author: GASKINS, J.

text:
    Dr. James Earl McCONNELL, Plaintiff-Appellee v. Louis M. DORSEY, et al., Defendants-Appellants.
    No. 41,045-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.
    Rehearing Denied June 23, 2006.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Teresa Culpepper Carroll, Jonesboro, for Appellants.
    Douglas L. Stokes, Jr., Jonesboro, for Appellee.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   GASKINS, J.

|-iThe plaintiff, Dr. James Earl McConnell, appeals from a trial court decision granting summary judgment in favor of the defendants and dismissing the plaintiffs claim of entitlement to an ownership interest in property formerly belonging to his deceased grandmother. For the following reasons, we affirm.

FACTS

The plaintiff is the son of Alneicia Phillips McConnell. When his mother married his father, Jeffers McConnell, in 1936, she listed her age as 22. Therefore, she would have been born in 1913 or 1914. Alneicia’s mother was Fannie Dimmer. In 1916, Fannie Dimmer married John Dorsey. Their marriage license reflects that Fannie did not have a former husband. At least one child was born of this marriage. The defendants are the descendants of Fannie’s legitimate offspring. The defendants are Louis Dorsey, Georgia Dorsey, Jimmie Lewis Dorsey, Dorothy Dorsey, Ethel Mae Irvin, and Tammie .Maude Williams.

Although it is not clear from the record, it appears that, at some point, Fannie Dimmer Dorsey died and passed an interest in an 80-acre tract of land in Jackson Parish to her heirs. According to the plaintiff, his mother’s half-brother, Johnny Dorsey, claimed that Alneicia was illegitimate and left her out of the partition of Fannie’s estate in 1972. At that time, the law | ¡^provided that natural children inherited nothing from their natural mother if she had lawful children or descendants.

The plaintiff brought the present suit on April 2, 2004, asserting that a child cannot be illegitimate as to its mother. The plaintiff urged that the defendants are in bad faith possession of the property. He claimed ownership of an undivided .13393 interest in the land and sought a partition by licitation.

The defendants filed a motion for summary judgment asserting that in 1972, when the property was passed from Fannie Dorsey, her illegitimate daughter, Alneicia, was not entitled to inherit because Fannie had legitimate children. The defendants recognized that Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), found that discrimination against illegitimates was unconstitutional. However, the defendants maintained that this decision was not retroactive.

In support of their claim that Alneicia was illegitimate, they attached a copy of the marriage license between Fannie Dimmer and John Dorsey in 1916 in which Fannie indicated that she did not have a former husband. The defendants also attached the marriage license of Mander Dorsey, the son of Fannie and John Dorsey born after their marriage, to show that he was legitimate.

| sIn opposition to the motion for summary judgment, the plaintiff attached the affidavit of Benjamin Middleton who claimed that his grandparents lived in Galveston, Texas in 1912 or 1913 and that they witnessed a wedding ceremony there between Matthew Phillips and Fannie Dimmer in which they “jumped over a stick” and were declared married. Mr. Middleton claimed that the wedding was recorded in the family Bible, which was destroyed in a house fire in 1932.

The matter came before the court for hearing on July 14, 2005. On September 1, 2005, the trial court granted summary judgment in favor of the defendants, dismissing the plaintiffs claim. The plaintiff appealed.

LEGAL PRINCIPLES

The motion for summary judgment is a procedural device to avoid a full-scale trial when there is no genuine issue of material fact. Succession of Terral, 39,554 (La. App. 2d Cir.4/6/05), 900 So.2d 272. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and shall be construed to accomplish those ends. La. C.C.P. art. 966(A)(2); Succession of Conville v. Bank One, Louisiana, N.A., 40,506 (La.App. 2d Cir.1/25/06), 920 So.2d 397. Summary judgment shall be rendered 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); Succession of Conville, supra.

^However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App. 2d Cir.1/25/06), 920 So.2d 355.

DISCUSSION

The plaintiff argues that the defendants had the burden of proving that Alneicia was illegitimate. According to the plaintiff, if the defendants established that fact, then the burden of proof would shift to the plaintiff to refute the evidence presented. The plaintiff contends that -there is a genuine issue of material fact regarding Alnei-cia’s illegitimacy. He claims that there is great difficulty in showing that a marriage took place .between Fannie Dimmer and Matthew Phillips in the early 1910s.

Here, the plaintiff argues that his mother was incorrectly excluded from the partition of his grandmother’s property due to her illegitimacy. As the plaintiff in this case, he bears the burden of proving that claim. In its ^motion for summary judgment, the defendants assert that the plaintiff cannot support that claim. They came forth with the affirmative evidence in the form of Alneicia’s marriage license to Jeffers McConnell indicating that she was born in 1913 or 1914. The defendants also introduced the marriage license of Fannie Dimmer and John Dorsey showing that they were married in 1916 and Fannie denied having a former husband. Therefore, Alneicia was illegitimate.

The defendants then showed that Fannie and John Dorsey had at least one legitimate child. The defendants also established that, at the time of Fannie’s death, illegitimate children could not inherit from their natural mothers if the mother had legitimate children.

The plaintiff does not argue that former La. C.C. art. 918 does not apply. Even though laws discriminating against illegitimates were declared unconstitutional by the United States Supreme Court in Trimble v. Gordon, supra, and by the Louisiana Supreme Court in Succession of Brown, 388 So.2d 1151 (La.1980), those rulings are given only limited retroactive effect to January 1, 1975, the effective date of the Louisiana Constitution of 1974. See Succession of Clivens, 426 So.2d 585 (La.1982); Harlaux v. Harlaux, 426 So.2d 602 (La.1983), cert. denied, 464 U.S. 816, 104 S.Ct. 74, 78 L.Ed.2d 86 (1983). Because Fannie died prior to the effective date of the Louisiana Constitution of 1974, Trim-ble and Brown are not applicable.

1 ^Accordingly, the defendants have shown that, under the law at the time that Fannie died, Alneicia, an illegitimate, could not inherit from her natural mother who had legitimate children. To successfully defend against the motion for summary judgment, the plaintiff then had the burden of proving that Alneicia was legitimate.

The plaintiff offered the affidavit of Benjamin Middleton asserting that his grandparents witnessed a wedding between Fannie Dimmer and Matthew Phillips in Texas in 1912 or 1913. Mr. Middleton asserted that he was born in 1924. Therefore, he had no first-hand knowledge of the marriage of Alneicia’s parents. La. C.C.P. art. 967 provides in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

The affidavit in this case is not made on personal knowledge. The plaintiff has offered no other proof of the legitimacy of his mother. Therefore, the plaintiff has failed' to show that his mother had a right to the disputed property. Accordingly, the trial court did not err in granting summary judgment in favor of the defendants.

CONCLUSION

For the reasons stated above, we affirm the decision of the trial court, granting summary judgment in favor of the defendants, Louis Dorsey, |7Georgia Dorsey, Jimmie Lewis Dorsey, Dorothy Dorsey, Ethel Mae Irvin, and Tammie Maude Williams, dismissing the claims of the plaintiff, James Earl McConnell. Costs in this court are assessed to the plaintiff.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, C.J., and GASKINS, PEATROSS, DREW, and LOLLEY, JJ.

Rehearing denied.

BROWN, C.J., would grant rehearing.

      . The name of the plaintiffs mother is spelled numerous ways throughout the record. We choose to use the spelling from the plaintiffs petition.

