author:
PER CURIAM:
      IsL Keva M. Landrum-Johnson District Court Judge Section E

text:
    STATE EX REL. Tiffany R. BYRD v. STATE of Louisiana
    No. 2016-KH-0574
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS

PER CURIAM:

| denied. Relator fails to show she received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In addition, relator’s claim of insufficient evidence is repetitive. La.C.Cr.P. art. 930.4. As to the remaining claims, relator fails to satisfy her post-conviction burden of proof. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated her application for post-conviction relief in state court. Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless she can show that one of the narrow exceptions authorizing the filing of a successive | ^application applies, relator has exhausted her right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.

Attachment

JETATE OF LOUISIANA VERSUS TIFFANY BYRD

CRIMINAL DISTRICT COURT PARISH OF ORLEANS

CASE NO. 502-406

SECTION ‘E’

JUDGMENT

The defendant, Tiffany Byrd, hereinafter referred to as Petitioner, has filed with this Court an Application for Post-Conviction Relief.

In 2010, Petitioner was charged with Attempted Second Degree Murder in violation of L.a.R.S. 14: (27)30.1. On April 12, 2011, Petitioner was found guilty as charged by jury. On November 18, 2011, Petitioner was sentenced to seventeen (17) years at hard labor in the custody of the Department of Corrections, concurrent with any other sentence now serving and with credit for time served.

In Petitioner’s application, she contends that she was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Specifically, Petitioner contends her counsel was ineffective because he (1) failed to change Petitioner’s plea from not guilty to not guilty, not guilty by reason of insanity; (2) failed to have Petitioner’s charge amended to a lesser charge; (3) failed to obtain expert testimony regarding intimate partner abuse; (4) failed to offer particular pieces of evidence in the petitioner’s defense and object to prosecution comments; (5) failed to meet with the petitioner to develop a trial strategy; and (6) failed to request a Daubert Hearing. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court held that the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result”. Id at 699. In particular, the defendant must show that his representation fell below an objective standard of reasonableness that but for counsel’s errors, the result(s) of the trial would have been different. Id. Further, it is unnecessary to address the issues of both counsel’s performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1263 (La.1993).

Here, Petitioner has no, pointed to anything in the record which shows her inability to tell right from wrong a, the time of the offense and has failed to show good cause required for changing a not guilty plea to a plea of no, guilty and no, guilty by reason of insanity. Additionally, Petitioner |4fails to identify any discrepancies or errors in the methodology used by Dr. Peter Meade. General statements and con-clusory allegations will not suffice to prove a claim of ineffective assistance of counsel. State v. Celestine, 11-1403, p. 5 (La.App. 3 Cir. 5/30/12), 91 So.3d 573, 577. Thus, Petitioner’s first and sixth claims of ineffective assistance of counsel is without merit. Likewise, Petitioner’s second, third, fourth and fifth claims are general and conclusory in nature and are insufficient to support a claim .that she was prejudiced by trial counsel’s conduct. Petitioner fails to show that counsel’s representation fell below an objective standard of reasonableness and but for counsel’s errors, the end result would have been different. Accordingly, Petitioner’s ineffective assistance of counsel claims are without merit.

Secondly, Petitioner contends that this Court erred in denying her motion to suppress. Specifically, Petitioner asserts that the search of her residence should have been declared invalid. The Court has considered and reviewed the petitioner’s claim and finds no error in its previous pre-trial ruling. Accordingly, Petitioner’s claim is without merit.

Thirdly, Petitioner contends that the evidence at trial was insufficient to support a conviction of attempted second-degree murder. A review of the record shows that this claim had been previously addressed and denied by the Fourth Circuit Court of Appeals and the Louisiana Supreme Court. State v. Byrd, 2012-0556 (La.App. 4 Cir. 6/5/13), 119 So.3d 801, writ denied 2013-1589 (La. 1/27/14), 130 So.3d 957. Accordingly, Petitioner’s claim is without merit.

Lastly, Petitioner contends that the State caused the petitioner prejudice by making prejudicial statements during trial. Here, many of the statements that Petitioner alleged to have prejudiced her were statements that were impliedly based on the evidence and supported the prosecution’s theory of the case. State v. Bretz, 394 So.2d 245 (La. 1981). Further, even if the state’s comments appeared improper, this Court does not believe they clearly influenced the jury to the defendant’s prejudice. Accordingly, Petitioner’s claim is without merit.

For the forgoing reasons, the Petitioner’s Application for Post-Conviction Relief is hereby DENIED.

