author: PAINTER, Judge.

text:
    Christal SUIRE v. LCS CORRECTIONS SERVICES, INC., et al.
    No. 05-1332.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Christopher A. Edwards, Lafayette, LA, for Defendants-Appellants, LCS Corrections Services, Inc., et al.
    Michael W. Robinson, Eunice, LA, for Plaintiff-Appellee, Christal Suire.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hDefendant, LCS Corrections Services, Inc., appeals the judgment of the trial court finding that Plaintiff, Christal Suire, was wrongfully terminated from her employment because she was pregnant and awarding damages to her. Plaintiff has also appealed, seeking an increase in damages.

FACTUAL AND PROCEDURAL BACKGROUND

Christal Suire (Suire) had been employed by LCS Corrections Services, Inc. (LCS) as a guard at the Basile Detention Center since September 2002. In early July 2003, Suire learned that she was pregnant. She told her supervisor, Captain Ray Rider, that she was pregnant on a Friday. She then worked as scheduled on Saturday and Sunday. She was scheduled to be off on Monday and Tuesday, and she returned to work on Wednesday. At that time, she was told by Warden Gary Copes that she needed a work excuse from her obstetrician. That same day, Suire obtained a note from Dr. Heinen, her obstetrician, that stated she could work in “a prison environment” and in the “control room.” LCS contends that this was a restricted work release and that Suire was never released by her obstetrician for full duty work as required by LCS work guidelines. As Suire had not been employed by LCS long enough to obtain coverage under the Family Emergency Medical Leave Act (FEMLA) and did not provide a release which was acceptable to LCS, Suire was discharged from her employment on July 17, 2003. Her child was born March 3, 2004.

Suire presented her case to the EEOC and the Louisiana Commission on Human Rights and was given a Right to Sue Letter. This suit was then filed against LCS in Evangeline Parish.

| ¡¿Following a bench trial, judgment was rendered in favor of Suire. The trial court found that Suire had proved all of the requirements for a discrimination claim as articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and that LCS violated both 42 U.S.C. § 2000e (specifically the Pregnancy Discrimination Act) and La. R.S. 23:342. Suire was awarded $6,450.00 in lost wages based on her earning $7.50 per hour at forty hours per week for a period of five months. Suire was also awarded $5,000.00 for mental anguish and emotional distress. The trial court further awarded $3,000.00 in attorney’s fees to Suire.

LCS now appeals the judgment of the trial court, alleging that it was manifestly erroneous in finding that all the requirements for a discrimination claim were met and in finding that Suire was fired because she was pregnant. LCS continues to maintain that Suire was fired not because she was pregnant, but because she did not have a full duty work release from her treating physician.

Suire also appeals, alleging that the damages were inadequate, that the trial court erred in failing to award punitive damages, and that the amount of attorney’s fees was too low.

DISCUSSION

Employment Discrimination Claim

Suire claimed that LCS wrongfully terminated her employment and discriminated against her solely because she was pregnant. LCS urges this court to reverse the trial court’s award of lost wages, mental anguish, emotional distress, and attorney’s fees based on its argument that the trial judge committed manifest error in finding that all requirements for a discrimination claim under Title VII, as articulated in McDonnell Douglas, had been met. LCS continues to maintain that Suire was fired |abecause she failed to produce a full duty release from her treating physician, not because she was pregnant. We are not at all persuaded by this ineffectual argument.

Suire’s cause of action arises under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, and La.R.S. 23:342. “The Louisiana jurisprudence has reviewed such claims following the analysis set forth in federal cases for discrimination under Title VII.” Brittain v. Family Care Serv., Inc., 34,787, pp. 4-5 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460-61. Under the McDonnell Douglas test, a plaintiff is required to show that: (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated.

Audrey Hardy, a Control Sergeant at the prison, testified that she worked in the control room until two weeks before her child was born. She further testified that she was not required to get a release to return to work from her treating physician until after the birth of her child; however, she did not know she was pregnant until about two weeks before the birth.

Captain Rider testified that Suire was a good employee. Captain Rider also testified that the prison had no light duty positions and that the control room position was a full duty one. He further testified that he knew of two other employees who became pregnant and continued to work at the prison.

Deputy Warden David Viator testified that it would not be an unreasonable accommodation to allow a pregnant employee to work in the control room for the duration of their pregnancy. There were five control rooms besides the main control room and they had to be manned everyday and on every shift. Deputy Warden Via-tor | ¿further testified that he knew of other employees who became pregnant and continued to work at the prison without the pregnancies interfering with their job performance.

The excuse provided by Suire’s treating physician indicated that she “could work in a prison environment” and in “the control room.” Furthermore, Suire testified that she had been assigned to control room duty for periods of months at a time prior to her pregnancy. That testimony was uncontradicted, and no one from the prison testified that there was any reason Suire could not have worked in the control room for the duration of her pregnancy. The testimony recited above also established that the control room position was considered a full duty one. LCS gave no reason at all to explain why it refused to accept the work release provided by Suire as a full duty release. We agree with the trial court that the excuse provided should have been sufficient to meet the requirements of the LCS policy and that the actions of LCS in firing Suire violated both 42 U.S.C. § 2000e and La.R.S. 23:342. We cite with approval the trial court’s findings that:

[ujnlike other employees similarly situated, petitioner was denied leave and was fired. NO evidence was intro- , duced to indicate that petitioner failed to perform her duties prior to termination or that termination occurred for any purpose other than pregnancy. Consequently, it appears that all of the requirements for discrimination under Title VII as articulated in McDonnell Douglas ... have been met.”

Under the McDonnell Douglas factors, Suire proved that she was pregnant (and, as such, was a member of a protected class), that she was qualified for the position that she lost, that she suffered an adverse employment action in being fired, and that other pregnant employees were not fired. Thus, based on the ample evi-dentiary support in the record for the trial court’s findings of fact, we find no manifest error therein. In sum, we find neither manifest error in the trial court’s factual findings nor legal error in the trial court’s application of the law. That portion of the trial court’s judgment finding that LCS wrongfully discharged Suire because of her pregnancy is affirmed.

| ^Damages

We now turn to the issue of damages. LCS contends that no damages should have been awarded because Suire was not wrongfully discharged. We have found that contention to be without merit. Suire, in her appeal, contends that the general damages awarded were inadequate and that punitive damages should have been awarded.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), the Louisiana Supreme Court stated:

In Reck v. Stevens, 373 So.2d 498 (La.1979), this Court commented on appellate review of general damage awards and on the “much discretion” in fixing damages accorded to trial courts by La. Civ.Code art. 1934(3)(1870). The decision pointed out that the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974).
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award |fiof general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

We find that the award of $5,000.00 in general damages in this case is woefully inadequate and is a clear abuse of the trial court’s vast discretion. Suire and her fian-cé of seven years, William Joseph Brous-sard, both testified that they were making ends meet before she was fired. They both testified that Suire enjoyed her job. Suire testified that after she was fired, she was depressed and felt worthless. Brous-sard testified that Suire went into a depression after losing her job and “closed herself off’ to him and their children. The couple testified that they were forced to sell many of their belongings in order to provide for their three young children. Even so, the couple and their children were evicted from their home shortly before the birth of them fourth child. It was difficult for Suire to obtain other employment due to the impending birth of her child, and her flaneé was not able to obtain employment due to his disability. At a time when Suire should have been joyfully awaiting the birth of her child, she was instead consumed with worry over whether or not she would be able to buy diapers and formula for her other children and the new baby. It also caused a strain on the couple’s relationship. Suire did eventually find part-time work as a security guard at a casino.

Based on the facts of this case, we find that an award of $25,000.00 for mental anguish and emotional distress is appropriate. (See Goldsby v. State, Dep’t of Corr., 03-343 (La.App. 1 Cir. 11/7/03), 861 So.2d 236, writs denied, 04-0328, 04-0330 (La.4/8/04), 870 So.2d 271, wherein a 17wrongfuIIy discharged probation and parole officer was awarded $20,000.00 in damages for mental anguish; and Brown v. Catalyst Recovery of La., Inc., 01-1370 (La.App. 3 Cir. 4/3/02), 813 So.2d 1156, wherein a wrongfully discharged employee was awarded $30,000.00 in damages for emotional distress.)

