author: LOLLEY, J.

text:
    James AYMOND, Plaintiff-Appellant v. AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY Louisiana Insurance Company and Allison Marie Holley and Tag Holley, Defendants-Appellees.
    No. 48,615-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.
    Rehearing Denied Jan. 9, 2014.

      Kelly & Townsend, Natchitoches, by Thomas Taylor Townsend, Luneau Law Office, Alexandria; by W. Jay Luneau, Graham M. Brian, for Appellant.
    Cook, Yancey, King & Galloway, Shreveport, by Brian Allen Homza, Jason Blance Nichols, Munson, Rowlett, Moore & Boone by Bruce E. Munson, Baton Rouge, Sarah Cullen, for Appellee, ANPAC.

      Davenport, Files & Kelly, Monroe, by M. Shane Craighead, for Appellees, Allison Marie Holley & Tag Holley.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

1 tJames Aymond appeals the grant of summary judgment in favor of Allison and Tag Holley by the 8th Judicial District Court, Parish of Winn, State of Louisiana. For the following reasons, we affirm in part and reverse in part the trial court’s judgment.

Facts

This lawsuit arises out of a fire on November 5, 2007, which completely burned down the house of the appellant, James Aymond, located in Montgomery, Louisiana. Aymond filed a claim with his insurer, American National Property and Casualty Company (“ANPAC”), which denied coverage for his claim. In doing so, AN-PAC gave two reasons:

1) Aymond’s alleged fraudulent submissions or misrepresentations after the fire as to the house’s contents; and
2) Aymond’s alleged misrepresentations in the original application for insurance regarding a previous bankruptcy and criminal conviction.

Allison and Tag Holley (the “Holleys”) were ANPAC’s agents from whom Ay-mond purchased the insurance policy.

When ANPAC denied Aymond’s claim, he filed suit against ANPAC and the Hol-leys. He also filed suit against ANPAC as the carrier for the Holleys’ errors and omissions policy. As to the misrepresentations on the application upon which AN-PAC partially based its denial, Aymond claims the Holleys were negligent and incorrectly answered the application questions pertaining to his bankruptcy or criminal history during the |2application process. However, the Holleys claim they asked and Aymond responded negatively to both. In his amending and supplemental petition, Aymond made an additional claim for spoliation of evidence, alleging that the Holleys had destroyed the handwritten, draft insurance application.

The Holleys filed a motion for summary judgment, seeking to be dismissed from the lawsuit. They claimed that although there is a factual dispute regarding whether Aymond disclosed his bankruptcy and criminal conviction, that fact is not material, because there is no scenario under which the Holleys could be liable to Ay-mond. The trial court, citing the reasons given by the Holleys, granted the Holleys’ motion for summary judgment, concluding that:

[T]here appear to be only three possible factual findings the jury could reach with regard to the negligence claims against the Holleys, namely:
(1) Plaintiff was asked questions about bankruptcy and criminal convictions, and denied either or both;
(2) The Holleys either failed to ask the bankruptcy and/or criminal conviction question(s), or failed to relay accurate information provided by Plaintiff to [ANPAC]; or
(3) Plaintiff and the Holleys in some manner fraudulently colluded regarding the issues of bankruptcy and/or criminal conviction....
This is an unusual set of circumstances in which the Court acknowledges there are disputed issues of fact, but summary judgment is nevertheless appropriate. Under no possible scenario are the disputed facts material to the issue of the potential liability of the Hol-leys.

As to the spoliation claim, the trial court reasoned that the Holleys had no reason, intent or motivation to destroy a document because of a negligence claim which would arise two years after the application was made. 13Judgment on both issues was entered in the Holleys’ favor, which Aymond now appeals.

DISCUSSION

We review the grant of a motion for summary judgment de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991); Dowdy v. City of Monroe, 46,693 (La.App.2d Cir.11/02/11), 78 So.3d 791. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B). Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion. La. C.C.P. art. 966 E(2).

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Hardy v. Bowie, 98-2821 (La.09/08/99), 744 So.2d 606; Duckett v. Grambling State University, 47,082 (La.App.2d Cir.04/18/12), 92 So.3d 478, writ denied, 2012-1130 (La.09/14/12), 99 So.3d 32. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines v. Garrett, 2004-0806. (La.06/25/04),4 876 So.2d 764, citing, Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, (La.07/05/94), 639 So.2d 730, 751.

Issues that require the determination of reasonableness'of acts and the conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Duckett, supra. In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the nonmoving party’s favor. Hines, supra.

Liability Claim

According to Aymond, the trial court erred in granting summary judgment based upon its conclusion that although there were facts in dispute, under no possible scenario were those disputed facts material to the issue of the potential liability of the Holleys. We agree that summary judgment on this issue was in error.

Here, the trial court and the parties all agree that a disputed fact exists over whether or not Aymond reported to the Holleys the information regarding his felony criminal conviction and bankruptcy. Because ANPAC has denied Aymond’s claim on the basis that he failed to report these facts to the Holleys, his felony conviction and bankruptcy, the issue is at the crux of this matter. Aymond submits that he gave the Holleys all of his relevant information, whereas they maintain that he did not report truthfully these two facts. Taking that fact, which all agree is disputed (just not material), |5the trial court considered three possible factual findings the factfinder could reach, concluding that under those three scenarios the Holleys could not be liable.

The trial court found that “under no possible scenario are the disputed facts material to the issue of the potential liability”; however, such a prediction was both improper and short-sighted. The fact at issue is certainly material since its resolution will necessarily determine the fault and/or liability of the Holleys to Aymond under a number of different possibilities. For instance, in the event the factfinder determined the Holleys were negligent in failing to accurately report the information provided by Aymond (the second scenario considered by the trial court), then the Holleys potentially could be hable to Ay-mond over and beyond the amounts AN-PAC might have to pay on the general policy. Moreover, regardless of the trial court’s opinion as to the possible outcome of the case, the determination of this disputed factual issue is the province of the factfinder and is not appropriate at this stage in the proceedings. The trial court is not in a position to make such an evaluation and predict an outcome on summary judgment. Therefore, we find that the trial court erred in granting summary judgment on this issue.

Spoliation of Evidence

In his amending and supplemental petition, Aymond added the allegation that the Holleys destroyed and/or otherwise spoiled evidence that he claims was “germane” to this matter. The specific evidence that Aymond claims was wrongfully destroyed is the draft, handwritten application | (¡prepared in 2005 when the Holleys met with Aymond regarding his potential coverage.

Spoliation constitutes a tort action against someone who has impaired the party’s ability to institute or prove a civil claim due to negligent or intentional destruction of evidence. McCool v. Beauregard Memorial Hosp., 2001-1670 (La.App.3d Cir.04/03/02), 814 So.2d 116, 118. In order to state a cause of action in spoliation one must demonstrate two elements: (1) the intentional or negligent destruction of evidence and (2) that the first element was for the purpose of depriving the plaintiff of its use. Arnold v. Brookshire Grocery Co., 2009-44 (La.App.3d Cir.05/06/09), 10 So.3d 1279, 1280.

A presumption may arise in the theory of spoliation of evidence when it is an intentional destruction of evidence for the purpose of depriving the opposing parties of its use. Lewis v. Albertson’s Inc., 41,234 (La.App.2d Cir.06/28/06), 935 So.2d 771, writ denied, 2006-1943 (La.11/09/06), 941 So.2d 42; Holloway v. Midland Risk Ins. Co., 36,262 (La.App.2d Cir.10/30/02), 832 So.2d 1004, unit denied, 2002-3247 (La.03/28/03), 840 So.2d 571. Generally, a litigant’s failure to produce evidence that is available to him raises a presumption that the evidence would have been detrimental to his case. However, this adverse presumption is not applicable when the failure to produce the evidence is adequately explained. Lewis, supra; Holloway, supra.

According to Allison Holley, the information from the handwritten application was transposed to an identical computerized application, which 7was then transmitted electronically to ANPAC. Since ANPAC did not require submission of the handwritten application, it was the Hol-leys’ general office practice to shred the original applications once the electronic application had been submitted. Additionally, Allison Holley’s action was taken in 2005 — two years prior to the fire at Ay-mond’s house and long before any litigation with Aymond was contemplated. Further, Aymond offers no evidence that the handwritten application was destroyed by the Holleys during litigation (or that at the time the records were destroyed there was even a hint of litigation to come) in an attempt to deprive him of any information. Where suit has not been filed and there is no evidence that a party knew suit would be filed when he discarded evidence, the theory of spoliation of evidence does not apply. Smith v. Jitney Jungle of America, 35,100 (La.App.2d Cir.12/05/01), 802 So.2d 988, writ denied, 2002-0039 (La.03/15/02), 811 So.2d 913. The record in this ease presents an explanation as to why the handwritten application no longer exists, and that explanation is clearly not for the purpose of depriving Aymond of using the handwritten application as evidence in upcoming or pending litigation. Considering the undisputed material facts and the applicable law on spoliation, the trial court properly granted the Holleys’ motion for summary judgment on this issue.

