author: McDonald, j.

text:
    T.D. v. F.X.A.
    No. 2013 CU 0453.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 9, 2014.

      Deborah M. Henson, Cynthia A. De Luca, Martha J. Maher, Rebecca Demahy, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant T.D.
    Bennett Wolff, Metairie, Louisiana, Attorney for Defendant/Appellee F.X.A.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McDonald, j.

|2We note at the outset that this is a difficult case. This case is the subject of an earlier appeal, T.D. v. F.X.A., 2012 CA 1590 (LaApp. 1 Cir. 5/22/2014), which has not been handed down. In that case, T.D. (the mother) appealed a February 13, 2012 district court judgment that ordered that the parties’ daughter, V.D., (now aged 17) attend an out-of-state boarding school, at the request of F.X.A. (the father), and against the wishes of T.D., and also ordered T.D. to encourage V.D. to go to the school and advised that if T.D. failed to do so, the district court would consider a change of custody to F.X.A. Further, the judgment ordered F.X.A. to visit the school within three weeks to ensure that he was satisfied with the facility and that if T.D. wished to visit the school, F.X.A. would pay for her plane ticket, as he stipulated in open court. That ruling followed F.X.A.’s rule to modify custody, seeking to change the custody arrangement that had been in place since a December 6, 2010 consent judgment, with the parties having joint custody and T.D. being the domiciliary parent.

T.D. tried to file a suspensive appeal from that judgment, but the district court denied the suspensive appeal. T.D. then filed a supervisory writ and a request, for stay with this court, asserting that the February 13, 2012 judgment was not related to custody (which would preclude a suspensive appeal, pursuant to La. C.C.P. art. 8945) but was instead a judgment concerning school placement. This court denied the writ and the motion for stay on March 23, 2012, stating: “Accordingly, the judgment ‘relates to custody as contemplated by La. C.C.P. art. 3945, and in accordance with its provisions, ‘an appeal shall not suspend execution of the judgment. T.D. v. F.X.A., 2012 CW 0458 (La.App. 1 Cir. 3/23/12). T.D. then filed a devolutive appeal from the judgment on March 19, 2012.

| a While that appeal was still pending, on May 23, 2012, F.X.A. filed a rule to change custody, and for contempt, attorney fees, and costs. He asserted that T.D. failed to encourage V.D. to attend the school and instituted and participated in an internet campaign to prevent V.D. from attending the school. In particular, he maintained that T.D. had communicated with and solicited members of a Facebook group known as “I Survived Diamond Ranch Academy," whose members made derogatory comments regarding the school and the district court, including attaching an internet link to the www.amackerforjudge. com website, as well as a copy of an email from the judge’s administrative assistant to the judge; that T.D. communicated with and solicited members to an internet website, www.troubledprograms.com, in an effort to obtain signatures for a petition titled “Save [V.D.] From Diamond Ranch Academy55; that T.D. exhibited hostile and derogatory behavior while visiting Diamond Ranch Academy with V.D., which, as a result of her behavior, along with the internet posts, caused the Admissions Director, Daniel Borehardt, to advise by correspondence dated May 17, 2012, that the school had “great apprehension at the prospect of enrolling [V.D.] at Diamond Ranch Academy"; and further, that T.D. refused to sign the school’s admissions agreement, which included a liability waiver form, despite F.X.A.’s numerous requests. F.X.A. asked that as a result of T.D.’s failure to encourage V.D. to attend the school and her failure to sign the admissions agreement, both of which, he asserted, the district court had ordered her to do, he be awarded sole custody of V.D., or in the alternative, that the district court maintain joint custody and designate him as the domiciliary parent. He further asked that T.D. be held in contempt of court for her repeated violations of the January 25, 2012 judgment, be fined and incarcerated, and be ordered to pay attorney fees and costs.

On October 8, 2012, T.D. filed a peremptory exception raising the objection of no cause of action, asserting that F.X.A. sought to change the status of custody 14from joint to sole custody for himself, or at least change custody to have himself designated as the domiciliary parent, but that the district court’s February 13, 2012 judgment had not changed the status of custody, and thus, F.X.A. had to meet the heavy burden of the Bergeron standard in order to change custody. She asserted that F.X.A. had failed to state a cause of action upon which he could proceed to change custody as he had not asserted any allegation that would rise to the Bergeron standard; thus, his rule to change custody, and for contempt, attorney fees, and costs should be dismissed.

The district court heard the matter on October 10, 2012. After the hearing, the district court denied T.D.’s peremptory exception raising the objection of no cause of action; found T.D. in contempt of court on four counts and sentenced her to 80 days in jail for each count, to run concurrently, with all but seven of the days suspended; remanded her immediately to the parish jail, to remain for seven days without benefit of release, and ordered her to serve the balance of the 30 days under unsupervised probation; and ordered her to pay a fine of $100 for each count, for a total of $400; and set the matter for a compliance hearing on November 7, 2012. The district court awarded sole custody of V.D. to F.X.A. and prohibited T.D. and her family members from having any contact with V.D. The district court ordered T.D. to undergo a full mental health evaluation with a court-approved provider prior to the district court considering resuming contact between T.D. and V.D. Additionally, the district court appointed Dr. Alicia Pelleg-rin to perform a mental health evaluation of T.D. at T.D.’s cost, with the evaluation to include a review of the testimony and evidence offered at all pertinent hearings in the matter, together with a conference with counsel for both parties, to address all of the mental health issues of T.D. It was further ordered that the prior district [fiCourt judgment regarding V.D. attending Diamond Ranch Academy be vacated. F.X.A. was permitted to enroll V.D. into any school of his choice, and to utilize the court’s social worker. Also, the child support paid by F.X.A. to T.D. was terminated. The judgment was rendered at the conclusion of the hearing and it was signed on October 30, 2012.

T.D. is appealing that judgment. She makes the following assignments of error.

1. The trial court abused its discretion and committed manifest error by denying Appellant’s Exception of No Cause of Action, where Appellant had asserted that the heavy Berger-on standard applied to any decision to modify custody because of the considered decree that had issued from the January 25, 2010 trial where joint custody was continued and domiciliary status of Mother was continued. No evidence was presented in this October trial, or recited by the trial court, that would have established by the requisite clear and convincing standard that the change in custody was warranted under the Bergeron standard for considered decrees.
2. The trial court abused its discretion and committed manifest error by finding Appellant in contempt of court on four counts and sentencing her to seven (7) days of actual jail time (30 days on each count to run concurrently, with all but 7 suspended), plus $100 fine on each count ($400) due to Appellant purportedly failing to encourage the child to attend the Diamond Ranch Academy (the school in Utah that the Trial Court ordered the child to attend in its January 25, 2012 judgment, which was the subject of a previous appeal docketed as 2012-CA-1590) where the Court concluded that:
(A) Appellant had instigated and directed an online group that opposes the Diamond Ranch [Academy] to post derogatory comments about the school, the Court, and the Father;
(B) Appellant had solicited signatures on a petition called Save [V.D.] From Diamond Ranch Academy to prevent the child from attending the Utah boarding school;
ls(C) Appellant exhibited “hostile and derogatory behavior while visiting school with the minor child”; and
(D) Appellant’s failure to sign the admissions agreement that includes a liability waiver form for Diamond Ranch [Academy] constituted additional evidence of her failure to encourage the child to attend the school.
3. The trial court abused its discretion and committed manifest error by awarding sole custody to the child’s father and not allowing any visitation or contact between the child and her mother or her mother’s family from the moment of the ruling until further orders from the trial court.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, T.D. maintains that the district court abused its discretion and committed manifest error by denying her exception of no cause of action, where she had asserted that the Bergeron standard applied to any decision to modify custody because of the considered decree that had issued from the January 25, 2012 trial where joint custody and her domiciliary status were continued. T.D. asserts that no evidence was presented in the October 10, 2012 trial, or recited by the district court, that would have established by the requisite clear and convincing standard that the change in custody was warranted under the Bergeron standard for considered decrees.

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131. However, in actions to change custody decisions rendered in considered decrees, an additional jurisprudential requirement is imposed. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, 52, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478. A considered decree is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Hensgens, 653 So.2d at 52. When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is “so deleterious to the child as to justify a 17modifícation of the custody decree,” or of proving “by clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” Evans v. Lungrin, 708 So.2d 731, 738 (La.1998); Bergeron, 492 So.2d at 1200.