New Orleans, Louisiana, this 12th day of August, 2015. ■

IsL Keva M. Landrum-Johnson District Court Judge Section E


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE EX REL. Joey BANKS v. STATE of Louisiana
    No. 2016-KH-0348
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE FIFTH JUDICIAL DISTRICT COURT, PARISH OF RICHLAND

PER CURIAM:

I iDenied. Relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2.

Relator has now fully litigated his application for post-conviction relief in state court. Similar to federal habeas relief, see 28' U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art. 930.4 and within the limitations period as set out in La.C.Cr.P. art 930.8. Notably, the Legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art'. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive application applies, relator has exhausted his right to state collateral review. The district court is ordered to record a minute entry consistent with this per curiam.


text:
    STATE EX REL. Bertram BAKER v. STATE of Louisiana
    No. 2016-KH-0542
    Supreme Court of Louisiana.
    8/04/2017
   ON SUPERVISORY WRITS TO THE THIRTY-SECOND JUDICIAL DISTRICT COURT, PARISH OF TERRE-BONNE

PER CURIAM:

| denied. The claim of insufficient evidence is repetitive. La.C.Cr,P. art. 930.4. In addition, relator fails to show he received ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the remaining claims, relator fails to satisfy his post-conviction burden of proof. La.C.Cr.P. art. 930.2. We attach hereto and make a part hereof the district court’s written reasons denying relief.

Relator has now fully litigated his application for post-conviction relief in state court, Similar to federal habeas relief, see 28 U.S.C. § 2244, Louisiana post-conviction procedure envisions the filing of a second or successive application only under the narrow circumstances provided in La.C.Cr.P. art, 930.4 and within the limitations period as set out in La.C.Cr.P. art. 930.8. Notably, the legislature in 2013 La. Acts 251 amended that article to make the procedural bars against successive filings mandatory. Relator’s claims have now been fully litigated in accord with La. C.Cr.P. art. 930.6, and this denial is final. Hereafter, unless he can show that one of the narrow exceptions authorizing the filing of a successive ^application applies, relator has exhausted his right to state collateral review, The district court is ordered to record a minute entry consistent with this per curiam.

Hughes, J., would grant to order an evidentiary hearing.

I .^Attachment


author: KEATY, Judge.

text:
    Denis Lloyd HUSERS, et al. v. CITY OF LAKE CHARLES, et al.
    16-867
    16-866
    Court of Appeal of Louisiana, Third Circuit.
    06/21/2017
    Hunter W. Lundy, Rudie R. Soileau, Jr., Lundy, Lundy, Soileau & South, 501 Broad Street, Lake Charles, Louisiana 70601, (337) 439-0707, Counsel for Defendants/Appellees: Denis Lloyd Husers, Linda Husers
    E.R. Robinson, III, Attorney at Law, 125 West School Street, Lake Charles, Louisiana 70605, (337) 433-9535, Counsel for Defendants/Appellees: Denis Lloyd Husers, Linda Husers
    Kenneth Michael Wright, Kenneth Michael Wright, LLC, Attorney at Law, 203 West Clarence Street, Lake Charles, Louisiana 70601, (337) 439-6930, Counsel for Plaintiffs/Appellants: Mukesh R. Zaveri, Kailish M. Zaveri
    James David Cain, Jr., Loftin, Cain & LeBlane, LLC, 113 Dr. Michael DeBakey Drive, Lake Charles, Louisiana 70601, (337) 310-4300, Counsel for Third-Party Appellee: City of Lake Charles
    Court composed of John D, Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
   KEATY, Judge.

liFor the reasons set forth in the companion and consolidated case hereto, Zaveri v. Husers, 16-866 (La.App. 3 Cir. 6/21/17), — So.3d -, 2017 WL 2672307, the April 29, 2016 judgment of the trial court in favor of Denis and Linda Husers against Mukesh and Kailash Zaveri, Champion Custom Home Builders, LLC, and The City of Lake Charles (the City) is affirmed in all respects. The August 12, 2016 order denying the Motions for Judgment Notwithstanding the Verdict filed by Mukesh and Kailash Zaveri and by Denis and Linda Husers is also affirmed. The answer to appeal filed by Denis and Linda Husers is denied. All costs of this appeal are assessed against Mukesh and Kailash Zaveri.

