidavits submitted by the Appellants do not suggest liability on the part of Charity or the Coroner, we are of the opinion that there is no question that Mr. Anderson’s eyes were missing and therefore responsibility lies somewhere. Yet, the affidavit of Dr. Newman that Charity presented in support of its summary judgment motion attests that Mr. Anderson’s body was released to the Coronor’s office on May 9, 1997. The affi-ant further attests that the Coroner’s office performed the autopsy the next day. The affiant still further attests that the autopsy report reflects that the deceased’s “[ejyelids and sclerae are conspicuously swollen with slight yellow coloration in the conjunctivae.” The term sclerae means the “hard white outer covering of the eyeball.” P.H. Collin, Dictionary of Medicine 402 (3rd ed.2000). The affidavit thus clearly establishes that Mr. Anderson’s eyes were intact at the time his body left Charity.

Accordingly, there is a genuine issue of material fact that must be given proper judicial consideration by allowing a full trial on the merits as far as the Coronor’s office is concerned. Accordingly, we find that the Appellants carried their burden of proof as required by La. C.C.P. art. 967, especially once the district court agreed to admit the subsequent affidavits of the funeral home employees.

Charity filed an Answer to this appeal, seeking attorney fees and costs for having to defend a frivolous appeal. Pursuant to La. C.C.P. art. 2164, an appellate court may award damages for a frivolous appeal. An appeal is frivolous if it does not present a substantial legal question, if the sole purpose of the appeal is delay, or if the appealing counsel does not seriously believe the view of the law that he advocates. Francis v. O’Neal, 26,193, 26,194 (La.App. 2 Cir. 10/26/94), 645 So.2d 236, 237. Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be granted. George v. M & G Testing and Serv., Inc., 95-31 (La.App. 3 Cir. 7/19/95), 663 So.2d 79, 86.

As stated in Tillmon v. Thrasher Waterproofing, 00-0395 (La.App. 4 Cir. 3/28/01), 786 So.2d 131, this court is reluctant to grant frivolous appeal damages because of the chilling effect it may have on the appellate process. Based on the record in the present case, we do not find that this appeal is unquestionably frivolous; and, under the circumstances, damages are not warranted.

Decree

For the foregoing reasons, the judgment of the district court, granting the Motion for Summary Judgment in favor of Charity is affirmed. However, we find that the district court erred in granting the Motion for Summary judgment in favor of the Coroner and reverse that judgment.

AFFIRMED IN PART; REVERSED IN PART.