author: BROWN, Chief Judge.

text:
    Walter T. GRAVES, Plaintiff-Appellee v. RIVERWOOD INTERNATIONAL CORP., et al., Defendants-Appellants.
    No. 41,810-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.
    Rehearing Denied Feb. 22, 2007.

      Bergstedt & Mount, by Thomas M. Bergstedt, F. Paul Leger, Brian W. Arable, Lake Charles, for Defendants-Appellants.
    LeBlane & Waddell, L.L.P., by J. Burton LeBlanc, Cameron R. Waddell, Jeffery R. Nicholson, Jody E. Anderman, Baton Rouge, Baron & Budd, P.C., by Lisa White Shirley, Misty A. Farris, Baton Rouge, for Plaintiff-Appellee.
    Before BROWN, WILLIAMS, and LOLLEY, JJ.
   BROWN, Chief Judge.

hOn April 24, 2000, the original plaintiff, Walter Graves, upon being diagnosed with malignant pleural mesothelioma, a long-latency asbestos-related disease, filed the instant action against, inter alia, River-wood International Corporation, the suc-eessor-in-interest to his former employers, alleging that his disease was caused by excessive exposure to asbestos and asbestos materials during his employment at the paper mill in West Monroe, Louisiana, from 1943 to 1986. Upon Graves’ death in June 2000, his widow and two adult daughters filed a supplemental and amending petition substituting themselves as parties plaintiff and adding as a defendant Olin Corporation.

Until 1955, the West Monroe paper mill was owned and operated by the Brown family and was known as the Brown Paper Mill, Inc. Olin Corporation acquired the paper mill and related facilities in 1955. On January 1, 1967, Olin transferred the assets of its Forest Products Division, including the West Monroe Paper Mill, to Olinkraft, Inc., a separate legal entity owned entirely by Olin. Thereafter, on May 31, 1974, Olin transferred ownership of Olinkraft to Olin’s shareholders and Olinkraft became an independent, publicly owned company. Later in the 1970’s, Johns-Manville acquired the paper mill from Olinkraft in a- hostile takeover. | {.Sometime in the 1980’s, the mill’s name changed to Riverwood International Corporation and is now known as Graphic Packaging.

The matter proceeded to trial in July 2005. After an almost two-week trial, the jury returned its verdict with the following findings:

(1) Walter Graves had sustained an asbestos-related injury.
(2) Olin was negligent.
(3) A defective condition existed in the premises owned by/in the custody of Olin.
(4) Both were substantial contributing factors to the development of Graves’ asbestos-related injury.
(5) These findings also applied to another company for whom Graves had worked, Brown Paper Mill.
(6) Olin had assumed the liability of Brown Paper Mill for the injuries and damages sustained by Graves.
(7) Olinkraft, J. Graves Insulation Company, Westinghouse, General Electric, and Johns-Manville Corporation were not at fault.
(8) Plaintiffs were entitled to general damages in the amount of $4,500,000 and medical expenses in the amount of $39,925.02.

On October 26, 2005, judgment in accordance with the jury’s verdict was rendered. Olin filed post-trial motions for judgment notwithstanding the verdict (“JNOV”), partial JNOV, remittitur, and, alternatively, a new trial. The motions were scheduled and oral arguments were held on February 13, 2006. On March 10, 2006, the trial court rendered judgment denying all of Olin’s motions except its motion for remittitur, which the trial court granted by amending the general damage award to plaintiffs to $3,000,000 rather than the $4,500,000 awarded by the jury. It is from this judgment that defendant, Olin Corporation, has appealed.

| sDiscussion

The overlying issue urged by Olin on appeal is that the trial court erred in denying its motions for directed verdict and JNOV/new trial. However, the subissues raised by Olin on appeal (the grounds upon which these motions were based) must be addressed individually in order for this court to reach resolution of this appeal. Applicable Legal Principles — JNOV and New Trial

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. The standard for granting or denying a JNOV is the same as that for a directed verdict — whether reasonable minds could differ. If so, then the motion should be denied. Cook v. Kendrick, 41,-061 (La.App. 2d Cir.05/19/06), 931 So.2d 420, writ denied, 06-1853 (La.10/27/06), 939 So.2d 1284.

Louisiana Code of Civil Procedure article 1972(1) provides that a new trial shall be granted, upon contradictory motion, where the verdict or judgment is contrary to the law and evidence. Article 1973 provides that a new trial may be granted in any case if there is good ground therefor. The ^decision of whether to grant a new trial requires a discretionary balancing of many factors. Davis v. Witt, 02-3102 (La.07/02/03), 851 So.2d 1119; Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84; Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2d Cir.1991). The discretionary power to grant a new trial must be exercised with considerable caution, because a successful litigant is entitled to the benefits of a favorable jury verdict. The jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence. Campbell v. Tork, Inc., 03-1341 (La.02/20/04), 870 So.2d 968.

In reviewing the trial court’s denial of motions for JNOV and new trial, the appellate court is limited to a determination of whether the trial judge committed manifest error in its decision on the motions. Williams v. State ex rel. Dept. of Social Services, 37,923 (La.App. 2d Cir.01/28/04), 865 So.2d 908, writ denied, 04-0514 (La.04/08/04), 870 So.2d 276; Gibson, supra.

Miscellaneous Trial Issues

(1) Evidentiary Rulings

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Roberts v. Owens-Corning Fiberglas Corporation, 03-0248 (La.App. 1st Cir.04/02/04), 878 So.2d 631, unit denied, 04-1834 (La.12/17/04), 888 So.2d 863; Emery v. Owens-Corporation, 00-2144 (La.App. 1st Cir.11/09/01), 813 So.2d 441, writ denied, 02-0635 (La.05/10/02), 815 So.2d 842.

|sAt trial, a party must make a timely objection to evidence that the party considers to be inadmissible and must state the specific ground for the objection. La. C.E. art. 103(A)(1); La. C.C.P. art. 1635; McWilliams v. Courtney, 41,725 (La.App. 2d Cir.12/13/06), 945 So.2d 242. On appeal, the court must consider whether the complained-of ruling was erroneous and whether the error affected a substantial right of the party affected. If not, a reversal is not warranted. La. C.E. art. 103(A); Emery, supra; Brown v. Associated Insurance Consultants, Inc., 94-1451 (La.App. 1st Cir.04/04/96), 672 So.2d 324, writ denied, 96-1106 (La.06/07/96), 674 So.2d 970. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case, and it is the complainant’s burden to so prove. Emery, supra.

Failure to contemporaneously object to an evidentiary ruling constitutes a waiver of the right to complain on appeal. Williams, supra; Bryant v. Newman, 39,-437 (La.App. 2d Cir.04/20/05), 900 So.2d 343. In the absence of objection, the trial court is afforded no opportunity to prevent or correct the alleged error. Bordelon v. Drake, 578 So.2d 1174 (La.App. 5th Cir. 1991).

Olin asserts that the trial court erred in allowing plaintiffs to introduce into evidence: (a) a blown-up exhibit of Walter Graves’ death certificate; (b) expert testimony about the disease process of asbestosis; (c) the testimony of Henry Muranko; (d) as to Brown Paper Mill, any evidence which concerned years other than those of Brown’s ownership (1943-1952). [ (¡Plaintiffs, however, contend that most of this evidence was admitted without any objection by Olin at trial and cannot now be assailed on appeal.

Defendant first argues that the trial court erred in admitting into evidence an enlarged copy of Walter Graves’ death certificate with “cause of death — mesothe-lioma” highlighted in yellow. According to Olin, because they did not dispute the fact that Graves was deceased, the only purpose for introduction of the death certificate was to inflame, improperly influence, and prejudice the jury. At trial, Olin disputed Graves’ diagnosis of mesothelioma and it is the corporation’s position that plaintiffs improperly utilized the death certificate to “prove” that mesothelioma was Graves’ cause of death.

Four expert witnesses, including Dr. Victor Roggli, a pathologist at Duke University Medical Center, Dr. John Maxwell, a Louisiana board certified pathologist, and two of Graves’ treating physicians, Dr. William Smith and Dr. Trey Zizzi, testified unequivocally that Walter Graves had pleural mesothelioma caused by exposure to asbestos. Dr. Maxwell further testified that Graves’ death from mesothelioma was caused by asbestos exposure.

As noted by this court in Gras v. Gras, 489 So.2d 1283 (La.App. 2d Cir. 1986), writ denied, 493 So.2d 1222 (La. 1986), where evidence is admitted that is merely cumulative of other evidence in the record, any error in its admission is harmless. See also Hunt v. Long, 38,395 (La. App. 2d Cir.06/21/00), 763 So.2d 811; Kaufman v. Sewerage v. Water Board of New Orleans, 99-1942 (La.App. 4th Cir.05/03/00), 762 So.2d 644, writ denied, 00-1570 (La.08/31/00), 766 So.2d 1279.

Even if the trial judge erred in allowing plaintiffs to show the blown-up death certificate exhibit to the jury, in light of the cumulative expert testimony as to Walter Graves’ disease process and cause of death as a result thereof, defendant has failed to show any prejudice and such an error is harmless. See Emery, supra.