Conclusion

For the foregoing reasons, the motion for summary judgment in favor of Allison and Tag Holley is affirmed as it relates to the limited claim of spoliation made against them in James Aymond’s amending and ^supplemental petition. Otherwise, the summary judgment in favor of the Holleys is reversed. The parties are to bear their own costs of appeal.

AFFIRMED IN PART; REVERSED IN PART.

      . Interestingly, Aymond had made previous claims under the policy in connection with a lightning strike and hurricane damage to his home. Aymond maintains that those claims were paid by ANPAC.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Veocho CORNELIOUS, Plaintiff-Appellee v. LOUISIANA WORKFORCE COMMISSION, et al., Defendant-Appellant.
    No. 48,623-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 20, 2013.

      James B. Reichman, for Defendant-Appellant, Tri-State Health Services of Cen-ia, LLC.
    J. Jerome Burden, Cynthia T. Batiste, Danelle L. Gilkes, for Defendant-Appellee, Louisiana Workforce Commission.
    Veocho Cornelious, pro se.
    Before CARAWAY, DREW and PITMAN, JJ.
   DREW, J.

|, The employer appeals a district court judgment reversing an administrative agency’s determination that the employee was disqualified from unemployment compensation (“UI”) benefits.

We reverse the district court judgment and reinstate the Board of Review’s determination of disqualification.

FACTS

Veocho Cornelious began working as a CNA at Heritage Nursing Center (“Heritage”) in Haynesville, Louisiana, in April of 2010. Her schedule required her to work for four consecutive days followed by two days off. Cornelious was working her shift on April 17, 2012, when she left her work early at 2:30 a.m. to check on her horse, which had run onto a highway. She did not return to work to finish that shift. Cornelious was not scheduled to work on April 18 or 19, but was to work the 10:00 p.m. to 6:00 a.m. shift on April 20.

At approximately 8:30 p.m. on April 20, Cornelious received a call from a hospice in Michigan informing her that her father was dying. Cornelious called the nurse’s station to notify them that she would be absent from work, but let the phone ring only three to four times before she hung up without leaving a message. Cornelious left for Michigan.

Arlene Martin was the Director of Nursing at Heritage. She terminated Cornelious in writing on April 25. When completing a separation notice alleging disqualification from UI benefits, Martin wrote that Cornelious “quit to go and see about her horse. [H]as never come back.” Cornelious did not return to the nursing home until May 2.

| ¡.Cornelious sought UI benefits. The Louisiana Workforce Commission determined that Cornelious was disqualified from benefits because she left her job without good cause attributable to a substantial change made to the employment by the employer.

Cornelious appealed the finding to an ALJ. After hearing testimony from Corne-lious and Martin, and reviewing submitted documents, the ALJ made factual findings including that: (i) Cornelious was scheduled to work April 20, 2012; however, she had to take an emergency trip to Michigan to see her dying father; (ii) her employer required its employees to call their supervisor in the event of an absence, and Cor-nelious was aware of the procedure; (iii) Cornelious did not notify her employer of her absence, but instead relied on the Michigan hospice personnel to notify her employer days after her absence; (iv) Cor-nelious did not attempt to return to work until May 2; and (v) Cornelious was discharged from her employment because of absenteeism without notification to her employer.

The ALJ concluded that Cornelious was expected to notify her employer of the reason for her absence as soon as it was feasible to do so, and regardless of how valid the reason for her absence was, her failure to do so was misconduct connected with the employment. Therefore, Cornelious’s failure to notify her employer of her absence resulted in a discharge for misconduct connected with her employment and she was disqualified for benefits under La. R.S. 28:1601(2).

| ¡¡Cornelious appealed to the Board of Review, which found that the parties had been afforded due process, that the facts found by the ALJ were based on a preponderance of the evidence as a matter of law, and that the standards of relevance, admissibility, credibility, and weight of evidence were properly applied to the case record. The Board of Review adopted the ALJ’s findings of fact and conclusions of law, and affirmed the ALJ’s decision.

Cornelious sued for judicial review. The district court reversed the Board of Review and concluded that Cornelious had established her right to receive UI benefits. In its written reasons for judgment, the district court acknowledged that its review was limited to determining if the findings of fact were supported by sufficient, legal, and competent evidence as a matter of law, and whether, based on those findings, the Board of Review’s legal conclusions were correct as a matter of law. The district court noted that the federal Family and Medical Leave Act (“FMLA”) had primacy over the nursing home’s policy handbook, and nothing indicated the “agency” gave any weight to the FMLA. The district court further noted that the agency ignored the “obviously incorrect” statement by Heritage that Cornelious was terminated because she left her shift early to see about a horse. After noting that workers at the hospice claimed they made many attempts to contact Heritage about the reason for Cornelious’s absences, the district court concluded there was no indication that the agency considered the availability of an exception to Heritage’s call-in policy or the hospice’s many attempts to notify Heritage.

14 The district court deemed the agency’s decision to be neither factually supported by sufficient, legal competent evidence nor legally correct. Therefore, it ruled that the termination was not for good cause connected with Cornelious’s employment. Heritage appealed.

DISCUSSION

Judicial review in UI proceedings is limited by La. R.S. 23:1634(B), which provides that “the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” See Lafitte v. Rutherford House, Inc., 40,395 (La.App.2d Cir.12/14/05), 917 So.2d 684.

Regarding the payment of unemployment benefits, La. R.S. 23:1601 provides:

An individual shall be disqualified for benefits:
(2)(a) If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment. Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of a law, or violation of a policy or rule adopted to insure orderly work or the safety of others. Such disqualification shall continue until such time as the claimant can requalify by demonstrating that he:
(1) Has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance laws of any other state or of the United States equivalent to at least ten times his weekly benefit amount following the week in which the disqualifying separation occurred.
(ii) Has not left his last work under disqualifying circumstances.

The employer bears the burden of proving by a preponderance of the evidence that the discharge resulted from disqualifying misconduct. Banks ┴5v. Administrator, Dept. of Employment Sec. of State of La., 393 So.2d 696 (La.1981); Dyer v. Nursecall Nursing & Rehabilitation/Irving Place Associates, LLC, 47,927 (La.App.2d Cir.5/8/13), 2013 WL 1890717, — So.3d-.

This court has concluded that the legislative definition of “misconduct” in UI matters requires either intentional wrongdoing or negligence to such an extent as to manifest culpability or a showing of intentional and substantial disregard of the employer’s interest. Lafitte, supra. An unexcused absence from work, and a failure to timely notify the employer, can be disqualifying misconduct if a wrongful intent is established. Id.

The handbook given to Heritage’s employees set forth the procedures the employees were to follow when giving notice of a work absence:

CALL INS
In order to assure that we maintain the appropriate staffing patterns to provide quality care to our residents, we require that all employees notify the facility when they are not going to be able to attend regularly scheduled work times.
1. Notify Supervisor, or designated individual, if unable to work at least two hours before scheduled shift is to begin.
2. Failure to notify will be considered a “no-call, no show,” will be considered as a voluntary termination.
3. Friends or family members are not to make notification.
4. Exceptions are allowed, i.e., accident, family emergency, and death in family, etc. However, each exception will be reviewed on an individual basis. Supportive documentation may be required.
5. Excused absences will require either a physician’s statement or other substantiating documentation explaining your inability to report to or complete scheduled shift.
6. Supervisor will monitor all absences, attendance records are always primary consideration in evaluating | ¿performance for the purpose of wages and salary increases, promotions, and transfer.

Martin explained that when employees will miss work, they are supposed to call her, and she will take their calls 24 hours a day. She knew Cornelious was aware of this policy because Cornelious had called her in the past when she was going to be absent. Martin also knew that Cornelious received the employee handbook because she signed a paper acknowledging that she received it.

Cornelious offered a different procedure that she was to follow when giving notice that she would miss work. She said she was not required to call Martin, but only needed to call the nursing center and leave a message. Nevertheless, she did not even comply with the procedure she thought was proper as she hung up after only a few rings and never left a message.

Cornelious relied on the hospice to notify Heritage of her absence after she failed to do this on her own. She stated that a nurse from the hospice told her to leave for Michigan and the nurse would request emergency leave of absence paperwork for her. She added that the nurse assured her that she had emergency leave of absence. Cornelious never tried to call the nursing station again because she said she was not in the right state of mind.

Cornelious also explained that she knew it was important that she contact Heritage, but a social worker at the hospice told her on April 23 not to be concerned about it and that the social worker would take care of the leave time. Cornelious still never called the nursing home on her own even after she learned that the social worker called the nursing home and was told 17by “Hattie” on April 23 that there was no need to request paperwork for an emergency medical leave of absence because Cornelious had already been fired.

A social worker from the hospice sent a letter dated May 1, 2012, to a Ms. Loe at Heritage. The social worker stated that a hospice nurse had contacted Cornelious to alert her about her father’s condition and that she had to leave for Michigan immediately if she wanted to see her father before he died. She wrote that the nurse called Heritage three times to leave messages, and on one occasion tried to leave a message with an employee who indicated that she could not take the message. The social worker also wrote that she called the nursing home three times and left messages, including one time with Loe’s assistant, Candy Hicks, but she never received a return call.