Every child custody case must be considered within its peculiar set of facts. A trial court’s determination of custody is entitled to great weight and will be overturned on appeal only when there is a clear abuse of discretion. Voelkel v. Voelkel, 97-2546 (La.App. 1 Cir. 5/15/98), 712 So.2d 633, 635; Scott v. Scott, 95-0816 (La.App. 1 Cir. 12/15/95), 665 So.2d 760, 763, writ denied, 96-0181 (La.2/2/96), 666 So.2d 1106.

T.D. asserts that the decree that issued from the January 25, 2012 trial, wherein joint custody and T.D.’s domiciliary status were continued, was a considered decree. After that hearing, the district court ruled that F.X.A. met the burden of rebutting the presumption that all major decisions made by the domiciliary parent are in the best interest of the child. La. R.S. 9:335B(3) provides that all major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. After review, the district court found that F.X.A. proved that it was not in the best interest of V.D. to continue at the alternative school she had been attending, and that it was in her best interest to attend the structured, therapeutic boarding school in Utah, Diamond Valley Ranch, which F.X.A. wanted her to attend.

We must determine whether the January 25, 2012 trial was one in which the district court received evidence of parental fitness to exercise care, custody, and control of children. It was F.X.A.’s June 3, 2011 filing of a rule to modify custody that led to the January 25, 2012 hearing. In his rule, F.X.A. asserted that a change in circumstances had occurred since the previous judgment sufficient to warrant a modification in the current custodial arrangement. F.X.A. asserted that V.D. had |Rbeen expelled from school for drug-related issues and was attending an alternative school, from which she had been suspended twice; that she had problems prior to the school expulsion that resulted in intervention by the Juvenile Court; that there was a lack of proper supervision and discipline by T.D. over V.D.; that T.D. continued to engage in a pattern of parental alienation and continued to refuse to pay her court-ordered portion of the mental health professional’s services to a reconciliation therapist appointed by the court to help F.X.A. and V.D. address this issue; and that V.D. had serious emotional issues and needed consistency, routine, and structure, which could not be provided by T.D.

At the hearing on January 25, 2012, the following took place at the start of trial:

THE COURT:
Counsel, let’s state what is before the court today, please.
[F.X.A.’S COUNSEL]
Your Honor, [F.X.A.] filed a motion to modify custody, with the main issue being whether or not the child [V.D.] attends a therapeutic boarding school or stays at school in Tangipahoa.
THE COURT:
Is that right, [T.D.’s counsel]? That’s everything before the court?
[T.D.’S COUNSEL]
Yes; that’s correct.

At this hearing, the court heard testimony from six witnesses: (1) Rhea Marrs, the principal at Tangipahoa Alternative School, which V.D. was attending at that time; (2) Darlene Palliser, the assistant principal at Mandeville Junior High School, which V.D. had previously attended; (3) Teri Groves, a licensed clinical social worker who had been appointed by the court as a reconciliation therapist in the case; (4) Brian Osborn, a licensed clinical social worker who began working with V.D. in 2008; (5) F.X.A.; and (6) T.D.

|flV.D.’s medical records from Mercy Family Center, where she was treated by Dr. William Colomb, Jr., a psychiatrist, were entered into evidence, along with V.D.’s student demographic information from Tangipahoa Alternative Programs and an information brochure and DVD from Diamond Ranch Academy.

After a thorough review of the record, we conclude that at the January 25, 2012 hearing, the district court received evidence of parental fitness to exercise care, custody, and control of V.D. In particular, F.X.A. sought to prove that T.D. was not exercising sufficient and appropriate supervision and control over V.D., such that V.D. should be removed from the alternative school that she was attending and sent to an out-of-state boarding school against the wishes of T.D.

The district court noted, during the hearing, that the hearing was about school choice, rather than custody; however, we find that the district court’s decision to send V.D. to boarding school in Utah against T.D.’s wishes essentially stripped V.D. of her domiciliary parent status, which was a change of custody. Thus, we find that the February 13, 2012 judgment was a considered decree of custody, which necessitated that F.X.A. meet the Berger-on standard at the October 10, 2012 hearing in order to be granted a change in custody.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, T.D. asserts that the district court abused its discretion and committed manifest error by finding her in contempt of court on four counts and sentencing her to seven (7) days of actual jail time (30 days on each count to run concurrently, with all but 7 suspended), plus a $100 fine on each count ($400 total) due to T.D. purportedly failing to encourage the child to attend linthe Diamond Ranch Academy, where the district court concluded that T.D. had instigated and directed an online group that opposes the Diamond Ranch Academy to post derogatory comments about the school, the trial court, and F.X.A.; T.D. had solicited signatures on a petition called “Save [V.D.] From Diamond Ranch Academy” to prevent the child from attending the Utah boarding school; T.D. exhibited hostile and derogatory behavior while visiting the school with the minor child; and T.D.’s failure to sign the admissions agreement that included a liability waiver form for Diamond Ranch Academy, which constituted additional evidence of her failure to encourage the child to attend the school.

The Louisiana Code of Civil Procedure defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” La. C.C.P. art. 221. A contempt of court proceeding is either criminal or civil, which is determined by what the court primarily seeks to accomplish by imposing sentence. In a criminal contempt proceeding, the court seeks to punish a person for disobeying a court order, whereas in a civil contempt proceeding, the court seeks to force a person into compliance with a court order. Billiot v. Billiot, 2001-1298 (La.1/25/02), 805 So.2d 1170,1173.

Criminal contempt is a crime, and the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal proceeding against conviction of a crime except upon proof beyond a reasonable doubt of every fact necessary to constitute the contempt charge. On appellate review of criminal contempt, the reviewing court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the contempt charge was proved beyond a reasonable doubt. Id. at 1174.

_J_yWillful disobedience of a court order requires a consciousness of the duty to obey the order and an intent to disregard that duty. The purpose of charging and convicting a defendant for criminal contempt is vindication of the public interest by punishment of contemptuous conduct. Therefore, in order to constitute willful disobedience necessary for criminal contempt, the act or refusal to act must be done with an intent to defy the authority of the court. Id.

As T.D. was found guilty of criminal contempt, this court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the contempt charge was proved beyond a reasonable doubt.

A review of the record shows that T.D. testified that she did encourage V.D. to go to the school. Essentially, T.D. testified that she did not want V.D. to go to the school, but she denied discouraging V.D. T.D. further stated that she visited the school with V.D., went sightseeing in the area with her, and basically told her that it was a done deal. She said that she would visit her during the year and they would go shopping in Salt Lake City. T.D.’s longtime family friend, Allison Cooper, testified that she and T.D. had dinner together with V.D. before she was scheduled to leave for school and that both of them encouraged V.D. to go to the school and make the best of it.

T.D. clearly did not agree with the district court’s decision and took steps to have it overturned, i.e., applying for a writ and an appeal from the district court judgment. However, the court could not force T.D. to agree with its decision or to give up her right to legally challenge that decision. While T.D. did contact Nancy Tur-byfill, and Ms. Turbyfill then began an internet campaign to oppose V.D. going to the school, Ms. Turbyfill appeared to act alone in that regard, according to l^the testimony of both T.D. and Ms, Turbyfill. T.D. did not post the derogatory comments about the school, the district court, or F.X.A. While the district court may not have found T.D.’s testimony that she personally did not do those things credible, there was no evidence at the hearing that proved otherwise. T.D. can not be held in criminal contempt of court for actions that were committed by other people, unless there is evidence that she solicited others to participate in the contemptuous conduct. There is no such evidence in this record. Ms. Turbyfill testified (by deposition) that she acted on her own volition and without T.D.’s knowledge or consent.

Further, we note again that the motion for contempt was filed by F.X.A. on May 23, 2012. Any actions taken by T.D. after that date could not serve as the basis for a finding of criminal contempt by T.D., as T.D. was given no notice of a hearing for contempt for any actions taken after May 28, 2012. The district court, in oral reasons for judgment, noted that after the filing of the motion for contempt, T.D. arranged for a radio interview and brought V.D. to the interview, at which other parties made vile commentary about the school, the child’s father, the proceedings in Louisiana, and the court. When F.X.A.’s attorney asked T.D. about this incident, T.D.’s attorney objected. The district court judge sustained the objection in part, stating that the actions could not be used to prove the contempt allegations, but she could consider them in connection with the change of custody issue. However, the court’s judgment clearly found these actions to be in violation of her previous order and one of the four contempt actions.