Olin next contends that the trial court erred in allowing evidence concerning the historical development of knowledge of any asbestos-related disease, particularly asbestosis, other than meso-thelioma. Defendant takes the position that this evidence was irrelevant and inadmissible.

We find no merit to defendant’s argument. As found by the First Circuit in Roberts, supra, evidence of the development of scientific knowledge concerning all of the serious health risks posed by asbestos exposure is directly relevant to the issue of the foreseeability, from the standpoint of an employer such as Olin, of harm to workers such as Walter Graves. Not only is this evidence highly relevant, but its probative value is in no way outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury by considerations of undue delay or waste of time.

| sAccording to defendant, the trial court erred in allowing into evidence the deposition of Dr. Henry Muranko, who went to work as Olin’s industrial hygienist in 1971. Olin objected to this testimony at trial on the ground that Dr. Muranko did not begin working for Olin until after defendant had transferred its interest in the West Monroe paper mill. Defendant also objected to certain portions of Dr. Muranko’s deposition, which were excluded from the testimony which was read to the jury. After Dr. Muranko’s deposition, as edited, was read to the jury and entered into evidence, defense counsel commented, “no objection.” Olin has no basis for complaint on appeal.

Nonetheless, we find no error in the trial court’s ruling. Dr. Muranko’s testimony was relevant on the issue of the presence (or lack thereof) of corporate safety policies concerning asbestos. From Dr. Muranko’s statement that Olin had no asbestos safety policies in 1971 and was taking no steps to protect its workers from asbestos at that time, the jury could reasonably have made the inference that defendant had done nothing to protect or educate its workers at the paper mill prior to that time.

The final evidentiary complaint voiced by Olin is that the jury, in determining the liability of Brown Paper Mill, should not have been presented with any evidence which concerned years other than those of Brown’s ownership of the mill, 1943-1952. This broad objection, however, was first raised on appeal, and is not timely.

| c,(2) Prejudicial Statements by Plaintiffs’ Counsel

According to Olin, plaintiffs’ counsel made several improper remarks during his opening statement, summation, and rebuttal argument, which resulted in an improper verdict. Specifically, defendant takes issue with the following remarks which came at the end of counsel’s opening statement: “He [Walter Graves] died of malignant mesothelioma caused by asbestos exposure. At the close of the case on behalf of Walter, I will ask you to use your power as jurors in this case to hold Olin Corporation responsible for his death.” There was no contemporaneous objection to these remarks, however, by defendant’s attorney. Furthermore, in brief, the other objectionable remarks Olin takes issue with are not part of the appellate record, inasmuch as there is no transcription of the closing arguments.

Nonetheless, the trial court adequately addressed defendant’s concerns by instructing the jury that “The statements and arguments made by the attorneys are not evidence. In the opening statements, the attorneys were permitted to present, for your consideration, their contentions regarding what the evidence has shown or not shown, and what conclusions they think may be drawn from the evidence. You must distinguish between what counsel may have said and the evidence upon which those arguments |inare based.... The opening statements and the closing arguments are not to be considered as evidence.” See Hunt, supra.

(3) Jury Instructions

As a practical matter, a trial judge is under no obligation to give any specific instruction(s) that may be submitted by either party. Instead, the court must correctly charge the jury. Soileau v. State ex rel. Department of Transportation and Development, 97-1541 (La.App. 3d Cir.12/09/98), 724 So.2d 834. Adequate jury instructions are those which fairly and reasonably point up the issues and which provide correct principles of law for the jury to apply to those issues. Id.; Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La. App. 3d Cir.1991). A trial judge is not required to give an instruction unless the facts support the giving of the charge. Emery, supra; Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544 (La.App. 1st Cir.03/11/94), 634 So.2d 466, writ denied, 94-0906 (La.06/17/94), 638 So.2d 1094. The adequacy of jury instructions must be determined in light of the jury instructions as a whole. Soileau, supra.

Olin complains that “[T]he jury was not properly instructed with regards to the law to be applied in this case as requested in Olin’s jury charges.” Specifically, Olin asserts that “[T]he jury did not receive a proper charge regarding the mandated foreseeability requirement within strict liability as set forth in Loescher v. Parr, 324 So.2d 441 (La.1976), and In they did not receive an instruction (nor were they allowed to decide) the factual issue of whether asbestos was an oxygen or metal compound.”

The requested jury instruction was as follows: “Before you can apply the doctrine of strict liability, you must first find that, at the time of the occurrence, the unreasonable risk of harm was ‘foreseeable.’ ” Rather than this instruction, the trial court’s charge to the jury on the issue of strict liability was as follows:

In this case, plaintiffs further seek recovery against Olin Corporation for strict liability. Article 2317 [prior to its amendment in 1996] of the Civil Code provides as follows:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.
In interpreting this standard, our courts have determined that when harm results from a defect in a thing which creates an unreasonable risk of harm to others, the person legally responsible for the custody of that thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the person’s part is proved. This liability arises from his legal relationship to the thing which creates an unreasonable risk of harm to others. Should you find that Olin Corporation had care, custody or control of defective asbestos-containing products, then, under the law, liability does not depend on its knowledge of the risk of those products.

The plaintiff must prove in this case that:

(a) the thing in question was defec- ■ five, i.e., that it posed an unreasonable risk of harm;
(b) that it was in the care, custody, or control of a defendant; and,
(c) that he was damaged as a result of this defect.
If plaintiff proves these three things by a preponderance of the evidence, the person in custody of the thing in question can escape liability only if he shows the harm was caused solely by the fault of the victim, by the fault of a third person, or by an irresistible force.
112When I say that the thing in question had to be in the custody of the defendant, I mean either that he was the owner of it, or was in a position to exercise supervision or control over it, and to draw benefit from it. Although under most circumstances ownership alone establishes the requisite benefit, control, and authority to find custody, this presumption is rebuttable by the owner.
When I say that a defect in a thing creates an unreasonable risk of harm to others, I mean that the likelihood that harm might occur and the seriousness of such harm if it happen outweighs the importance to society of the custody of the thing and the way the owner or custodian has chosen to maintain the thing under the circumstances. This means that you are to weigh the magnitude of the possible harm against the utility of custody of the thing under all the prevailing circumstances.’
In determining whether a thing presents an unreasonable risk of harm, you must assume that the owner had knowledge of the risk that the thing presented and then determine if a reasonable person with such knowledge would have maintained the thing in that condition. Under this strict liability theory, it is not a defense that the owner did not know of the defect.

This instruction tracks precisely the legal principles set forth by the supreme court in Loescher, supra. As noted above, the trial judge is not required to give specific charges requested by either party, particularly when they contain misstatements of the applicable law. Instead, it is the duty of the trial court to correctly charge the jury, which includes providing correct principles of law. See Soileau, supra. This assignment of error lacks merit.

Causation/Accrual of Cause of Action

The gist of Olin’s remaining two assignments of error is that the jury (and then the trial court) erred in finding that the evidence produced by plaintiffs at trial established that Walter Graves developed mesothelioma as a result of exposure to asbestos and/or asbestos-containing materials during |13his employment (a) at Brown Paper Mill from 1943-1955; and/or (b) with Olin from 1955 until acquisition of the paper mill by Johns-Manville in the 1970’s.

Applicable Legal Principles

In 1952, by Acts 1952, No. 532, the Louisiana legislature amended the Workers’ Compensation Act to bring within its ambit occupational diseases, which were defined as “[p]oisoning by or other disease resulting from contact with” specified substances listed, including “oxygen, nitrogen, carbon, and their compounds” and “metals other than lead and their compounds.” La. R.S. 23:1031.1 (1952). The 1952 version of La. R.S. 23:1031.1 also included coverage for diseases caused by exposure to x-rays or radioactive substances, asbestosis, silicosis, dermatosis, and pneumono-coniosis. Thereafter, La. R.S. 23:1031.1 was amended in 1958 to add tuberculosis (when contracted under certain enumerated circumstances) as one of the specified occupational diseases.

In 1975, by Acts 1975, No. 583, § 2, the legislature revised La. R.S. 23:1031.1 by removing the list of specific diseases for which there was coverage under workers’ compensation and substituting a more comprehensive definition:

An occupational disease shall mean only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.

114The above provisions plainly show that, before 1952, there was no workers’ compensation coverage for any occupational disease. Where the Louisiana Workers’ Compensation Act provides no coverage, such as for a worker who contracts an occupational disease before 1952, the employee is free to proceed against his employer in tort. Austin v. Abney Mills, Inc., 01-1598 (La.09/04/02), 824 So.2d 1137. Also clear is that, after the amendment of La. R.S. 23:1031.1 in 1975, mesothelioma is included as an occupational disease covered by Louisiana’s workers’ compensation scheme. The issue that has yet to be definitively decided by the Louisiana Supreme Court is whether mesothelioma fits within the 1952 statute’s definition of occupational disease such that an employer of a worker who contracted this asbestos-related disease after 1952 but before 1975 would be entitled to tort immunity and liable only for workers’ compensation benefits to the injured employee. See Powell v. Weaver, 01-2937 (La.02/07/03), 841 So.2d 742.