      . La. C.C. art. 918 provided:
      Natural children are called to the legal succession of their natural mother, when they have been duly acknowledged by her, if she has left no lawful children or descendants, to the exclusion of her father and mother and other ascendants or collaterals of lawful kindred.
      In case the natural mother has lawful children or descendants, the rights of the natural children are reduced to a moderate alimony, which is determined by the rules established in the title: Of Father and Child.

      . Fannie’s succession proceedings are not contained in this- record, but obviously by 1972, the heirs were in possession and attempting to partition the disputed property.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. D’Marques GILL, Appellant.
    No. 40,915-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Louisiana Appellate Project, by Edward K. Bauman, Indigent Defender Board, by Jack “Buddy” Slaid, for Appellant.
    D’Marques Gill, Pro se.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

hThe defendant, D’Marques Gill, was convicted of second degree murder. He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. He now appeals. For the reasons that follow, we affirm his conviction and sentence.

FACTS

On February 16, 2004, 19-year-old D’Marques Gill was involved in several verbal altercations at his grandfather’s home with his 30-year-old uncle, Mark Oliver. Gill was trying to get his clothes and shoes back from Oliver, whom he believed had taken his possessions without permission and was attempting to sell them. Gill testified that he was scared of his uncle, and waved a gun to threaten him. Gill claimed that the gun accidentally discharged as he waved it, striking Oliver in the arm and penetrating his chest. The defense stipulated that Oliver died of a gunshot wound.

Several witnesses were present during these altercations. Gill’s step-grandfather, Foster Miles, and La Miracle Gasaway, Gill’s girlfriend at the time of the incident, testified that when the victim was shot, they heard the defendant say, “I’ll shoot again.” Gasaway also testified that when Gill came to her house after his first argument with Oliver, she heard him say that “he was going to get Mark.” Gill denied the statements and testified that he had no intention to shoot Oliver, but the gun just went off.

.Gill, Ms. Gasaway, and the defendant’s brother took Oliver to the hospital, dropped him off, and returned home. Gill decided to go back to the hospital to check on his uncle. On his way back to the hospital, the police stopped and searched the vehicle and questioned him. With her | ^permission, the police also searched Ms. Gasaway’s residence where they recovered the gun allegedly used by the defendant to shoot Oliver.

The defendant was charged by bill of indictment with second degree murder. A trial ensued, and on February 25, 2005, a 12-person jury found him guilty as charged. On March 28, 2005, the defendant was sentenced to a mandatory life sentence without benefit of probation, parole, or suspension of sentence, and remanded to hard labor. A timely motion to reconsider sentence was denied. Defendant now appeals his conviction and sentence, challenging the sufficiency of the evidence and the excessiveness of his sentence.

DISCUSSION

Sufficiency of Evidence

In State v. Hearold, 603 So.2d 731 (La.1992), the Louisiana Supreme Court stated that when issues of both sufficiency of the evidence and trial errors are raised on appeal, the reviewing court should first determine the sufficiency of evidence.

The defendant argues that the evidence presented at trial does not support a finding of specific intent, an element necessary for a second degree murder conviction. Defendant asserts that his actions do not suggest that this was a calculated murder, nor that he had specific intent to inflict great bodily harm. Rather, the defendant asserts that he lost his composure after he unsuccessfully tried to get his clothes back from his uncle. Under these circumstances, defendant argues, the verdict should have been | ^manslaughter. The state failed to prove beyond a reasonable doubt that he was guilty of second degree murder.

Defendant cites State v. Williams, 26,716 (La.App.2d Cir.5/10/95), 658 So.2d 703, writ denied, 95-2175 (La.2/2/96), 666 So.2d 1091, for the mitigatory factors of sudden passion or heat of blood which distinguish manslaughter from homicide. Accordingly, Gill suggests that the mitigatory factors of sudden passion or heat of blood negate the specific intent for second degree homicide. Furthermore, he asserts that the jury’s request to be reinstructed on the definitions of second degree murder and manslaughter reveal their confusion in reaching the proper verdict. Gill believes that the verdict of the jury was contrary to the law and evidence, and he should have been convicted of manslaughter, not second degree murder.

. The state argues that the jury obviously found the defendant’s testimony unpersuasive, and resolved the issue of the credibility of his testimony against him. The state asserts that the evidence presented proves that Gill shot and killed the victim, and the evidence was sufficient to support the conviction of second degree murder.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.8/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422.

Second degree murder is “the killing of a human being: (1) When the offender has a specific intent to kill or to inflict great bodily harm.” See La. R.S. 14:30.1. In the instant case, Foster Miles and LaMiracle Gasaway both testified that the defendant said, “I’ll shoot again,” after firing at shot a Oliver. In addition, Ms. Gasaway testified that she heard Gill say, “I’m going to get Mark.” Although Gill denied making these statements and testified that he did not mean to shoot his uncle, the jury chose not to believe his testimony. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

Although the jury was reinstructed as to the definitions of manslaughter and second degree murder, this is not dispositive. The record does not reflect any confusion on the part of the jury. The jury did not find that manslaughter was appropriate in light of the evidence provided. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, supra.

After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. There was sufficient evidence presented at trial for the jury to believe that the defendant had the specific intent necessary to convict him of second degree murder. This assignment is therefore without merit. .

Excessive Sentence

The defendant argues that the trial court believed that the applicable Louisiana Code of Criminal Procedure statute only allowed for one sentence to be imposed for second degree murder and that there was no authority for deviating from this sentence. He contends that the trial court could deviate from the statute and should have taken into consideration defendant’s age, educational level, family, or criminal history as mitigating factors when the sentence was imposed.

Gill cites State v. Bonanno, 384 So.2d 355 (La.1980), to substantiate his claim that a sentence is constitutionally excessive, in violation of La. | fiConst. art. 1, § 20 (1974), if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. Therefore, defendant argues that the statutory provision of La. R.S. 14:30.1(B) must yield in this instance to the constitutional prohibition against excessive punishment and that under these circumstances, a sentence of life imprisonment is cruel and excessive.

The state argues that La. R.S. 14:30(B) provides' that, “[wjhoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” The state argues that the statute provides a mandatory sentence, and the trial court is not required to list any factors. State v. Tolliver, 32,859 (La.App.2d Cir.3/1/00), 753 So.2d 958, 964, writ denied, 2000-2028 (La.3/30/01), 788 So.2d 440.

Since defendant’s motion for reconsideration merely alleged that the sentence is excessive, under State v. Mims, 619 So.2d 1059 (La.1993), he is relegated to having the appellate court consider the bare claim of excessiveness. This bare claim preserves only a claim of constitutional excessiveness. State v. McEachern, 624 So.2d 43 (La.App. 2d Cir.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

Where there is a constitutional mandatory sentence, there is no need for the trial court to justify, under Article 894.1, a sentence it is legally 17required to impose. State v. Koon, 31,177 (La.App.2d Cir.2/24/99), 730 So.2d 503; State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992). To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Lindsey, 99-3302 (La.10/17/00), 770 So.2d 339.

Gill asserts that the trial court failed to take into consideration his age, educational level, family, or criminal history as mitigating factors when the sentence was imposed. However, the defendant’s motion to reconsider sentence contained no allegations with respect to this argument. The defendant must present arguments to the trial court that he wishes to preserve on appeal. The defendant is therefore relegated to having the appellate court consider the bare claim of excessiveness. State v. Mims, supra. The defendant cannot now complain about the trial court’s alleged failure to articulate reasons, or that the trial court could have deviated from the mandatory sentence imposed.