After a thorough review, we find the evidence was not sufficient for a rational trier of fact to conclude that every element of the charge of criminal contempt for instigating and directing an online group that opposed the Diamond Ranch Academy to post derogatory comments about the school, the district court, and F.X.A., and the charge of criminal contempt for soliciting signatures on a | ^petition called “Save [V.D.] From Diamond Ranch Academy” were proved beyond a reasonable doubt. Thus, both of these counts of criminal contempt are reversed.

As to the criminal contempt count for T.D. exhibiting hostile and derogatory behavior while visiting the school with V.D., there was no evidence in the record of this behavior. While a letter to F.X.A. from Diamond Ranch Academy referencing T.D.’s behavior while visiting the school with V.D. was mentioned at the trial, this letter was not entered into evidence. According to T.D.’s testimony at trial, she called ahead to schedule appointments with school personnel and met with four staffers and several students while she and V.D. were visiting the school. T.D. testified that she and V.D. were well dressed and had made the decision to be on their best behavior while visiting the school.

Thus, as there was not sufficient evidence for a rational trier of fact to conclude that every element of this criminal charge of contempt was proved beyond a reasonable doubt, this finding of criminal contempt is reversed.

The last count of criminal contempt found by the district court was based upon T.D.’s failure to sign the admissions agreement that included a liability waiver form for Diamond Ranch Academy, which the district court determined constituted additional evidence of her failure to encourage V.D. to attend Diamond Ranch Academy.

We note that the judgment did not require T.D. to sign the liability waiver form. T.D. testified at trial that she refused to sign the admissions agreement because if her daughter was injured in a car accident and the other person did not have insurance, or if she fell off a horse, or if she fell off a cliff, there would be no recourse. T.D. testified that she probably would have signed the contract if she could have done so without also signing the release of liability, although she questioned other aspects of the contract, such as strip searches allowed at any time and the use of restraints. We find that T.D.’s failure to sign the admissions 114agreement, due to her concerns about liability, was not “further evidence” of her failure to encourage V.D. to attend the school, but rather, was based upon parental concern. We find the evidence was not sufficient for a rational trier of fact to conclude that every element of this criminal charge of contempt was proved beyond a reasonable doubt. Thus, this finding of criminal contempt is reversed.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, T.D. asserts that the district court abused its discretion and committed manifest error by awarding sole custody to F.X.A. and not allowing any visitation or contact between V.D. and T.D. or T.D.’s family from the moment of the ruling until further orders from the trial court. T.D. asserts that this ruling was harsh and not in V.D.’s best interest.

As we have found that the district court made a considered decree of permanent custody in the February 13, 2012 judgment, F.X.A. bore a heavy burden of proving that the continuation of the present custody was so deleterious to V.D. 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 the change of environment was substantially outweighed by its advantages to V.D. See Bergeron, 492 So.2d at 1200.

T.D. and F.X.A. had a difficult relationship as parents, and F.X.A. was not a part of V.D.’s life for at least the first five years of her life. V.D. had lived with T.D. for her entire life. The most time V.D. ever spent with F.X.A. was weekend visits. V.D. had attended some reconciliation therapy with F.X.A. in 1996, but the therapy was ultimately discontinued. F.X.A. contended that T.D. continually undermined his relationship with V.D. It also appears from the record that F.X.A. discontinued the reconciliation therapy and contended that it did not fit into his work schedule. F.X.A. did not attend any of the disciplinary school conferences at Poncha-toula High School or the alternative school, nor did he attend the juvenile |1ficourt hearings or group meetings pertaining to drug use, and he met with V.D.’s therapist, Brian Osborn, only once. He testified that V.D. did not want to see him.

While F.X.A. contended at trial that T.D. did not adequately supervise or discipline V.D., he had not seen V.D. for almost two years at the time of the October transfer of physical custody. The extent of their estrangement was so great that F.X.A. did not tell V.D. when he and his wife had a baby (V.D.’s half-sister), and he testified that V.D. did not know about her half-sister’s existence until the child was a year old.

T.D. contended at trial that V.D.’s behavior had improved and that she was doing better in school.

We find that F.X.A. did not meet the heavy burden of proving that the continuation of domiciliary custody with T.D. was so deleterious to V.D. 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 the change of environment was substantially outweighed by its advantages to V.D.

We find that the record shows that the district court’s decision to immediately transfer custody of V.D. to F.X.A., the father from whom she was estranged, and immediately prohibit any contact between V.D. and T.D. or T.D.’s family, without letting her mother even tell her goodbye, was an abuse of discretion that was not in the best interest of V.D. Thus, we reverse this ruling by the district court.

For the foregoing reasons, that portion of the district court’s October 30, 2012 judgment finding T.D. in contempt of court on four counts is reversed, and that portion of the judgment awarding sole custody to F.X.A. and not allowing any visitation or contact between V.D. and T.D. or T.D.’s family until further orders from the district court is reversed. Costs of this appeal are assessed against F.X.A.

REVERSED.

PETTIGREW, J. concurs.

McCLENDON, J. concurs and agrees with the result in the case.

      . Pursuant to the Uniform Rules-Courts of Appeal, Rules 5 — 1(b) and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor child involved in this proceeding.

      . The parties had joint custody with T.D. as the domiciliary parent.

      . Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

      . We note that the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal. La. C.C.P. art. 2088. The judgment of the trial court ordering V.D. to attend Diamond Ranch Academy was the focus of the earlier appeal, and the trial court had no jurisdiction to vacate it at this point.

      . We note that the actions of the district court (as well as the actions of this court) created a conundrum for T.D. The district court refused to grant T.D. a suspensive appeal of the February 13, 2012 judgment, because the judgment related to custody and La. C.C.P. art. 3943 does not allow for a suspensive appeal in custody cases. T.D. applied for a writ to this court (2012 CW 0458), and it was denied for the same reason. Now, the district court, in written reasons for the October 30, 2012 judgment, maintains that the February 13, 2012 judgment did not relate to custody.

      . The trial deposition transcript spells her name "Turbyfill.” However, the transcript of the judge’s oral reasons spells it "Tuberfield.” We utilize the spelling found in the deposition.


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    Robert J. NOLAN, II v. STATE of Louisiana.
    No. 2013 CA 2140.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.
    Rehearing Denied July 22, 2014.

      Charles E. Griffin, II, St. Francisville, LA, for Plaintiff-Appellee, Robert J. Nolan, II.
    Adrienne Elizabeth Aucoin, Baton Rouge, LA, for Defendant-Appellant, State of Louisiana, Department of Public Safety and Corrections, Public Safety Services, Office of State Police.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   HIGGINBOTHAM, J.

I ¿The State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information (“the Department”), appeals a decision of the Nineteenth Judicial District Court in East Baton Rouge Parish, terminating the requirement of Robert J. Nolan, II to register as a sex offender in Louisiana. For the following reasons, we reverse the district court and reinstate the administrative law judgment affirming the Department’s determination of Mr. Nolan’s registration requirements.

BACKGROUND

While living in Ohio in July 2001, Mr. Nolan pled guilty to a felony offense, five counts of “Illegal use of a minor in nudity-oriented material or performance” under Ohio’s Revised Code, R.C. 2907.323(A)(3), after downloaded pictures of nude minors were found on his office computer. Part of Mr. Nolan’s sentence included the requirement to register as a sex offender in Ohio for ten years. A few years later, after another Ohio case ruled that such convictions did not require sex offender registration in Ohio, Mr. Nolan filed a motion in Ohio to terminate his duty to register. While awaiting the ruling on his motion in Ohio, Mr. Nolan moved with his family to Lafayette, Louisiana, where he began the required process of registering as a sex offender in Louisiana.

Mr. Nolan’s Ohio motion was subsequently granted in July 2009, prompting him to file a similar motion in the Fifteenth Judicial District Court in Lafayette Parish, Louisiana, where he sought an order giving full faith and credit to the Ohio ruling and terminating his Louisiana sex offender registration requirement. The district court in Lafayette denied Mr. Nolan’s motion and he filed an appeal in the Third Circuit Court of Appeal. The Third Circuit affirmed, agreeing with the | ^district court that because of Mr. Nolan’s Ohio conviction he was required to register as a sex offender in Louisiana, regardless of his sex offender registration status in Ohio. The Third Circuit also held that a discussion regarding the length of Mr. Nolan’s Louisiana registration requirement was premature given that the administrative process set forth in La. R.S. 15:542.1.3(A) had not yet been completed. See Nolan v. Fifteenth Judicial Dist. Attorney’s Office, 2010-1093 (La.App.3d Cir.4/6/11), 62 So.3d 805, 807-08, writ denied, 2011-1350 (La.9/2/11), 68 So.3d 520.