In Callaway v. Anco Insulation, Inc., 98-0397 (La.App. 4th Cir.03/25/98), 714 So.2d 730, writ denied, 98-1034 (La.11/19/99), 749 So.2d 666, the Fourth Circuit held that, because the pre-1975 version of La. R.S. 23:1031.1 did not specifically include mesothelioma as a covered disease or asbestos as a substance that caused disease, the plaintiffs were not precluded from pursuing a negligence action against their employer. See also Gautreaux v. Rheem Manufacturing Co., 96-2193 (La.App. 4th Cir.12/27/96), 694 So.2d 977, in which the appellate court affirmed the trial judge’s denial of an exception of no cause of action based on workers’ | ^compensation exclusivity filed by an employer, finding that asbestos was not a substance listed in the pre-1975 version of La. R.S. 23:1031.1 that, when it caused disease, would be covered by the exclusive remedy provision of the workers’ compensation statute.

However, in Brunet v. Avondale Industries, Inc., 99-1354 (La.App. 5th Cir.12/05/00), 772 So.2d 974, the Fifth Circuit held that, under the pre-1975 version of La. R.S. 23:1031.1, a claimant’s occupational disease did not have to be specifically listed by name in order for it to be covered. Instead, when presented with a claimant with a non-listed disease, the court must then determine whether the substance involved was included in the subcategories. This approach was followed by this court in Adams v. Asbestos Corporation, Ltd., 39,952 (La.App. 2d Cir.10/28/05), 914 So.2d 1177. In Adams, this court held that under the 1952 version of La. R.S. 23:1031.1, any disease resulting from contact with asbestos was an occupational disease covered by workers’ compensation.

To establish when a tort cause of action accrues in a long-latency occupational disease case wherein the plaintiff suffers from the disease, the plaintiff must present evidence that the exposures were significant and that such exposures later resulted in the manifestation of damages. Austin, supra; Adams v. Owens-Corning Fiberglas Corporation, 04-1296 (La.App. 1st Cir.09/23/05), 921 So.2d 972, unit denied, 05-2501 (La.04/17/06), 926 So.2d 514.

“Significant exposures” occur and the cause of action accrues when asbestos dust has so damaged the body that the fibrogenic effects of its | ^inhalation will progress independently of further exposure. Austin, supra; Abadie, supra.

Once a party’s cause of action accrues it becomes a vested property right that may not constitutionally be divested. Cole v. Celotex Corporation, 599 So.2d 1058 (La.1992). Statutes enacted after the acquisition of such a vested property right cannot be retroactively applied so as to divest the plaintiff of his vested right in his cause of action. Austin, supra; Cole, supra.

This general rule applies in the context of workers’ compensation and occupational disease. Austin, supra. If an employee acquires the right to sue in tort for a non-covered occupational disease, he cannot later be divested of the right by subsequent legislative expansion of coverage for occupational disease. Id. As noted by the Fifth Circuit in Bourgeois v. A.P. Green Industries, 02-0713 (La.App. 5th Cir.02/25/03), 841 So.2d 902, the law in effect at the time of the tortious exposures applies if the evidence proves that the exposures were significant and resulted in the later manifestation of disease, causing damages to the plaintiff. See also Adams v. Owens-Corning Fiberglas Corporation, supra.

Analysis

According to plaintiffs, the evidence they presented at trial was sufficient for the jury to find that Walter Graves contracted mesothelioma prior to 1952 such that his tort cause of action against Brown Paper Mill (and Olin as Brown’s successor-in-interest), once accrued, was unaffected by the enactment of and subsequent amendments to La. R.S. 23:1031.1. OnJjjthe other hand, defendant contends that plaintiffs’ evidence was inadequate to establish the requisite “significant exposure” prior to 1952. Defendant urges that inasmuch as Graves’ development of meso-thelioma was after 1952, Olin is entitled to tort immunity, with Graves’ exclusive remedy lying in workers’ compensation.

Walter Graves began working at the Brown Paper Mill in 1943. By the time that the legislature first provided for the coverage of occupational diseases under Louisiana workers’ compensation law in 1952, Graves had worked in the paper mill for nine years. The following evidence on the issue of Graves’ pre-1952 exposures was presented to the jury.

Several of Graves’ coworkers testified, via deposition or at trial. One coworker, Jack Gates, testified that he began his employment with Brown Paper Mill in 1947. After working as a laborer and water tender for the first several years, he worked as a maintenance helper for 14 years before becoming a maintenance mechanic in 1966, the job he held until his retirement in 1987.

Gates testified that each year, the plant shut down for maintenance for two weeks at a time, once in July and once at Christmas. There were two 12-hour shifts which ran seven days a week. Beginning in 1947, he worked every shutdown, as did Walter Graves. According to Gates, the only times that Graves, who was a millwright or pipefitter, would work in the powerhouse were during shutdowns. Because no one could work until the powerhouse went back “online,” they had to pull workers from other | ^departments during shutdowns. Most people were eager to work shutdowns because they got overtime pay.

Walter Graves’ primary responsibility during the shutdowns was to work on the turbines. This entailed removing the covers from the large engines and “beating” the asbestos insulation off of the turbines. It took 8-12 hours to get the cover off one turbine and that is when there were no problems. The insulation sheets were bolted down every couple of inches and the tear down process was tedious and time-consuming. Gates was adamant that he and Graves were both exposed to asbestos and asbestos dust during the insulation removal process each shutdown. Likewise, they were exposed to asbestos and asbestos dust while the insulators were putting the new insulation on the turbines during the shutdowns. There was no way they could keep from breathing asbestos dust during the insulation process. According to Gates, the dust was so thick they couldn’t even see each other. Aside from a few open windows, there was no ventilation. Gates testified that they were never warned of the hazards of exposure to asbestos. He only learned of the dangers of asbestos about 5-6 years before he left the paper mill (which was in 1987) when OSHA came out to the mill to conduct some dust surveys.

James Moore testified that he worked with Walter Graves from 1946 to 1950 in the “bull gang,” or maintenance department, which included millwrights, pipefit-ters, welders, boilermakers, insulators, and painters. One of the first assignments he could remember was a week he and Graves spent cleaning up old' insulation in the mill’s recovery room. Moore explained [19that there were hundreds of miles of pipes at the paper mill because a paper plant runs on steam, which is created by pressure from the numerous boilers. All of the equipment which handled anything related to heat or steam had to be insulated, and the only type of insulation they had to use back then was asbestos. Moore and Graves, as part of the “bull gang,” cleaned up everything that had to be picked up, which included bits and pieces of old insulation. During this process, which was frequent, they breathed in asbestos dust.

Moore testified that his employer did not warn about the hazards of asbestos or otherwise suggest procedures for worker protection, such as requiring that the old asbestos be wet down prior to its being swept up and disposed of.

Dr. Victor Roggli, a pathologist with a concentration in diseases related to asbestos exposure, when presented with the facts of a worker such as Walter Graves, who had, for several weeks at a time, twice annually, for a period of several years successively, breathed asbestos dust which was so thick in the air that he and his coworkers could actually see the dust, opined that such exposures would have been be a substantial contributing factor to the development of Graves’ mesothelioma. Dr. Richard Lemen, an expert in epidemiology and industrial hygiene, testified, based upon a review of depositions of Graves’ coworkers and corporate representatives, that he found no evidence whatsoever that Brown Paper Mill had done anything to prevent its workers from being exposed or to educate the workers about the potential hazards they were facing. He also saw no evidence of any |ansampling or evaluations as to whether exposure was actually occurring. It was Dr. Lemen’s opinion that Brown-Paper Mill did not provide Walter Graves with a reasonably safe place to work prior to 1952. Dr. Lemen testified that, where nothing was done to control workers’ exposure to asbestos, there existed a hazardous condition that posed an unreasonable risk of harm in the premises in the care, custody, and control of Brown Paper Mill (to workers such as Walter Graves) during the years between 1943 and 1952.

“Exposure” has been defined in asbestos cases as inhalation of asbestos fibers into the lungs. Owens, supra; Asbestos, supra; Abadie, supra. The above testimony is more than sufficient evidence that Walter Graves had significant exposures to asbestos while working at the paper mill prior to 1952. Therefore, his tort cause of action against his employer vested prior to the enactment of La. R.S. 23:1031.1, and was not divested by its creation or any of the subsequent amendments.

Sufficiency of Proof of Third Party Fault Produced by Olin

Olin argues that neither it nor Brown Paper Mill manufactured the asbestos containing products used at the paper mill. Olin complains that the jury’s failure to hold the manufacturers liable was clear error. Olin argues that these products were dangerous per se and established strict liability upon the manufacturers.

| ⅞1 Louisiana Civil Code article 2323 requires that the fault of every person responsible for a plaintiffs injury be compared, whether or not such person is a party, and regardless of the theory of liability asserted against that person. Foley v. Entergy Louisiana, Inc., 06-0988 (La.11/29/06), 946 So.2d 144; Keith v. United States Fidelity & Guaranty Company, 96-2075 (La.05/09/97), 694 So.2d 180. Olin, as the party asserting joint fault, bears the burden of proof by a preponderance of the evidence that the other person’s fault was a cause in fact of the damages complained of. Watson v. Brazeel, 36,499 (La.App. 2d Cir.12/18/02), 833 So.2d 1276, writ denied, 03-0217 (La.04/04/03), 840 So.2d 1215.