While Suire contends that the trial court erred in awarding lost wages for a period of only five months, she states in her brief that she “does not contend that such error was clearly wrong” and does not brief the issue further. As such, we are constrained from increasing that award and, therefore, must affirm the trial court’s award of $6,450.00 in lost wages.

With respect to punitive damages, we note that:

In order to recover punitive damages under 42 U.S.C. § 1981a(b)(l), the complaining party must demonstrate that the defendant engaged in a discriminatory practice with malice or with reckless indifference to the federally protected rights of the employee. Kolstad v. American Dental Assoc., 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); Patterson [v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir.1996)], supra. In addition, the plaintiff must show that the discriminatory act was committed by a managerial agent acting within the scope of his employment. Kolstad, supra. In the punitive damage context, an employer may not be vicariously liable for the discriminatory employment decision of managerial agents where those decisions are contrary to the employer’s good-faith efforts to comply with Title VII. Kolstad, supra; Rubinstein v. Administrators, 218 F.3d 392 (5th Cir.2000).

Hanley v. Doctors Hosp. of Shreveport, 35-527, pp. 26-27 (La.App. 2 Cir. 6/6/02), 821 So.2d 508, 525.

Here, the record shows that the decision to terminate Suire’s employment was made by managerial agents of LCS acting within the scope of their employment. However, in considering whether the discriminatory act was committed with malice or with reckless indifference to Suire’s rights, we must agree with the trial court that “the actions of LCS were due to lack of or insufficient communication and not through bad faith.” As such, we affirm the trial court’s refusal to award punitive damages in this case.

| sAttorney’s Fees

With respect to attorney’s fees, we first note that 42 U.S.C. § 2000e~5(k) provides that the trial court, in its discretion, may allow the prevailing party to recover a reasonable attorney’s fee as part of the costs. The purpose of this provision was to encourage the seeking of relief by aggrieved employees and to aid in the enforcement of the provisions of the Civil Rights Act. In this case, we find that the trial court abused its discretion in awarding only $3,000.00. Depositions were taken, and counsel participated in a trial and prepared post-trial memoranda. Accordingly, we increase the award of attorney’s fees from $3,000.00 to $5,000.00.

In response to Plaintiffs answer to appeal seeking an award of additional attorney’s fees for work done in connection with the appeal of this matter, we find that Plaintiffs counsel is entitled to an additional $2,000.00 in attorney’s fees for this appeal.

DECREE

The judgment of the trial court is amended to increase the award of general damages from $5,000.00 to $25,000.00. We also increase the award of attorney’s fees from $3,000.00 to $5,000.00 and award an additional $2,000.00 in attorney’s fees for work done on this appeal. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are taxed to Defendant-Appellant, LCS Corrections Services, Inc.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Crystal Senger COTHERN v. Christopher Scott COTHERN.
    No. 05-1364.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Lauri G. Boyd, Sturgeon & Boyd, Ferri-day, Louisiana, for PlaintiffiAppellant, Crystal Senger Cothern.
    Brent S. Gore, Attorney at Law, Ferri-day, Louisiana, for Defendant/Appellee, Christopher Scott Cothern.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

hln this child custody dispute, the mother appeals a judgment that (1) names the father as the children’s domiciliary parent, (2) changes the physical custody schedule from alternating weeks at each parent’s home to the first and third weekends of the month, specified holidays, and one-half of the summer for the mother, and (3) terminates the father’s child support obligation and orders the mother to pay child support at the minimum amount set by the guidelines. Finding that the trial court judgment does not provide the children with frequent and continuing contact with the nondomiciliary parent under the particular facts of this case, we affirm in part, reverse in part, and remand, as more fully explained below.

Discussion of the Record

Christopher Scott Cothern and Crystal Senger Cothern were married from October 14, 1994 until their divorce on June 23, 2003. Two children were born of the marriage: Victoria, born on May 23, 1995, and Tyler, born on July 2, 1997. On May 12, 2003, the parties filed a stipulated judgment in which they agreed that Crystal would be the domiciliary parent, with Christopher enjoying physical custody on alternating weekends, plus two days a week, and specified holidays. Christopher also agreed to pay child support of $686.00 per month. The parties reached additional stipulations on November 24, 2003, in which they agreed that each parent would have physical custody of the children every other week and that Christopher’s child support obligation would be reduced to $375.00 as of January 2004. Those stipulations were filed into the court record on June 16, 2004.

On January 26, 2005, Crystal filed a rule seeking modification of the physical custody schedule and an increase in child support, alleging that every other week was not working out and that one of the children was struggling in school. The trial court | {.set that rule for hearing on April 26, 2005, but before that date, on March 8, 2005, Crystal voluntarily checked herself into a drug rehabilitation facility for thirty days to overcome an addiction to prescription medications that she had begun taking after an automobile accident in November of 2002. While Crystal was still in the treatment facility, on March 21, 2005, Christopher filed a rule alleging a material change in circumstances due to Crystal’s addiction and entering the treatment program. In that rule, he prayed for joint custody with him as the domiciliary parent and with Crystal having the children on alternating weekends. He also requested that Crystal be ordered to “pay child support based on the guidelines.” By agreement, the April 26, 2005 hearing of Crystal’s rule was continued, and the trial court set the hearing of both Crystal’s and Christopher’s rules for May 26, 2005.

On April 7, 2005, Christopher obtained an ex parte order granting him temporary sole custody of the children until the May 26, 2005 hearing, based primarily upon two incidents involving Crystal’s parents that occurred while Crystal was still in the treatment program: Christopher alleged that Crystal’s mother caused a public disturbance at a ballpark in front of the children and that the younger child, Tyler, accidentally shot himself in the big toe while being watched by Crystal’s stepfather. Although this order was styled “ex parte,” Crystal’s opposition to it was filed into the record before it was signed by the trial court.

At the hearing on May 26, 2005, Crystal testified that she received a certificate of completion from the drug treatment program; that she is participating in follow-up | ocare, which can involve three to five meetings a week for up to two years; that she recently underwent a negative drug test; and that she is willing to undergo drug testing in the future. She explained that she is currently living in Fayette, Mississippi, which is about twenty-five minutes from Vidalia, Louisiana, where the children are in school and where Christopher lives, but that she and her fiancé, James Thomas, have arranged to rent a four-bedroom home in Vidalia after them upcoming wedding on July 9, 2005.

Crystal also testified that she no longer needs to work due to her planned marriage and that she would like the children to be with her after school when she has physical custody of them. (The children had been staying with Christopher’s mother after school, regardless of whose custody week it was, until that parent picked them up after work.) Crystal acknowledged that she is now living full-time with her fiancé, James, but she stated that it was Christopher who insisted that James be present in her home when she kept the children after getting out of the treatment center. She stated that Christopher has only allowed her to see the children on weekends since she has been released, even when he has had to pry them away “kicking, screaming, [and] crying.” She pointed out one incident in which the older child, Victoria, became so upset when Christopher refused to let her go home with Crystal that the child’s nose started to bleed.

Crystal’s flaneé, James, testified that he is a self-employed contractor and that he supports Crystal’s decision not to work when they are married. He testified that he gets along “great” with Crystal’s children and that he attends all of their sporting events, unless he is coaching his own son, who stays with him every other week. (Crystal testified that all three of the children would have their own room in the house | ¿she and James planned to rent after their marriage.) James testified that he believed Christopher and Crystal were equally good parents.

Christopher testified that he would like to be named the domiciliary parent so that the children will be “taken care of during school.” Christopher explained that he works in Natchez, Mississippi, but that he can easily take off from work if the children need him at school. He stated that after Crystal entered the treatment program, the children were not getting their homework done and that Tyler was having problems in school. He also stated that before Crystal went into rehabilitation, Tyler was uncontrollable and having fits, but that the child is much better now. Concerning the incident when Victoria’s nose started to bleed, Christopher explained that he did not allow her to go with Crystal because she had not yet done her homework that night. Christopher was also concerned that Crystal’s parents did not inform him of Tyler’s shooting accident until after the child had already been treated at the emergency room.

Christopher testified that he did not approve of Crystal and James living together, but that after Crystal was released from the treatment center, he accepted it because James was “the stable one around, the sensible one.” He believed that Crystal treated the children “harshly” by screaming at them and threatening to call him if they were bad, and he was concerned that Crystal might start abusing prescription drugs again.