Even if the defendant had preserved these arguments for appeal, where there is a constitutional mandatory sent tence, there is no need for the trial court to justify, under Article 894.1, a sentence it is legally required to impose. In addition, to rebut the presumption that the mandatory sentence is constitutional, the defendant must clearly and convincingly show that because of unusual circumstances this defendant is a victim of the | ^legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. In this case, the defendant has not sufficiently demonstrated he is the “exceptional” defendant for which downward departure from the statutory minimum sentence is required.

Furthermore, arguments that the mandatory life sentence for second degree murder is a violation of the prohibition against excessive punishment contained in the Louisiana constitution have been repeatedly rejected. State v. Parker, 416 So.2d 545 (La.1982); State v. Brooks, 350 So.2d 1174 (La.1977); State v. Thornton, 36,757 (La.App.2d Cir.01/29/03), 836 So.2d 1235, writ denied, 2003-0861 (La.10/31/03), 857 So.2d 474. The jury believed that the defendant had the specific intent to kill or to inflict great bodily harm, and accordingly convicted him of second degree murder. The sentence is not illegal, grossly disproportionate to the severity of the offense nor shocking to the sense of justice. This assignment is therefore without merit.

CONCLUSION

For the foregoing reasons, the defendant's conviction and sentence are affirmed.

AFFIRMED.


author: PEATROSS, J.

text:
    Shelia JOPLIN, Plaintiff-Appellant v. William C. JOPLIN, Sr., Defendant-Appellee.
    No. 40,991-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2006.

      Andrew C. Jacobs, Michael Nerren, Bossier City, for Appellant.
    Gary A. Bowers, for Appellee.
    Before BROWN, STEWART & PEATROSS, JJ.
   PEATROSS, J.

11 Shelia Joplin appeals from a judgment dismissing her rule to show cause on the grounds that Louisiana was not the proper forum to decide the matters raised therein. For the reasons stated herein, we reverse and remand.

FACTS

Shelia and William C. Joplin, Sr., were married in Arkansas; during their marriage, the couple lived in Arkansas and adopted William’s four grandchildren. The Joplins divorced in Lonoke County, Arkansas in 1999. In the divorce, the Arkansas court granted the Joplins joint custody of the minor children; Ms. Joplin was designated the primary caretaker. Mr. Joplin was further ordered to pay $174 per week in child support. The Arkansas judgment specified:

This Court doth retain control and jurisdiction over the parties and the subject matter for such further orders that it may deem necessary in order to enforce the rights of the parties hereto.

Subsequently, Ms. Joplin and the children moved to Bossier Parish, Louisiana; Mr. Joplin remained a resident of Arkansas.

In 2000, Ms. Joplin filed a petition in Louisiana (the 26th Judicial District Court (“26th JDC”)) seeking to have the divorce decree made executory in Louisiana and asking that the court allow Mr. Joplin only supervised visitation of the children. Mr. Joplin responded with an exception of subject matter jurisdiction, urging that he lived in Mena, Arkansas. In September 2000, the 26th JDC dismissed Ms. Joplin’s petition by stipulation and agreement of the parties.

li>On November 19, 2004, Ms. Joplin filed a second petition in the 26th JDC. The petition stated that both of the Joplins “have resided in Bossier Parish, Louisiana, for well over 1 year.” Mr. Joplin stipulated that, at the time the petition was filed, he lived in Benton, Louisiana; but, after the petition was filed, he returned to live in Arkansas. Mr. Joplin apparently moved to Lewisville, Arkansas, not his previous residence of Mena. He also stipulated that the children had been living with Ms. Joplin in Bossier Parish for more than six months.

In her petition, Ms. Joplin again asked the court to make the Arkansas judgment of divorce executory in Louisiana and to allow Mr. Joplin only supervised visitation of the children. This latter request was based on Ms. Joplin’s allegations that Mr. Joplin was unable to properly supervise the children during his visitation and that “it has been alleged that” Mr. Joplin physically and/or verbally abused at least one of the children. Ms. Joplin further alleged that she was entitled to an increase in the amount of child support she receives for the children, all of whom remain minors.

Mr. Joplin again responded with an exception of lack of subject matter jurisdiction. He urged that the courts of Arkansas retained jurisdiction over the ease, that Ms. Joplin had raised essentially these same demands in 2002 in the Lonoke County, Arkansas court where they were rejected, and that the Louisiana court should not exercise jurisdiction.

On May 19, 2005, the 26th JDC heard argument on the jurisdictional issue, which, at the hearing, was expanded to include argument that ^Louisiana was an inconvenient forum for the dispute. Argument was focused on the child custody and support dispute, not the other matters raised by Ms. Joplin’s petition. After reciting the procedural history of the case, Mr. Joplin’s attorney presented the court with a series of five documents from the 2002 proceedings in Lonoke County Chancery Court in Arkansas. Ms. Joplin’s attorney objected to the court’s consideration of the documents because they were uncertified by the Arkansas Court and because they contained hearsay. The documents appear to be copies and bear no certification of authenticity from the Arkansas Court. The court admitted the documents into evidence over Ms. Joplin’s objection solely for the purpose of showing, as Mr. Joplin’s attorney stated, “the nature, extent and degree of the litigation that was engaged in” in Arkansas.

Although it. was suggested during the hearing that other evidence would be adduced later in the proceeding, no other evidence was admitted. Ms. Joplin’s attorney stated that Ms. Joplin’s testimony would show, among other things, that Mr. Joplin was living in Louisiana at the time the 2004 petition was filed and had lived here since 2001, that Mr. Joplin only moved back to Arkansas after being served with the 2004 Louisiana petition and that the children had seen mental health professionals here in Louisiana since the Arkansas proceedings. After this argument, Mr. Joplin’s attorney made the stipulation that Mr. Joplin did live in Louisiana at the time the petition was filed and moved back to Arkansas after the filing.

The documents from the Arkansas trial court showed that, in February 2001, Ms. Joplin sought essentially the identical relief in Arkansas that she |4had asked for in Louisiana in 2004. The documents also included the report from a court-ordered mental health evaluation of the parties. The Arkansas court held a trial in May 2002. In August 2002, the Arkansas court denied Ms. Joplin’s demands for an increase in child support and supervised visitation for Mr. Joplin.

In response to the evidence from the Arkansas court, Ms. Joplin urged that “there have been extensive circumstances that have happened since then [2002].” However, the Louisiana district court decided that the Arkansas court was the proper forum for this dispute. On July 18, 2005, the 26th JDC signed a judgment dismissing Ms. Joplin’s action, and she now appeals.

DISCUSSION

On appeal, appellant asserts three assignments of error:

1. Were appellee / plaintiffs exhibits number one through five inadmissible as evidence due to issues involving au thenticity and hearsay, and should the trial court have relied on these exhibits in its ruling due to those issiies.
2. Was the trial court in error in ruling on the issue before it, without allowing appellant to present testimony and evidence referred to in the opening statement.
3. Was the trial court in error in issuing a ruling under La. R.S. 13:1706 without allowing for presentation of evidence that is relevant under said law.

Assignment of Error No. 1: Evidence of Arkansas Court Proceedings.