When evaluating liability in an asbestos case, traditional theories of tort liability apply, which require proof of causation. Emery, supra; Quick v. Murphy Oil Company, 93-2267 (La.App. 4th Cir.09/20/94), 643 So.2d 1291, writ denied, 94-2583 (La.01/06/95), 648 So.2d 923. Asbestos cases typically involved multiple defendants. Emery, supra. Any exposure or inhalation of a respirable asbestos fiber may cause lung disease. Roberts, supra. To establish liability on the part of a manufacturer or distributor, it is insufficient to simply show that the product contained asbestos; rather the l^burden is to show that the product released asbestos dust or fibers that were inhaled by plaintiff and that this exposure was a substantial factor in bringing about the injury. Id.; Asbestos v. Bordelon, 96-0525 (La.App. 4th Cir.10/21/98), 726 So.2d 926. Evidence of the mere physical presence of an asbestos-containing material or product or material is insufficient to find a manufacturer liable to a plaintiff. Roberts, supra; Abadie v. Metropolitan Life Insurance Company, 00-344 (La.App. 5th Cir.03/28/01), 784 So.2d 46; writs denied, 01-1533, 01-1534, 01-1543, 01-1544 (La.12/14/01), 804 So.2d 642, 643.

Our review of the record fails to show manifest error on the part of the jury in finding no fault on the part of the other alleged joint tort feasors. Olin simply failed to establish the requisite causal prerequisites necessary for a finding of liability on the part of any of the other alleged joint responsible parties.

Conclusion

Finding that reasonable minds could differ, the standard for denying JNOV, Cook, supra, and that the jury’s verdict is supportable by a fair interpretation of the evidence, as is required for denial of a new trial motion, Campbell, supra, we find no manifest error in the trial court’s denial of Olin’s motions for JNOV and new trial. Costs are assessed to defendant-appellant, Olin Corporation. AFFIRMED.

APPLICATION FOR REHEARING

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

Rehearing denied.

      . Other defendants included businesses engaged in the mining, manufacturing, sales, distribution and/or supply of asbestos products, and insurers of these providers of asbestos products.

      . The original petition was also amended to remove all references to Riverwood International Corporation and Riverwood and to replace those references with Olin Corporation and Olin respectively.

      . Olin contends that the trial court erred in denying its motion for directed verdict on the issues of whether plaintiffs established liability on the part of Brown Paper Mill and whether plaintiffs established garde on the part of General Electric and Westinghouse. Olin, however, did not rest on its motion for directed verdict, but exercised its right to present evidence after the trial court denied its motion. A defendant who introduces evidence after the denial of its motion for directed verdict is deemed to have abandoned the motion and the evidence in the case is judged on the entirety of the record. Holloway v. Midland Risk Insurance Company, 36,262 (La. App. 2d Cir. 10/30/02), 832 So.2d 1004, writ denied, 02-3247 (La.03/28/03), 840 So.2d 571; Jackson v. Quick, 543 So.2d 552 (La.App. 4th Cir.1989), writ denied, 546 So.2d 1219 (La. 1989); Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064 (La.App. 1st Cir. 1983), writs denied, 433 So.2d 1056, 1057 (La. 1983).

      . Louisiana Code of Evidence art. 401 defines "relevant evidence” as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. If the evidence meets this "probative worth” requirement, La. C.C. art. 403 provides that it should be admitted unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or waste of time.

      . According to defendant, during summation and rebuttal, plaintiffs’ counsel repeatedly stated that Olin "broke the laws of Louisiana.” Defendant also complains that plaintiffs’ counsel stated several times that Olin "dumped” the paper mill into a shell corporation and "left the state.” Failure to object constitutes a waiver of the right to complain about the remarks on appeal. See Sims v. Ward, 05-0278 (La.App. 1st Cir.06/09/06), 938 So.2d 702, writ denied, 06-2104 (La.11/17/06), 942 So.2d 535; Cooper v. United Southern Assurance Company, 97-0250 (La.App. 1st Cir.09/09/98), 718 So.2d 1029.

      . Olin, in brief, also argues that the jury selection process was tainted, resulting in a "spoiled jury,” primarily as a result of the trial court’s decision to allow plaintiffs' counsel to ask potential jurors whether they "could award millions of dollars for mental anguish.” Although plaintiffs rebutted this argument at length in their brief, because this issue was not assigned as error it will not be addressed by this court on appeal. See Reaux v. City of New Orleans, 01-1585 (La.App. 4th Cir.03/20/02), 815 So.2d 191, writ denied, 02-1068 (La.06/14/02), 817 So.2d 1158.

      . Subsequent amendments to La. R.S. 23:1031.1 are not relevant to this case and will not therefore be discussed.

      . Our ruling today in. no way conflicts with our decision in Adams, supra, inasmuch as the plaintiffs exposures in that case all occurred after the enactment of La. R.S. 23:1031.1.

      . Although both parties have argued that pre-comparative fault principles apply, Keith, supra, at 183, held that the Louisiana Supreme Court held:
      [r]he legislative amendment [by Act 3 of 1996] of La. Civ.Code art. 2323 was procedural legislation. Act. 431 of 1979 was amended and reenacted La. Civ.Code arts. 2103, 2323, and 2324 to usher a comparative fault system into Louisiana. This act eliminated the doctrine of contributory negligence and provided the framework for a comprehensive scheme of loss apportionment in a multi-party litigation.... [T]he legislative changes reflected in Act. 3 are procedural, and can be applied retroactively-

        See also Landry v. Avondale Industries, Inc., 03-3432 (La.07/02/04), 877 So.2d 970.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    LAKE D’ARBONNE PROPERTIES, L.L.C., Plaintiff-Appellant v. DIGCO UTILITY CONSTRUCTION, INC. d/b/a North Houston Pole Company, Defendant-Appellee.
    No. 41,671-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.

      Dollar Laird, L.L.P., by John Carlton Laird, P.C., Monroe, for Appellant.
    Hudson, Potts & Bernstein, L.L.P., by Robert McCuller Baldwin, Johnny R. Huckabay, II, Monroe, for Appellee.
    Before BROWN, WILLIAMS and DREW, JJ.
   DREW, J.

11 Lake D’Arbonne Properties and Cen-terPoint Energy Arkla appeal a judgment finding that CenterPoint’s installation of a gas pipeline caused a roadbed failure in a Union Parish subdivision. We amend the judgment to increase the amount of damages awarded to Lake D’Arbonne Properties by $2,550.00, and we affirm the judgment as amended.

FACTS

Lake D’Arbonne Properties (“LDAP”) is the developer of a residential subdivision, Eagle Point Subdivision, that is along Lake D’Arbonne in Union Parish. Nathan Futch was hired by LDAP to clear the land and to construct the subdivision roads.

The road at issue measured approximately 6,000 feet in length. It contained several curves and undulated over several small hills before ending at a cul-de-sac. LDAP relied on Futch for the specifications of the road, and a surveyor, Jerry Ruggs, assisted in determining where to place the road. No engineer was consulted about the road.

The roadbed was built by Nathan Futch using clay in six-inch lifts. Futch took clay that was available on the job site and sloped it toward what would be the center of the road. The clay was then compacted by heavy equipment being driven across it. The next step in the process was to be the application of asphalt as the pavement structure for the road.

LDAP contracted with CenterPoint’s predecessor, Reliant Energy Arkla (“Cen-terPoint”), to provide natural gas service to Eagle Point. In order for this service to be provided, a gas main pipeline needed to be installed along an easement that ran on the right side of the road, at a cost of 1 a$13,530.00 to LDAP. CenterPoint assigned the task to Digco Utility Construction (“Digco”), with which CenterPoint had a blanket construction contract. In September of 2002, Digco laid approximately 6,115 feet of gas pipeline along this road.

Thomas McCloud was a general foreman for Digco at the time of the project, although he was not present when the pipeline was being laid. McCloud described how a trenching machine dug a trench that was approximately three feet deep, and then a two-inch gas line was laid. The trench was backfilled by a backhoe, which then ran over the dirt to compact it. This compaction method was done according to Digco’s general procedure.

John Wortham was CenterPoint’s inspector on this particular job. His duty was to ensure that the contractor followed CenterPoint’s specifications. The original plan was to bore under several culverts in one section of the road. That was not possible, so Wortham contacted John Crow, an owner of LDAP, about trenching into the road’s shoulder in the area of the culverts. Crow then called Johnny Dollar, the other owner of LDAP. At first Dollar would not give his consent to this variation from the original plan, but he ultimately agreed when told that Wortham said he would make it good. Wortham measured the pipeline as being approximately 24 feet from the center of the road in the area over the culverts. McCloud measured the pipeline as being no closer than nine or ten feet from the edge of the road.

Futch recalled that the dirt used by Digco to backfill the trench collapsed in an area across the culverts during a heavy rainstorm that | ¡¡occurred the day after the pipeline was laid. Some of the newly-laid pipeline was even exposed. Futch stated that CenterPoint was contacted about the problem, but nothing was done, so he drained the water from the trench, allowed it to dry, and then backfilled the trench. Futch also stated that on one occasion before the asphalt was poured, Center-Point returned to add soil to the trench, but the soil washed out. Futch estimated he backfilled certain areas of the pipeline ditch two or three times.