Christopher’s mother, Adella Cothern, testified that she has always cared for the children after school, both during their parents’ marriage and when they shared custody after the divorce, regardless of whose week it was. According to Mrs. Cothern, both Christopher and Crystal equally took care of the children when | Rthey were married. Christopher and Crystal each called various friends and relatives as witnesses, establishing that they are both very much involved in the children’s school and athletic activities.

At the close of the evidence, the trial court stated that the existing custody order would remain in effect until it reached a decision. On August 11, 2005, the trial court issued written reasons for judgment, finding that it was in the best interest of the minor children that Christopher be designated as the primary custodial parent, with Crystal to have visitation every first and third weekend of the month, every Mother’s Day, alternating holidays, and half of the summer. The trial court also ordered that Christopher’s child support obligation be terminated and that Crystal pay child support “at the statutory minimum ... until such time as she is able to become gainfully employed.”

Opinion

In her first two assignments of error, Crystal argues that the trial court erred in finding that Christopher proved a material change in circumstances and that it is in the best interest of the children that custody, visitation, and child support be changed. In her third assignment of error, she argues that the trial court erred in granting any relief prayed for in the ex parte order, contending that the order was null and void for noncompliance with statutory requirements.

Custody

Because the two prior custody decrees were stipulated judgments, Christopher, as the party seeking to modify the existing custody arrangement, had to prove that a ^material change in circumstances occurred since the latest decree and that his proposed modification of the custody arrangement would be in the best interest of the children. Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731. A trial court’s determination regarding child custody is entitled to great weight and can only be disturbed on appeal if the determination is a clear abuse of discretion. Arrington v. Campbell, 04-1649 (La.App. 3 Cir. 3/9/05), 898 So.2d 611.

On appeal, Crystal argues that, because she is now drug-free, the trial court judgment inappropriately punishes her for past conduct without proof of a continuing detrimental effect on the children. She points out that she never used “street drugs,” that several of her close friends testified that they were unaware of her addiction until she checked into the treatment center, and that she “took the high road” by responsibly addressing the problem even though her custody rule was pending in court. She further contends that the trial court judgment denies her frequent and continuing contact with the children because it does not take into account her upcoming move to Vidalia, where the children are in school, and her ability to spend more time with them because she no longer has to work.

“In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” La.Civ.Code art. 131. Louisiana Civil Code Article 134 directs the trial court to consider all relevant factors in determining the best interest of the child, then it lists twelve nonexclusive factors that the trial court may consider. In the present case, the trial court considered those factors and made several findings, including that both parents have the capacity and disposition to give the children love, affection, and spiritual guidance; that the children have enjoyed a home, school, and community environment in Vidalia; and |7that both parents had exercised responsibility for the care and rearing of the children until March of 2005, when Crystal was admitted to the drug treatment facility. However, the trial court questioned both Crystal’s moral fitness, due to her addiction and need for rehabilitation, and her ability to provide food, clothing, and medical care for the children because she is no longer employed. The trial court also noted that Crystal lives in Fayette, which is twenty-five miles away from where the children are in school.

After reviewing the record, we find no error in the trial court’s decision to maintain joint custody with Christopher as the domiciliary parent. The record reflects that Crystal became addicted to prescription medications and underwent a thirty-day inpatient treatment program during which time she could have no contact with the children. Yet, she failed to give Christopher advance notice of her admission to the program so that arrangements could be made for the children’s care. Although Crystal proved that she was drug-free at the time of trial and stated that she was willing to undergo future drug testing, she testified that she had taken only one drug test since her release. She further described a demanding schedule of follow-up care that involves three to five meetings a week for up to two years. On this record, we find that Christopher has demonstrated that Crystal’s addiction and her ongoing treatment constitute a material change in circumstances and that it is in the best interest of the children that he be named the domiciliary parent.

Louisiana Revised Statutes 9:335(A)(2)(a) provides that a joint custody implementation order “shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.”

I «As the court explained in O’Brien v. O’Brien, 30,001, pp. 6-7 (La.App. 2 Cir. 12/10/97), 704 So.2d 933, 936 (citations omitted):

“When the court finds that a decree of joint custody is in the best interest of the child, it does not necessarily require an equal sharing of physical custody.” Substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children. Every child custody case must be viewed on its own peculiar set of facts and the relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child. Each case will depend on the child’s age, the parents’ situations, and other factors relevant to a particular child custody dispute.

In the present case, the record reveals, and the trial court found, that both parents had been equally responsible for the care of the children until Crystal entered the drug treatment program in March of 2005. The testimony of family and friends established that, while they were married, both Christopher and Crystal took care of the children’s daily needs and participated in many school and sporting events, including serving as coaches for the children’s athletic teams. Following their divorce, they initially agreed that Crystal would be the domiciliary parent, with Christopher having the children on alternating weekends, two days during the week, and on specified holidays. At trial, Christopher testified that this arrangement “was just taking [the children] from me too much” so they were able to agree on an alternating weekly schedule, which was in effect when Crystal checked into the rehabilitation program. In addition to Crystal’s history as an equal caretaker, there are other factors that support Crystal’s maintaining substantial contact with the children, including her planned move to Vidalia, which would eliminate the twenty-five minutes of travel each way on visits; her ability to spend more time with the children because she no longer has to work; and the positive influence of James, who is well-liked by those on both sides of this controversy. Detracting from Crystal’s |atime with the children, however, is her schedule of continuing treatment, which requires her to attend meetings in Natchez at least three nights a week.

Given the amount of time that Crystal must spend on her continuing treatment, most of which is in the evenings when the children would be at home, we find that the trial court did not err in concluding that shared custody is not in the best interest of the children. However, by not giving Crystal any time with the children on week days and nights, the custody schedule devised by the trial court effectively removes Crystal from their school life, in which she has played a role for all but the last year. Under the particular facts of this case, where both parents have traditionally shared the rearing of the children and where Crystal’s proposed living arrangements and employment status would facilitate additional contact with the children, we find that the trial court judgment does not comply with the intent of the statute requiring “frequent and continuing contact with both parents.” Accordingly, we find that it is in the best interest of the children to allow Crystal one overnight visit each week that does not conflict with her treatment schedule, in addition to the periods of custody allowed in the trial court judgment, provided that she has in fact relocated to Vidalia and that she has remained drug-free. Because the record is unclear as to the exact nights of Crystal’s follow-up care and considering that almost one year has elapsed since trial of this matter, we find that we are unable to order the specific modifications that would achieve this goal. Accordingly, we will remand the case with instructions that the trial court conduct a hearing within sixty days of this opinion becoming final to formulate a custody plan consistent with this opinion. See O’Brien, 704 So.2d 933.

|inChild Support

Crystal next argues that the award of child support should be reversed because Christopher has failed to show a material change in the financial circumstances of the parties. However, Christopher has shown a material change in circumstances that warrants him being named as the domiciliary parent without a “shared” custody arrangement. Under these circumstances, we find that Christopher is entitled to an award of child support. As Christopher has not appealed the trial court’s fixing of that award at the statutory minimum, we find that a remand for additional financial information is unnecessary.

Ex Parte Order

Crystal next argues that the trial court erred in hearing evidence in support of any prayer set forth in the ex parte order because that order did not conform to the requirements of La.Code Civ.P. art. 3945. Specifically, Crystal contends that the petition for the order did not contain allegations of irreparable injury or a certificate of notice to the other party and that the order had expired by the time of trial, which took place more than fifteen days after it was signed.

In his rule filed on March 21, 2005, Christopher requested that he be named the domiciliary parent, that Crystal be awarded custody on alternating weekends, and that Crystal pay child support in accordance with the guidelines; this is essentially the relief awarded by the trial court after the hearing. Thus, the evidence presented at trial pertained to the prayer for relief in this rule, rather than in the ex parte order. Even if the trial court erred by referring to the ex parte order as the “existing order” in ruling that it remain in effect pending judgment, we find that we are unable to fashion any remedy to cure this defect. We further find any statutory irregularities | uto be harmless, in that the record establishes that Crystal did receive notice of the petition before the trial court signed the order and irreparable injury can be inferred from the allegations that the mother was enrolled in a treatment facility and that one of the children accidentally shot himself while in the maternal grandfather’s care.