Martin denied that she received any word from Cornelious or from the hospice that Cornelious had to leave to see her father in Michigan. Martin also denied knowing any employee named Candy Hicks. Martin said she did not know about the death of Cornelious’s father until she received the paperwork for the hearing.

The statement given by Heritage as the reason for the termination was not “obviously incorrect” as found by the district court. The court apparently focused on the first part of the statement and ignored the part that Cornelious never came back to work. Cornelious was not fired because she left her shift early to see about a horse. In fact, according to Cornelious, she had permission from her supervisor, Valerie Brown, to leave to check on her | ahorse. What led to her termination was her failure to notify Martin, or anyone else at Heritage, when she did not show up for her April 20 shift, or for shifts that followed.

The ALJ’s determination (adopted by the Board of Review) that Cornelious’s failure to notify her employer of her absences resulted in a discharge for misconduct connected with her employment was supported by sufficient evidence and was conclusive. As a matter of law, the facts justified the disqualification of Cornelious from benefits. Accordingly, the district court erred in reversing the determination made by the ALJ and affirmed by the Board of Review.

Any reliance by the trial court on the FMLA was misplaced. 29 CFR § 825.303 (Employee notice requirements for unforeseeable FMLA leave), states, in part:

(a) Timing of notice. When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave. See § 825.808(c). Notice may be given by the employee’s spokesperson (e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally. For example, if an employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee would not be required to leave his or her child in order to report the absence while the child is receiving emergency treatment. However, if the child’s asthma attack required only the use of an inhaler at home followed by a period of rest, the employee would be expected to call the employer promptly after ensuring the child has used the inhaler.
(c) Complying with employer policy. When the need for leave is not foreseeable, an employee must comply with the 13employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require employees to call a designated number or a specific individual to request leave. However, if an employee requires emergency medical treatment, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. Similarly, in the case of an emergency requiring leave because of a FMLA-qualifying reason, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved. If an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

Cornelious did not comply with Heritage’s notice requirements as set forth in the employee handbook. The employee handbook provided for exceptions to its notice requirement. However, the fact remains that no notice was provided from April 20 until the date of termination. There is no evidence that Cornelious attempted to notify Heritage once it became apparent that she had been fired, which should have shown her that any efforts by the hospice to give notice on her behalf had been fruitless. This is not giving notice as soon as practicable.

DECREE

The judgment is REVERSED. Costs are not assessed. La. R.S. 23:1692.

      . The ALJ noted that the finding by the Louisiana Workforce Commission that Cornelious was disqualified under La. R.S. 23:1601(1) was reversed because that section did not apply.


author: GENOVESE, Judge.

text:
    CIVIL SERVICE COMMISSION FOR the CITY OF OPELOUSAS v. CITY OF OPELOUSAS, Through Its Mayor, Donald Cravins, Sr., and the Appointing Authority, The Board of Aldermen, et al.
    No. 13-701.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Eric LaFleur, J. Gregory Vidrine, Mah-took & LaFleur, Ville Platte, Louisiana, for Defendants/Appellants, The City of Opelousas, Roger Brown, George Gennuso, Delores Guillory, and Eva Noel.
    Christine Mire Matherne, Williams & Associates Law Firm, Lafayette, Louisiana, for Defendants/Appellants, Roger Brown, George Gennuso, Delores Guillory, and Eva Noel.
    Jerry J. Falgoust, Falgoust, Caviness, & Bienvenu, LLP, Opelousas, Louisiana, for Plaintiff/Appellee, Civil Service Commission for the City of Opelousas.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| j Defendants, Roger Brown, George Gennuso, Delores Guillory, and Eva Noel, appeal the trial court’s ruling relative to their status as classified employees subject to the rules and regulations of the Civil Service Commission for the City of Opel-ousas. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2011, the Civil Service Commission for the City of Opelousas (Civil Service Commission) filed a Petition for Declaratory Judgment naming as defendants: (1) the City of Opelousas through its Mayor, Donald Cravins, Sr.; (2) the City’s seven aldermen; and, (3) thirty-three of the City’s employees. The Civil Service Commission alleged that the employees were hired in violation of its rules and regulations. Its petition requested: (1) a declaration from the trial court “that all personnel of the CITY OF OPELOUSAS are members of the classified service of the CITY OF OPELOU-SAS except those which are specifically excluded by the August 12,1961 Opelousas Ordinance and/or Article 10, Section 2 of the 1974 Louisiana Constitution;” (2) a declaration from the City of Opelousas “under what authority [the employees] were hired in an unclassified position;” (3) a declaration from the trial court “as to what positions, if any, are considered a head of a ‘principal executive department’ and are to be excluded from the Opelousas Civil Service;” and, (4) an order from the trial court for “those employees hired as unclassified to apply for their positions with the CIVIL SERVICE COMMISSION FOR THE CITY OF OPELOUSAS.”

|2A two-day bench trial was held, after which the trial court took the matter under advisement and issued Reasons for Judgment. On April 9, 2013, the trial court signed a judgment declaring that seventeen of the thirty-three employees named as defendants, including Roger Brown, George Gennuso, Delores Guillory, and Eva Noel, were classified employees subject to the rules and regulations of the Civil Service Commission for the City of Opelousas. This appeal by the four above-mentioned Defendants followed.

ASSIGNMENT OF ERROR

Appellants assert one assignment of error: the trial court “erred in finding that [they] were not properly employed within the City’s unclassified sendee.” Roger Brown contends that “as the head of a principal executive department unanimously established by the Board of Aldermen at them January 2011 regular meeting, [he] falls into the unclassified service as dictated by Article 10, § 2 of the 1974 Constitution.” It is George Gennuso’s argument that he “serves as the principal assistant and/or confidential position holder to a principal executive department head (Roger Brown), and, as such, he falls into the unclassified service as dictated by Article 10, § 2 of the 1974 Constitution.” Delores Guillory argues that she “holds a confidential position to a principal executive department head (Melanie LeBouef-Director of the Department of Tourism and Culture), and, as such, she falls into the unclassified service as dictated by Article 10, § 2 of the 1974 Constitution.” It is Eva Noel’s contention “that, as the head of a principal executive department unanimously established by the Board of Aldermen at their 13January 2011 regular meeting, [she] falls into the unclassified service as dictated by Article 10, § 2 of the 1974 Constitution.”

DISCUSSION

At the trial of this matter, the trial court was presented with testimony from numerous individuals as well as documentary evidence. This is a manifest error case. It is clear from reviewing the record, including the written Reasons for Judgment, that the trial court thoroughly analyzed the evidence before it. We see no reason to replicate the trial court’s detailed analysis, and we find no manifest error in its ruling. Thus, we affirm and adopt the trial court’s well-reasoned opinion as our own. Its opinion is incorporated by reference as Appendix “A” to this opinion.

DECREE

For the reasons articulated above, we affirm the judgment of the trial court, adopt its opinion as our own, and incorporate its opinion by reference. Costs of this appeal are assessed against Roger Brown, George Gennuso, Delores Guillory, and Eva Noel.

AFFIRMED.

j ¿APPENDIX “A”

CIVIL SERVICE COMMISSION FOR THE CITY OF OPELOUSAS VERSUS CITY OF OPELOUSAS, THROUGH ITS MAYOR, DONALD CRAVINS, SR„ AND THE APPOINTING AUTHORITY, THE BOARD OF ALDERMEN, ET AL

DOCKET NO. 11-C-6722-A

27™ JUDICIAL DISTRICT COURT

ST. LANDRY PA&SñfíobílíMiÍA' 01/26/13 [1*31*54 ‘W tort

REASONS FOR JUDGMENT

The Civil Service Commission for the City of Opelousas (hereinafter “Civil Service”) has sued the City of Opelousas (hereinafter "City") in connection with the City hiring thirty-three individuals in alleged unclassified positions in violation of the provisions of the Civil Service Laws of Louisiana and the Civil Service Commission for the City of Opelousas.

The defendants are the City, the Mayor and Board of Aldermen, as well as the individuals claimed to be subject to the Civil Service provisions of the Commission for the City of Opelousas.

The Civil Service System was originally designed to abrogate the spoil system under which public employees are not selected for employment and promotion on the basis of merit or qualifications for a position but as rewards for faiihful. political activity anti service, so that the job holders and their families become economic serf of a particular political organization and have to vote and work for the candidate of their faction regardless of the character or qualifications of the candidate. New Orleans Firefighters Association v. Civil Service Commission, 422 So.2d 402, 410 (La.1982).

Because of the tumultuous history of Civil Service in Louisiana, detailed provisions on Civil Service are included in our Constitution so that the merit system can be repealed and amended only by a vote of the people, to protect against real or weakening amendments and sabotaged by temporary majority vote of a spoil’s minded and partisan legislative body.