La. C.E. art. 902(2)(a) provides:

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
_k * * *
(2) Domestic public documents not under seal, (a) Domestic public documents generally. A document purporting to bear the signature in his official capacity of an officer or employee of [any state], having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.

The documents in question do not bear any signature of a representative of the Arkansas authority with custody of the documents, so the documents were not admissible under this article in the absence of extrinsic evidence of authenticity. Likewise, the matters in. the mental health evaluation/report are arguably excludable as hearsay. La. C.E. art. 1101(B)(2), however, provides:

B. Limited applicability. Except as otherwise provided by Article 1101(A)(2) and other legislation, in the following proceedings, the principles underlying this Code shall serve as guides to the admissibility of evidence. The specific exclusionary rules and other provisions, however, shall be applied only to the extent that they tend to promote the purposes of the proceeding.
(2) Child custody cases.

As noted by Mr. Joplin in brief, Ms. Joplin generally agreed with his presentation of the chronology of this litigation, so the same or similar facts established by the court pleadings were admitted to by both litigants and were not contested. The mental health evaluation was not accepted for its contents, but only to show the nature, extent and degree of litigation in Arkansas. Indeed, all of the evidence was admitted solely for the purpose of determining the history of the proceedings between the parties, and Ms. Joplin did not argue either that the proceedings in Arkansas had not taken |fiplace, or that the Arkansas documents were inaccurate reflections of what happened in that state’s courts. Under the circumstances, we find no reversible error in the trial court’s consideration of these documents for the purpose of determining the history of this litigation.

Assignment of Error No. 2: Failure to Hear Evidence.

Ms. Joplin urges that the trial court should not have entered a ruling in this matter without hearing her testimony, especially regarding Mr. Joplin’s place of residence. Compare, e.g., Anton v. Anton, 97-0792 (La.App. 4th Cir.5/14/97), 694 So.2d 1217; see also DeLee v. Koss, 430 So.2d 196 (La.App. 2d Cir.1983). We note that most of the matters of importance to the trial court’s decision were stipulated by the parties; Mr. Joplin stipulated that he lived in Bossier Parish, Louisiana, when the 2004 petition was filed and only thereafter moved back to Arkansas. We note that Mr. Joplin did not explicitly stipulate that he lived in Lewisville, Arkansas; he only stipulated to residence in Arkansas. Nevertheless, his current site of residence in Lewisville was apparently undisputed. Moreover, only a few facts were seriously contested by the parties; for example, Mr. Joplin asserted through counsel that Ms. Joplin told him that she intended to relocate to south Louisiana; through counsel, Ms. Joplin denied making this statement. The potential move was not considered by the court. Under the circumstances, it appears that the court had adequate information to make a decision, so the court’s failure to hear testimony was not a reversible error.

|vAssignment of Error No. 3: UCCJA/In-convenient Forum.

In the case sub judice, the 26th JDC concluded that it had jurisdiction over this dispute, but declined to exercise that jurisdiction because the Arkansas forum was more convenient. Child custody disputes brought in Louisiana and having connections to other states involve the application of the Uniform Child Custody Jurisdiction Act (“UCCJA”). La. R.S. 13:1700 provides, in part:

A. The general purposes of this part are to:
(4) Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.
⅜ ⅜ *
(6) Avoid relitigation of custody decisions of other states in this state insofar as feasible.

La. R.S. 13:1706 provides, in part:

A. A court which has jurisdiction under this Part to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
* * *
C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(1) If another state is or recently was the child’s home state.
|s(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants.
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state.
(4) If the parties have agreed on another forum which is no less appropriate, and
(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 1700.

An appellate court may not set aside a trial court’s or jury’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). When the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, however, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell, supra.

With reference to the general purposes of the UCCJA referenced in La. R.S. 13:1706(C)(5), the court opined that continued litigation in Louisiana would be viola-tive of La. R.S. 13:1700(A)(4) and (6). Although we defer to the findings of fact made by the trial court, the trial court’s conclusions of law concerning these provisions are not entitled to deference, and we hold that the trial court erred in concluding that the purposes stated in La. R.S. 13:1700(A)(4) and (6) would be impaired by litigation in Louisiana.

19With regard to subsection (A)(4), in this case, the choice of Louisiana or Arkansas as a forum for this litigation has no bearing upon the stability of the children’s home environment and the security of the children’s family relationships. In either forum, litigation will continue, and the choice of the state the litigation occurs in will have no measurable effect on the stability of the children’s environment or the security of their family relationships. There is no indication that litigation in Louisiana will result in the transfer of the children’s domicile to Arkansas. In the instant case, it is the continuation of the litigation, and not its forum, that potentially threatens the goals of stability and security.

With regard to subsection (A)(6), there was some evidence to indicate that litigation in Louisiana would be a “relitigation” of matters already decided in Arkansas.. Clearly the Lonoke County, Arkansas court held a contested proceeding in 2001 and 2002 on these issues and ruled against Ms. Joplin. The limited evidence available in this record suggests that this proceeding was thorough and that the court’s decision was based upon the best evidence available at the time. Ms. Joplin, however, urged that the family situation has changed since the 2002 litigation in Arkansas. Custody awards may be modified upon a proper showing, and a change in circumstances is one basis for such a modification. Cook v. Cook, 40,572 (La.App. 2d Cir.1/25/06), 920 So.2d 981. Ms. Joplin has made a variety [inof allegations in her petition that unsupervised visitation by Mr. Joplin is deleterious to the children, and the best interest of the children is paramount in these cases. It is the nature of child custody cases that situations continually change and custody and visitation issues resurface from time to time. The raising of new allegations, i.e., changes in circumstances that, have arisen since the 2002 Arkansas judgment, does not constitute relitigation as contemplated under subsection (A)(6). Accordingly, we note that the evidence presented at any subsequent hearing herein will necessarily be limited to allegations of behavior or changes in circumstances that have occurred since the 2002 Arkansas judgment.

Even if the “relitigation” factor were present in this case, the remaining factors in La. R.S. 13:1706(C) strongly militate in favor of the convenience of the Louisiana forum. None of the parties currently live in or around Lonoke County, Arkansas, which is close to Little Rock. Mr. Joplin lived in Bossier Parish until after this litigation was initiated in 2004 and now lives only just across the state line in southwest Arkansas, closer to Bossier Parish, Louisiana, than Lonoke County, Arkansas. The evidence showed that Louisiana was the home state of the children; and, since the children had lived with their adoptive mother in Louisiana for several years prior to this litigation, Arkansas did not have a closer connection with the children and one of the contestants. The psychologist who examined the parties and the children in the 2002 Arkansas proceedings is located in Arkansas, although this evidence is now several years old. We do not know Inwhether any more recent professional evaluation of the parties is available; allegedly the children had recently been seen by a Louisiana psychologist. Since the children have now lived in Bossier Parish for several years with their adoptive mother and, for at least some of this time, their adoptive father, Louisiana is clearly a more convenient forum than Arkansas for litigation of this dispute.

Although stability of judgments is a valid aim, this factor alone is wholly insufficient here to overcome the many other factors in favor of the convenience of litigation of this matter in Louisiana rather than Arkansas. Given the record as a whole, the trial court was clearly wrong to hold otherwise.

CONCLUSION

For the above assigned reasons, the trial court’s decision to decline jurisdiction based upon La. R.S. 13:1706 is hereby reversed and this matter is remanded to the district court for further proceedings. Costs of this appeal are assessed to Mr. Joplin.