Shortly after the Third Circuit decision, on July 29, 2011, the Department sent notification to Mr. Nolan of the Department’s official determination that he would be categorized as a Tier II sex offender in Louisiana due to his Ohio conviction. Thus, Mr. Nolan was formally notified that he was required to register in Louisiana as a sex offender for a period of 25 years from the date of his initial registration, as well as perform in-person renewals every six months, all in accordance with La. R.S. 15:542.1.1(A)(2), La. R.S. 15:542.1.3(A), and La. R.S. 15:544(B)(1). The Department’s notification letter also outlined an administrative appeal process.

Mr. Nolan timely appealed the Department’s tier classification, primarily arguing that pursuant to La. R.S. 15:542.1.3(0, he should not be required to register as a sex offender in Louisiana since he was not a Louisiana resident and he |4was not required to register in Ohio, which he claimed was his state of residence. Mr. Nolan also contended that the Department did not choose the most comparable Louisiana statute when comparing the elements of the offense under Ohio and Louisiana law. An administrative hearing was held before an administrative law judge (ALJ) on April 16, 2012, where the ALJ heard testimony from Mr. Nolan and a criminal records analyst witness for the Department. On June 19, 2012, the ALJ issued a decision affirming the Department’s Tier II classification determination, and specifically finding that Mr. Nolan established a residence in Louisiana in 2009. Thus, Mr. Nolan was required to register as a sex offender in Louisiana for 25 years, pursuant to La. R.S. 15:544.

Disagreeing with the ALJ’s decision, Mr. Nolan filed a petition for judicial review in the Nineteenth Judicial District Court on July 25, 2012. After a hearing and review of the administrative record, the district court signed a judgment on October 23, 2013, finding the Department’s determination to be arbitrary and capricious since Mr. Nolan no longer had any registration obligation in Ohio. Accordingly, the district court ordered the termination of Mr. Nolan’s sex offender registration requirement in Louisiana. The Department appeals, urging error as to the district court’s failure to follow the Third Circuit decision in Nolan, 62 So.3d at 807-08, and as to the district court’s finding that the Department’s determination requiring Mr. Nolan to register as a sex offender in Louisiana for 25 years was arbitrary and capricious.

¡.STANDARD OF REVIEW

A district court’s judicial review of a final administrative decision is governed by the Louisiana Administrative Procedure Act (APA) and its standard of review as set forth in La. R.S. 49:964(G):

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon lawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

Any one of the six bases listed in the statute is sufficient to modify or reverse the administrative determination. Wild v. State, Dept. of Health and Hospitals, 2008-1056 (La.App.lst Cir.12/23/08), 7 So.3d 1, 4. When reviewing a final administrative decision, the district court functions as an appellate court. Maraist v. Alton Ochsner Medical Foundation, 2002-2677 (La.App.lst Cir.5/26/04), 879 So.2d 815, 817. The APA further specifies that judicial review shall be conducted by the district court without a jury and shall be confined to the administrative record. La. R.S. 49:964(F).

|6The manifest error test is used in reviewing the facts as found by the administrative tribunal; the arbitrary and capricious test is used in reviewing the administrative tribunal’s conclusions and its exercise of discretion. Save Ourselves, Inc. v. Louisiana Environmental Control Com’n, 452 So.2d 1152, 1159 (La.1984), On legal issues, the reviewing court gives no special weight to the findings of the administrative tribunal, but conducts a de novo review of questions of law and renders judgment on the record. Louisiana All Star Baseball Corp. v. State ex rel. Dept. of Revenue Office of Charitable Gaming, 2011-0408 (La.App.lst Cir.9/14/11), 77 So.3d 288; 293. An “arbitrary” decision shows disregard of evidence or of the proper weight thereof, while a “capricious” decision has no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. Where the law allows for the administrative tribunal to exercise discretion, the APA’s plain language concludes that such exercise must be neither abusive nor clearly unwarranted. Cedyco Corp. v. Department of Natural Resources, 2007-2500 (La.App.lst Cir.7/23/08), 993 So.2d 271, 275.

Once a final judgment is rendered by the district court, an aggrieved party may seek review of that judgment by appeal to the appropriate appellate court. See La. R.S. 49:965. The appellate court owes no deference to either the factual findings or legal conclusions of the district court when conducting its judicial review over the administrative action, just as the Louisiana Supreme Court owes no deference to the factual findings or legal conclusions of the state’s courts of appeal. Survey America, Inc. v. Louisiana Professional Engineering, 2009-0286 (La. App.lst Cir.2/10/10), 35 So.3d 305, 308 n. 5; Maraist, 879 So.2d at 817-18. Consequently, this court will conduct its own independent review of the record and apply the standards provided by La. R.S. 49:964(G). Doc’s Clinic, APMC v. State ex rel. Dept. of Health and Hospitals, 2007-0480 (La.App.lst Cir.11/2/07), 984 So.2d 711,719, writ denied, 2007-2302 (La.2/15/08), 974 So.2d 665.

DISCUSSION

Initially, we note that the district court erred in reconsidering the issue of whether Mr. Nolan was required to register as a sex offender in Louisiana even though he was relieved of that obligation in Ohio. That same issue was previously decided by another appellate court and the Louisiana Supreme Court declined to review the matter. See Nolan, 62 So.3d at 807-08. Therefore, a valid and final judgment has been rendered and is conclusive on the registration requirement issue, which is now res judicata. See La. R.S. 13:4231(3). After a final judgment, res judicata bars re-litigation of any subject matter arising from the same transaction or occurrence of a previous suit. Stroscher v. Stroscher, 2001-2769 (La.App.lst Cir.2/14/03), 845 So.2d 518, 525. Once a final judgment acquires res judicata status, no court has jurisdiction to change the judgment. Id. The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Certified Finance, Inc. v. Cunard, 2001-0797 (La.App.lst Cir.4/17/02), 838 So.2d 1, 3, writ denied, 2002-1802 (La.10/14/02), 827 So.2d 424. Therefore, the Department’s reliance on the previous Third Circuit appellate decision finding that Mr. Nolan was required to register as a sex offender in | ^Louisiana was not arbitrary or capricious, and we find that the district court erred in failing to give effect to the final judgment rendered by the Third Circuit.

In this case, the ALJ found that the Department established that Mr. Nolan became a resident of Louisiana in 2009, specifically noting that: (1) Mr. Nolan had continuously lived in Louisiana since 2009; (2) Mr. Nolan had a business in Louisiana; (3) Mr. Nolan’s wife worked for the state of Louisiana; (4) Mr. Nolan’s child attends school in Louisiana; (5) Mr. Nolan pays taxes in Louisiana; and (6) Mr. Nolan lists Louisiana as his home address on his federal tax returns. In contrast, the district court did not comment on Mr. Nolan’s residency in its oral reasons, but instead focused on which state, Ohio or Louisiana, had “more of an interest and more significant context” to have its laws upheld.

We find that the district court’s failure to consider Mr. Nolan’s residency constituted an abuse of discretion and error of law. The applicable Louisiana statute at issue, La. R.S. 15:542.1.3(A), specifically addresses procedures for the registration of sex offenders who have residences in Louisiana but who have been convicted under the laws of another state. The statute does not consider which state’s laws have a more significant interest in the sex offender registration requirements. The interpretation of a statute begins with the language of the statute itself. Denham Springs Economic Development Dist. v. All Taxpayers, Property Owners, 2004-1674 (La.2/4/05), 894 So.2d 325, 330. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature. Id., 894 So.2d at 330-31.

Based on the plain language of La. R.S. 15:542.1.3(A), it must be determined whether the offender who has been convicted of a sex offense in another state is a resident of Louisiana. If he is a resident of Louisiana, then that |floffender is required to comply with all of the mandatory sex offender registration requirements of Louisiana. Furthermore, we note that La. R.S. 15:542 expressly prohibits the waiver or suspension of sex offender registration requirements, as follows:

|inF. (1) Except as provided in Paragraphs (2) and (3) of this Subsection [involving carnal knowledge of a juvenile], the sex offender registration and notification requirements required by this Chapter are mandatory and shall not be waived or suspended by any court. Any order waiving or suspending sex offender registration and notification requirements shall be null, void, and of no effect. Any order waiving or suspending registration and notification requirements shall not be construed to invalidate an otherwise valid conviction. (Emphasis added.)