The prime objectives and purpose© of the constitutionally created Civil Service System are to insure that non-policy making, i.e. “classified” city employees, are:

1} Competitivelyselectedonthebasisof merit, free from political influence; and

2) Protected from discriminatory dismissal or treatment for religious or political. reasons. New Orleans Firefighters Ass'n Local 642, supra and Ovil Service Commission of the City of New Orleans v. City of New Orleans, 2002-1812, 854 So.2d 322 (La. 9/9/03).

A referendum and election to establish a Municipal Civil Service System for the City of Opelousas was conducted in 1961 and as a result of a favorable vote, Opelousas Ordinance 10 of 1962, as amended by Ordinance 11 of 1962, were enacted establishing the Opelousas Civil Service Commission.

Code of Ordinances for the City of Opelousas, Section 7 9, specifically provided:

"Municipal Civil Service for the municipal employees included hereunder shall become effective as of May 1, 1962. Hie classified service shall include all regular employees of the City of Opelousas so employed as of May 1, 1962, including the heads of the various departments, inspectors, curators or all custodians of parks and museums, whose salaries or wages are paid solely out of the City on a regular wage or salary basis, or out of funds collected or derived from inspections and permits from the various City inspectors. The classified service shall not include the position of City attorney, City engineer. City auditor, the members of municipal boards or commissions, any elected officials or any other positions excluded from the classified service by Article 14, Section 15(G)(a), of the Louisiana Constitution (1921), which are now specifically included in the classified service by the provisions of this Section.'

In 1974, Louisiana adopted a new Constitution and pertinent to this decision Is

Article 10, Section 2, which in pertinent part states:

"(B) Unclassified Service. Unclassified service shall include tho following officers and employees of the City and Civil Service:

(1) Elected officials and persons appointed to fill vacancies in elected offices;
(2) • The heads of each principal executive department appointed by the Goyemor, the Mayor or the governing authority of the City;
(7) One person holding a confidentieiposition and one principal assistant, or deputy to an officer, board, commission or authority mentioned in Paragraph {1), (2), (4), or (5) above, except Civil Service Departments;
(10) Employees, deputies and officers of the legislature and officers of the ... Mayor and City attorney..."

Persons not included in the unclassified service are in the classified sen/ice. (Louisiana Constitution 1974, Article 10, Section 2 (A)).

Ail employees not defined as unclassified shall be considered as classified employees subject to Civil Service requirements.

Article 14, Section 9 of the 1974 Louisiana Constitution states in pertinent part:

'Uponthe effective date of this Constitution, all officers and employees of the State and the cilies covered hereunder who have status in the classified service shall retain said status and the position, class and rank that they have on such date and shall thereafter be subject to and governed by the provisions of this Constitution and rules and regulations adopted under the authority hereof.”

Article 10, Section 15 of the 1974 Louisiana Constitution specifically provides in the second paragraph "nothing in this part shall permit the inclusion in local civil service of officials and employees who are listed in Section 2 cf this Article."

In addressing the issues in this case and particularly whether or not the individual named employees are in classified orunclass'rfied positions, this Court is guided by the fact that unclassified service is an exception to the general rule that all employees, other than the specific unclassified employees, are to be classified and subject to the Civil Service Rules and therefore the Court, by statutory interpretation is bound to strictly conslrue the provisions of law.

At the conclusion of the trial, the Court noted its opinion and judgment that the provisions of the 1974 Louisiana Constitution, in particular Article 10, Section 2 defining classified employees, superceded the provisions of Opelousas Ordinance 7.9 that included "heads of various departments, inspectors, curators or custodians ... as classified employees," and Opelousas Codified Ordinance 7.9 is in conflict with Article 10, Section 2 of the 1974 Louisiana Constitution as to who isa classified employee. The Court has ruled that the provisions of the 1974 Louisiana Constitution, Article 10, Section 2 (B), prevails overthe local ordinance previously adopted by the City of Opelousas and the local ordinances in conflict as to who is defined as classified employees (or more appropriately unclassified employees) is controlled by our 1974 Constitution,

The deiendants allege that all of the remaining employed individuals are unclassified employees as defined in the 1974 Louisiana Constitution, Article 10, Section 2 (B), paragraphs (2), (7) and (10) or they are independent contractors and not employees.

It is the contention of the defendants that after the removal of the eight employees who are no longer with the City of Opelousas and Keith Broussard, as an independent contractor, the remaining twenty-four employees are either heads of principal executive departments, assistants to the head of a principal executive department or an elected official, hold a confidential position to the head of a principal executive department or elected official, are employees of the Mayor’s office orare independent contractors to the City and thus.exempt from the Civil Service provisions as unclassified employees.

The first Issue the Court is tasked with deciding is what is the "head of a principal executive department." The Court asked the question during the course of the tria! as to what constituted a “principal executive department" and has received very little assistance from counsel on defining the term within the confines of this litigation.

The defendants, in their case-in-chiaf, presented Darryl Wagiey who was charged by the Mayor to create an organizational plan for the City with the purpose of the plan attempting to delineate areas of responsibility of employees and the chain of command. To this end, Darryl Wagiey prepared an organizational chart which was entered into evidence as part of Plaintiff's Exhibit 8.

Danyl Wagiey testified he considered Civil Service in preparing his organizational form and chart but it was unclear to the Court whether the Opelousas Civil Service Commission was consulted in preparation of the organizational structure or what input, if any. they had. This chart shows that under the Mayor and Board of Aldermen is the office of Chief Administrative Officer which is headed by Laura Balthazar. The organizational chart shows all authority thereafter flows through her office. Supposedly one could argue that based upon this chart there is only one (1) principal executive department and that is the Office of the Chief Administrative Officer who is the only head of a principal executive department in an unclassified position. Such a simple approach would fail to consider the significance and duties of the other departments.

The City and employees' counsel argue that the powers to appoint the department heads rest with the Mayor and the Board of Aldermen and they may establish whatever departments they want as provided for in La. RS. 33:362(G), which provides in part:

"Any department of a municipality... shall be created, abolished, merged or consolidated by the Board of Aldermen, upon written recommendation from die Mayor."

Section 362(C) speaks to departments: however, it does not define ordifferentiate between a supervisory department or an executive department much less as to “principal executive department.” To accept that the Mayor and Board of Aldermen can designate any department as a “principal executive department" and that department head, together with an assistant and a confidential employee, are unclassified employees outside the scope of Civil Service is as erroneous a9 saying (hat there i9 only one executive department based upon the original chart introduced as part of Plaintiffs Exhibit No. 8. Naming a department as a "principal executive department" does not make it necessarily so

To determine if a department established by the Mayor and Board of Aldermen is in truth and in fact a principal executive department requires a determination of what constitutes a “principal executive department" in a municipality. An analysis of the Constitution and functioning of a department is necessary to determine if in fact it is an executive department and then if it rises to a principal executive department.

Neither this Court or counsel found any legislation or jurisprudence on point defining or outlining the meaning of "principal executive department,"

The Court has sought guidance from dictionaries, particularly Black’s Law Dictionary, as well as Random House Webster’s Collegiate Dictionary, 1991 Edition.

Black’s defines "department" as a “principal branch of government." "Principal” is defined as "one who authorizes another to act on his behalf such as an agent," and Random House defines "principal” as “of the first or highest rank."

“Executive" is defined as “a corporate officer at the upper levels of management,'’ by Black's and Random House states that “an executive Is a person who has administrative or supervisory authority in an organization."

Based on these meanings, a "principal executive department” of a municipality would appear, to the Court, to be necessary and essential'to the operations of the City. Not every department can be or should beconsiderad as a principal executive department If the City, in so establishing departments, designates each department created as the highest or of the first order in order to avoid the efficacy of the Civil Service System, that cannot and should not be allowed.

Usually, in any organization, the executives are those individuals who are charged with both establishing and carrying out policies and directing others to do the work necessary to accomplish whatever goals are set or do the things necessary to carry on the business of the organization.

Usually the principal executives are the ones that possess the most authority and discretion and In most Instances receive compensation commensurate with their duties.

Historically, the City of Opelousas recognized four departments, Parks and Recreation, Public Works, Code Enforcement and Civil Service. The director of the Civil Servloe Department is, by (aw, a classified employee.

The Board of Aldermen adopted a resolution on January 11, 2011, declaring as principal executive departments Code Enforcement, Tourism and Culture, Parks and Recreation, Civic Center, Purchasing Supervisor, Water Waste Service Director, Fleet Management and Public Works.

Code Enforcement, Civic Center Director, Purchasing Supervisor, Waste Water Service Director and Fleet Management are not, in the Court’s opinion, principal executive departments of the .City of Opelousas. These departments perform more of a ministerial function.

Code Enforcement carries out the rules, regulations and ordinances adopted by the Board of Aldermen, issues permits, manages the flood plan for the City and collects fines. Coda Enforcement does not make or create policy. Further, the Director of Code Enforcement reports, according to the organizational chart, to the Chief Administrative Officer and not the Mayor or Board of Aldermen.

The Civic Center Director books and supervises the operations of a City leased. property which provides a measurable benefit to the Crly but cannot be said to, be of the first or highest rank department for the City.