Decree

For the above reasons, we reverse that part of the trial court judgment that denies Crystal overnight contact with the children during the school week, and we remand the case with instructions that the trial court conduct a hearing within sixty days of this opinion becoming final to formulate a custody plan that allows Crystal one overnight visit each week that does not conflict with her treatment schedule, in addition to the other periods of physical custody specified in the judgment, provided that she has relocated to Yidalia and has remained drug-free. In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are assessed 30% to Christopher and 70% to Crystal.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Crystal was involved in another automobile accident the day before she checked in to the drug treatment facility. She testified that she was not under the influence of drugs when the accident occurred, that she had a "blow out” in the rain, and that the children were not with her. Christopher's mother, Adella Cothern, testified that she "begged” Crystal not to drive about an hour and a half before that accident, when Crystal seemed upset because Tyler did not want to go home with her the previous night.

      . The trial court judgment also ordered that Crystal reimburse Christopher $65.00 per month for dental insurance and $18.00 per month for medical insurance for the children and that each parent claim one child for IRS dependency. These provisions of the judgment have not been appealed.


author: GENOVESE, Judge.

text:
    Amanda Jeannine Stephens MERRIMAN v. Timothy L. MERRIMAN.
    No. 05-1435.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    John K. “Mike” Anderson, Leesville, Louisiana, for Plaintiff/Appellant: Amanda Jeannine Stephens Merriman.
    James S. Seaman, Natchitoches, Louisiana, for Defendant/Appellee: Timothy L. Merriman.
    Court composed of MICHAEL G. SULLIVAN, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this child custody case, the mother, Amanda Jeannine Stephens Merriman (Amanda), appeals the trial court’s judgment designating the father, Timothy L. Merriman (Timothy), as the primary custodial parent of their minor child, Timothy Skyler Merriman (Skyler). For the following reasons, we affirm.

FACTS

Timothy L. Merriman and Amanda Jeannine Stephens were married on June 11, 1998. Of their marriage, one child, Skyler, was born October 20, 1998. On January 14, 2000, Amanda filed a petition for divorce and incidental matters including child custody. On March 7, 2000, the parties entered into a stipulated judgment awarding the parties joint custody of Skyler, with Amanda being designated the primary custodial parent, subject to specified visitation in favor of Timothy. The legal history of the parties is voluminous, significant, and pertinent to our review of this matter.

The parties were granted a judgment of divorce in open court on September 8, 2000, and a written judgment was signed by the trial court on October 4, 2000. The matters incidental to the divorce were set for hearing on January 5, 2001. On January 4, 2001, Timothy filed a rule for contempt and change of custody which was also set for hearing on January 5, 2001. Timothy alleged that Amanda was in violation of the first judgment of March 7, 2000, by refusing to allow him any visitation whatsoever. Following the reciprocal rules, the parties again entered into a stipulated judgment which was signed by the trial court on February 15, 2001, wherein Amanda was again designated the primary custodial parent, subject to specific visitation rights in favor of Timothy.

On April 18, 2002, Amanda filed a petition for restricted visitation. The order [psigned by the trial court suspended Timothy’s visitation pending further orders of the court and set the matter for hearing on May 7, 2002. Amanda filed a motion to continue the May 7, 2002 hearing date, which was granted, and the matter was reset for hearing on June 27, 2002. Following another continuance, the matter was heard on July 29, 2002, at which time the trial court entered an interim order granting Timothy specified visitation with the minor child and resetting the matter for trial again on September 10, 2002. This trial fixing was eventually upset without the issuance of a new trial date.

On April 29, 2003, Timothy filed a motion to reset the pending matters, and the court set a hearing date of June 17, 2003. That hearing date was also continued, but the trial court issued an interim order granting Timothy specified visitation. A formal judgment was signed by the trial court on July 2, 2003 granting Amanda primary custodial status and awarding Timothy specified visitation.

The record reveals that Timothy filed three rules for contempt during the history of these proceedings. In addition to the rule for contempt along with a rule for change of custody filed on January 4, 2001, Timothy filed a rule for contempt on July 16, 2003, based upon Amanda’s refusal to make the minor child available for visitation. When the rule for contempt came before the trial court on October 9, 2003, another continuance was granted; however, the court modified the interim order and granted interim temporary custody to Timothy and reasonable visitation to Amanda until the next court date.

Timothy’s motion for change of custody and for contempt was heard by the trial court on January 8, 2004. The minutes of the court reflect that on this date the trial court found Amanda in contempt of court, awarded joint custody of Skyler to both parties, and maintained Amanda as the domiciliary parent. A judgment on rule lowas signed by the court January 10, 2005, which included a joint custody plan setting forth reasonable visitation privileges in favor of Timothy.

On August 27, 2004, Timothy filed another rule for contempt and motion for modification of custody. This motion again alleged that Amanda failed to make the child available for visitation according to the previous court-ordered visitation schedule. Additionally, Timothy alleged that following the hearing of January 8, 2004, and despite revisions made at her request, Amanda failed to sign the joint custody plan outlining the orders of the court. Timothy also asserted therein that the best interest of the child would be served by the trial court awarding him sole custody based upon Amanda’s “inability, or refusal, to provide a stable home environment for the minor child, and based on her flagrant disregard for [the] Court’s order.” Timothy also alleged that there had been “a material change in circumstances since the January 8, 2004 decision, and ... that it [was] likely the current custodial situation [would] be harmful to the child if it [was] not changed.”

Following two continuances of the original hearing date, on March 15, 2005, the rule for contempt and the motion for modification of custody filed by Timothy were heard by the trial court. The trial court again found Amanda to be in contempt of court for failing to bring the minor child for court-ordered visitation. Additionally, the trial court found sufficient evidence to warrant the modification of the previous custodial award, and named Timothy as the primary custodial parent of Skyler, subject to reasonable visitation privileges in favor of Amanda as outlined in the joint custody plan. The trial court signed a written judgment on rule on July 25, 2005. It is from this judgment that Amanda appeals.

ISSUES

The following issues are presented by Amanda for our review:

[41. Whether the trial court failed to properly apply the standard required of a considered custody decree and abused its discretion in changing the primary custodial status of the minor child from the mother to the father.
2. Whether the trial court erred in allowing Plaintiffs exhibit TM-1 to be entered into evidence

LAW AND ARGUMENT

In A.E.B. v. J.B.E., 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 760-61 (footnote omitted), the Louisiana Supreme Court summarized the guidelines, burden of proof, and standard of review required in matters involving change of custody when there is a considered custody decree, stating as follows:

La.Civ.Code art. 131 provides that “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” Comment (d) to article 131 states that the article should be followed in actions to change custody as well as in those to initially set it. Comment (d) further states that the jurisprudential requirements of Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), are applied to actions to change custody rendered in considered decrees. In such actions, the proponent of change must show that a change of circumstances materially affecting the welfare of the child has occurred since the prior order respecting custody. Bergeron, 492 So.2d at 1195. The party seeking a change “bears the heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its .advantages to the child.” Bergeron, 492 So.2d at 1200. This burden of proof is imposed as a means of implementing the best interest standard in light of the special considerations present in change of custody cases. Last, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse. Bergeron, 492 So.2d at 1196.

Considering the foregoing, and the record of these proceedings, we conclude that the trial court properly applied the heightened burden of Bergeron, and having done so, proceeded to consider the issue of custody with the best interest of the child in mind. The evidence establishes that Timothy met the heavy burden of proving | sa change of circumstances and that the continuation of the present custodial arrangement would be so deleterious as to justify a modification of the custody decree. Therefore, for the following reasons, we find that the trial court did not abuse its discretion in designating Timothy as the primary custodial parent of his minor child.

Although Amanda asserts that the trial court failed to properly apply the Bergeron standard when considering the modification of custody, the record does not support this contention. The trial court’s oral reasons for judgment clearly reflect the court’s consideration of the Bergeron standard, the court’s finding that “there [were] changed circumstances,” and the finding of “detriment to the child.” The trial court went on to identify and discuss the detriment established by the evidence, which included “the failure of Ms. Stephens to encourage and facilitate the child’s right to visit with [his] father and ... what the court perceive[d] to be a callous disregard for the child’s education” in failing to enroll the child in school timely and “in the inordinate amount of absences.... ” Such behavior, according to the trial court, “shows a lack of responsibility.” The trial court also referenced its two previous orders wherein Amanda was found in contempt of court for violation of the trial court’s custody and visitation plan.