LDAP hired Lincoln Asphalt Paving to lay two inches of asphalt on the roadbed that had been prepared by Futch. Lincoln did not guarantee its work in this instance, which was its typical practice when it had not constructed the roadbed. Lincoln normally used soil cement when building a roadbed. In November of 2002, as the asphalt was being laid on the left side of the road, Lincoln’s heavy dump trucks traveled over the right side of the road. Soon, areas on the right side of the roadbed began failing. Michael Bryan, Lincoln’s supervisor on the job, recalled that ruts that were four to five inches deep had formed on the outside of the right side of the roadbed. Bryan thought these problems began in one of the culvert areas and continued past it. Bryan stopped the job, and alerted Futch. Futch described some of the roadbed shifting into an area where the trench was 1 ¿located. Dollar described the problem as being six-and eight-inch drops in the right travel lane of the roadbed as it went across the culverts and continued past the culverts around a curve. McCloud recalled that the roadbed was rutted with tire tracks from the asphalt trucks.

It was suggested by Lincoln that soil .cement be added to the roadbed in order to stabilize the roadbed for the application of the asphalt. This suggested remedy cost $22,283.53 and was accepted by LDAP. The addition of the soil cement was limited to the right side of the road in the areas that failed. Dollar thought the soil cement went into an area from just before the culverts to an area after the bend following the culverts.

LDAP filed suit against CenterPoint and Digco asserting that substandard practices had been used in digging and installing the gas line, including digging too closely to the roadway and not properly compacting the dirt removed during the excavation process.

Cloyce Darnell, an expert witness on behalf of defendants and the only expert witness who testified at trial, blamed the roadbed failure on the material chosen by Futch to build the roadbed and on what Darnell considered to be insufficient compaction by Futch of the soil around the culverts. The trial court rejected Darnell’s conclusions and rendered judgment against CenterPoint and in favor of LDAP, awarding damages of $22,283.53. The claims against Digco were dismissed. CenterPoint and LDAP have appealed.

I .DISCUSSION

CenterPoint argues that the trial court was clearly wrong in assigning fault to it as the evidence demonstrated that the reason the road failed was because Futch used an insufficient material when building the roadbed and then did not properly compact the material. CenterPoint further contends that the trial court was clearly wrong in not assigning any fault to Futch. CenterPoint additionally argues that the trial court erred in failing to find that LDAP did not mitigate its damages. LDAP complains that it is entitled to additional damages, and that Digco should be held solidarily liable with CenterPoint for LDAP’s damages.

Liability

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Cole v. Department of Public Safety & Corrections, 01-2123 (La.9/4/02), 825 So.2d 1134; Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Cole, supra; Rosell v. ESCO, 549 So.2d 840 (La.1989).

Cloyce Darnell, a civil engineer, was accepted as an expert in the design and building of roads. He explained that a road consists of the | (¡paving structure (asphalt in this case), a base course, and then a subgrade. Testing was done on soil samples gathered by Darnell from the edge of the pavement on both sides of the road in an area over the culverts. The tests determined that the soil was sandy clay, with a classification of A-2-4. Darnell considered this material to be marginally suitable for subgrade, but not as the base course material. According to Darnell, the road lacked a proper base course, and, thus, it did not provide a sufficient roadbed structure.

Darnell thought that photos taken of the road showed a classic road base failure where the base “ruts up” underneath a heavy load. It was estimated that each dump truck loaded with asphalt weighed between 70,000 to 80,000 pounds. Darnell regarded the clay as material unsuitable to support the weight of the trucks while the left side of the road was paved. Based upon his examination of video of the road that had been taken during the asphalt work, Darnell could not find longitudinal cracks in the road base in the area of the culverts. These cracks would have indicated that the road had shifted into the pipeline ditch.

Darnell also took issue with the manner in which Futch had compacted the dirt in the area of the culverts. He believed that it was not possible to properly compact the dirt between the culverts simply by running a dirt buggy across it as Futch had done. We note Futch’s testimony that when the roadbed was being constructed, rocks were placed in the culvert area to maintain the stability of the dirt placed on top of the culverts.

|7For several reasons, Darnell concluded that the trenches did not contribute to or cause the roadbed failure. First, he noted that Futch had already backfilled and compacted the trenches before the paving began. Second, he pointed out that even if the trench had been excavated nine feet from the edge of the pavement, it was still far enough away not to affect the structural integrity of the road. He recalled building roads with adequate base materials that remained intact even when trenches were dug merely 18-24 inches from the road and then filled with non-dense materials. Third, Darnell explained that the primary purpose of a road shoulder is for driver safety, and that it does not provide the majority of lateral support for the road because pressure on the road is dissipated at an angle of 45 degrees.

The effect and weight to be given to expert testimony rests within the broad discretion of the trier of fact. Williams v. State Farm Mut. Auto. Ins. Co., 36,439 (La.App. 2d Cir.10/23/02), 830 So.2d 379.

The trier of fact may accept or reject any expert’s view, even to the point of substituting its own common sense and judgment for that of an expert witness where, in the fact-trier’s opinion, such substitution appears warranted by the evidence as a whole. See Evans v. Kilbert, 27,101 (La.App. 2d Cir.8/23/95), 660 So.2d 167.

Darnell visited the road one time, in the spring of 2004. He also examined photographs and video taken of the road. The only road samples he tested were taken from the area of the culverts. He did not perform any soil density tests to compare compaction in different areas of the road.

|sThe trial court accepted Darnell’s testimony as accurate, except for his ultimate conclusions. The court noted the testimony of other witnesses that the road was suitable for and was serving its intended purpose. The court reflected that it would be a coincidence that the road failure occurred only at the location where the trenching was done into the shoulder of the road and nowhere else along the road.

Fntch constructed the roadbed by dropping six-inch lifts, and then compacting the dirt on the roadbed and shoulder by running heavy equipment over it. Futch believed that even without performing a density test, he knew the density of the Eagle Point roadbed based upon his experience from building roads in Union Parish since 1969. A density test would have been required by the Town of Farmerville, which also required a road base of six inches of compacted iron ore or select material with soil cement.

Futch did not perform any soil analysis of the roadbed. He simply used natural clay that was available nearby. Futch did not think that the roadbed originally needed to be constructed with soil cement in order for it to be sufficient to meet its intended purpose. Futch felt that he had the experience necessary to use the clay and save money. He never considered adding soil cement before the stability problems occurred.

| gFutch believed that the problems with the roadbed occurred because Digco had failed to properly compact the dirt it used to fill the trenches that had been excavated in the shoulder of the road as it crossed the culverts. He thought this made the road unable to withstand the weight of the asphalt trucks which traveled on it while asphalt was being placed on the left side of the road.

CenterPoint was certainly aware of the pitfalls of digging a trench in the shoulder of the road. Wortham remarked that when laying pipe along a state road, a utility company is not allowed to come past the bottom of the ditch and dig into the road bank. Wortham assumed the reason for this was because of compaction issues; nevertheless, no special compaction instructions were given to Digco despite their trenching into the shoulder of LDAP’s road. Digco simply compacted the backfill dirt over the pipeline by running a backhoe over it. McCloud testified that if CenterPoint had given them special compaction instructions, they would have followed them. Otherwise, they followed their normal compaction procedure.

Futch explained that his efforts to refill the trench and compact the dirt did not succeed because the damage had already been done. He regarded the shoulder as being the brace of the road in that it provided lateral support. Futch added that laying the pipe in the shoulder would not have necessarily led to roadbed failure had the trench been properly backfilled and compacted.

Imlt is beyond coincidence that the roadbed failure occurred in the areas where a trench had been dug into the shoulder of the road. Michael Bryan of Lincoln Asphalt Paving could not recall experiencing any trouble on the left side of the road, or anywhere else on the right side of the road. Moreover, soil cement was not originally added to the roadbed, yet most of the right side of the roadbed remained intact despite the heavy trucks traveling on it. The only structural problems with the roadbed occurred near where the pipeline trench was dug into the shoulder.

Based upon our review of this record, we cannot conclude the trial court was clearly wrong in finding CenterPoint solely at fault for the roadbed failure, which occurred only in the area where the pipeline had been placed into the shoulder of the road.

Damages

The trial court concluded that LDAP failed to establish by a preponderance of evidence just what amount was to be paid in additional expenses relative to the damages it sustained. The trial court was clearly wrong in reaching this conclusion.

Futch charged $85.00 per hour to back-fill the ditches that formed after Digco installed the pipeline. He estimated that he spent 30-40 hours backfilling the ditch in the area where the roadbed had failed. Futch felt this work was necessary because he was afraid the ditches formed by soil settling and rain would weaken the roadbed.

InLDAP established by a preponderance of the evidence that it is entitled to an additional $2,550.00 in damages for the expenses incurred in attempting to fill these ditches.

Mitigation of Damages

An injured party has a duty to mitigate his damages. Aisole v. Dean, 574 So.2d 1248 (La.1991); Sepulvado v. Turner, 37,912 (La.App. 2d Cir.12/10/03), 862 So.2d 457. The victim has an affirmative responsibility to make every reasonable effort to mitigate damages, but the care and diligence required of him are the same as that which would be used by a man of ordinary prudence under like circumstances. Id.