In connection with the Purchasing Supervisor, he is that, a supervisor. The party who holds the position at this time, WHIie Washington, is not a party to these proceedings because he is considered as a classified employee, testified that he is supervised by the Chief Administrative Officer, Laura Balthazar, and considers himself only asupervisor and had so instructed the Mayor’s representative, Darryl Waglay, of that position. The Purchasing Supervisor is charged with seeing that the supplies and items necessary io operate the City are acquired when needed. There is nothing in the office to suggest that the Purchasing Supervisor has any executive authority to perform his duties other than to supply other departments with required materials

The WasteWater Service Director, Patricia Bameba, is also, in this Court’s opinion, not a principal executive department director. She also is listed as a classified employee. She oversees the Waste Water and Sewerage Department and is considered no more than a supervisor. Patricia Batnaba testified at the tnal that she reports to Kim Fontenot, the Public Works Director, and that she has never been considered nor paid as a department head.

The Court also considers the Fleet Manager as a supervisor and not the head of a principal executive department. The testimony of Roger Brown was that he was originally hired to run the mechanic shop and was promoted to Fleet Manager at a later date. He further advised that he is supervised by Chief Administrative Officer Laura Balthazar and reports to her. Again, the Court Is of the opinion that the position of Fleet Manager does not rise to the level of a principal executive department A Fleet Manager can be and is considered a department of the City but the fact that it is a department does not in and of Hself constitute it as a principal executive department

Those five (5) departments, based upon their intrinsic duties and history are not principal executive departments. The Court finds the following to be principal executive departments: Tourism and Culture, Parks and Recreation and Public Work9. in addition, the Court also finds that based upon the structure of the City that the Office of the Chief Administrative Officer by its very title as well as its job obligations and responsibilities constitutes a principal executive department of the City.

Based upon this finding, the Court determines that Laura Balthazar, as the Chief Administrative Officer, Melanie LeBouef, as the Director of Tourism and Culture, and Kim Fontenot, as the Director of Public Works are unclassified employees as set forth in Article 10, Section 2(B)(2).

Furthermore, the Court, having made the determination that Code Enforcement, Civic Center Director, Purchasing Supervisor, Waste Water Services Director and Fleet Manager not being principal executive offices, the following individuals, either as the director and/or supervisors of those departments, together with their named assistants or employees, namely Gidgel Jolivette Williams, Julia Welch, Roger Brown, George Gennusso and Eva Noel are not unclassified employees as set forth under Article 10, Section 2(B)(2) of the 1974 Louisiana Constitution.

(n connection with the Office of Tourism and Culture, the Court finds that such department is a principal executive department and that Melanie LeBouef qualifies as the head of that department and Is therefore an unclassified employee under the provisions of the 1974 Constitution, Article 10, Section 2(B)(2). In connection with the other employees of that department, the Courtfinds that Armisha Arceneauxhas been appointed as the assistant to Melanie LeBouef based upon the testimony presented at trial and she is also considered an unclassified employee under the provisions of Article 10, Section 2(7).

Although there was testimony that Delores Guillory was confided in by Melanie LeBouef, the director of the Tourism and Culture Department, the Court finds that there was a Jack of sufficient evidence to indicate that in fact there was a position of confidentiality. Delores Guillory Is slotted as the Director of the Museum which comes under the direction of the Department of Tourism and Culture and there is nothing that indicates any specific or special reason for her to be designated as a person In a confidential position. Further, she cannot hold the unclassified position as an assistant because the Court has found that Armisha Arceneaux is already in that position.

Furthermore, the Court findsthat the otheremployees of the Office andTourism and Culture, namely Joseph Serie, Joe Citizen, Florence Freeman, Angela Doomes, Rosa Myers, Patricia Richard, Meegan Tayior Robin and Chandra Konnerson do not qualify as unclassified employees under Article 10, Section (B)(2) of the 1974 Louisiana Constitution.

The Court also is of the opinion that Angela Francis, who testified that she is a receptionist under the direction of the City Clerk, Karen Frank, is considered a classified employee, not meeting an exception set forth under Article 10 of the 1974 Constitution.

The individual employees have further made an argument to the Court that even if they do not qualify as a department head or as an assistant or a confidential party to a department head, they still qualify as representatives of the Mayor’s office.

Allegations of unclassified status under Article 10, Section 2(B)(10) includes all of the individuals who have not been considered as qualified heads of a principal executive department as well as John Lamke, Raymond Duplechain, Donald Francis, Darry! Wagley and Marie Renaud.

The argument of counsel that the individual employees who do not fall under one of the exceptions set forth in Article 10, Section 2 (B) (1), (2) or (7) of the 1974 Constitution, are stilt members or employees of the Office of the Mayor and are excluded from Civil Service is not persuasive.

The Court lias reviewed the cases of Smith v. Division Administration, 362 So.2d 1101, which cited and affirmed the case of State In Re: Murtagh v. Department of Civil Service, 42 So.2d 65 (La. 1949) wherein the court stated as follows:

“This court interpreted the various employees of the Mayor to include oniy those employees which are generally accepted as the office force of the Mayor and not employees of other departments placed under his supervision.*'

The thrust of the Murtaugh opinion was that only the personal staff of the Mayor, his "retinue" was intended by the phrase.

In review of all of the evidence, the Court is of the opinion that Darryi Wagley and Marie Renaud are in fact members ofthe Mayor’s staff, directly reporting to the Mayor in performing special projects and as such are part ofthe Mayor’s retinue and are considered unclassified employees as per Article 10, Section 2 (10).

As it relates to John Lamke, his testimony was that he was appointed as the Community and Economic Development District and Grant Director but that position or department was never voted on, recognized and/or created by the Board of Aldermen as a principal executive office. The Court is of the opinion that office would not qualify as a pnncipalexecutiveoffice. Furthermore, John Lamke testified in thesecond day of trial that Raymond Duplechain fell under his department and he was the supervisar of Raymond Duplechain.

Based upon this testimony and evidence, the Court considers neither John Lamke or Raymond Duplechain as unclassified employees.

Furthermore, Laura Balthazar testified that John Lamke was her assistant; however, Laura Balthazar also testified that her assistant was a Civil Service Employee, Charlotte McClendon; therefore, under Article 10, Section 2 (B)(7) ofthe 1974 Constitution, a department Head can have only one assistant and therefore the Court would require the City to choose to designate either Charlotte McClendon or John Lamke as the assistant to the Chief Administrative Officer. Until that selection is made, John Lamke should be considered in a classified employee category.

The Court finds that none of these employees who serve in any of these departments other than Darryl Wagley and Marie Renaud qualify for an unclassified position as an employee of the Offioe ofthe Mayor.

As to Kim Fontenot, as the head ofthe Department of Public Works, the Court is of the opinion, and It appears to be concurred in by the parties, that the Public Works Department is a principal executive department and therefore Kim Fontenot would be an unclassified employee under'the applicable constitutional provisions.

Last is the issue of Donald Francis. Donald Francis is employed by the City of Opelousas but he is assigned to work with the Chief of Police, Perry Gailow. Donald Francis indicated and it was represented to the Court that he occupies a confidential position with the Chief.

Based upon the testimony that was presented, the Court finds that Donald Frands occupies a confidential position with the Chief of Police for the City of Opelousas. Plaintiff in this matter maintains that the Chief of Police is not covered by the Municipal Civil Service provisions in view of the fact that the police have their own Opelousas Fire and Police Civil Service.

As correctly pointed out, the Chief Is an elected person who is an unclassified employee of the City under the provisions of Article 10, Section 2 (B)(1) of the 1974 Constitution and the Court having found that Donald Francis occupies a confidential position with the Chief, who is elected, then he falls under an unclassified position by virtue of Section (2)(B)(7) of Article 10 of the 1974 Constitution.

As a recap in this matter, the Court finds that of the named defendants herein, the following should be considered unclassified employees, together with the reason the Court has found them as such:

1. Keith Broussard - independent contractor;
2. Laura Balthazar - Article 10, Section 2(B)(2);
3. Darryl Wagley - Article 10, Section 2(B)(10);
4. Marie Renaud - Article 10, Section 2(B)(10);
5. Donald Francis - Article 10, Section 2(B)(7);
6. Melanie LeBouef - Article 10, Section 2(B)(2);
7. Armisha Arceneaux - Article 10, Section 2(B)(7)
8. Kim Fontenot-Article 10, Section 2(B)(2)

The Court finds thatthe following employees should be classified employeessubject to the rules and regulations of the Civil Service Commission of the City of Opelousas:

1. Gidget Jolivette Williams;
2. Julia Welch;
3. Eva Noel;
4. Joseph Serie;
5. Meegan Taylor Robin;
6. Delores Guillory;
7. Angela Francis;
8. Joe Citizen;
9. Roger Brown;
10. George Gennuso;
11. Florence Freeman;
12. Angela Doomes;
13. • Rosa Myers;
14. Patricia Richard;
15. Chandra Kennerson;
16. JohnLamke;
17. Raymond Duplechain.

Costs in this matter are assessed seventy (70%) percent to the defendants and thirty (30%) percent to, the plaintiff.