We conclude that the finding of the trial court is wholly supported by the record. The evidence reveals an apparent unwillingness of Amanda to facilitate communication and visitation between Skyler and his father. The testimony of Timothy and his current wife establish that they, on numerous occasions, called to speak to Amanda and/or the child, but that their calls were unanswered. Timothy and his present wife also testified at length about their futile attempts to implement visitation when Amanda failed to appear at the designated transfer location. | fiEven when she would arrive at the designated location, Amanda was often late without making any attempt to contact Timothy to let him know. This behavior by Amanda resulted in Timothy being forced to file several rules for contempt in an effort to see his child. In fact, the trial court had previously found Amanda to be in contempt of court on two occasions for her refusal to honor court-ordered visitation.

We agree with the trial court that there is no reason why Timothy “would be filing all these rules if he didn’t want to go up there and pick his child up as Ms. Stephens indicates.” To the contrary, despite Amanda’s repeated efforts to thwart visitation, Timothy continuously tried to exercise visitation with Skyler and was forced to seek judicial relief from 2000 to present.

This court is also in agreement with the trial court’s concern regarding the education of the child. There was ample evidence in the record to demonstrate that Amanda was clearly not acting in the child’s best interests in that regard. Amanda failed to enroll Skyler in school for kindergarten until several weeks after the school year began in 2004. Additionally, once enrolled, the child missed an alarming amount of school (at least thirty absences), which seemed to be of little or no concern to Amanda. Moreover, Amanda failed to present any evidence to the school, or to the court, as to why these absences should be “excused.”

We note that Amanda raises the issue on appeal that the trial court erred in allowing the introduction of Skyler’s school attendance record. However, we find that there is sufficient evidence in the record to establish that Skyler had excessive, unexcused absences from school. By her own testimony in the record, Amanda admitted knowledge of the absences and her failure to provide the necessary information to have said absences excused. Even without the school attendance record, these facts were duly proved.

|7Accordingly, we conclude that the trial court did not err or abuse its discretion in finding that it was in the best interest of the minor child to change the primary custodial parent from Amanda to Timothy, with Amanda being afforded reasonable visitation privileges.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court designating Timothy L. Merriman as the primary custodial parent of Timothy Skyler Merriman, subject to the specified visitation of Amanda Jeannine Stephens Merri-man.

Costs of this appeal are assessed against the Plaintiff, Amanda Jeannine Stephens Merriman.

AFFIRMED.


author: AMY, Judge.

text:
    June COCKERHAM, et al. v. LASALLE NURSING HOME, INC., et al.
    No. 2006-10.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      George A. Flournoy, Flournoy & Dog-gett, Alexandria, LA, for Plaintiffs/Appel-lees, June Cockerham, Jessica Cockerham, Justin Dewayne Cockerham.
    Gregory Engelsman, Bolen, Parker & Brenner, Alexandria, LA, for Defendants/Appellants, LaSalle Nursing Home, Inc., GuideOne Insurance Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

hThe plaintiffs, the wife and children of the decedent, filed suit alleging that the decedent’s death was related to the improper replacement of a gastric tube. A jury found the defendant nursing home and a hospital where treatment was rendered to be liable and equally at fault. However, the jury did not award damages for the decedent’s survival action or for his medical/funeral expenses. The jury further found a violation of the Nursing Home Residents’ Bill of Rights, but did not award any attorney’s fees. Acting upon a motion for JNOV, the trial court awarded damages for the survival action, medical expenses/funeral costs, and attorney’s fees. The defendant nursing home appeals. The plaintiff has answered the appeal. For the following reasons, we affirm.

Factual and Procedural Background

Justin Cockerham, who was forty years of age at the time of the events at issue, was a resident of LaSalle Nursing Home where he resided due to debilitating injuries sustained in a 1997 car accident. At trial, Mr. Cockerham was described as being severely impaired in all areas of mobility. Testimony further indicated that his ability to communicate was limited to eye blinking and hand squeezing. Due to his condition, Mr. Cockerham received nutrition and medication through a gastric tube. On August 22, 1998, the gastric tube became dislodged. Mr. Cockerham was transferred to the emergency room of the LaSalle General Hospital for replacement of the tube.

The record indicates that Kathy Lam-beth, a Registered Nurse at the hospital, undertook replacement of the tube. She admits that the replacement of the tube was difficult, but stated that she informed nursing home personnel of the difficulties. She further explained that she sought verification of the placement by emergency room |2physician Dr. Jed Woodard. Ms. Lambeth explained that Dr. Woodard responded to her call for approval, but merely observed Mr. Cockerham from the door of the room rather than pursuing further methods of verification. The extent of Dr. Woodard’s consideration of the replaced gastric tube was disputed.

Mr. Cockerham was returned to the nursing home after the tube was replaced. Kathy King, an LPN attending to Mr. Cockerham at the nursing home, resumed the continuous feeding through the gastric tube. According to Ms. King’s testimony, she had been informed of the difficulty in reinserting the tube. However, she did not verify placement of the gastric tube before resuming the feeding. She explained that there was no reason to check on the patency of the gastric tube and that she had not been trained to do so.

Later, during the afternoon of August 22, Barbara Lemons, an LPN working the evening shift at the nursing home, attempted to administer Mr. Cockerham’s medication through the gastric tube. Again, the placement of the tube was not verified. However, she explained that, when the medications did not flow through the tube properly, she contacted the emergency room due to her concern over the correct placement of the gastric tube. The timing of any such contact and the subsequent transfer to the emergency room was at issue at trial.

After Mr. Cockerham was again transferred to the emergency room, testing was ordered and the misplacement of the gastric tube was discovered. The plaintiffs allege that, during the period between the two visits to the emergency room, the liquid feeding product administered to Mr. Cockerham was infused into the abdominal . wall. Mr. Cockerham was transferred to St. Frances Cabrini Hospital (hereinafter “Cabrini”). While at Cabrini, Mr. Cocker-ham came under the care of Dr. Bruce 1 aBarton, an internist. Dr. Barton explained that further testing performed at Cabrini again confirmed that the gastric tube had been misplaced in the anterior abdominal wall. Dr. Barton testified that by the time he examined Mr. Cockerham on August 23, pneumonia and sepsis had developed. He explained that Mr. Cocker-ham was unable to recover from the infection. On August 27, and following discussion with Dr. Barton, Mr. Cockerham’s family decided that no further extraordinary measures were to be taken. Mr. Cockerham died on September 3, 1998.

Mr. Cockerham’s wife, June Cockerham, filed the instant matter seeking damages related to his death. She did so individually and on behalf of the couple’s minor children, Jessica Cockerham and Justin Dewayne Cockerham. The plaintiffs named LaSalle Nursing Home, LaSalle General Hospital, Kathy Lambeth, and Dr. Woodard as defendants, among others. Prior to trial and, pursuant to a settlement, Dr. Woodard was dismissed. La-Salle General Hospital was ultimately dismissed as well. The matter proceeded to trial against the nursing home.

A jury determined that LaSalle Nursing Home, Inc., through its agents/employees, breached the applicable standard of care in the treatment of Mr. Cockerham and that the breach “proximately caused plaintiffs to suffer damages!.]” The jury found the same with regard to Ms. Lambeth, an employee of LaSalle General Hospital. The nursing home and hospital were each apportioned fifty percent of the fault. The jury did not award damages for Mr. Coek-erham’s pre-death pain and/or fright, his medical expenses, or those related to his funeral and burial. The jury awarded a total of $50,000.00 in general damages to Ms. Cockerham and $100,000.00 to each of the Cockerham children. Although the jury found that the nursing home 14violated the Nursing Home Residents’ Bill of Rights, it did not award attorney’s fees related to that violation.

The trial court granted the plaintiffs motion for judgment notwithstanding the verdict, in part, and awarded $22,250.75 for medical expenses, $10,010.84 for funeral expenses, and $432,000.00 for Mr. Coek-erham’s pre-death pain and fright. The trial court recognized that each of these awards is reduced by fifty percent due to the apportionment of fault. Further, the trial court awarded $59,521.80 in attorney’s fees and $9,331.77 as costs of the action. Other aspects of the plaintiffs’ motion for JNOV and their motion for new trial and/or additur were denied.