There is nothing in this record which indicates that LDAP failed to take every reasonable step to mitigate its damages. Futch worked to keep the ditches that formed dry and filled with dirt. Cen-terPoint was aware of the ditch problems as Wortham testified that he had been dispatched to add dirt over the pipeline. We also note that the asphalt work on the road was stopped when problems appeared in the roadbed, and the addition of soil cement was limited only to the area where the roadbed had failed. This argument is without merit.

Digco’s Liabilitg

Digco pled the immunity provided by La. R.S. 9:2771 in its answer. That statute reads:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made |1?and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

A contractor who strictly adheres to plans or specifications furnished to him is relieved of liability to third persons when the contractor has no reason to believe that alleged deficiencies contained in such plans and specifications would lead to a dangerous condition. Dumas v. Angus Chemical Co., 31,399 (La.App. 2d Cir.1/13/99), 729 So.2d 624 (citing Arnold v. Our Lady of the Lake Hospital, 562 So.2d 1056 (La.App. 1st Cir.1990)).

The evidence established that the failure to compact the dirt properly after initially filling the pipeline ditch is what ultimately caused the road to fail. Digco compacted the dirt using its normal procedure. Although CenterPoint was aware of the danger of digging a trench into a road shoulder, it never instructed Digco to utilize any special compacting procedures. As such, the deficiency was due to the insufficiency of CenterPoint’s instructions. Digco is entitled to the immunity, and the trial court properly dismissed all claims against Digco.

DECREE

The judgment is AMENDED to increase the damage award to $24,833.53. As AMENDED, the judgment is AFFIRMED, at CenterPoint’s costs.

      . Washout trenches also appeared on the left side of the road, where other utilities were laid, although these trenches apparently did not affect the road stability. McCloud testified that when he was in the subdivision after the road had been asphalted, he noted washed-out areas where the utility lines were on the left side of the road.

      . Wortham stated that he put dirt over the pipeline in an area going down the first hill on the road within a few months after the pipeline was installed but before the asphalt was laid. The dirt washed out again, and when he returned to add more dirt, Lincoln Asphalt was adding soil cement to the road bed. Wortham mixed soil cement with the dirt but it still washed out again.

      . Futch recalled that the landowners then called defendants.

      . Digco began trenching into the shoulder approximately 150 feet before the culverts.

      . Crow believed that the road was built to the specifications of Farmerville, and he thought Futch knew that the road was to be built so Farmerville could accept it in the event that LDAP wanted to dedicate the road. Dollar testified that when LDAP had developed another subdivision, Farmerville had accepted a section of a road that did not contain either soil cement or an iron ore base.

      . McCloud believed that Digco would have been paid extra for any special compaction measures.

      . We note that Wortham testified that there was also a soft spot in the road at the top of the hill before the culverts were reached.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Albert STEVENS, Jr.
    No. 06-818.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 2007.

      John F. DeRosier, District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant-Appellant, Albert Stevens, Jr.
    Albert Stevens, Jr., Lake Charles, LA, Pro Se.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, OSWALD A. DECUIR, JIMMIE C. PETERS, MARC T. AMY, MICHAEL G. SULLIVAN, GLENN B. GREMILLION, ELIZABETH A. PICKETT, BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| defendant, Albert Stevens, Jr., appeals the sentence imposed in connection with his conviction on three counts of simple robbery. Appellant’s counsel on appeal has filed a motion to withdraw as counsel of record for Defendant pursuant to the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the following reasons, we affirm Defendant’s sentence and grant the motion to withdraw. However, we remand this matter to the trial court with instructions to impose a payment plan for the fine, court costs, and restitution while Defendant is present.

FACTS

Defendant was accused of having robbed the clerks at various convenience stores in Calcasieu Parish on June 10, 28, and 29, 1993, while armed with weapons including a knife, a pair of scissors, and a box cutter. In August 1993, he was charged by bill of information with three counts of armed robbery pursuant to La.R.S. 14:64. He pled not guilty to those charges. Defendant failed to appear for trial on June 26, 1995, and a bench warrant was issued. Defendant was apprehended in Mississippi and sent back to face trial. The State, on June 21, 2005, amended the bill of information to reflect three counts of simple robbery. Defendant pled guilty to all counts. He was sentenced to six years hard labor on each count, with all the sentences to run concurrently. Four years of each sentence was suspended, and the trial court ordered Defendant to be placed on four years supervised probation upon his release from prison. Defendant appeals.

I ¡¿DISCUSSION

Error Patent Review

After reviewing the record for errors patent pursuant to La.Code Crim.P. art. 920, we find two items involving special conditions of probation which this court has previously deemed errors patent. However, upon reconsideration, we now find the trial court’s handling of these matters to be correct.

Along with other conditions of probation, the trial court imposed the following special conditions:

1) $125.00 restitution to Mr. Levine to be paid over the duration of the supervised probation.
2) A $1,000.00 fine and court costs on each count, to be paid over the period of probation on a schedule worked out by Probation and Parole and approved by the Court before implementation.
3) A $150.00 reimbursement to the Indigent Defender Board to be spread out over the 48 months of supervised probation.

This court has previously held that similar provisions as to payment are not acceptable and that the trial court must announce the payment plan in ordering payment over a term. See State v. Brack, 99-1103 (La.App. 3 Cir. 3/1/00), 758 So.2d 310; State v. Thomas, 05-1051 (La:App. 3 Cir. 3/1/06), 924 So.2d 1146; State v. Moore, 595 So.2d 334 (La.App. 3 Cir.1992). According to the version of La.Code Crim.P. art. 895.1(A) in effect in 1993 when the offenses were committed, the restitution payment “shall be made, in the discretion of the court, either in a lump sum or in monthly installments based on the earning capacity and assets of the defendant.” (Emphasis added.) Further, because these conditions of probation are a part of Defendant’s sentences, the payment plan must be imposed in Defendant’s presence. La.Code Crim.P. art. 835;

| oUpon reconsideration, we find nothing in the statute which prohibits the trial court from seeking assistance from outside sources, including Probation and Parole-, in formulating the appropriate payment plan. In fact, Probation and Parole may be in a better position to formulate a workable payment schedule than is the trial court. In taking advantage of this assistance, the trial court in no way cedes its responsibility to impose the payment plan, and it only becomes effective upon approval of the trial court. Therefore, we overrule this court’s previous decision in State v. Brack, 758 So.2d 310.

Therefore, we find no error in the trial court’s ruling as to the payment of fines and court costs. However, the trial court ordered Defendant to pay the restitution “over the duration of the supervised probation” and to reimburse the Indigent Defender Board “over the 48 months of supervised probation.” These provisions are inadequate in that they do not either provide the monthly payment schedule with which the Defendant is to comply or provide for a payment plan to be formulated by Probation and Parole and approved by the trial court. Accordingly, we remand the case to the trial court with the instruction that the court impose a payment plan for restitution and for payment of the Indigent Defender Board which comply with the requirements of La.Code Crim.P. art. 895.1(A) and this opinion. We reiterate that either or both of these plans may be determined by the trial court or formulated by Probation and Parole and approved by the trial court.

Anders Review

Defendant’s counsel has filed a brief stating that he could find no error on appeal that would support reversal of Defendant’s sentence. Consequently, counsel seeks to withdraw.

I ¿Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir.1990), this court has reviewed the record thoroughly, including pleadings, minute entries, the charging instrument, and the transcripts. Defendant was properly charged in a bill of information, was present and represented by counsel at all crucial stages of the proceedings, and entered a free and voluntary guilty plea after being properly advised of his rights pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, Defendant received legal sentences. We find no issues which would support an assignment of error on appeal. Therefore, Defendant’s appellate counsel’s motion to withdraw is granted. Sentence

In his pro se assignment of error, Defendant contends that the trial court erred in sentencing him to a term of imprisonment disproportionate to the crimes.

The record indicates that Defendant did not file a motion to reconsider sentence as mandated by La.Code Crim.P. art. 881.1. “Under Article 881.1, a defendant must file a motion to reconsider the sentence setting forth the specific ground upon which the motion is based in order to raise an excessive sentence claim on appeal. State v. Mims, 619 So.2d 1059 (La. 1993).” State v. Theriot, 04-897, p. 8 (La. App. 3 Cir. 2/9/05), 893 So.2d 1016, 1021. Because Defendant failed to file the required motion, this court will conduct a bare excessive sentence review.

In State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), the supreme court held that when a defendant claims a sentence is excessive “[t]he only relevant question on review ... [is] ‘whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.’ State v. Humphrey, 445 So.2d 1155, 1165 (La.1984).”

State v. Robinson, 05-633, p. 8 (La.App. 3 Cir. 12/30/05), 918 So.2d 1151, 1156.

| ^Defendant pled guilty to three counts of simple robbery. “Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.” La.R.S. 14:65. Defendant was sentenced to serve six years at hard labor on each count with all sentences to run concurrently. However, the trial court suspended four years of each sentence and ordered that Defendant be placed on four years of supervised probation upon being released from prison.

Defendant asserts that he committed the offenses at issue because he was addicted to drugs. Additionally, he explains that during the ten years he was “absent from authorities,” he married, had children, maintained gainful employment, and led a crime free life. Defendant argues that incarceration is inappropriate and disproportionate considering his life changing circumstances.