REVERSED AND REMANDED.

      . We take judicial notice that Mena is in Polk County, Arkansas, and Lewisville is in Lafayette County, Arkansas.

      . We consider this appeal to be timely under the rationale expressed in Ellis v. Ellis, 39,942 (La.App. 2d Cir.3/31/05), 896 So.2d 1288, writ denied, 05-2363 (La.3/17/06), 925 So.2d 546.

      . The decision below did not refer to the Parental Kidnaping Prevention Act ("PKPA”), 28 U.S.C. § 1738A.

      . We do not afford importance to the Arkansas court’s statement in 1999 that it retained jurisdiction over the case; the provisions of the UCCJA control given the variety of changes of residence that have occurred since 1999.

      . Given that the evidence in this matter was introduced only for the purpose of showing the extent of the proceedings in Arkansas, we decline to consider the substance of the mental health report, which substance is argued by appellee in brief.

      . We note that any subsequent action to modify the Arkansas custody judgment will be subject to the standard set forth in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

      . Again, we do not address the application of the PKPA because that did not form the basis of the trial court’s decision.


author:
LOLLEY, J.
      CARAWAY, J.,

text:
    Rebecca COOK and Vernon Shively, Plaintiffs-Appellants v. Cynthia Lynn KENDRICK and State Farm Fire & Casualty Company, Defendants-Appellees.
    No. 41,061-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2006.
    Rehearing Denied June 23, 2006.

      Fisher & McMahon by Mark K. Manno, for Appellants.
    Casten & Pearce by Marshall R. Pearce, H. Lynwood Lawrence, Jr., Shreveport, for Appellee Cynthia Lynn Kendrick.
    Tutt, Stroud & Bordelon by Charles G. Tutt, Jennifer P. McKay, Shreveport, for Appellee State Farm Fire & Casualty Co.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

Lin this wrongful death lawsuit, Rebecca Cook and Vernon Shively appeal a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, which, following a jury trial, assessed 80% comparative fault to Ragan Shively and 20% comparative fault to Cynthia Lynn Kendrick for Ragan’s death. Kendrick and her insurer, State Farm Fire and Casualty Company, both answer the appeal. For the following reasons, we affirm the judgment of the trial court.

Facts

Ragan Shively died on April 5, 2002, of a drug overdose, while at the home of his friend, herein defendant, Cynthia Lynn Kendrick. Ragan was the son of the plaintiffs, Rebecca Cook and Vernon Shively, and at the time of his death, he was twenty-two years old.

Ragan spent the day before his death at Kendrick’s home. She was typing a paper for him, and he was mowing her lawn and hanging out. Later that evening, Ragan’s friend, Jennifer Rhodes, came over to Kendrick’s home after an evening of drinking and shooting pool. At the trial, Kendrick testified that Jennifer was obviously intoxicated, and Nathan Shively, Ragan’s brother, confirmed that. Ragan and Jennifer left Kendrick’s home and returned around 2:00 a.m. According to Jennifer, Ragan “passed out” in his food. She attempted to rouse him and got him to the kitchen to drink coffee. Jennifer claimed he was sitting on the floor against the kitchen cabinets, and later fell onto the floor, where she and Kendrick let him stay.

Both Jennifer and Kendrick testified that they were not concerned about Ra-gan’s condition until early the next morning, when they were | ¡unable to rouse him and saw blood coming from his mouth. Kendrick called Nathan, who was one year older than Ragan, and Nathan called 911. The 911 operator called Kendrick’s home and instructed her on performing CPR on Nathan, which Kendrick did. All of this occurred within minutes. Nathan arrived at Kendrick’s house, at the about the same time as the paramedics did. The paramedics worked to resuscitate Ragan, unsuccessfully, and transported him to the emergency room, where he was pronounced dead. A' subsequent autopsy of Ragan confirmed that he died of a drug overdose, and according to that report the following drugs were found in his system: earisoprodol (Soma); cocaine; diazepam (Valium); Xanax; methadone; and, diphenhydramine (Benadryl). The coroner, Dr. George McCormick, testified that it was a combination, or interaction, of these drugs which ultimately killed Ragan— there was not one drug responsible for his death.

Detective Lane Smith of the Shreveport Police Department investigated Ragan’s death. At trial he testified that Kendrick was cooperative in his investigation and actually turned over some drugs to him. Kendrick informed Det. Smith that Ragan had been unconscious from around 2:00-3:00 a.m., and she realized there was problem at approximately 6:00 a.m.

Following an investigation of the matter, Rebecca Cook and Vernon Shively (collectively, “appellants”) filed a wrongful death lawsuit against Kendrick and her insurer, State Farm Fire and Casualty Company (“State Farm”). Following the trial, the jury returned its verdict finding Kendrick 20% at fault for Ragan’s death — Ragan was found to be 80% at fault for his Isdeath. The jury awarded Cook and Shively each $1.00 in general damages and further awarded Shively $11,602.35 for funeral and burial expenses and medical expenses. Additionally, the jury specifically determined that Kendrick did not consciously desire Ragan’s death, or knew that his death “was substantially certain to result from her conduct.” Cook and Shively filed a motion for judgment notwithstanding the verdict, which was denied. Judgment was entered pursuant to the jury verdict, and this appeal by Cook and Shively ensued. Kendrick and State Farm have each answered the appeal.

Discussion

General Damages

In their first assignment of error, the appellants argue that the jury erred in awarding them general damages of only $1.00 each for Ragan’s death. Specifically, the appellants, relying on this court’s previous opinion in Greene v. Fox Crossing, Inc., 32,774 (La.App. 2d Cir.03/01/00), 754 So.2d 339, writ denied, 2000-0944 (La.05/26/00), 762 So.2d 1108, argue that it was legal error for the jury to award special damages and to virtually deny any general damages. We disagree, and in so doing, reverse this court’s previous position as stated in Greene, supra.

Shortly after the rendering of Greene, supra, the Louisiana Supreme Court addressed this precise issue in Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70. Initially, the Wainwright court noted that:

The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide 14what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.”
Moreover, before a Court of Appeal can disturb an award made by a [factfinder,] the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.

Id. at 75 (citations omitted).

Based on this primary premise, the Wainwright court concluded that it was not, per. se, error for a jury to award a plaintiff special damages, but not to award general damages. Rather than performing a de novo review in such a situation, the supreme court held that the proper course of action is for the reviewing court to first determine whether the factfinder’s “determination that the plaintiff is entitled to [special damages] but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the fact-finder has abused its much discretion can that court conduct a de novo review of the record.” Id. at 76. The supreme court surmised that:

[A] jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain [special damages], yet failed to prove that he endured compensable pain and suffering as a result of defendant’s fault. It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion.

1 fid, at 76.

Here, we cannot say that the jury’s failure to award the appellants general damages more than $1.00 was an abuse of its vast discretion. Notably, the plaintiff, in a suit for damages, has the burden of proving the damages suffered as a result of a defendant’s fault. Wainwright, supra at 77, citing, Brannan v. Wyeth Laboratories, Inc., 526 So.2d 1101 (La.1988). Furthermore, the jury also heard and observed Cook and Shively as they testified at trial. The jury was in a superior position to observe the nuances of their demeanor which are not revealed in a cold record. See Miller v. Clout, 2003-0091 (La.10/21/03), 857 So.2d 458. Thus, in this case, we conclude that the jury was well within its discretion in determining that the appellants failed to prove any real general damages.