The defendant appeals, specifying the following as error:

1) The Trial Court erred at Trial by allowing numerous items of physical evidence to be introduced, that were disclosed for the first time in the Exhibit List provided on the morning of Jury Trial.
2) The Trial Court erred at Trial by allowing the Medical Review Panel opinion to be redacted to eliminate the panel’s opinion regarding causation.
3) The Trial Judge erred in not allowing the Jury to consider the fault of the Emergency Room physician, which was plain, open and obvious.
4) The Jury erred in assigning fifty (50%) percent of fault to LaSalle Nursing Home when but for the negligence of the hospital the incident would not have occurred.
5) The Trial Court erred in granting a JNOV to plaintiff and overturning the Jury’s decision that no survival action damages were to be awarded.
6) The Trial Court erred in awarding an excessive amount of survival action damages when the Judge granted a JNOV.
7) The Trial Court erred in awarding an excessive amount of attorney’s fees when the Judge granted a JNOV.

RThe plaintiffs have answered the appeal, seeking: “(1) a reduction in the percentage of fault attributable to Kathy Lambeth and/or Lasalle General Hospital and (2) an increase in the award of general damages to June Cockerham.”

Discussion

Introduction of Evidence

The defendant first questions the introduction of a number of pieces of evidence. While the defendant does not dispute that it had prior notice of the existence of the evidence, it contends that it had no prior notice that the evidence was to be used at trial. The contested evidence included family photographs, a gastric tube illustration, an ambulance record, and various nursing home policies. A redacted version of the Medical Review Panel’s opinion, a statement from Dr. Woodard, and an attorney contract were also at issue. The plaintiffs asserted that the particular exhibits had been identified in an updated exhibit list forwarded to counsel the weekend prior to trial.

In McIntosh v. McElveen, 04-1041, pp. 9-10 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, 994, writ denied, 05-0528 (La.4/29/05), 901 So.2d 1069, a panel of this court observed that a “trial court is accorded vast discretion concerning the admission of evidence, and its decision will not be reversed on appeal absent an abuse of that discretion.” In ruling, the trial court noted that no pretrial schedule was in place due to a number of pre-trial occurrences which had rendered establishing a schedule difficult. The trial court additionally observed that the defendant failed to prove that it was surprised or unfairly prejudiced by the introduction of the evidence. The trial court remarked that it did not “see how [the defendant] could be surprised by anything that’s in your control[.]” The trial court further indicated that it would | (¡provide the defendant with time to produce any further evidence it needed to counter those introduced by the plaintiffs.

The record does not demonstrate abuse of the trial court’s discretion in permitting the evidence. As noted by the trial court, the defendant was aware of the existence of the evidence and failed to establish that it was unfairly prejudiced by its introduction. It offered no explanation as to how it could have or would have countered the exhibits offered.

This assignment lacks merit.

Redaction of the Medical Review Panel Opinion

The opinion rendered by the Medical Review Panel revealed that the panel found that “the evidence does not support the conclusion that the defendants failed to comply with the appropriate standard of care as alleged in the complaint[.]” Having made this determination, the panel’s opinion continued, stating: “nor does the evidence support the conclusion that the defendants’ actions were causative, in whole or in part, of the damages alleged to have been sustained herein.” The plaintiffs filed a motion immediately prior to the start of trial arguing that this latter statement exceeded the statutory authority conveyed to the panel and that, accordingly, the statement must be redacted. The trial court granted the motion. The defendant argues here that there is no statutory or jurisprudential support for the trial court’s determination.

Louisiana Revised Statutes 40:1299.39.1 provides, in part:

G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the |7following expert opinions which shall be in writing and signed by the panelists, together with written reasons supporting each opinion, which shall constitute part of the report:
(1) The evidence does not support the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint. If such opinion is rendered, then an opinion on whether the conduct complained of was or was not, in fact, a medical cause of the resultant damages shall also be rendered. If an opinion is rendered that such conduct was, in fact, a medical cause of the resultant damages, then an opinion shall be rendered on whether the plaintiff suffered:
(a) Any disability and the extent and duration of the disability.
(b) Any permanent impairment and the percentage of the impairment.

(Emphasis added.) See also La.R.S. 40:1299.47(G).

| sIn ruling that the Medical Review Panel opinion must be redacted to remove the finding as to causation, the trial court referenced the wording of the related statutory authority. We find no error in the trial court’s determination. Rather, La.R.S. 40:1299.39.1(G)(2) indicates that it is only upon a finding that the health care provider deviated from the standard of care, that the panel is to reach the issue of causation. Since the panel concluded that there was no deviation in the standard of care, La. R.S. 40:1299.39.1(G)(1) required that its analysis end with that determination. The trial court did not err in ordering that the opinion be redacted.

This assignment lacks merit.

Fault of Emergency Room Physician

The defendant also questions the trial court’s determination that, based on the evidence presented, the jury would be unable to consider whether Dr. Woodard was negligent and, in turn, include him in the apportionment of fault.

Louisiana Revised Statutes 9:2794 sets forth the burden of proof required in a medical malpractice case, requiring in part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
|fl(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

Since the defendant was seeking a determination that Dr. Woodard was negligent in his treatment of Mr. Cockerham, it was the defendant’s burden of establishing the elements of La.R.S. 9:2794. The trial court concluded that it failed to do so, limiting the jury’s consideration of Dr. Woodard’s negligence.

Having reviewed the evidence, we find no error in the trial court’s determination that the defendant failed to establish evidence adequate to support a determination that Dr. Woodard breached the applicable standard of care. In short, the defendant failed to present expert testimony establishing the standard of care, and breach thereof, applicable to an emergency room physician in the same locality at that time. Rather, the defendant relied upon its assertion that Dr. Woodard’s conduct constituted an obviously careless act which did not require the testimony of an expert.

In support of its position, the defendant cites Pfiffner v. Correa, 94-0924, p. 9 (La.10/17/94), 643 So.2d 1228, 1233, wherein the supreme court noted that expert testimony in a medical malpractice case is “not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.” The court further commented that:

Failure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary are also examples of obvious negligence which require no expert testimony to demonstrate the physician’s fault.

Id. at 1234.

|inThe trial court was not required to find that the alleged negligence of Dr. Woodard in this case was so obvious as to fit within this exception. Rather, the record supports a determination that, based upon the facts presented and the testimony developed, the degree to which Dr. Woodard understood Ms. Lambeth’s difficulty in replacing the tube and the extent to which he was required to respond in order to satisfy the standard of care required of him remained uncertain.

This assignment lacks merit.

Apportionment of Fault

The jury apportioned the fault equally between the defendant and LaSalle General Hospital. The defendant contends that it had a policy against changing gastric tubes in the nursing home and that the hospital was in a better position to not only re-insert the tube, but to check for its patency as well. In light of these factors, the defendant contends, its fifty percent assignment of fault is excessive. Conversely, in their answer to the appeal, the plaintiffs assert that the negligence of the nursing home should be increased.

Louisiana Civil Code art. 2323(A) provides:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.

Both parties reference the factors established in the jurisprudence for consideration in apportionment of fault. These factors were set forth by the supreme Incourt in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985), wherein the court stated that:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (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 superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

We are mindful, however, that apportionment of fault is a finding of fact and is, therefore, reviewed pursuant to the manifest error-clearly wrong standard of review. Broussard v. Family Dollar Store, 05-645 (La.App. 3 Cir. 12/30/05), 918 So.2d 1148.

We find no manifest error in the jury’s equal apportionment of fault. Rather, the evidence supports the determination that the hospital, through its employee, Ms. Lambeth, was negligent insofar as the tube was replaced incorrectly and that the correctness of the placement was not more fully investigated by Ms. Lambeth. The replacement was admittedly difficult. With regard to the nursing home, the jury was free to conclude that it was negligent in either failing to have an adequately understood policy of ensuring placement of the gastric tube prior to its use for feeding or in failing to return Mr. Cockerham to the emergency room with the required promptness once the problem with the tube was suspected by Ms. Lemons. The circumstances of this case, when considered in light of the factors set forth in Watson, do not indicate that either party’s conduct was such that reapportionment is required. Rather, in considering the respective fault and, in determining in which way the parties were negligent, certain credibility determinations and factual findings were required. These determinations are best left to the trier of fact.