Whether Mr. Nolan is a Louisiana resident is a question of fact. Our review of the administrative record establishes ample evidentiary support and no manifest error in the factual finding that Mr. Nolan is a Louisiana resident. He moved his family to Louisiana in 2009 and has been in Louisiana since that time. He filed a convicted sex offender registration form with the Lafayette Parish Sheriffs Office starting on July 1, 2009, and updated it semi-annually, indicating that he resided in Lafayette, Louisiana, and was employed in Lafayette Parish. The form was personally signed by Mr. Nolan. The form indicated that Mr. Nolan’s vehicles were registered in the state of Louisiana. The record also contains a copy of Mr. Nolan’s Louisiana driver’s license with a Lafayette address and copies of his federal and state taxes filed in Louisiana.

After reviewing this matter pursuant to the APA standards, we conclude that the Department’s determination that Mr. Nolan was a Tier II sex offender residing in Louisiana was not manifestly erroneous nor arbitrary and capricious. The comparative laws associated with Louisiana’s criminal statute, La. R.S. 14:81.1 (pornography involving juveniles), includes Ohio’s criminal statute, Ohio-R.C. § 2907.328 (illegal use of a minor in nudity-oriented material or performance). See Historical and Statutory Notes for La. R.S. 14:81.1. Because the comparable sexual offense in Louisiana equated to possession of pornography involving minors, Mr. Nolan is required to register for 25 years. See La. R.S. 15:544(B)(1). We find that a rational basis exists for the Department’s exercise of discretion in |nissuing notification pursuant to statutory authority that Mr. Nolan is required to register as a sex offender in Louisiana for 25 years. Thus, the district court erred in terminating Mr. Nolan’s registration requirements.

CONCLUSION

For the foregoing reasons, the judgment of the district court is reversed, and the decision of the ALJ affirming the Department’s imposition of mandatory Louisiana registration and notification duties on Robert J. Nolan, II for a sexual offense under a Tier II classification is reinstated. Costs of this appeal are assessed to Robert J. Nolan, II.

DISTRICT COURT JUDGMENT REVERSED; DIVISION OF ADMINISTRATIVE LAW JUDGMENT REINSTATED.

      . Louisiana Revised Statute 15:542.1.3 is entitled, in part: "Procedures for offenders convicted or adjudicated under the laws of another state” and La. R.S. 15:544 is entitled "Duration of registration and notification period.” Reading La. R.S. 15:542.1.3(A) and La. R.S. 15:544(B)(1) together, any person convicted under the laws of another state of a comparable sexual offense in Louisiana against a victim who is a minor shall register for a period of 25 years, unless the underlying conviction is reversed, set aside, or vacated. The Department determined that Mr. Nolan’s Ohio conviction for illegal use of a minor in nudity-oriented material or performance pursuant to Ohio-R.C. 2907.323(A)(3) was comparable to the Louisiana offense for possession of pornography involving juveniles under La. R.S. 14:81.1, a Tier II offense. Louisiana Revised Statute 15:542(A)(Z )(a) requires registration for "[a] sex offense as defined in R.S. 15:541.” Included in the definition of a sex offense in La. R.S. 15:541(24)(a) is pornography involving juveniles under La. R.S. 14:81.1, for possession of photographs, electronic or otherwise, of any sexual performance involving a child under the age of seventeen and the "lewd exhibition of the genitals.” La. R.S. 14:81.1(B)(5) & (7).

      . Louisiana Revised Statute 15:542.1.3(C) provides, in part, that "[ajny nonresident full-time or part-time worker employed in [Louisiana] who would be required to register in his

        state of residence shall register with the appropriate law enforcement agencies as provided in R.S. 15:542 within three business days of employment.” (Emphasis added.)

      . A party aggrieved by an adjudication proceeding is entitled to judicial review by the district court in the parish in which the agency is located. La. R.S. 49:964(A)(1) & (B).

      . The provisions of the APA are set out in La. R.S. 49:950-973.

      . The doctrine of res judicata is codified in La. R.S. 13:4231 and specifically applies only when there is a “valid and final judgment” between the parties. Official Comment (d) (1990) to La. R.S. 13:4231 further explains the requirement of a "valid and final judgment,” stating:
      To have any preclusive effect a judgment must be valid, that is, it must have been rendered by a court with jurisdiction over subject matter and over parties, and proper notice must have been given. The judgment must also be a final judgment, that is, a judgment that disposes of the merits in whole or in part. The use of the phrase “final judgment” also means that the pre-elusive effect of a judgment attaches once a final judgment has been signed by the trial court and would bar any action filed thereafter unless the judgment is reversed on appeal. (Emphasis added.)

      . Louisiana Revised Statute 15:542.1.3(A) provides in pertinent part;
      Any person who is convicted or adjudicated of an offense under the laws of another state ... for which R.S. 15:542 requires registration shall be subject to and shall comply with all of the registration requirements of this Chapter within three business days of establishing a residence in Louisiana and shall comply with all notification requirements required in R.S. 15:542.1 within twenty-one days of establishing a residence in Louisiana. (Emphasis added.)
      Louisiana Revised Statute 15:542 provides in pertinent part:
      A. The following persons shall be required to register and provide notification as a sex offender or child predator in accordance with the provisions of this Chapter;
      (1) Any adult residing in this state who has pled guilty to, has been convicted of ... the following:
      (a) A sex offense as defined in R.S. 15:541

      (b) A criminal offense against a victim who is a minor as defined in R.S. 15:541[.] (Emphasis added.)
      Louisiana Revised Statute 15:541 provides in pertinent part:
      For purposes of this Chapter, the definitions of terms in this Section shall apply: (24)(a) “Sex offense” means ... conviction for the perpetration or attempted perpetration of ... R.S. 14:81.1 (pornography involving Juveniles).... A conviction for any offense provided in this definition includes a conviction for the offense under the laws of another state ... which is equivalent to an offense provided for in this Chapterf]

      (25) "Sexual offense against a victim who is a minor” means conviction for the perpetration ... of ... any of the following:

      (e) Pornography involving juveniles (R.S. 14:811). (Emphasis added.)
      Louisiana Revised Statute 14:81.1 provides in pertinent part:
      A. (1) It shall be unlawful for a person to ... possess ... pornography involving juveniles.

      B. For purposes of this Section, the following definitions shall apply:

      (5) "Pornography involving juveniles” is any photograph, videotape, film, or other reproduction, whether electronic or otherwise, of any sexual performance involving a child under the age of seventeen.

      (7) "Sexual performance” means any performance or part thereof that includes ... lewd exhibition of the genitals or anus. (Emphasis added.)
      Comparative Laws associated with La. R.S. 14:81.1 include Ohio-R.C. § 2907.32 to 2907.323. See Historical and Statutory Notes for La. R.S. 14:81.1.


author: CRAIN, J.

text:
    Vickie LEMOINE and Kenneth J. Lemoine v. MIKE MUNNA, L.L.C., Canal Indemnity Company, Allstate Insurance Company, Mike Munna, Individually, and Willie Earl Mingo, Sr.
    No. 2013 CA 2187.
    Court of Appeal of Louisiana, First Circuit.
    June 6, 2014.

      Mark D. Plaisance, David W. Ardoin, Thibodaux, Louisiana, Scott W. Smith, Me-tairie, Louisiana, for Plaintiffs/Appellants, Vickie Lemoine and Kenneth J. Lemoine.
    James L. Donovan, Jr., Metairie, Louisiana, for Defendant/Appellant, Allstate Insurance Company.
    Before WHIPPLE, C.J., WELCH, and CRAIN, JJ.
   CRAIN, J.

|2In this suit against an uninsured motorist insurer, the defendant appeals the trial court’s damage awards to the plaintiffs for economic loss and loss of consortium, while the plaintiffs appeal the denial of their bad faith claim seeking penalties and attorney fees. We affirm.

FACTS AND PROCEDURAL HISTORY

Vickie Lemoine and her son, Payton Lemoine, were involved in an automobile accident on August 19, 2009, that, according to the parties’ stipulation, was caused solely by the fault of another motorist who was insured under a $500,000.00 single-limit liability policy. The claims against the other motorist, his employer, and his insurer were settled for a total of $495,000.00. Of those funds, Vickie received $440,000.00, her husband, Kenneth Lemoine, received $45,000.00 for loss of consortium, and Payton received $10,000.00. The parties further agreed that the Lemoines had uninsured/underin-sured motorist (UM) coverage with Allstate Insurance Company with policy limits of $100,000.00 per person and $800,000.00 per accident.