We recognize the natural love the appellants had for their youngest son; however, we must determine whether they suffered compensable pain and suffering as a result of Ragan’s death, which is not a reflection on how much they might have loved their son. Here, there is little evidence regarding the relationship they had with Ragan prior to their divorce in or about 1996. However, after the divorce, when Ragan was around 15 or 16 years old, the record is apparent that little parental attention was paid to Ragan, especially as it concerned his ongoing dependence on drugs.

After Vernon and Rebecca divorced, Vernon remained in the family home and Rebecca moved out — the boys stayed with Vernon. Around 1998 (when Ragan was 18 years old), Vernon began working in Houston. Nathan and Ragan remained in the family home alone. Vernon would come home occasionally on the weekends, but in 2000, he moved to Houston | ^permanently. Rebecca had moved to Blanchard, Louisiana with her second husband and his children. The record is clear that there was little parental authority over Ragan or Nathan. Ragan’s girlfriend at the time, a sophomore or junior in high school, actually moved in and lived with Ragan in the house, something which neither Vernon or Rebecca had a problem with. The family home became the teenager/young adult party house, with a room designated as the “drunk tank.”

Along with that loose environment came drugs. Vernon admitted that both Nathan and Ragan used drugs, and according to Nathan, Ragan “experimented with a lot of different drugs as a teenager.” A childhood friend of Ragan’s, Dustin Jones, testified that it was during this time period that Vernon found some of their drug paraphernalia and ran over it with his car. Vernon left the remains on the kitchen counter, which the boys found because they were skipping school. Vernon never discussed it with Dustin (and apparently never informed his parents, because Dustin never heard anything more about the incident). However, even though this incident occurred while Ragan was still in high school, it was not until 2002 when Ragan approached his parents, that they were aware of his drug dependency.

Vernon testified that he immediately contacted Dr. John Epling, a physician specializing in addiction medicine, once Ra-gan admitted to his parents he was addicted to pain medication. According to Dr. Epling, he saw Ragan between January 17, 2002 and February 6, 2002, after which, he never saw Ragan again. Vernon testified that he did not know that Ragan continued to use drugs while he saw Dr. Epling, nor did he even know that Ragan had stopped seeing Dr. Epling. Rebecca testified that the week |7Ragan died, she told Kendrick that Ragan was seeing Dr. Epling for his drug addiction — obviously, she had no idea that Ragan had aborted his rehabilitation.

Although it sounds harsh, such testimony begs the question, where were Vernon and Rebecca when Ragan needed them most — during this critical time period leading up to his drug overdose? Granted, they assisted Ragan in receiving initial medical attention, but there is no indication that they had any other involvement in his rehabilitation process. Notably, Ra-gan was legally an adult — but, Vernon and Rebecca still supported him financially. Moreover, Ragan was a young, seemingly immature, and drug-addicted adult, who could have used more parental involvement in his rehabilitation from seriously addictive drugs. Whereas, appellants characterize the jury’s finding as a failure to “like” them and/or Ragan, we do not see such a subjective indication in the record, which, instead, objectively shows that Vernon and Rebecca turned a blind eye to Ragan’s drug addiction and exercised little parental authority, and perhaps concern, over Ragan’s activities. That is, until he sadly died. As tragic as the loss of any young life to drugs is, in this instance and considering the particular facts of this case, we cannot say that the jury’s determination that the appellants failed to prove compensable general damages for pain and suffering was an abuse of discretion.

Motion for JNOV

Appellants bring two assignments of error related to the trial court’s denial of their motion for judgment notwithstanding the verdict. First, they argue that the trial court erred in denying the motion for JNOV, because, | ¡¡appellants argue, the jury committed legal error in awarding special damages but basically denying them any general damages. Second, they argue that the trial court applied the wrong legal standard in denying the motion.

This court recently considered the issue regarding the standard for granting of a JNOV, and stated:

A JNOV is a procedural device authorized by La. C.C.P. art. 1811 whereby the trial court may correct a legally erroneous verdict by modifying fault or damages, or both, that the jury may have assessed. If the opposing evidence is of such quality and weight that reasonable men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. To determine that the evidence was insufficient as a matter of law requires a finding that no valid line of reasoning and permissible inferences could possibly lead rational persons to the conclusions reached by the jury. The JNOV should not be granted merely when there is a preponderance of evidence for the mover. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all inferences or factual questions should be resolved in favor of the non-moving party.

Tolbird v. Wyble, 38,969 (La.App. 2d Cir.12/15/04), 892 So.2d 103, writs denied, 2005-0444, 2005-0449 (La.04/29/05), 901 So.2d 1066-67, cert. denied, —— U.S. -, 126 S.Ct. 387, 163 L.Ed.2d 172 (2005). In reviewing the trial court’s determination regarding whether to grant a JNOV or new trial, the appellate court’s review is limited to whether the trial court committed manifest error in its decision on the motions. Id.

Considering our conclusion that the jury’s $1.00 general damage award was not legal error in light of the award of special damages to Vernon, the trial court did not err in denying the motion for JNOV on this basis. In other words, seeing as the jury’s action in basically denying 1¡¡general damages but awarding special damages was not legal error, the trial court was not constrained to grant the appellants’ motion for JNOV on this basis. Thus, we find no error by the trial court as to this issue.

Moreover, considering the great deference a trial court must afford a jury’s verdict in ruling on a motion for JNOV, our review of the record does not show an abuse of discretion by the trial court in concluding that the weight of the evidence considered by this jury led to its ultimate conclusion and verdict against the appellants on the issue of general damages. Consequently, the trial court properly deferred to the jury to ensure that substantial justice, in this case, was accomplished and properly denied the motion for JNOV. See Tolbird, supm at 107.

Determination of negligence and apportionment of comparative fault

All of the parties weigh in as to the trial court’s determination that Ragan and Kendrick shared liability for Ragan’s death and the apportionment of comparative fault between them. As stated herein, at the conclusion of the trial, the jury assessed Ragan with 80% of the fault for his death and Kendrick with 20%. In their final assignment of error, Vernon and Rebecca claim that the jury committed manifest error in assessing Kendrick with only 20% of the fault, stating that she should have been assessed with 80% fault. Both Kendrick and her insurer, State Farm, have answered the appeal, arguing that the jury erred in assessing her with any fault in Ragan’s death.

Kendrick’s negligence

hnBefore we can even consider the issue of allocation of fault, we must determine whether the jury correctly found Kendrick liable for Ragan’s death. In their respective answers to appeal, Kendrick and State Farm argue that the jury erred in making such a determination. We disagree.

Louisiana applies a duty-risk analysis to determine whether liability exists under the particular facts presented.- The plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of the protection afforded by the duty breached. Cardella v. Robinson, 39,663 (La.App. 2d Cir.05/13/05), 903 So.2d 613, writ denied, 2005-1586 (La.01/09/06), 918 So.2d 1047.