These assignments lack merit.

h ^Survival Action — JNOV

The jury concluded that the negligence of the nursing home and the hospital, through its employee, proximately caused the plaintiffs to suffer damages. However, no damages were awarded for Mr. Cockerham’s survival action for his “pre-death pain and/or fright.” The trial court subsequently granted the plaintiffs’ motion for JNOV in this regard and awarded damages for the survival action. In his brief to this court, the defendant suggests that the record supports the jury’s determination and, accordingly, the trial court erred in substituting its judgment for that of the jury. In particular, the defendant asserts in its brief that:

While the plaintiffs’ own self-serving testimony indicated signs of pain and problems, defendant submitted deposition testimony of Dr. Linda Hamner, who had examined Mr. Cockerham a few months before the incident. Dr. Ham-ner’s assessment of Mr. Cockerham demonstrated no real cognition on his part. [ ] Further, it was undisputed that Mr. Cockerham was a brain damaged quadriplegic, limiting any sensation of pain in most areas of his body. Essentially the Jury was provided both with evidence that would allow a decision for and against the proposition of conscious pain and suffering. They chose against making any award, which was well within their province.

In Trunk v. Medical Center of Louisiana at New Orleans, 04-0181, pp. 4-5 (La.10/19/04), 885 So.2d 534, 537, the supreme court explained that:

[A] JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

|1sOn review, an appellate court must use the same criteria as the trial court and determine whether the trial court erred in granting the motion for JNOV. Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94. Thus, the reviewing court must consider whether the “facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict.” Id. at 99. If reasonable persons might differ in their conclusion, then the entry of the JNOV was in error and the jury’s verdict should be reinstated. Id.

The evidence in the record confirms the correctness of the trial court’s entry of a JNOV on the issue of survival damages. The jury established the nursing home and the hospital’s liability. The plaintiffs presented evidence indicating that, during the period from August 22 through September 3, Mr. Cockerham experienced pain and demonstrated fear. Ms. Cockerham testified that she traveled to the emergency room when Mr. Cockerham was returned for investigation of the misplaced tube. She explained that he appeared to be in pain and frightened. She described him as having a frightened expression. She stated that Mr. Cockerham was sweating and that his eyes became “real big.” Ms. Cockerham testified that “he squeezed my hand and blinked his eyes when I asked if he was hurting[.]”

The plaintiffs also presented testimony from medical personnel and medical records indicating that Mr. Cockerham was in pain. Ms. Lemons explained as follows regarding Mr. Cockerham’s reaction to her attempt to administer medication through the gastric tube:

Q And when you did that, Ms. Lemons, when you tried to force it in with a syringe, what did Justin do?
A His eyes got — he kind of — his eyes got big. He made a face.
|14Q You could tell, unintentionally, you had hurt him. He was hurting. You could tell that. Couldn’t you?
A I could tell he was in pain. Yeah. With me trying to put it in.
Q And in fact, you asked him — he could understand what you asked him things. You asked, Mr. Cockerham, are you — does this hurt you? Are you hurting?
A Yes, sir.
Q And what did he tell you?
A He blinked his eyes.
Q And—
A That’s supposed to be yes. That’s the way he communicated with us.
Q So, he definitely understood what you were asking him. Didn’t he?
A Yes.
Q And as another way you could tell, you could tell — I want you to tell the jury that you knew Justin was in pain, because what did he do with that G-tube when you used the syringe to inject the medication?
A What did he do?
Q Yes, ma'am.
A What did he do with the G-tube?
Q Do you recall in your deposition—
A He said he kind of — he kind of flinched. He moved his arm a little bit.
Q He tried to grabbed at it. Didn’t he?
A Yes, sir.

Dr. Barton testified that his examination of Mr. Cockerham at Cabrini revealed that he “was very tender over the area where the tube had been — by the time I saw him the hfitube, of course, had been removed. He was tender over that area. He flinched to pain when you pressed on that area.” Mr. Cockerham’s medical records also indicate that medication for pain was administered throughout the period at issue, including morphine. Dr. Barton explained that the decision to administer morphine “was made after some deterioration of his condition and discussion with the family, that their primary objection was for him to be as comfortable as possible and that’s when that was instituted.” Cabrini’s medical records also lists a medication for anxiety.

In support of its position that the jury could have found that Mr. Cockerham did not experience pain in his final days, the defendant points to the testimony of Dr. Linda Hamner, a physiatrist who evaluated Mr. Cockerham in May 1998 following his car accident. While Dr. Hammer testified as to Mr. Cockerham’s placement on a cognitive scale at that time and his inability to react to commands, she did not testify that Mr. Cockerham was unable to feel pain. In fact, she discussed her determination that Mr. Cockerham was a “Level 8” on the Ranchos Los Amigos Cognitive Scale as follows: “By definition, your Level Three on the Coma Scale, then the patient may respond to strong light, they may blink, they may turn away from sound, or respond to some physical kind of discomfort.” (Emphasis added). In short, the record contains evidence that Mr. Cockerham demonstrated pain. It is absent evidence supporting a determination that he did not experience pain as a result of the defendant’s negligence.

This assignment lacks merit.

Survival Action — Quantum

The defendant alternatively questions the quantum of the survival action awarded for Mr. Cockerham’s pain and suffering. It again references Mr. 11fiCockerham’s condition prior to the attempted replacement of the gastric tube. The defendant references lower figures awarded as damages for a survival action in cases it contends are similar in nature to the present matter.

After a JNOY is granted on the issue of damages, the trial court conducts an independent assessment of damages as the trier of fact. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir. 6/27/03), 865 So.2d 98. That decision, which becomes the judgment of the trial court, is reviewed by the appellate court pursuant to the abuse of discretion standard of review. Id.

Having reviewed the trial court’s award for Mr. Cockerham’s pre-death pain and fright, we find no abuse of the trial court’s discretion. Again, the record lacks evidence indicating that the debilitating consequences of the car accident diminished his appreciation of pain. Rather, the medical records and testimony support the determination that he experienced pain and fright. During the thirteen-day period between the improper feeding and his ultimate death from pneumonia, Mr. Cocker-ham required pain medication and ice blankets to control his high fever. Considering these factors, we conclude that the trial court’s award is within the discretion accorded it by law and well-settled principles of judicial review. As comparison to other reported awards for similar injuries is only made in the event that the trial court’s discretion is abused, we do not do so in this case. See Cone v. National Emergency Services, Inc., 99-0934 (La.10/29/99), 747 So.2d 1085.

This assignment lacks merit.

Attorney’s Fees — Quantum

The jury found that the defendant violated the Nursing Home Residents’ Bill of Rights, see La.R.S. 40:2010.8, but did not award attorney’s fees for that violation. 117The trial court, observing that the award of attorney’s fees is mandatory under La. R.S. 40:2010.9, awarded attorney’s fees in the amount of $59,521.80. This figure is one-sixth of the total recovered damages and is reflective of the plaintiffs’ contingency contract with their attorney. The trial court reduced the contingency contract, which was for one-third of the recovered amount, to reflect the apportionment of fault. The defendant contends on appeal that the award is excessive as the suit was also one for medical malpractice against a number of health care providers.

At the time of the events at issue, La. R.S. 40:2010.9(A) provided as follows with regard to a violation of the Nursing Home Residents’ Bill of Rights:

Any resident whose rights, as specified in R.S. 40:2010.8, are deprived or infringed upon shall have a cause of action against any nursing home or health care facility responsible for the violation.... Any plaintiff who prevails in such action shall be entitled to recover reasonable attorney’s fees, costs of the action, and damages, unless the court finds that the losing plaintiff has acted in bad faith with malicious purpose, and that there was an absence of justiciable issue of either law or fact, in which case the court shall award the prevailing party his reasonable attorney fees.

(Emphasis added.) As far as determining the “reasonableness” of attorney’s fees, the supreme court has set forth the following factors:

(1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge.

Smith v. State, Dept. of Transp. & Development, 04-1317, p. 18 (La.3/11/05), 899 So.2d 516, 528.

The record reveals no abuse of discretion in the trial court’s award of attorney’s fees. Here, the plaintiffs’ attorney obtained a favorable result for his client, assumed responsibility for investigating and pursuing the litigation, and obviously prepared 11sextensively for a multi-day trial where he ably represented his clients. While a portion of this case involved other defendants and claims which arose from actions outside of the nursing home, the facts and issues of this case were intertwined and required much of the same evidence and preparation. In sum, the award is a reasonable one and was within the court’s discretion.

This assignment lacks merit.