Counsel forth© plaintiff will prepare a judgment in accordance with these Reasons and submit to opposing counsel under the provisions of Uniform District Court Rule 9.5, thereafter filing the judgment with the Clerk of Court for presentation to the undersigned for execution.

THUS DONEANDSIGNED at Opelousas, St. Landry Parish, Louisiana on this day of February, 2013.

      . Originally, twenty-nine employees were named as defendants. Four additional employees were added as defendants via an amended petition filed in March 2012.

      . Eight of the thirty-three employees named as defendants were dismissed from these proceedings because they were no longer employed by the City of Opelousas at the time of trial.

       -Msir of the thirty-three named individual defendants are no longer employees of the Ci&íicíg agree they should be dismissed from these proceedings. Those .unctf IVjQh^düató’íáffe'^áífcí^ha Thomas, John Victorian, Wien Celestina, Elizabeth Landry, ArabeÜá'fcÍiHiék>*Sha\<&nna Johnson, Chelvis Smith and Marietta Soileau.

      At the beginning of trial, the defendants' counsel advised the Court of their position that they do not concede that Opelousas has a valid Civil Service System in place. That issue, however, was addressed in the Court’s pratrlaf and there was a specific stipulation that “the Crty of Opelousas was subject to the Louisiana Civil Service Laws.” The Pretrial Order further provided that any objections to the Pretrial Order were to be filed with the Clerk, with notice to the Court, no later than five days after the service of the pretrial order. Service of the Order was made on October 26, 2012ánd there were no objections made to the Pretrial Order and specifically to the stipulation that the City of Opelousas was subject to a Civil Service System until the day of trial which commenced on November 19,2012, more than six days after service of the Pretrial Order. Based upon the stipulation and no timely objections made to the Pretrial Order this case has proceeded and the Court is deciding the case on the basis that the City of Opelousas is subject to the Civil Service System laws applicable in the State of Louisiana.

      A!I parties concur that Keith Broussard is an independent contractor and the Court also agrees and so finds,

      The police and fire departments are excluded because they are governed by a separate set of Civil Service Rules and Regulations.

       Although Parks and Recreation has been designated by the Court as a principal executive department, there is no evidence ortestimony as to who is head of that department. Ken Vidrine testified he was head of fhe Parks and Recreation Department but he retired on September 31,2011.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Shannon JONES and Jennifer Jones, Individually and on Behalf of her Minor Daughter, Haley Jones v. ABC INSURANCE COMPANY and Cobe Cardiovascular, Inc., et al.
    No. 11-CA-632.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 12, 2013.
    Rehearing Denied Jan. 7, 2014.

      Prescott L. Barfield, Attorney at Law, Covington, Louisiana, Counsel for Plaintiff Appellant.
    Jennifer Brunelle, In Proper Person, Mandeville, Louisiana, for Plaintiff/ Appellant.
    Vincent J. Booth, Attorney at Law, New Orleans, Louisiana, Counsel For Defendant/Appellee.
    Adrianne L. Baumgartner, Attorney at Law, Covington, Louisiana, Counsel For Plaintiff/Appellee (Execptor).
    Gustave A. Fritchie, III, Attorney at Law, New Orleans, Louisiana, Counsel For Defendant/Appellee.
    William E. Wright, Jr., Charlotte C. Meade, Attorneys at Law, New Orleans, Louisiana, Counsel for Defendant/Appel-lee.
    Michelle Mayne Davis, Mark G. Duncan, Attorneys at Law, Mandeville, Louisiana, Amicus Curiae.

      Panel composed of Judges FREDERICKA HOMBERG WICKER, Jude G. GRAVOIS, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

|sThe underlying case from which this appeal arises is a medical malpractice and products liability action filed by Shannon Jones and Jennifer Brunelle, individually and on behalf of their minor daughter, Haley Jones, for damages Haley sustained during heart surgery she underwent as an infant and for her parents’ individual loss of consortium and related claims. The matter was partially settled by a lump sum settlement reached with the manufacturer-defendants, Polystan A/S and Cobe Cardiovascular, Inc., but allocation of the settlement funds was not determined at the time of settlement. The trial court subsequently allocated the settlement funds between Haley’s claims and Mrs. Brunelle’s individual claims. Mrs. Brunelle seeks review of the allocation judgment awarding her $65,000.00 for her loss of consortium claim and denying her individual claims for medical expenses, Lejeune damages and lost wages.

| ¿Belatedly, Mrs. Brunelle, individually and on behalf of Haley, filed a legal malpractice action against two law firms that represented plaintiffs during the settlement reached with the manufacturer-defendants in the underlying products liability case. Mrs. Brunelle asserts that the attorneys involved violated the Rules of Professional Conduct because they failed to obtain each client-plaintiffs informed consent to enter into the aggregate settlement and failed to disclose to each client-plaintiff, prior to settlement, the share or portion of the settlement funds each would receive. The law firms-defendants filed motions for summary judgment, arguing that they provided full disclosure to plaintiffs and that all plaintiffs gave informed consent to the aggregate settlement. The trial court granted the law firms-defendants’ motions for summary judgment and Mrs. Brunelle appeals. Haley, through her tutor and undertutor and with independent counsel, also appeals.

Discussion

In this opinion, we address in turn the granting of summary judgments in the legal malpractice proceedings and the allocation judgment. For the reasons fully discussed herein, we reverse the trial court’s granting of summary judgments in the legal malpractice proceedings. We further find the trial court erred in limiting the evidence presented at the allocation hearing to Mrs. Brunelle’s loss of consortium claim and therefore vacate the allocation judgment and remand this matter to the trial court for further proceedings.

Legal Malpractice Proceedings

Mr. Jones and Mrs. Brunelle initially retained a Mississippi attorney who referred them to Gainsburgh, Benjamin, David, Meunier, & Warshauer, L.L.C. (the Gainsburgh firm) to represent them individually and on behalf of their minor | r,daughter, Haley. Attorney Gary Roth initially handled the case at the Gains-burgh firm. Plaintiffs later terminated the Gainsburgh firm but retained Mr. Roth to continue handling the litigation after he moved to another firm, Boxer & Gerson, L.L.P. Following an acrimonious divorce between Mr. Jones and Mrs. Brunelle, Mrs. Brunelle terminated Mr. Roth and re-retained the Gainsburgh firm to represent her, individually and on behalf of Haley. Mr. Roth continued to represent Mr. Jones, individually and on behalf of Haley. At the time the parties entered into the settlement at issue, on October 29, 2008, the Gainsburgh firm represented Mrs. Brunelle, individually and on behalf of Haley, and Mr. Roth with Boxer & Gerson, L.L.P. represented Mr. Jones, individually and on behalf of Haley.

Thereafter, on June 5, 2009, Mrs. Bru-nelle again discharged the Gainsburgh firm and retained new counsel. The Gainsburgh firm filed a Petition for Intervention in the 24th Judicial District Court asserting its right to unpaid legal fees and unreimbursed expenses related to plaintiffs’ representation. Mrs. Brunelle, individually and on behalf of Haley, filed an answer to the petition as well as a recon-ventional demand and third-party demand against the Gainsburgh firm, Mr. Roth and Boxer & Gerson, L.L.P. (hereinafter the Roth defendants), and their insurers, alleging legal malpractice. Mrs. Brunelle, individually and on behalf of Haley, alleged that defendants violated the Rules of Professional Conduct because they failed to obtain plaintiffs’ informed consent to enter into the $8,250,000.00 aggregate settlement and that, as a result, Mrs. Brunelle and Haley |fihave suffered damages including lost interest on the settlement funds prior to the funds’ deposit into an interest-bearing account and additional legal fees incurred to litigate the subsequent allocation of the settlement funds.

Following preliminary discovery, the Gainsburgh firm and the Roth defendants each filed motions for summary judgment on the legal malpractice claims. On February 7, 2011, the trial court granted in part summary judgment in favor of the Gainsburgh firm. In its judgment, the trial court found that no genuine issue of material fact exists as to plaintiffs’ informed consent to enter into the aggregate settlement and that “the fault for losing interest on the settlement funds lies with Mrs. Brunelle.” Thereafter, on March 30, 2011, the trial court granted summary judgment in favor of the Roth defendants. We address the granting of summary judgment as to each law firm-defendant separately and, for the reasons discussed below, reverse the trial court’s judgments in this regard and remand the matter to the trial court for further proceedings.

The Gainsburgh Finn

In its motion for summary judgment, the Gainsburgh firm first argued that the firm advised Mrs. Brunelle to execute the settlement documents and to immediately place the settlement funds into an interest-bearing account but that she refused to do so; and second, that Mrs. Brunelle, individually and on behalf of Haley, knew that the settlement at issue would require subsequent allocation of the funds and entered into the settlement after full disclosure and with informed consent.

|7First, the Gainsburgh firm argued that Mrs. Brunelle is solely to blame for the lost interest on the settlement funds because she refused to execute the settlement documents as advised by counsel and put the settlement funds into an interest-bearing account. The record indicates that the parties entered into a consent judgment to enforce the settlement and to finally deposit the settlement funds into the registry of the court on September 29, 2009, nearly a year after the parties agreed to the settlement. In support of its motion for summary judgment, the Gainsburgh firm attached Mrs. Brunelle’s deposition, pointing out that Mrs. Brunelle testified that counsel advised her to move forward with the settlement so that the settlement funds could be deposited into an interest-bearing account but that she refused to move forward with the settlement. Further, the Gainsburgh firm attached the affidavit of its lead attorney handling the case, Tracey Rannals Bryan, who attested that she advised Mrs. Bru-nelle on numerous occasions to execute the settlement documents so that the funds could be placed into an interest-bearing account.