The offenses to which Defendant pled guilty inadequately describe the entire course of his conduct. Because he used weapons during each of the three offenses, under the armed robbery statute, he could have been given a sentence ranging from ten to ninety-nine years for each offense.

In State v. Lanclos, 419 So.2d 475, 478 (La.1982), the supreme court stated that:

[W]here the offense to which the defendant has pled guilty inadequately describes his conduct, we find no abuse of the trial court’s great discretion in imposing the maximum sentence possible for the crime to which the guilty plea is entered. This is particularly true where a significant reduction in potential exposure to imprisonment has been obtained through plea bargaining, and the offense involves violence to the victim.

Additionally, Defendant’s sentences were ordered to run concurrently to each other even though the offenses occurred on different days and involved different | (¡victims. The sentences could have been ordered to be served consecutively to each other, which would have exposed Defendant to possible imprisonment for over twenty-one years. The sentences were also ordered to run concurrently with a sentence imposed for an additional count of simple robbery in another docket number. Considered in this light, Defendant benefitted greatly by the amendment of the bill of information and the fact that his sentences were ordered to run concurrently. See State v. Spencer, 04-857 (La.App. 3 Cir. 12/8/04), 888 So.2d 1128.

Given the nature of the underlying convictions, there is no indication that the sentences imposed are a purposeless imposition of pain and suffering or that they are grossly disproportionate to the crimes committed. Therefore, we find no error in the sentences imposed.

CONCLUSION

Defendant’s sentences are affirmed. Counsel’s motion to withdraw is granted. We remand the case to the trial court with the instruction that the court impose a payment plan for restitution and for payment of the Indigent Defender Board which complies with the requirements of La.Code Crim.P. art. 895.1(A) and this opinion. We reiterate that the plan may either be determined by the trial court or be formulated by Probation and Parole and approved by the trial court.

SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED; AND REMANDED WITH INSTRUCTIONS.

ORDER

After consideration of Defense counsel’s request to withdraw as counsel and the appeal presently pending in the above-captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.


author: GLENN B. GREMILLION, Judge.

text:
    John and Jane DOE, Prospective Adoptive Parents of Baby Doucet v. A.B., Natural Father of Baby Doucet.
    No. 06-1226.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 2007.

      Michael R. Garber, Lake Charles, LA, Sidney Joseph Rosteet, Sulphur, LA, for Plaintiffs/Appellants, John and Jane Doe, Prospective Adoptive Parents.
    Edward M. Nichols Jr., Lake Charles, LA, for Defendant/Appellee, A.B.
    Todd Holman Melton, Lake Charles, LA, for Appellee, Baby Doucet.
    Court composed of OSWALD A. DECUIR, GLENN B. GREMILLION, and BILLY HOWARD EZELL, Judges.
   GLENN B. GREMILLION, Judge.

Ii The plaintiffs, John and Jane Doe, the prospective parents of Baby D, | {¡appeal the judgment of the trial court in favor of A.B., the natural father of Baby D. For the following reasons, we reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Baby D was born November 3, 2005. Prior to her birth, her biological mother, C.D., who was seventeen years old, decided to put her up for adoption and a private adoption was arranged with the Does. On August 25, 2005, C.D. executed a Notice of Intent to Surrender a Child for Adoption. The notice was served on A.B. on September 8, 2005, and he filed an objection to the adoption. A hearing on the opposition was held on January 9, 2006. The trial court upheld AJB.’s objection and held that the adoption could not go forward without A.B.’s consent. Judgment was signed July 11, 2006, and the Does now appeal assigning as error the trial court’s grant of A.B.’s opposition to the adoption on the ground that he was thwarted in his efforts to assume legal and physical care of the child. The Does claim that the trial court did this without considering rebuttal evidence that established that he did nothing to manifest a commitment to his parental responsibilities and that it is in the best interests of the child to terminate his parental rights and allow the adoption.

DISCUSSION

Louisiana Children’s Code Article 1138 applies in this case and states (emphasis added):

A. At the hearing of the opposition, the alleged or adjudicated father must establish his parental rights by acknowledging that he is the father of the child and by proving that he has manifested a substantial commitment to his parental responsibilities and that he is a fit parent of his child.
B. Proof of the father’s substantial commitment to his parental responsibilities requires a showing, in accordance with his means and | ..knowledge of the mother’s pregnancy or the child’s birth, that he either:
(1) Provided financial support, including but not limited to the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, or contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now willing and able to assume legal and physical care of the child.
(2) Was willing to provide such support and to visit the child and that he has made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.
C. The child, the mother of the child, and the legal custodian may offer rebuttal evidence limited to the issues enumerated in Paragraphs A and B of this Article. However, the primary consideration shall be, and the court shall accept evidence concerning, the best interests of the child.
D. If the court finds that the alleged or adjudicated father has failed to establish his parental rights, it shall decree that his rights are terminated.
E. If the court finds that the alleged or adjudicated father has established his parental rights, the court shall declare that no adoption may be granted without his consent. The court may also order the alleged or adjudicated father to reimburse the department, or the licensed private adoption agency, or other agency, or whoever has assumed liability for such costs, all or part of the medical expenses incurred for the mother and the child in connection with the birth of the child.

Thus, A.B. had to prove a substantial commitment to his parental responsibilities and that he is a fit parent of his child. To establish substantial commitment and fitness these three elements must be proven: “1) support; 2) visitation; and 3) ability to care for the child.” In re Adoption of J.L.G., 01-269 (La.App. 1 Cir. 2/21/01), 808 So.2d 491, 493. If it is shown that the mother has thwarted the father’s efforts, the father must prove that he is now willing and able to 14assume legal and physical care of the child and that he is fit to parent a child. La.Ch.Code art. 1138(B)(2). This showing requires more than a father coming forth and expressing his desire to raise his child. See In re Adoption of J.L.G., 808 So.2d 491. The Children’s Code defines parental fitness in Article 1103(5):

(a) That a parent has not abused the child. For purposes of this Subpara-graph, abuse means the infliction of physical or mental injury which causes deterioration to the child, sexual abuse, exploitation, or overworking of a child to such an extent that his health or moral or emotional well-being is endangered.
(b) That a parent has consistently offered to provide reasonably necessary food, clothing, appropriate shelter, or treatment for the child. For purposes of this Subparagraph, treatment means medical care or other health services provided in accordance with the tenets of a well-recognized religious method of healing with a reasonable, proven record of success.
c) That a parent suffers from no medical or emotional illness, mental deficiency, behavior or conduct disorder, severe physical disability, substance abuse, or chemical dependency which makes him unable or unwilling to provide an adequate permanent home for the child at the present time or in the reasonably near future based upon expert opinion or based upon an established pattern of behavior.
(d) Viewed in its entirety, the parent’s past or present conduct, including criminal convictions, would not pose a risk of substantial harm to the physical, mental, or emotional health of the child.

In In re McLarrin, 38,616, p. 6 (La.App. 2 Cir. 2/4/04), 865 So.2d 317, 321-22, unit denied, 04-0595 (La.3/24/04), 871 So.2d 331, the appellate court stated (quoting Lehr v. Robertson, 463 U.S. 248, 261-62, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614 (1983)) (citations omitted):

The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make |5uniquely valuable contributions to the child’s development. “This interest does not come into existence or is soon lost, however, if the father is unable to demonstrate that he is fit and committed to the responsibilities of parenthood.” “[H]e must show that he has taken concrete actions to grasp his opportunity to be a father and that there is a potential for him to make a valuable contribution to the child’s development.” Simply showing a biological relationship and fitness is not enough to sustain the father’s interest.

Additionally, the father has the burden of “showing his own commitment to his parental responsibilities, not the commitment of his family.” In re Adoption of EHM, 00-2705, p. 7 (La.App. 1 Cir. 12/15/00), 808 So.2d 397, 402.

Pursuant to the well-settled manifest error standard of review, “[sjubstan-tial commitment and parental fitness are factual findings that are entitled to deference unless the trial court is clearly wrong.” In re Adoption of J.L.G., 808 So.2d at 498. Having reviewed the record and the findings of the trial court, we find the trial court was clearly wrong/manifestly erroneous in finding that A.B. proved that he is fit to parent Baby D.

A.B. testified that he and C.D. dated for about eight months in 2004 and 2005. He stated that he believed he was the father of the child, but that he did not know her name nor when she was born. He stated that he was eighteen at the time of trial and lived in a three-bedroom trailer with his parents. A.B. said that he has his own room while his eight-year-old brother sleeps on the couch. A.B. testified that he was not presently employed but had “several jobs” waiting once the court proceedings ended including building fences, general construction, and training to be a welding inspector. He claimed that his future income would be “around twenty dollars an hour.” A.B. stated that he has never been convicted of a crime, does not 16take illegal drugs, and hardly ever drinks anymore.

A.B. testified that he first found out about Baby D when he was served with the Intent to Surrender documents, sometime in late August or early September. However, on cross-examination, he testified that he had “heard” through mutual relatives of his and C.D.’s, that C.D. was pregnant. A.B. testified that he was willing and able to assume legal and physical care of the baby. He said his parents will help out for a while, but that he would pay them back “every cent” that they have to pay. A.B. testified that he tried to contact C.D. before the birth of the baby, but that she would never answer the phone.