Award to Ms. Cockerham — Quantum

Finally, in its answer to the appeal, the plaintiffs assert that the jury’s $50,000.00 award to Ms. Cockerham for her loss of love and affection and mental anguish is abusively low. The plaintiffs point to Ms. Cockerham’s devotion to her husband during their marriage and her attention to his needs during the hospital stay related to this case. The plaintiffs also reference Ms. Cockerham’s testimony regarding the effects of the loss of her husband. Although the facts pointed out by the plaintiffs regarding Ms. Cocker-ham’s loss are unquestioned, we do not find that the award in this regard was an abuse of the jury’s discretion.

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment below is affirmed. All costs of this proceeding are assessed seventy-five percent to the appellant, LaSalle Nursing Home, Inc., and twenty-five percent to the appel-lee, June Cockerham.

AFFIRMED.

      . The present version of La.R.S. 40:1299.47(G), which was amended in 2003, provides:
      G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence and after any examination of the panel by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions, which shall be in writing and signed by the panelists, together with written reasons for their conclusions:
      (1)The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
      (2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
      (3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
      (4) When Paragraph (1) of this subsection is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment.
      (Emphasis added.)


author: EZELL, JUDGE.

text:
    Connie HUNT v. TOWN OF NEW LLANO, La., et al.
    No. CA 05-1434.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Rehearing Denied June 21, 2006.

      Daniel Elmo Broussard, Jr., Broussard, Bolton, Halcomb and Vizzier, Alexandria, LA, for PlaintiffAppellant, Connie Hunt.
    Randall Brian Reiser, Reiser Law Firm, P.L.C., Alexandria, LA, for Defendants/Appellees, Town of New Llano, LA, Freddie Boswell.

      Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   EZELL, JUDGE.

1-i Connie Hunt appeals the decision of the trial court granting a special motion to strike in favor of the Town of New Llano and its mayor, Freddie Boswell (hereinafter collectively referred to as the Town). For the following reasons, we affirm the decision of the trial court.

Ms. Hunt worked for the Town as a clerk of court until she quit her job on March 1, 2001. She sought unemployment benefits, which were denied. An administrative law judge reversed that determination, awarding her benefits. That determination was upheld by the Board of Review. In September of 2001, the Town filed a petition for review with the trial court, alleging that the decision of the Board was erroneous and “obtained through fraudulent conduct, deceit, misrepresentation, and ill conduct.” The petition was ultimately dismissed as untimely. Ms. Hunt then filed this present suit, alleging defamation against the Town for the statements made in its petition for review. The Town then filed a special motion to strike in accordance with La.Code Civ.P. art. 971. The trial court granted the motion, dismissing Ms. Hunt’s claims at her own cost. From this decision, Ms. Hunt appeals.

Ms. Hunt asserts four assignments of error on appeal. However, the first three address her claims that the trial court erred in granting the Town’s motion, as she claims the Town does not meet the definition of a “person” under La.Code Civ.P. art. 971. As such, we will address these assignments of error as one. She also claims that the trial court erred in finding that she failed to establish a probability that she would prevail on her claim.

The special motion to strike is governed by La.Code Civ.P. art. 971, (emphasis added) which provided in pertinent part at the time of filing:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the |2court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or uniting made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

In order to succeed under Article 971, the movant must make a prima facie showing that the matter arises from an act in furtherance of his or her right of free speech or the right of petition and in relation to a public issue. In order to defeat the motion to strike, the plaintiff is then required to demonstrate a probability of success on his or her own claim. Thomas v. City of Monroe Louisiana, 36,526 (La. App. 2 Cir. 12/18/02), 833 So.2d 1282.

|sMs. Hunt first claims that the Town is not a “person” within the contemplation of Article 971, and therefore cannot file this special motion. This argument is without merit. Louisiana Civil Code Article 24 defines a juridical person as “an entity to which the law attributes personality, such as a corporation or a partnership.” Comment (c) (emphasis added) to the article states:

According to civilian doctrine, juridical persons are classified either as private persons or public persons. A public person is governed by rules of public law; a private person is governed by rules of private law. The state and its political subdivisions have dual personality. At times they act as public persons in a sovereign capacity and at times as private persons in the capacity of a citizen or a private corporation.

Thus, the Town is a juridical person, not a natural person. City of Baton Rouge v. Bernard, 01-2468 (La.App. 1 Cir. 1/22/03), 840 So.2d 4, writ denied, 03-1055 (La.6/27/03), 847 So.2d 1278. Furthermore, Louisiana Code of Civil Procedure Article 5251(12) (emphasis added), defines a “person” to include “an individual, partnership, unincorporated association of individuals, joint stock company, corporation, or limited liability company.” As a municipal corporation, the Town qualifies as “a person” under this statute as well.

Additionally, our broad construction to include juridical persons is bolstered by the statute’s prior history and purpose. Article 971 was added by Acts 1999, No. 734, § 1. Section 2 of the Act (emphasis supplied) provides:

The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

Finally, in City Council of the City of Lafayette v. Bowen, 94-584, p. 6 (La.App. 3 Cir. 11/2/94), 649 So.2d 611, 614, writ denied, 94-2940 (La.1/27/95), 650 So.2d 14244, this court stated that an entity must qualify as a juridical person before it will be empowered to independently institute litigation. The same holds true for an entity being sued. Ms. Hunt is basically taking the position that a municipality is not a “person” as defined throughout the Code of Civil Procedure, meaning that a municipality could never file any suit, nor could it ever be sued. This is utterly ridiculous, as municipalities are clearly allowed to be parties to litigation. “[Pjolitical or public corporations ... are sued in their own name and have the ability to sue and be sued.... ” Anne Lind & Assoc. v. Orleans Private Indus. Council, 95-462, p. 7 (La.App. 4 Cir. 3/14/96), 673 So.2d 227, 232, writ denied, 96-1706 (La.10/25/96), 681 So.2d 365. See also Lafayette City-Parish Consol. Gov’t v. Chauvin, 04-82 (La.App. 3 Cir. 6/9/04), 875 So.2d 1023; City of New Orleans v. T.L. James & Co., 96-1112 (La.1/14/97), 685 So.2d 111. Simply put, municipalities are encompassed within the term “person” as contemplated by La.Civ.Code art. 24 and La.Code Civ.P. art. 5251(12). See City of Baton Rouge, supra. To hold otherwise would result in absurd consequences. There is no error in the trial court’s determination that the Town had the ability to file this motion.

Having determined that the Town could file this motion, we now must decide if the Town made a prima facie showing that the matter arose from an act in furtherance of its right of petition and in relation to a public issue. The statements Ms. Hunt claims were defamatory were made before a judicial proceeding and made in connection with an issue under consideration or review by a judicial body. As such, the matter clearly was an act in furtherance of the Town’s right of petition under the United States or Louisiana Constitution in connection with a public issue, as noted by La.Code Civ.P. art. 971(F). There is no manifest error in the decision of the Istria! court that the matter Was a public issue, subject to the special motion.

In her final assignment of error, Ms. Hunt claims that the trial court erred in finding that she did not demonstrate a probability that she would prevail on her claim. We disagree.

In order to overcome the special motion to strike, Ms. Hunt must establish a probability of success on her claim. This showing is based on the elements of the alleged tort claim. Lee v. Pennington, 02-381 (La.App. 4 Cir.10/16/02), 830 So.2d 1037, writ denied, 02-2790 (La.1/24/03), 836 So.2d 52. Ms. Hunt has alleged the tort of defamation. Defamation involves the invasion of a person’s interest in his reputation and good name. Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706. The Louisiana Supreme Court has explained that in order for a plaintiff to prevail on a defamation claim, he or she must prove: “(1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Trentecosta v. Beck, 96-2388, p. 10 (La.10/21/97), 703 So.2d 552, 559.

In opposition to the Town’s motion, Ms. Hunt filed her own affidavit. In this affidavit, Ms. Hunt merely alleges that the Town’s suit against her contained statements which were “false and not true.” This is the only evidence in the record to support her claim. We do not find that these uncorroborated conclusions suffice to meet the burden of establishing a probability of success on her defamation claim. Accordingly, we find no manifest error in the determination of the trial court.

The judgment of the trial court granting the Town’s special motion to strike pursuant to La.Code Civ.P. art. 971 is affirmed. Costs of this appeal are assessed against Connie Hunt.

AFFIRMED.

      . To hold otherwise would eliminate Mrs. Hunt's very right to file this defamation claim against the Town.