Second, regarding informed consent, the Gainsburgh firm relied on Mrs. Brunelle’s deposition, in which she testified that she was aware that the lump sum settlement did not allocate the settlement funds amongst the plaintiffs and that a subsequent allocation of the funds would be necessary. The firm also discussed the opinion of attorney Dane Ciolino, plaintiffs’ expert, and attached excerpts of. Mr. Cioli-no’s deposition. The Gainsburgh firm argues that.Mr. Ciolino’s opinion — that the attorneys involved violated the Rules of Professional Conduct — should not be considered by the court because Mr. Ciolino’s testimony merely |sasserts conclusions of law not based upon the standard practice of attorneys in this locality.

In opposition to the motion for summary judgment, Mrs. Brunelle asserts that she was unaware that’ a third-party trustee would be required to manage Haley’s portion of the settlement funds and that this additional financial burden to compensate a third-party trustee should have been disclosed by counsel prior to settlement. The record reflects that the Gainsburgh firm referred Mrs. Brunelle to another law firm to discuss the management of Haley’s funds in August of 2008 — prior to the October 29, 2008 settlement. Mrs. Brunelle argues, however, that the possibility of a third-party trustee was never discussed with any counsel until after the October 29, 2008 settlement. Mrs. Brunelle asserts she understood that she individually or together with Mr. Jones would manage Haley’s funds and that she never considered, at the time of the settlement, that a third party would need to be financially compensated to manage Haley’s portion of the settlement funds. Mrs. Brunelle asserts that had counsel informed her of that significant additional financial burden to compensate a third-party trustee for the remainder of Haley’s life, she would not have agreed to settle the matter for $8,250,000.00.

Mrs. Brunelle further attached excerpts of Mr. Ciolino’s deposition in opposition to the motion for summary judgment. Mr. Ciolino testified that the attorneys involved violated the Louisiana Rules of Professional Conduct because the plaintiffs, Mrs. Brunelle and Mr. Jones, individually and on behalf of Haley, did not know the share each would receive from the settlement and did not receive full disclosure as to each plaintiffs “participation” in the settlement as required under Rule 1.8(g). Mr. Ciolino further opined that the attorneys’ failure to determine the management of the settlement funds for the minor, Haley, prior to |flthe settlement also deviated below the standard required by Rule 1.8(g) in this case.

Regarding the lost interest and the Gainsburgh firm’s argument that Mrs. Brunelle is solely to blame for the delay in depositing the settlement funds into an interest-bearing account, Mrs. Brunelle argues that but for the malpractice of the attorneys in failing to determine each client’s share of the settlement and failing to consider the financial burden involved in the management of the minor child’s funds, neither the settlement nor the delay would have occurred. Mrs. Brunelle asserts that she has presented expert testimony to prove that the firm violated the Rules of Professional Conduct by failing to disclose the share or portion each client-plaintiff would receive from the settlement and by failing to determine the financial burden associated with the management of the minor’s settlement funds. Further, Mrs. Brunelle asserts that but for defendants’ substandard conduct, she and Haley would not have incurred additional legal fees to litigate the issue of the appointment of a third-party trustee or the allocation of the settlement funds.

Law and Analysis

A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. Metairie Carnival Club, Inc. v. Lundgren, 12-246 (La.App. 5 Cir. 10/20/12), 102 So.3d 999, 1001. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. The non-moving party must then produce factual support | insufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Id. Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate.

In order to establish a valid legal malpractice claim, a plaintiff must show evidence sufficient to convince a reasonable trier of fact of (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss caused by that negligence. MB Indus., LLC v. CNA Ins. Co., 11-0303 (La.10/25/11), 74 So.3d 1173, 1184. In this case, Mrs. Brunelle, individually and on behalf of Haley, asserts that the Gains-burgh firm violated Rule 1.8(g) of the Rules of Professional Conduct relating to aggregate settlements, which provides:

(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client, or a court approves a settlement in a certified class action. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.

The Louisiana Supreme Court has stated that, “[ajggregate settlements of the claims of multiple clients are not per se impermissible, but during the negotiation of the aggregate settlement, the lawyer must confer with all of his clients and fully disclose all details of the proposed settlement, including information about each client’s claim and share of the proposed settlement.” In re Hoffman, 03-2499 (La.9/9/04), 883 So.2d 425, 432-33. The language in Rule 1.8(g) further requires informed consent and full disclosure regarding each client’s claims and “participation” in the settlement. We find that neither the Louisiana Supreme Court’s decision in Hoffman nor Rule 1.8(g) requires that each client know the exact share or amount each will receive from a proposed aggregate settlement. 11] Rather, the language in Rule 1.8(g) and the Louisiana Supreme Court’s decision in Hoffman requires an attorney to fully disclose “information” regarding each client’s share of an aggregate settlement; further, it is the attorneys’ duty to obtain informed consent from each client-plaintiff prior to entering into an aggregate settlement and to fully disclose each plaintiffs “participation” in the settlement.

In this case, we find Mrs. Brunelle put forth sufficient evidence to create a genuine issue of material fact as to whether the Gainsburgh firm obtained informed consent and provided full disclosure regarding each client’s participation in the proposed settlement. In opposition to the Gainsburgh firm’s motion for summary judgment, Mrs. Brunelle argued that the firm did not disclose certain details of the settlement. In her deposition, Mrs. Bru-nelle testified that she did not understand that a third party would be compensated to manage Haley’s Special Needs Trust and the consideration of that additional financial responsibility would have affected her decision to accept the settlement amount individually and on behalf of Haley. Further, in her affidavit attached to her opposition memorandum, Mrs. Bru-nelle attested that, since the aggregate settlement, she and Haley have incurred additional legal fees to determine the management of Haley’s portion of the settlement funds and to litigate the allocation of the funds in the trial court.

Additionally, Mrs. Brunelle, individually and on behalf of Haley, presented the deposition testimony of attorney Mr. Ciolino. Typically, a plaintiff will retain an expert witness both to establish the standard of care for prudent attorneys in the relevant locality and to show the defendant’s actions fell below the standard of care. See Sunset Ins. Co. v. Gomila, 02-633 (La.App. 5 Cir. 12/30/02), 834 So.2d 654, 657; Morgan v. Campbell, Campbell & Johnson, 561 So.2d 926, 929 (La.App. 2 Cir.1990). In his deposition, Mr. Ciolino testified to his opinion that the attorneys in this case did not comply with the Rules of Professional Conduct | ^because they failed to disclose each client’s share or participation in the aggregate settlement. Further, Mr. Ciolino testified that the attorneys failed to obtain informed consent because they failed to determine the management of the child’s portion of the settlement funds prior to reaching settlement.

We find Mrs. Brunelle, individually and on behalf of Haley, presented testimony sufficient to create an issue of material fact as to whether the Gainsburgh firm obtained plaintiffs’ informed consent to the aggregate settlement at issue. We specifically do not address the merits of this matter; however, we find that a factual determination must be made as to whether defendants violated the Rules of Professional Conduct and whether any violation was the cause-in-fact of plaintiffs’ alleged damages of lost interest and/or additional legal fees incurred. Accordingly, we reverse the trial court’s February 7, 2011 summary judgment in favor of the Gains-burgh firm and remand this matter for further proceedings.

Gary Roth and Boxer & Gerson, L.L.P.

The Roth defendants, at the time of the settlement at issue, represented Mr. Jones, individually and on behalf of Haley. Mrs. Brunelle, in her capacity as tutor of the minor child, filed a third-party demand against the Roth defendants on behalf of Haley, asserting the Roth defendants violated the Rules of Professional Conduct in failing to obtain informed consent to the aggregate settlement. On December 15, 2010, the Roth defendants filed a motion for summary judgment on the legal malpractice claims.

In support of their motion for summary judgment, the Roth defendants attached the affidavit of Mr. Jones. Mr. Jones attested that he executed a contract with Mr. Roth to represent him, individually and on behalf of Haley; that on | ^October 29, 2008, the parties agreed to settle the underlying matter for $8,250,000.00; that, at the time of the settlement, Mr. Roth advised him that the settlement funds had not been allocated amongst the parties and that a subsequent allocation would need to occur either by consent of the parties or through the trial court’s determination; that he freely and knowingly entered into the settlement agreement at issue; that he anticipated difficulty in reaching an agreement with Mrs. Brunelle as to the allocation of the settlement funds; that, at the time of the settlement, he knew Mrs. Bru-nelle desired to be named the sole trustee for the trust to be established to manage Haley’s portion of the settlement funds and that he objected to Mrs. Brunelle being named sole trustee; that the delays in completing the settlement were caused solely by Mrs. Brunelle; that Mr. Roth acted in a professional and competent manner throughout his representation; and that he denies all allegations made against Mr. Roth in the legal malpractice proceedings.