AFFIRMED.


author: CHUTZ, J.

text:
    PARISH OF ASCENSION v. STATE of Louisiana and Louisiana Legislative Auditor
    2016 CA 1546
    Court of Appeal of Louisiana, First Circuit.
    JULY 12, 2017

      Cody M. Martin O’Neil J. Parenton, Jr. Gonzales, Louisiana Counsel for Plaintiff-Appellant Parish of Ascension
    Jenifer Schaye Angela M. Heath Baton Rouge, Louisiana Counsel for Defendant-Appellee Daryl G. Purpera, in his Official Capacity as Legislative Auditor of the State of Louisiana
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   CHUTZ, J.

12Plaintiff-appeIlant, the Parish of Ascension (the Parish), appeals the trial court’s judgment that concluded the Parish’s attempt to increase 2016 millages was invalid due to its failure to adhere to statutory notice requirements and declared that the defendant-appellee, the State of Louisiana through the Office of the Legislative Auditor, Daryl G. Purpera (the Legislative Auditor), properly declined to certify the Parish’s 2016 increased millages. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

After the quadrennial reassessment of property located within Ascension Parish, on July 7, 2016, at a duly-noticed Ascension Parish Council (the Council) meeting conducted in Donaldsonville, Louisiana, in an attempt to increase the millage rates in excess of the rates established by the Louisiana Constitution but not in excess of the prior year’s maximum authorized rate as permitted by the Louisiana Constitution and statutory law, the Council adopted Ordinance No. 1, setting forth the requisite adjusted maximum rate. Although Ordinance No. 2, setting forth the rate increase as required by law (referred to as a roll forward), was set on the agenda, the Council deferred a vote on its adoption until a meeting scheduled for July 21, 2016. According to statements by council representatives at the July 7, 2016 meeting, the purpose of the deferment was to allow for further public comment.

On July 8, 2016, the Parish issued a press release to all local media newspapers and broadcast media, notifying of the postponement of the Council’s vote on Ordinance No. 2 until the July 21, 2016 meeting in Gonzales. Additionally, “Notice of Public Hearing” statements were published on the laParish’s website and in the Gonzales Weekly Citizen, advising the public of a hearing on July 21, 2016 “to consider millage rates.”

The Council passed Ordinance No. 2 at the July 21, 2016 meeting after considerable input from the public. After submitting the requisite items for certification, in a letter dated August 3, 2016, the Parish was advised that the Legislative Auditor would not certify the 2016 increased millage rate. The Legislative Auditor’s stated reason for not certifying the increased millages was that the Parish had failed to properly comply with the legally required public notice.

The Parish subsequently filed this lawsuit, averring entitlement to a declaratory judgment declaring its procedure of adopting Ordinance No. 1 and Ordinance No. 2 was in compliance with law and an order directing the Legislative Auditor “to roll forward the millage.” Alleging that time was of the essence since “the tax rolls must be complete no later than September 8, 2016,” the Parish requested an expedited hearing. A hearing was held on October 24, 2016. That same day, the trial court signed a judgment concluding that the Parish’s attempt to increase the 2016 millage rates was invalid and that the Legislative Auditor properly declined to certify the increase. The Parish devolutively appealed.

^DISCUSSION

According to La. Const. Art. VII, § 23(B), following the implementation of the reappraisal and valuation required by La. Const. Art. VII, § 18(F), entitled “Reappraisal,” the millages as fixed in each such implementation shall remain in effect unless changed as permitted by Paragraph (C) of this Section.

Paragraph (C) of La. Const. Art. VII, § 28 states in pertinent part:

Increases permitted. Nothing herein shall prohibit a taxing authority from collecting ... in any subsequent year, a larger dollar amount of ad valorem taxes by ... levying additional or increased millages as provided by law.... Increases in the millage rate in excess of the rates established as provided by Paragraph (B) above but not in excess of the prior year’s maximum authorized millage rate may be levied by two-thirds vote of the total membership of a taxing authority without further voter approval but only after a public hearing held in accordance with the open meetings law; however, in addition to any other requirements of the open meetings law, public notice of the time, place, and subject matter of such hearing shall be published on two separate days no less than thirty days before the public hearing. Such public notice shall be published in the official journal of the taxing authority, and another newspaper with a larger circulation within the taxing authority than the official journal of the taxing authority, if there is one.