Here, the appellants focus on Kendrick’s conduct, which they argue caused Ragan’s death and made Kendrick negligent in two ways: (1) in giving drugs to Ragan, and (2) in failing to call for assistance in sufficient time to have prevented Ragan’s death. A party’s conduct is a cause-in-fact of the harm if it was a substantial factor in bringing about the harm. Lasyone v. Kansas City Southern R.R., 2000-2628 (La.04/03/01), 786 So.2d 682. While a party’s conduct does not have to be the sole cause of the harm, it is a necessary antecedent essential to an assessment of liability. Id. Whether an action is the cause-in-fact of the harm is essentially a factual determination that is usually left for the factfinder. Id. As such, it is subject to a manifest error standard of review.

h-i Kendrick was determined to be liable for Ragan’s death; however, the record does not provide us with reasons behind the jury’s verdict. We can only surmise that the jury considered (1) Kendrick’s conduct as it related to the use of drugs and alcohol in her home by her, Ragan and others and, (2) her action and/or inaction regarding Ragan’s unconscious condition and the timeliness of her call for help. Clearly, from the evidence presented at trial, the jury could have determined Kendrick’s conduct, in both ways or maybe either way, led to Ragan’s death. Our review of the record indicates no error on the part of the jury in ultimately concluding that Kendrick’s conduct in some way contributed to Ragan’s death.

In their answer to the appellants’ appeal, Kendrick and State Farm argue that Kendrick could not have been liable for Ragan’s death, because she did not have a legal duty to Ragan. Both parties argue that Louisiana law generally does not impose upon individuals a legal duty to render aid to others, except where a “special relationship” exists so as to create a duty. However, we disagree that under the particular facts of this case, she had no legal duty to render aid to Ragan.

Relying on the case law cited by Kendrick and State Farm in brief, we recognize that, “[t]here is a legal recognized duty to render assistance in situations where the plaintiffs peril or injury is due to the negligence on the |12part of the defendant....” Strickland v. Ambassador Insurance Co., 422 So.2d 1207, 1209 (La.App. 1st Cir.1982). As we have already discussed, the jury had alternative theories under which they could have found Kendrick negligent — one which included that she provided Ragan with the drugs which contributed to his overdose.

Notably, Jennifer testified that Kendrick provided Ragan with Soma, a drug found in his system. Kendrick denied giving Ragan the drug, and Dr. McCormick testified that no one drug caused Ragan’s overdose. However, even if you dismiss Jennifer’s testimony, the jury heard testimony that Kendrick obviously had a laissez faire attitude about drugs and alcohol in her home — even though she evidently knew that Ragan was trying to undergo treatment for his addiction. The jury also was faced with evidence that Kendrick actually had drugs in her house and car (her possession of Xa-nax without a prescription even led to her arrest). Although we do not know exactly what conduct of Kendrick’s the jury believed led to Ragan’s death, clearly, the jury could have determined that Ragan was in an unconscious state from a drug overdose that Kendrick negligently contributed to. If so, then as suggested by Strickland, she would have had a duty to render assistance to him since she possibly placed him in “peril or injury.”

Kendrick further argues that even if she had a duty to render aid to Ragan, said duty was not breached because her conduct conformed to the standard of the reasonable man. Although the issue of whether a defendant owes a duty is a question of law, the successive question of whether that |13duty was breached is a question of fact. Rowe v. Schumpert Medical Center, 26,334 (La.App. 2d Cir.12/07/94), 647 So.2d 390, writ denied, 95-0075 (La.03/17/95), 651 So.2d 268, citing Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993); Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984). The jury heard the testimony of Kendrick and Jennifer regarding the events of that late evening/early morning. Considering the evidence presented to the jury, we cannot say that is was manifestly erroneous in its apparent conclusion that Kendrick breached her duty.

Apportionment of fault

All of the parties take issue with the trial court’s apportionment of fault in this case. However, regarding the respective acts and duties of the parties involved, and after a careful review of the record, we find no manifest error in the jury’s assessment of comparative fault for the following reasons.

The trier of fact will compare the relative fault of the parties in the assessment of liability. Thomas v. Sisters of Charity of the Incarnate Word, 38,170 (La.App. 2d Cir.03/19/04), 870 So.2d 390, writ denied, 2004-1403 (La.09/24/04), 882 So.2d 1132, citing Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985). In assessing comparative fault, the following factors should be considered: (1) whether the conduct resulted from inadvertence or, involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether | usuperior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Thomas, supra. The trier of fact’s allocation of fault is a factual determination subject to the manifest error rule. Id.

Clearly, after determining that Kendrick was negligent, the jury weighed the Watson factors to determine what degree of fault she was responsible for. However, the jury felt that Ragan bore the majority of the fault for his death, which we do not conclude was in error. Apportionment of a great percentage of fault to Ragan does not reflect a dislike of Ragan by the jury, as claimed by the appellants; instead, the record clearly supports the jury’s conclusion that ultimately Ragan was the most responsible for his own death. Ragan was an adult, albeit young, whose long-term drug habit had apparently spiraled out of control, something that the record shows he had not come to terms with. His friend, Dustin, testified that Ragan was “pretty much [on drugs] every time” he saw him. In fact, Dustin saw Ragan mowing Kendrick’s grass the day before his death, and believed Ragan was under the influence of drugs then. Further, as testified to by Dr. Epling, Ragan tried to convince the doctor that he was in withdrawal so he could get more drugs. Additionally, Ragan resisted Dr. Epling’s recommendation for more intense residential treatment for his drug use, and Ragan ceased visitations with Dr. Epling. Although sad, it is evident that Ragan was the most responsible for his ultimate death by drug overdose, and the jury did not err in attributing 80% of the fault to him.

|1fiAs to Kendrick’s role in Ragan’s death, the jury obviously weighed the evidence and reached a conclusion, as discussed herein, that she acted negligently. After making that initial determination, the jury was faced with determining what degree of fault she shared with Ragan. Considering the evidence of record and the Watson factors, we cannot say. that the jury committed manifest error in assessing Kendrick with 20% of the fault. As discussed, Kendrick apparently had a relaxed attitude toward drugs and had a variety on her property. However, the jury also heard testimony by the investigating officer that Kendrick was cooperative in his investigation, and even led him to the Xa-nax she had in her car. Additionally, the jury obviously assessed the actions taken by Kendrick when she discovered Ragan in an unconscious state, including the fact that he had been passed out for some time on her floor. In this regard, factors that could 'have been considered by the jury were Kendrick’s age, experience, and relationship with Ragan (she had been described as being almost a mother to Ra-gan). When faced with weighing all the troubling facts in this case, and after con-eluding Kendrick was negligent, it was not a clear abuse of discretion for the jury to have found Kendrick 20% at fault for Ra-gan’s death.

Insurance coverage

In its answer to the appeal, State Farm argues that pursuant to Louisiana’s Drug Dealer Act, La. R.S. 9:2800.61 et seq. (the “Act”) it is prohibited from defending and paying damages for Kendrick. Additionally, State Farm maintains that Kendrick’s actions were intentional, and thus would be excluded from liability insurance coverage under her policy.

lnOraff Dealer Liability Act

State Farm correctly maintains that pursuant to La. R.S. 9:2800.65, it would be barred from paying damages or providing a defense for Kendrick had the action against Kendrick been brought under the Louisiana Drug Dealer Liability Act. However, the appellants did not bring their action against Kendrick pursuant to the Act—their claims against Kendrick were in tort, pursuant to La. C.C. arts. 2315 and 2315.2, which was a choice within their discretion. They were not legally bound to bring their claims against Kendrick under the Act.