Vickie and Kenneth sought additional recovery under that UM policy as well as penalties and attorney fees based upon Allstate’s alleged failure to make an unconditional tender in violation of Louisiana Revised Statutes 22:1892 and 22:1978. The Lemoines stipulated that the amount in controversy for all of their claims against Allstate, except the bad faith claim, did not exceed $50,000.00. The parties also agreed that the recovery for the bad faith claim, if successful, would not exceed $50,000.00.

The claims against Allstate proceeded to trial where the evidence established that the accident occurred when an 18-wheeler jackknifed and struck Vickie’s vehicle. Shortly thereafter, Vickie began experiencing neck pain and dizziness and sought treatment with Dr. Jay Vega. An MRI revealed broad-based disc Rherniations at two levels, C5-6 and C6-7, and she was eventually referred to Dr. Najeeb Thomas, a neurosurgeon. After conservative care failed to provide any long term relief, Vickie underwent her first surgical procedure, a posterior cervical laminectomy and for-aminotomy, that was performed by Dr. Thomas on August 2, 2010, approximately one year after the accident. Following the first surgery, Dr. Thomas limited Vickie to medium-duty work with no lifting of objects heavier than 20 to 25 pounds.

Vickie testified that she did not experience any significant relief from the first surgery, so she pursued additional conservative care, including physical therapy and spinal injections; however, when that treatment likewise failed to provide significant relief, she underwent a cervical dis-cectomy and fusion at C5-6 and C6-7 on August 31, 2011. Her follow-up care with Dr. Thomas continued through January 8, 2013, when she was deemed to be at maximum medical improvement and was restricted to light duty work with limited looking up or down and a lifting restriction of 20 pounds. Dr. Thomas related Vickie’s disc injuries to the automobile accident, and she continued to experience neck pain through the time of the trial.

Vickie also experienced constant dizziness after the accident and was diagnosed with vertigo by Dr. Paul Gaudet, an otolar-yngologist, who related the vertigo to the accident. This condition persisted for about three years until resolving in 2012.

The parties stipulated that the medical expenses incurred by Vickie from the date of the accident through the trial total $139,938.08, although Allstate did not stipulate that these expenses were incurred as a result of the automobile accident.

The evidence established that at the time of the accident, Vickie owned and operated a tugboat business, H.P. Marine, L.L.C., which owned one tugboat. She was the only employee of the company and was responsible for loading supplies on |4the boat, tending to repairs, and ensuring that the necessary paperwork was completed. She confirmed that it was a “physically demanding job” because of the packaging and loading of supplies for the boat. In 2008, she received $53,000.00 in income from the company; and in 2009, the year of the accident, she earned $45,000.00 in income through the date of her last check at the beginning of September, which equates to $5,625.00 per month, The company also paid the monthly notes for her vehicle and her husband’s truck in the respective amounts of $956.75 and $848.00, as well as Vickie’s automobile insurance, which at the time of trial was approximately $700.00 per month.

Following the accident, Vickie knew that her neck injury and vertigo prevented her from getting the boat ready for jobs, so she sold the boat in April of 2010, approximately 8 months after the accident. With no boat, the company had no source of income; so, according to Vickie, she was no longer able to earn her salary of $5,625.00 per month, nor was she able to receive her other benefits, namely the payment of the couple’s vehicle notes and insurance.

In support of the lost earnings claim, the plaintiffs introduced a report from a physical therapist, Donald Kinnard, who performed a functional capacity evaluation for Vickie in August of 2012 and concluded that it is unlikely that she would be able to tolerate the lifting and carrying tasks required for supplying a boat. Kinnard also stated that it is unlikely that Vickie would be able to tolerate extended sitting with her neck positioned for excessive reading. A vocational rehabilitation counselor, Thomas Meunier, evaluated Vickie and also issued a report in August of 2012 stating that Vickie was not capable of returning to her full duties as a tugboat owner, although she might be able to return to the job in some capacity if she hired additional employees to assist in the functions that she can no longer perform. Meunier also opined that Vickie had sustained a 20% loss of employment opportunity as a result of her injuries.

|fiIn defense of the lost earnings claim, Allstate countered with a report from Nancy Favaloro, a rehabilitation counselor who evaluated Vickie and concluded that it is likely that Vickie can return to work as a manager/owner of a tugboat company. Allstate also relied heavily on Vickie’s personal tax returns which reported significant losses for H.P. Marine, L.L.C. in 2009, 2007 and 2006. However, Vickie testified that the losses reported for the company were due to depreciation and the reinvestment of revenue into improvements in the tugboat, including new engines, extra parts, and basically rebuilding the boat.

With respect to the claim for penalties and attorney’s fees, the plaintiffs offered copies of the settlement drafts with the liability insurer together with three letters from plaintiffs’ counsel to Allstate’s counsel dated September 30, 2011, December 22, 2011, and May 30, 2012, respectively. The first letter relied upon the police report and Vickie’s deposition, medical records, and medical expenses as satisfactory proof of her loss in excess of the available liability insurance; however, the letter did not articulate or otherwise attempt to substantiate any claim for lost earnings. The second and third letters provided updated medical records and invoices but again made no attempt to quantify or substantiate a claim for lost earnings, except for a brief mention in the third letter that Vickie “will likely have permanent medium to light duty restrictions” according to a report from Dr. Thomas. The letter did not assert that Vickie would be unable to return to her prior work, and her first evaluation by the vocational rehabilitation counselor was approximately two months later on July 28, 2012.

In opposition to the bad faith claim, Allstate contended that Vickie’s economic claim was reasonably disputed based upon Favaloro’s opinion that Vickie could return to work and because Vickie’s tax returns reflected consistent losses for H.P. Marine, L.L.C. Allstate also introduced Vickie’s answers to | (¡interrogatories provided on November 12, 2010, particularly relying upon an answer wherein Vickie stated that she had “not calculated the amount of lost earnings at this time” and had not retained an expert for that purpose.

The trial court took the claims under advisement and thereafter issued a ruling in open court awarding Vickie the total amount of $662,682.08. itemized as follows: (1) $300,000.00 in general damages for physical and mental pain and suffering (past and future), physical disability, and loss of enjoyment of life, (2) $137,682.08 for past medical expenses, and (3) $225,000.00 for past lost earnings. The trial court also awarded Kenneth the sum of $50,000.00 for loss of consortium but denied any relief to the Lemoines for the bad faith claims. A judgment was signed that reflected the rulings; and, in accordance with the parties’ stipulation, the judgment reduced Vickie’s total award against Allstate to $50,000.00, plus interests and costs.

As reflected in the oral reasons for judgment, the trial court was “very impressed” with Vickie and found that she had “suffered greatly.” In rendering its awards, the court focused on the approximate 40 month period between the accident in August of 2009 and Vickie’s final appointment with Dr. Thomas in January of 2013. The court found that “at no time during that period was she capable of returning to any meaningful employment” and awarded her $225,000.00, which is the product of 40 months times $5,625.00, the monthly amount of income claimed to be lost by Vickie.

In rejecting the bad faith claim, the trial court explained:

In the instant matter there was a single limit [liability] policy of $500,000. And while I appreciate the argument of the Plaintiff, the facts of this case are such that absent some crystal ball on behalf of Allstate they would have had to have known the mind of the Court or 17of a potential jury. What I’m trying to say is that I cannot find that they acted in bad faith.
... I cannot find that they acted in a vexatious manner, that they were arbitrary or capricious, or that they were unwilling to explore the financial responsibilities on their policy.

The Lemoines moved for a new trial on the bad faith claim, which the trial court denied after a contradictory hearing, explaining:

Based on the income information not being completely delineated the Court still feels that the original judgment was correct, that there was no arbitrary and capriciousness and for that reason the Court is going to deny the motion.

Both parties appealed the judgment, with Allstate asserting that the trial court erred in awarding lost earnings to Vickie and made an excessive award to Kenneth for his loss of consortium, while the Lem-oines contend that the trial court erred in denying their bad faith claim.