Further, La. R.S. 47:1705 provides in relevant part:

A All tax recipient agencies of ad valo-rem taxes of each and every parish of the state of Louisiana ... are hereby required to furnish the assessor and the legislative auditor the authorizing ordinances or resolutions and the tax rate to be applied to the assessed values for ad valorem tax purposes not later than June first of each year.,..
B. (l)(a) For any taxing authority with a governing authority membership which is elected by the voters, increases in the millage rate in excess of the rates established as provided by Article VII, Section 23(B) of the Constitution of Louisiana, but not in excess of the prior year’s maximum authorized millage rate may be levied by two-thirds vote of the total membership of a taxing authority without further voter approval but only after a public hearing held in accordance with the open meetings law....
(2) In order to accomplish this result, the following shall be mandatory:
(a) Each tax recipient body shall adopt an ordinance or resolution which shall set forth and designate the adjusted millage rate as required by Article VII, Section 23(B) of the Constitution of Louisiana.
|s(b) Each tax recipient body shall adopt another separate ordinance or resolution which shall provide for such millage rate increases by two-thirds vote and shall set forth and designate not only the increased millage rate but also the adjusted millage rate as required in Subparagraph (a) above and by Article VII, Section 23(B) of the Constitution of Louisiana.
(c)(i) In addition to any notice requirements provided for in Article VII, Section 23(C) of the Constitution of Louisiana and this Section, any tax recipient body which proposes to hold a public hearing in any tax year for the purpose of levying additional or increased millag-es on property without further voter approval shall publish, by the date provided for in Item (ii) of this Subpara-graph, public notice of the date, time, and place of the hearing. The notice shall contain a statement that the tax recipient body intends to consider at the hearing levying additional or increased millage rates without further voter approval ....
(ii)(aa) The notice shall be published, by July fifteenth, on two separate days, occurring no less than thirty days before the hearing date, in the official journal of the taxing authority, and in another newspaper with a larger circulation within the taxing authority than the official journal of the taxing authority, if there is one. On the first day of publication, the notice shall also be posted on the Internet website of the taxing authority, if such taxing authority maintains an Internet website....
(v) Failure to timely accomplish such [statutorily delineated] publication shall make the adoption at such a hearing of any resolution or ordinance providing for the - adoption of additional or increased millage null, void, and of no effect.
(f) ... [I]n the event that such a proposal was considered at the public hearing without action or vote, then any future public hearing to consider such proposal shall be advertised and publicized as required in this Subsection, except that no newspaper advertisement shall be required....
D. In order to carry out the mandate of Paragraph B of Section 28 of Article VII of the Constitution of Louisiana, the legislative auditor is hereby authorized and required to review the millages levied by each tax recipient body in-each year that reassessment occurs to determine whether the millages levied are in compliance with the provisions of this Section.and the [Constitution. The legislative auditor is also authorized and required to review the millages levied by each tax recipient body in each year in which an increase in millage is made by a two-thirds vote of the total membership of the taxing authority under the provisions of Paragraph C of Section 23 of Article VII of the Constitution of Louisiana, to determine whether the millage levied is in compliance with the provisions of this Section and the Constitution. The auditor shall or,der changes in the amount of millage levied if the auditor determines thereafter that a mathematical error or ^mathematical errors have been made in the calculation of the adjustment of millages as required by this Section' and the Constitution of Louisiana.

Acknowledging that Section 1705B requires thé .adoption of two separate ordinances by a tax recipient body to increase its millage rate in excess of the rates established by La. Const. Art. VII, § 23B by a two-thirds vote of its total membership, the Parish maintains' that nothing requires that the ordinances pass simultaneously and at the same public meeting. Since there is no requirement that both ordinances be adopted together and because Ordinance No. 1 was duly adopted at the July 7, 2016 meeting, the Parish contends the deferment of the vote on Ordinance No. 2 to the' July 21, 2016 meeting, which was advertised and publicized in accordance with Subsection B(2)(f), was proper.

In so contending, the Parish points to the term “proposal” and asks that in construing Subsection B(2)(f), this court interpret “proposal” to include “ordinance.” Thus, the Parish asserts since Ordinance No. 2 was considered at the July 7, 2017 public meeting without any action or vote by the Council, the subsequent notice it undertook conformed to the requirements of Subsection B(2)(f). As such, the Parish urges the Legislative Auditor improperly refused to certify its 2016 increased millag-es/roll forward since the Council passed two ordinances in conformity with the requirements -of Subsection B(2)(a) and (b) and properly complied with the notice provisions of Subsection B(2)(c) as to Ordinance No. 1 and to the abbreviated notice provisions of Subsection B(2)(f) as to Ordinance No. 2.