On cross-examination, A.B. testified that he worked as a painter’s helper for a few months around the time of the hurricanes and that he worked for one week, but that the was fired for missing too many days of work. He further testified that he had been unemployed since the previous time he had appeared in court, four weeks earlier, and that he had not attempted to find a job. A.B. also testified that he quit going to school in the fourth grade, at which time his grandmother began home schooling him, but that he was not aware if she registered with the state for home schooling. However, he testified that she did not use any books and just “wrote down stuff on paper.” He further stated that he had not participated in any testing since the fourth grade and that he had a relative write down the answers to questions that counsel put forth because he does not write well.

A.B. testified that his father is currently on probation for distribution of marijuana, and also had numerous prior arrests and convictions. A.B. stated that, |7although he is not smart, no other person could show the baby as much love as he could. He testified that his mother or aunt would take care of the baby while he worked. He further testified that he does not have a car, but uses his mother’s car when necessary. A.B. further stated that he goes out to a bar called “Cowboys” with his friends and drinks because they ask him to, even though he is not of legal drinking age.

T.B., A.B.’s mother, testified that her eight-year-old son sleeps on the couch because he wants to. She stated that they heard that C.D. was pregnant three months before they received a phone call from the lawyer handling the Intent to Surrender. T.B. stated that they had no firsthand knowledge from C.D. or her family of C.D.’s pregnancy. She said that they knew nothing about the baby including the sex or her birthday. T.B. testified that she took A.B. out of school in the fourth grade because “she couldn’t get him to go.” T.B. testified that she works at a laundromat making $6.00 an hour. She testified that she drives to work in a truck that is not registered in her name because she does not have a driver’s license due to outstanding charges. She claims that she has not cleared up the charges even though she has the means because she is afraid she might go to jail. T.B. further testified that she pays for all the food for the family, the utilities, and A.B.’s cell phone. T.B. stated that her husband has had a DWI and was convicted of indecent exposure with a juvenile. She testified that her son drinks with his friends when he goes to “Cowboys.”

T.B. testified that she spoke to C.D. two weeks before the baby was born and offered to let her live at her house so that C.D. would not have to give up the |sbaby for adoption. She also testified that A.B. spoke to C.D. that day.

R.B., A.B.’s dad, testified that they had heard rumors that C.D. was pregnant, but that the first confirmation of it was when they received the Intent to Surrender paperwork. R.B. testified that he is employed making $20 an hour. He stated that he is on five years supervised probation for possession of marijuana with intent to distribute. He stated the probation includes random drug testing.

J.D., A.B.’s grandmother, testified that she home schooled A.B. until he was thirteen or fourteen years old. She stated that he does not write well. She further stated that A.B. would make a good father.

C.D. testified that she first found out that she was pregnant when she four or five months into her pregnancy. She said that she called A.B. and told him she was pregnant. However, C.D. stated that the next day she called A.B. back at her mother’s direction, and told him that she was not pregnant. C.D. claimed that she saw one of A.B.’s friends in a store when she was visibly pregnant (seven or eight months pregnant) and that A.B. told her on the telephone that the friend had seen her. C.D. stated that, at that time, she told A.B. that she was going to put the baby up for adoption.

C.D. testified that A.B. did not offer to pay any expenses of her pregnancy. She stated that her mom and dad paid for the expenses, except that the Does paid the medical bills. C.D. confirmed that T.B. offered her a place to live while she was pregnant and after the birth of the baby. C.D. also stated that she never informed A.B. as to the baby’s birthday or sex. She said that A.B.’s aunt called shortly after the baby had been born and that A.B. was present during the ^conversation, but that she did not want to speak to the aunt. She further stated that A.B. never asked to see the child. C.D. testified that she did not ask for any help from A.B., nor did he offer any. C.D. made it clear that she did not want A.B. calling her because she was afraid it would stir up trouble in her home. She further testified that she did not tell A.B. or his family where the baby would be born because she did not want them showing up at the hospital. C.D. further testified that she never told A.B. again that she was pregnant after she called and told him she was not. C.D. further said that, although she had not seen A.B. do drugs, he told her that he had done drugs, probably Ecstacy and crystal methamphetamine, and that she knew that he hung around with people who did drugs.

The trial court found that A.B. was thwarted by the mother and stated (our emphasis added):

This Court has to decide today whether the rights of a biological father should be terminated by his educational background, his economic status and his ability to care for this child. The Court finds that those factors should not impair or impede a biological parent from asserting his rights. So, the court finds that because the father was thwarted and because of the efforts of the mother and her agents from keeping the child from this father, I think the father has, indeed, established his parental rights, and, as a result thereof, the Court’s going to declare that no adoption will be granted without his consent.
On this issue of the placement of [Baby D] I do not find at this time that it would be in the best interest of the child to place this child in the father’s custody until a determination, a possible evaluation, including and not limited to a home study and a psychological evaluation and any other evaluations that are to be deemed necessary to take place....
In the absence of any silence in terms of the custodial arrangement at this point, I want it to be noted for the record that there was not a surrender executed by the mother. There was an attempted surrender. That has a legal significance inasmuch as the mother now has the rights and custody of this minor child.

^SUBSTANTIAL COMMITMENT

We begin our discussion with an analysis of the statute at issue. Louisiana Children’s Code Article 1138(A) provides that the father must prove he manifested a substantial commitment to his parental interest and that he is a fit parent. To prove that substantial commitment, he must show that he provided financial support to the mother which includes during her pregnancy, the birth of the child, and support of the child after birth. The statute also requires that when he is thwarted by the mother in making those efforts, as was found by the trial court in this case, the father must prove that he was willing and made reasonable attempts to provide that substantial commitment. Further, according to the statute, he must show that he is now willing and able to assume legal and physical care of the child. Finally, the trial court must consider the best interests of the child. In that regard, we find that A.B. came woefully short of overcoming his burden of proof in this instance.

While A.B. claims that he did not know about Baby D until after the birth of the child, he testified that he “heard” that C.D. was pregnant from relatives both he and C.D. shared. Yet, with that knowledge, he made no attempts to discover if he was, in fact, the father of the child. He offered no proof that after being served with the Intent to Surrender, he made any attempts to visit the child or pay for any of the expenses. There is no evidence in the record that he made any reasonable attempts to manifest any substantial commitment. From the time he was served with the Intent to Surrender until the time of trial (a period of four months), there was no evidence A.B. provided any financial support to C.D. Thus, we find that A.B. failed to show a substantial commitment to parenting in providing financial support to his |nchild. Further, we find that he failed to prove his parental fitness.

PARENTAL FITNESS

It appears to us that the trial court dismissed A.B.’s burden of proving that he is fit to parent his child, because the trial court specifically stated that AJB.’s “ability to care for this child,” did not impair his ability to assert his parental rights. On the contrary, A.B. had the burden of proving that he has ability to care for the child. As we have said, we find that this burden was not met. It is undisputed that A.B. had no work history other than a job he held for a week and lost because he missed too many days of work, had no job at the time of trial, and had only speculative future possibilities for a job. Nothing in AB.’s background shows the necessary responsibility and commitment required to raise an infant. His lack of an appropriate education further hinders his ability to gain stable employment.

Moreover, there was no indication that A.B. would be able to independently provide a suitable home for this child. A.B.’s own mother testified that she paid all the bills and that she did not expect that A.B. would be moving out of her residence any time in the near future. A.B. had to prove his present fitness for custody, and this cannot be done by simply stating his future desires to get a $20 an hour paying job or to move out of his parent’s home. Moreover, pursuant to La.Ch.Code art. 1103(5)(b), A.B. had to prove that he could provide “appropriate shelter” for the child. We do not believe that the record supports that his current living situation meets that definition.

A.B. testified that his mother would take care of Baby D while he worked. However, his mother had a job that took her out of the home during the day. | iaIt is also noteworthy that she admitted that she will not go to court to take care of outstanding charges because she is afraid “she will go to jail,” despite the fact that she apparently had a large medical malpractice settlement that would have paid for whatever fines had been assessed against her. She continues to break the law by driving a vehicle while her license is suspended. Her youngest son, A.B.’s eight-year-old brother, has ADHD with aggression and sleeps on the sofa “because he wants to.” A.B.’s father has a lengthy rap-sheet with multiple arrests and convictions, and he is currently on probation. None of these undisputed facts lead us to a finding that A.B. can provide a suitable home for Baby D. Additionally, we found C.D.’s testimony to be very reliable. She stated that A.B. ran with the wrong crowd, and had told her that he had done drugs. Viewing all of these facts together, we find that A.B. failed to prove he was fit to raise Baby D. Additionally, as we have noted, Article 1138(C) requires as a primary consideration that the best interests of the child be considered. Considering the foregoing facts, we cannot find that it would be in the best interests of this child for A.B. to assume legal and physical care of this child and that his parental rights be maintained. Accordingly, his parental rights are terminated and he cannot challenge the adoption.

CONCLUSION

The judgment of the trial court maintaining A.B.’s opposition to the adoption of Baby D is reversed, and judgment is now rendered terminating his parental rights. All costs of the appeal are assessed against A.B.

REVERSED AND RENDERED.