LAW AND ANALYSIS

A. Lost Earnings Claim

To recover for actual wage loss, a plaintiff must prove that she would have been earning wages but for the accident in question. Boyette v. United Services Automobile Assoc., 00-1918 (La.4/3/01), 783 So.2d 1276, 1279. It is the plaintiffs burden to prove past lost earnings and the length of time missed from work due to the accident. Boyette, 783 So.2d at 1279. The amount of lost earnings need not be proved with mathematical certainty, but by such proof as reasonably establishes the claim, and such proof may consist only of the plaintiffs own testimony. Driscoll v. Stucker, 04-0589 (La.1/19/05), 893 So.2d 32, 53. The factfinder is accorded broad discretion in assessing awards for lost earnings, but there must be a factual basis in the record for the award. Driscoll, 893 So.2d at 53. An award for lost wages is subject to the manifest error standard of review because such damages must be proven with reasonable certainty. Boudreaux v. State, Department of Transportation & Development, 04-0985 (La.App. 1 Cir. 6/10/05), 906 So.2d 695, 705, writs denied, 05-2164 (La.2/10/06), 924 So.2d 174, and 05-2242 (La.2/17/06), 924 So.2d 1018.

Vickie testified that in 2009 she was earning $5,625.00 per month operating her tugboat company and that after the accident she was no longer able to perform the physical tasks required of the job, specifically the loading and unloading of supplies on the boat. Her monthly income was corroborated by her 2009 income tax return, and her inability to return to her employment was supported by reports from a vocational rehabilitation counselor and physical therapist. The trial court appears to have accepted the monthly income figure of $5,625.00 and arrived at a total loss of $225,000.00 based upon the 40 months Vickie was receiving medical treatment for her injuries.

Allstate primarily argues that the award was manifestly erroneous because Vickie’s tax returns reflect that H.P. Marine, L.L.C. reported a loss in 2009 and in several prior years. We first note that Vickie testified that the company was a self-sustaining business that never required any investment of her personal funds and was not on the verge of going out of business. She further confirmed that the reported tax losses were the result of depreciation and improvements to the boat. None of this testimony was contradicted by any evidence at trial.

Furthermore, as pointed out by the Lemoines, H.P. Marine, L.L.C. is a separate legal entity from its members. See La. R.S. 12:1301A(10) and (18); Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 11-2254 (La.App. 1 Cir. 7/10/12), 97 So.3d 595, 598. Vickie is not pursuing a claim for any economic loss to H.P. Marine, L.L.C., nor can she pursue such a claim in her individual name. See Richard v. Morgan, 433 So.2d 263, 264 (La.App. 1 Cir.1983), writ denied, 438 So.2d 1108 (La.1983) (principal employee and shareholder of an incorporated business, who was injured in an accident, was not entitled to recover against the tortfeasor for the diminished value of the business due to the 19employee’s injuries); Mahfouz v. Ogden, 380 So.2d 646, 649 (La.App. 1 Cir.1979) (plaintiff, who conducted business in corporate form and reaped the benefits of incorporation, cannot sue individually for damages incurred by the corporation). By that same rationale, any financial losses by H.P. Marine, L.L.C. are not determinative of whether Vickie sustained a personal loss of earnings when she was unable to work. While we recognize that H.P. Marine, L.L.C. is wholly owned by the Lemoines, the company’s reported tax losses do not disprove that Vickie was earning the claimed monthly income before the accident and that she lost that income as a result of the accident, particularly where the company was an ongoing concern that was not in danger of ceasing operations due to any financial difficulties before the accident.

Citing Vickie’s failure to introduce any business records for the company, Allstate relies upon Carter v. Baham, 95-2126 (La.App. 4 Cir. 10/09/96), 683 So.2d 299, for the proposition that an injured party should be required to present both personal and business records under these circumstances. However, in Carter, the plaintiff was a physician, and his claim for loss of past and future earnings rested upon the testimony of an expert economist who relied entirely upon the business records of the physician’s professional corporation. Carter, 683 So.2d at 306-307. The court recognized that without “a professional’s personal tax returns, a factfinder faces tremendous difficulty in evaluating such inherently speculative damages, which are at best, even when fully documented, insusceptible of calculation with mathematical certainty.” Carter, 683 So.2d at 307.

In the present case, Vickie did not rely upon the business records of H.P. Marine, L.L.C. to establish her lost earnings. Rather, she testified to the specific amount of income that she was earning before the accident. The plaintiffs own testimony can be sufficient proof to reasonably establish the amount of lost 1 ¶ nearmngs. Driscoll, 893 So.2d at 53. Further, Vickie’s testimony was corroborated by her personal income tax return for 2009.

Allstate also contends that Vickie’s lost earnings award should have been reduced by a $100,000.00 profit realized by the sale of the tugboat several months after the accident. However, the tugboat was an asset of H.P. Marine, L.L.C. Therefore, any profit from the sale of the tugboat accrued to the limited liability company as a separate entity and cannot serve to reduce Vickie’s personal recovery for lost earnings. Cf La. R.S. 12:1301A(10) and (18); Charming Charlie, Inc., 97 So.3d at 598; Richard, 433 So.2d at 264; Mahfouz, 380 So.2d at 649.

Allstate’s final contention is that Vickie failed to mitigate her damages by not determining if a part-time employee could be hired to obtain and load the supplies on the boat. An injured plaintiff has a duty to take reasonable steps to mitigate damages. Aisole v. Dean, 574 So.2d 1248, 1253 (La.1991). The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the defense. Ciolino v. First Guaranty Bank, 12-2079 (LaApp. 1 Cir. 10/30/13), 133 So.3d 686, 697. Although Vickie testified that she never thought about hiring someone to assist in the business, she also confirmed that she worked out of her house and that it would not have been feasible to continue to run the business if she had to obtain an office and incur the expense of a new employee, including payroll expense and taxes, workers’ compensation insurance, and an employee vehicle. Based upon this evidence, we find no manifest error in the trial court’s refusal to reduce Vickie’s recovery based upon an alleged failure to mitigate her damages.

B. Loss of Consortium

In its second assignment of error, Allstate asserts that the trial court abused its discretion by making an excessive award to Kenneth for loss of consortium. In reviewing an award for loss of consortium, it is necessary to evaluate the elements |nthat comprise a loss of consortium claim. Broimard v. Razden, 98-2576 (La.App. 1 Cir. 12/28/99), 763 So.2d 644, 655. The compensable elements of a claim for loss of consortium of a spouse include loss of love and affection, loss of companionship, loss of material services, loss of support, impairment of sexual relations, loss of aid and assistance, and loss of felicity Ferrell v. Fireman’s Fund Insurance Company, 96-3028 (La.7/1/97), 696 So.2d 569, 573 n. 4. Proof of any one of these components is sufficient for an award of consortium. Broussard, 763 So.2d at 655. A loss of consortium award is a fact-specific determination to be decided on a case-by-case basis and is disturbed only if there is a clear abuse of discretion. Burrell v. Williams, 05-1625 (LaApp. 1 Cir. 6/9/06), 938 So.2d 694, 701.

Kenneth and Vickie have been married since 1992, and Kenneth testified about the impact that Vickie’s injuries and treatment have had on their relationship. Her condition has limited their ability to pursue activities as a family that they enjoyed before the accident, such as fishing, watching their son’s basketball games, or going out to eat. They own a camp in Grand Isle that was a focal point of their outdoor recreational activities prior to the accident, but after the accident Vickie basically has to remain inside the camp or on the dock because she cannot go fishing offshore or in the bays in their boat. Kenneth also described the difficulty of taking care of Vickie during her surgeries while balancing his full time job and tending to their children. Their love life diminished after the accident, and their marriage is still not what it was before the accident. As expressed by Kenneth:

Well, first of all, my family comes first, my wife and my children. And ... as this thing starting transpiring and the amount of visits and doctor visits [increased,] ... waking up at night, my wife in the middle of the night the room spinning not knowing what’s going on, her not being able to do the things she loved to do. It’s just effected (sic) us greatly-[Everything's changed, ... [but] you 112bear with it. You are family. You do whatever you got to do for your family.
Well, I’m a strong person and ... it’s hard for me to sit here and talk about this.... [A]t times as strong as you think you are ... you find yourself— emotionally you will break down and it’s really hard.

Based upon the evidence of Kenneth’s loss of consortium, the trial court did not clearly abuse its discretion in awarding Kenneth the sum of $50,000.00. Accordingly, this assignment of error has no merit.