The starting point in interpreting any statute is the language of the statute itself. Moss v. State, 2005-1963 (La.04/04/06), 925 So.2d 1185. Louisiana R.S. 1:3 states that, “the word ‘shall’ is mandatory and the word ‘may’ is permissive.” Notably, as pointed out by the appellants, the Act employs the use of the permissive “may” rather than the mandatory “shall” in describing the employment of the Act as a cause of action. La. R.S. 9:2800.63. The Act is unlike the Louisiana Medical Malpractice Act, which uses mandatory language requiring the allegedly injured party’s compliance with the act. Thus, we conclude that under the clear language of the Act, alternative theories of recovery, as such, are provided under La. C.C. arts. 2315 and 2315.2, are not barred, and appellants were not required to bring their cause of action against Kendrick pursuant to the Act. Thus, there was no prohibition against insurance coverage for this reason as argued by State Farm.

Intentional act exclusion

|]7State Farm also argues that pursuant to Kendrick’s insurance policy, she is not entitled to coverage because her actions were intentional and her policy included an exclusion for intentional acts by the insured. First, we note that the jury was faced with the question on the verdict form: “Do you find that, [Kendrick], either consciously desired Ragan Shively’s serious injury or death; or knew that Ragan Shively’s serious injury or death was substantially certain to result from her conduct.” The jury answered “no,” which indicates it found no intent on the part of Kendrick. Furthermore, as we have already discussed, we found no error in the jury’s conclusion that Kendrick acted negligently, which further pretermits any discussion of whether her actions were intentional, as claimed by State Farm. Thus, we conclude that State Farm’s assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment by the trial court assessing 80% comparative fault to Ragan Shively and 20% comparative fault to Cynthia Lynn Kendrick for Ragan’s death is hereby affirmed. Costs of this appeal are to be shared equally by the parties.

AFFIRMED.

CARAWAY, J., concurs in part and dissents in part with written reasons.

CARAWAY, J.,

concurring in part and dissenting in part.

Li respectfully concur in part, and dissent in part.

This case presents a very close question concerning Cynthia Lynn Kendrick’s negligence in causing Ragan’s death. There is considerable circumstantial evidence that allows choices from opposing inferences. The record reasonably supports a view that Ragan was 100% at fault for his death by drug overdose. On the other hand, there is a reasonable view of the evidence that Kendrick partially facilitated Ragan’s consumption of some of the drugs comprising the lethal mix that killed him and, after observing his collapse as a guest on her kitchen floor, failed to provide him aid that may have saved him. The jury found Kendrick to be a tortfeasor for that role and apathy. This is a very close question, but Kendrick did have a legal duty to her guest under these circumstances which the jurisprudence cited by the majority has recognized and which the jury could have determined was breached.

Kendrick was not the only party in this action that breached a duty to Ragan. The record shows that the plaintiffs also neglected their parental duties to Ragan who began his drug addictive behavior as a minor in their care. That fault of the plaintiffs, however, was not an issue in this comparative fault setting, and since Ragan was a twenty-two-year-old adult at his death, any parental fault for his teenage years was not actionable. Nevertheless, the jury’s verdict awarding nothing to the parents for the loss of affection for their son appears fault-based, tantamount to a contributory negligence bar to compensation for their loss. Echoing that theme, the ^majority affirms the verdict emphasizing the plaintiffs’ lack of “parental involvement in his rehabilitation” and their failure to exert “parental authority” during Ragan’s minority.

Instead of this non-actionable parental fault, the applicable elements of the award for wrongful death in this case include the loss of love, affection and companionship. Wingfield v. State of Louisiana Dep’t of Transp. & Dev., 01-2668 (La.App. 1st Cir.11/8/02), 835 So.2d 785. The record does not support the view that there were no longer any emotional ties which were regularly exercised between these parents and Ragan. There was a clear loss of some compensable affection and companionship. From another perspective, we might remove the specter of drug abuse from this action and consider that Kendrick could have been a tortfeasor that caused Ragan’s death by crashing her vehicle into him as he walked down the street completely sober. With that wrongful death scenario, would anyone say that a compensable emotional loss was not suffered by these same, albeit neglectful, parents who still regularly visited their son and had recently paid for medical help to treat his addition? Though the plaintiffs’ lack of attention and guidance for their son is a relevant factor in measuring the closeness of each parent’s relationship with him, it was an abuse of discretion for the jury not to award some damages for their loss of love, affection and companionship in this case.

In reaching this conclusion, I find the ruling in Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, clearly distinguishable. Our Supreme Court in Wain-vxnght held that there is no per se rule requiring | san award for general damages in personal injury cases when the trier-of-fact has otherwise found the defendant liable and awarded special damages. The court corrected the misstated rationale of some lower court rulings that the appellate court must always award general damages as a matter of law. Instead, a trial court ruling awarding only special damages may be affirmed if there is a reasonable view of the facts that shows that the plaintiff experienced no pain and suffering or, in this case, no loss of love and affection. The court then found no abuse of discretion by the Wainwright jury in failing to award general damages. The emotionally disturbed child victim in that case, who mistakenly received an adult dosage of the drug Prozac, arguably exhibited behavior after the overdose which was no worse than the child’s prior behavior. The award of special damages only to treat the overdose was appropriate.

Notably, in setting forth the correct appellate standard of review, Wainwright did not overrule the results of numerous appellate court rulings correcting trial court decisions which awarded only special damages where the undisputed facts demonstrated some pain and suffering requiring a general damage award. Wainwright’s review of those cases did not dispute the results but only corrected the expressions by the lower courts of the standard of appellate review. Clearly, logic suggests that in personal injury cases with undisputed special damages in the form of medical expenses or lost wages, the occurrence of those special damages without some attendant pain and suffering will be rare. Wainwright presented such rare circumstances. In contrast, this court’s ruling in Greene v. Fox Crossing, Inc., 32,774 (La.App. 2d Cir.3/1/00), 754 So.2d 339, writ denied, 00-0944 (La.5/26/00), 762 So.2d 1108, overruling the jury’s denial of general damages, was unquestionably correct even though the expression of the per se rule in our opinion was improper.

Ironically, the jury awarded special damages in the amount of the funeral expenses the parents paid. Ms. Cook lived nearby, regularly saw her son and first received word of his death from the doctor at the hospital. She copied his obituary and memorial and sent them to her friends and Ragan’s. Was the funeral ceremony and this mother’s mourning evidence of a sham? Was the parents’ relationship with their wayward son really so cold and detached? The evidence supports no reasonable view that these parents did not maintain an ongoing relationship with Ragan and did not suffer some compensable loss of love and affection.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, CARAWAY, DREW, and LOLLEY, JJ.

Rehearing denied.

BROWN and CARAWAY, JJ., would grant rehearing.

      . Actually, the Louisiana First Circuit Court of Appeal has tiptoed close to imposing a duty to rescue. See Beach v. Pointe Coupee Elec. Membership Corp., 2004-2255 (La.App. 1st Cir. 11/16/05), 917 So.2d 556, citing Wicker v. Harmony Corp., 2000-0231 (La.App. 1st Cir.03/28/01), 784 So.2d 660, writ denied, 2001-1726 (La.09/28/01), 798 So.2d 115. The Wicker court analyzed the common law “American Rule” that there is no legal duty to rescue versus the civil law stance imposing such a duty. The court concluded that, "When balancing the utility of this duty against the risks of potentially grave consequences, ... the common law rule is barbarous and uncivilized.” Wicker, supra at 665.