The Roth defendants argue that this affidavit of them client, Mr. Jones, requires that the action against them be dismissed because their client has attested that Mr. Roth did not commit malpractice. However, we find that, while this affidavit would serve as evidence against any malpractice claim Mr. Jones could individually assert, it does not justify a dismissal of the minor child, Haley’s, legal malpractice claims against the Roth defendants.

At the hearing on the Roth defendants’ motion for summary judgment, counsel adopted the Gainsburgh firm’s arguments in favor of summary judgment and further argued that the prior granting of summary judgment in favor of the Gainsburgh firm was the law of the case and, thus, mandated the granting of summary judgment in favor of the Roth defendants.

114The substandard conduct alleged against the Roth defendants is essentially the same as that alleged against the Gains-burgh firm: that the attorneys did not give full disclosure nor obtain plaintiffs’ informed consent to enter into the aggregate settlement. With the exception of the Roth defendants’ argument concerning Mr. Jones’ affidavit, the arguments advanced by all defendants in the malpractice proceedings are the same. Likewise, Mrs. Brunelle’s arguments regarding her knowledge, individually and on behalf of Haley, prior to the settlement and Mr. Ciolino’s opinions offered as to both firms’ conduct is the same. As such, for the same reasons discussed above in connection with the Gainsburgh firm’s motion for summary judgment, we find the trial court erred in granting the Roth defendants’ motion for summary judgment. We therefore reverse the March 30, 2011 judgment in favor of the Roth defendants and remand this matter for further proceedings.

Allocation Proceedings

On August 23, 2010, the trial court conducted a hearing to allocate the $8,250,000.00 settlement. After taking the matter under advisement, the trial court issued a judgment awarding Mrs. Brunelle $65,000.00 for her individual loss of consortium claim and $4,910,056.57 to Haley for her damages.

In her memorandum in support of her motion to allocate the settlement funds, Mrs. Brunelle made claims against the settlement proceeds for lost wages, past and future medical expenses, and general damages. In her reply [ ^memorandum, Mrs. Brunelle clarified that her general damages included a loss of consortium claim as well as a claim for Lejeune damages.

At the allocation hearing, the trial judge instructed the parties that the hearing, as to Mrs. Brunelle’s individual claims, would be limited to consideration only of her loss of consortium claim. The trial court refused to allow Mrs. Brunelle to introduce any evidence to support her claim for past or future medical expenses incurred for Haley’s medical treatment. The trial judge further ordered that Mrs. Brunelle’s reply memorandum, asserting her Lejeune damage claim, be stricken from the record as untimely and refused to allow her to introduce any evidence to support her Le-jeune claim. The trial judge also denied Mrs. Brunelle’s claim for lost wages, finding that she did not specifically plead lost wages in the petition for damages and further that she is not entitled to a lost wage claim under Louisiana law. The trial court did not permit Mrs. Brunelle to introduce any evidence concerning her other claims but rather limited the hearing only to Mrs. Brunelle’s loss of consortium claim.

We find that Louisiana law has recognized a parent’s claim to recover lost wages arising out of a parent’s obligation to care for a child immediately following an injury. Fergins v. Caddo Parish School Board, 31,729 (La.App. 2 Cir. 3/31/99), 736 So.2d 943, 946; see also Smith v. Trahan, 398 So.2d 572, 574 (La.App. 1 Cir. 6/9/80); Richard v. Walgreen’s Louisiana Co., 476 So.2d 1150, 1153 (La.App. 3 Cir.1985). We further find that Mrs. Brunelle sufficiently pled lost |! 6wages in the original petition filed in this ease. Therefore, we find that the trial court erred as a matter of law in refusing to consider Mrs. Brunelle’s lost wage claim.

Ordinarily, we would address the merits of the allocation judgment on appeal and remand for a separate trial on Mrs. Brunelle’s lost wage claim. However, we find that, under the facts of this case where there is a defined source of settlement funds to compensate multiple plaintiffs for multiple claims, the claims cannot be tried separately. Rather, the trial judge must consider Mrs. Brunelle’s claims in relation to the defined source of funds available to be allocated amongst the plaintiffs. Therefore, in the interest of justice, we vacate the February 7, 2011 allocation judgment and remand this matter to the trial court for an allocation hearing to determine the merit and quantum of each plaintiffs claims in relation to the settlement funds available for allocation.

Conclusion

For the reasons provided herein, the summary judgments appealed in favor of the Gainsburgh firm and the Roth defendants are hereby reversed. Further, the February 7, 2011 allocation judgment appealed is hereby vacated and the matter remanded for further proceedings consistent with this opinion.

SUMMARY JUDGMENTS REVERSED; ALLOCATION JUDGMENT VACATED; MATTER REMANDED.

      . All parties assert that Mr. Jones, Haley’s father, dismissed his individual claims.

      . The court-appointed undertutor, John Greene, has retained counsel, Prescott Bar-field, to represent Haley in this appeal.

      . On February 22, 1999, the Gainsburgh firm filed the Petition for Damages in this matter on behalf of all plaintiffs against COBE Cardiovascular, Inc., COBE’s insurer, and Ochs-ner Clinic Foundation Hospital. An amended petition was filed on March 17, 1999, to add Polystan A/S, the manufacturer and/or distri-buter of the COBE micro oxygenator.

      . The initial Petition for Intervention was filed on January 14, 2005, after Mr. Jones and Mrs. Brunelle, individually and on behalf of Haley, terminated the firm to continue to be represented by Mr. Roth. However, after Mrs. Brunelle re-retained the Gainsburgh firm in 2007 and again discharged the firm in 2009, the Gainsburgh firm amended its Petition for Intervention, asserting a right to additional compensation for additional work performed.

      . As to the Gainsburgh firm, Mrs. Brunelle also asserted that the firm committed legal malpractice in continuously advising Mrs. Brunelle that she is entitled to a lost wage claim. The trial judge, as discussed in the allocation judgment portion of this opinion below, found that Mrs. Brunelle is not entitled to a lost wage claim and, thus, the trial court denied the Gainsburgh firm’s motion for summary judgment on this issue only. The Gains-burgh firm has not appealed that judgment and that portion of the judgment is not before this Court. On February 23, 2011, the trial court certified its February 7, 2011 judgment as final.

      . Pursuant to a September 29, 2009 Consent Judgment between the parties, a portion of the settlement funds was placed into the registry of the court to earn interest pending allocation. The remaining portion, designated for attorney’s fees, was also placed into the registry of the court.

      . The Gainsburgh firm points out that the settlement reached in October of 2008 was not executed until after September of 2009, months after Mrs. Brunelle again terminated the firm.

      . Following the settlement reached, the parties entered into contentious litigation concerning the management of Haley's trust.

      . Because Mrs. Brunelle and Haley are in conflict as to the allocation issue, Haley’s interest in the legal malpractice action and the allocation matter has been represented by the undertutor, John Greene, who has retained independent counsel.

      . The record reflects that, at the time Mr. Jones executed his affidavit, he was co-tutor of the minor child, Haley. However, the record reflects that Mr. Jones has since been removed as co-tutor.

      . In its judgment, the trial court found $100,000.00 to be a reasonable award to compensate Mrs. Brunelle for her loss of consortium claim. However, the trial judge apportioned fault, for purposes of the allocation hearing only, between the settling manufacturer defendants and the remaining medical malpractice defendants, and reduced Mrs. Brunelle's award accordingly. In this appeal, the appellants assert that the trial court erred in apportioning fault amongst the defendants based on the limited evidence and testimony presented at the allocation hearing. First, the record reflects that no allocation of fault was determined at the time of the settlement at issue. Second, the evidence presented at the allocation hearing was inadequate to properly adjudicate that issue. The trial judge erred, based upon the evidence presented, to apportion fault amongst the parties in this case. We find that, in the context of this case at this juncture, the proper avenue within which to address the question of the relative liability of the various defendants — if it becomes necessary — -is within the context of Haley’s claim against the PCF.

      .The principles stated in Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990), were codified in La. C.C. art. 2315.6, which provides that "... persons who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person's injury[.]" La. C.C. art. 2315.6 further provides that "[t]o recover for mental anguish or emotional distress under this Article, the injured person must suffer such harm that one can reasonably expect a person in the claimant’s position to suffer serious mental anguish or emotional distress from the experience, and the claimant’s mental anguish or emotional distress must be severe, debilitating, and foreseeable.”

      . Because we vacate the allocation judgment and remand to the trial court for a new allocation hearing, we do not address the trial judge’s decision to strike Mrs. Brunelle's claim for Lejeune damages due to an allegedly untimely filed memorandum or the trial judge's refusal to allow Mrs. Brunelle to present evidence to support her claim for past and future medical expenses.

      . The original petition pleads that "petitioners are entitled to receive all damages as are reasonable in the premises, including sums for past, present, and future lost earnings .... ”