C. Bad Faith Claim

The Lemoines assert that the trial court committed’ manifest error in failing to award penalties and attorney fees based upon Allstate’s failure to make an unconditional tender under the UM policy.

Louisiana Revised Statute 22:1892A(1) requires insurers to pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss, Section B(l) provides, in pertinent part:

Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor ... when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater....

Louisiana Revised Statute 22:1973 imposes an obligation of good faith and fair dealing on an insurer, including the affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant. An insurer may be subject to penalties not to exceed two times the damages sustained or five thousand dollars, whichever is greater, if the insurer fails to pay a claim due an insured within sixty days of receiving satisfactory proof of loss when such failure is arbitrary, capricious, or without probable cause. La. R.S. 22:197SB(5) and C.

| isThe conduct prohibited by Section 22:1892A(1) is virtually identical to the conduct prohibited by Section 22:19736(5): the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause. Reed v. State Farm Mutual Automobile Insurance Company, 03-107 (La.10/21/03), 857 So.2d 1012, 1020. The primary difference is the time periods allowed for payment. Reed, 857 So.2d at 1020. Both statutes are penal in nature and must be strictly construed. Reed, 857 So.2d at 1020.

One who claims entitlement to penalties and attorney fees has the burden of proving the insurer received satisfactory proof of loss as a predicate to a showing that the insurer was arbitrary, capricious, or without probable cause. Reed, 857 So.2d at 1020. A “satisfactory proof of loss” is that which is sufficient to fully apprise the insurer of the insured’s claim. Louisiana Bag Company, Inc. v. Audubon Indemnity Company, 08-0453 (La.12/2/08), 999 So.2d 1104, 1119; McDill v. Utica Mutual Insurance Company, 475 So.2d 1085, 1089 (La.1985). To establish a “satisfactory proof of loss,” the insured must show that the insurer received sufficient facts which fully apprise the insurer that (1) the owner or operator of the other vehicle involved in the accident was uninsured or underinsured, (2) that he was at fault, (3) that such fault gave rise to damages, and (4) establish the extent of those damages. McDill, 475 So.2d at 1089.

The sanctions of penalties and attorney fees are not assessed unless a plaintiffs proof is clear that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Reed, 857 So.2d at 1021. The phrase “arbitrary, capricious, or without probable cause” is synonymous with “vexatious,” and a “vexatious refusal to pay” means “unjustified, without reasonable or probable cause or excuse.” Louisiana Bag Company, Inc., 999 So.2d at 1114.

An insurer’s conduct depends on the facts known to the insurer at the time of its action, and penalties should not be assessed when the insurer has a reasonable | ubasis to defend the claim and acts in good-faith reliance on that defense. Louisiana Bag Company, Inc., 999 So.2d at 1114. Especially when there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits when such reasonable doubts exist. Reed, 857 So.2d at 1021. In those instances where there are substantial, reasonable, and legitimate questions as to the extent of an insurer’s liability or an insured’s loss, failure to pay within the statutory time period is not arbitrary, capricious or without probable cause. Louisiana Bag Company, Inc., 999 So.2d at 1114.

Whether a refusal to pay is arbitrary, capricious, or without probable cause depends on the facts known to the insurer at the time of its action. Because the question is essentially a factual issue, the trial court’s finding should not be disturbed on appeal absent manifest error. Louisiana Bag Company, Inc., 999 So.2d at 1120: Reed, 857 So.2d at 1021.

Allstate contends that the Lemoines did not provide satisfactory proof of the extent of Vickie’s loss, specifically her claim for lost earnings, and that the decision not to make an unconditional tender was not arbitrary, capricious or without probable cause. In denying the Lemoines’ motion for new trial on the bad faith claim, the trial court found that Allstate had not acted arbitrarily in failing to make a tender because Vickie’s “income information” was not “completely delineated.” The lost earnings claim was strongly contested by Allstate, and much of the evidence presented at trial concerned that claim. As Allstate correctly points out, the trial court’s total damage award to Vickie and Kenneth, excluding lost earnings, did not exceed the underlying liability insurance coverage. The assessment of the lost earnings claim is thus a critical component in any evaluation of Vickie’s damages.

| ifiThe plaintiffs primarily rely upon the three demand letters as providing the necessary satisfactory proof of loss.; however, while those letters provide proof of Vickie’s medical treatment and related expenses, the letters make no mention nor provide any substantiation of her claim for lost earnings. Likewise, her responses to discovery, in November of 2010 indicate that although she had not returned to work, she had not calculated the amount of her lost earnings nor had she retained an expert in that regard.

The Lemoines argue that the tax returns provided during discovery were sufficient proof of loss because they include W-2 forms which indicate the salary paid to Vickie by H.P. Marine, L.L.C. However, according to Allstate, Vickie presented herself as “a self-employed earner” rather than an employee, and her tax returns produced during discovery reflected that H.P. Marine, L.L.C. was losing money.

While the tax returns do include W-2 forms, the discovery responses also represent that Vickie “was the managing member of two tugboat companies, HP Marine, L.L.C. and JC Towing L.L.C., and self employed” and that her “compensation varied depending on business and what was kept in the company.” (Emphasis added.) It is not clear from the discovery responses whether Vickie could continue to draw some or all of her salary from at least one of those companies and whether either company had the ability to utilize other personnel to continue operations without interruption. To clarify Vickie’s role with H.P. Marine, L.L.C., the plaintiffs rely on testimony presented at trial to establish that the company did not have other personnel available to load the boat, and that it was not feasible to hire someone to perform that task. However, in a bad faith claim, the insurer’s conduct is judged based upon the facts known by the insurer at the time of its action. See Louisiana Bag Company, Inc., 999 So.2d at 1114. Accordingly, information presented by the plaintiffs for the first time at trial is not Irrelevant for determining whether Allstate breached its duty' to make an unconditional tender under Louisiana Revised Statutes 22:1892A(1) and 22:1973B(5).

The only other evidence of “satisfactory proof of loss” provided to Allstate concerning Vickie’s ability to return to work consisted of the reports in August of 2012 from the vocational rehabilitation counselor and the physical therapist who administered the functional capacity evaluation. While both of those reports concluded that Vickie’s return to her prior job would be unlikely, the vocational rehabilitation counselor stated that “it is difficult to determine [Vickie’s] precise loss of earning capacity” because she was a self-employed business owner. The counselor further concluded that Vickie “may be able to return to her past job as a tugboat owner, although she will likely need to hire additional employees” to assist her. Allstate also relied upon the report it obtained from Favaloro, the vocational rehabilitation counselor who, after interviewing Vickie and reviewing her medical records, concluded that it was likely that Vickie could return to work as a manager/owner of a tugboat company. Allstate further points to Dr. Thomas’s deposition testimony in August of 2011 wherein he confirmed that he and Vickie had not discussed her ability to return to her business or the requirements of that job. Dr. Thomas also testified that he believed that Vickie should have a good prognosis after her second surgery and should be able to do medium-duty work, including lifting 25 to BO pounds.

Considering all of the evidence presented in connection with the bad faith claim, the trial court did not commit manifest error in finding that Allstate did not act arbitrarily or capriciously in failing to make an unconditional tender. The record reasonably supports the determination that there were substantial, reasonable, and legitimate questions as to the extent of Allstate’s liability and Vickie’s loss. See Louisiana Bag Company, Inc., 999 So.2d at 1114, Accordingly, 117the trial court did not err in denying recovery for penalties and attorney fees under Louisiana Revised Statutes 22:1892 and 22:1973.

CONCLUSION

Finding no merit to the assignments of error, we affirm the trial court’s judgment entered on July 31, 2013 Costs of this appeal are assessed equally between the parties.

AFFIRMED.

      . Although Vickie’s deposition is referenced in the first letter, the deposition was not introduced at trial in support of the bad faith claim.

      . The transcript reflects that the trial court arrived at the total figure by multiplying "$67,600 [sic] times 38 months;” however, that explanation is either a typographical error or an error by the trial court in its reasons, as that calculation produces a total award of over $2,5005000.00, which has no rational basis in the record.

      . The Lemoines also complain that Allstate did not attend Vickie’s deposition; however, neither Section 22:1892 nor 22:1973 impose an obligation on a UM insurer to attend a party's deposition. While information developed at a deposition may be relevant for determining whether an unconditional tender is due, the plaintiffs did not introduce Vickie’s deposition at trial, nor do they reference any particular testimony in the deposition in support of their bad faith claim.