The Legislative Auditor offers a different interpretation of the provisions of Subsection 1705B. The Legislative Auditor does not dispute that the July 7, 2016 meeting conformed to the notice requirements of Subsection B(2)(c) or that after the July 7, 2016 meeting, the Parish published notice advertising and publicizing that the vote on Ordinance No. 2 was scheduled for July 21, 2016 in conformity with the provisions of Subsection B(2)(f). But the Legislative Auditor avers that the procedure undertaken by the Council does not allow the Parish to utilize the abbreviated notice requirements of Subsection B(2)(f).

Focusing on the use of the term “proposal” in Subsection B(2)(f), the Legislative Auditor contends that under the language of Subsection B(2)(a) and (b), “a proposal” to increase millages/roll forward necessarily includes two ordinances: one ordinance adjusting the millage rate and a second ordinance increasing the millage rate. The Legislative Auditor buttresses this contention with the language of Subsection B(2), which states “In order to accomplish this result [i.e., to increase mil-lages/roll forward], the following shall be mandatory.” (Emphasis added.) Since Ordinance No. 1—one of the two elements of the 2016 increased millages/roll forward proposal—was considered, voted upon, and adopted by the Council at the July 7, 2016 meeting, the Legislative Auditor asserts the abbreviated notice requirements of Subsection B(2)(f) are inapplicable because the Council acted on the proposal. The Legislative Auditor suggests that once Ordinance No. 1 was voted upon, the Parish was required to adhere to the full notice provisions set forth in Subsection B(2)(c) to properly conform to the statutory requirements. Thus, because the Parish failed to properly conform to the applicable statutory notice requirements, the Legislative Auditor maintains certification of the Parish’s 2016 increased millages/roll forward was correctly declined.

Initially, we note that this case presents a res nova issue of statutory interpretation. Neither “proposal” nor “ordinance” is a defined, term in La. R.S. 47:1705, the Louisiana Constitution, or Subtitle III of Title 47 of the Louisiana Revised Statutes (which sets forth the provisions relating to ad valorem taxes relative to Taxation and Revenue). According to Black’s Law Dictionary (10th ed. 2014), “proposal” means “[something offered for consideration or acceptance; l«a suggestion,” and “ordinance” means “[a]n authoritative law or decree.”. These definitions reveal that a proposal is not synonymous with an ordinance; however, they do not provide us with any additional guidance for a resolution of the proper construction of those terms as used by the legislature in La. R.S. 47:1705.

When the language of a .statute can reasonably be interpreted in more than one manner, courts must search deeper to discover the legislative intent. Burnette v. Stalder, 2000-2167 (La. 6/29/01), 789 So.2d 573, 577. As our supreme court explained in M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La. 7/1/08), 998 So.2d 16, 26-27, amended on reh’g (9/19/08) (internal citations and quotation marks omitted):

The function of statutory interpretation and the construction given to legislative acts rests with the judicial branch of the government. The rules of statutory construction are designed to ascertain and enforce the intent of the Legislature. Legislation is the solemn expression of legislative will and, thus, the interpretation of legislation is primarily the search for the legislative intent. We have often noted the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the Legislature to enact the law.
The starting point in the interpretation of any statute is the language of the statute itself. 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. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole.
It is also well established that the Legislature is presumed to enact each statute with deliberation and with full knowledge of all existing laws on the same subject. Thus, legislative language will be interpreted on the assumption the Legislature was aware of existing statutes, well established principles of statutory construction and with knowledge of the effect of their acts and a purpose in view. It is equally well settled under our rules of statutory construction, where it is possible, courts have a duty in the interpretation of a statute to adopt a construction which harmonizes and reconciles it with other provisions dealing with the same subject matter.

If a statute can reasonably be interpreted more than one way, the interpretation less onerous to the taxpayer is to be adopted. Entergy Louisiana, Inc. v. Kennedy, 2003-0166 (La. App. 1st Cir. 7/2/03), 859 So.2d 74, 78, writ denied, 2003-2201 (La. 11/14/03), 858 So.2d 430.

Clearly, the heightened notice provisions enacted by the Legislature were for the protection of the taxpayers who will endure more onerous tax burdens created by decreased property valuation as a result of reappraisal should two thirds of a taxing authority vote to raise their millage rate to a level that would generate the same revenue as the prior year as permitted under La. Constitution art. VII, § 23(B) and (C).

Although the Parish’s construction of the word “proposal” as equivalent to or synonymous with “ordinance” in Subsection B(2)(f) is a plausible one, under Subsections B(2)(a) and (b), in order to increase millages/roll forward, a tax recipient body is mandated to adopt two ordinances “to accomplish this result.” Therefore, we find that the Legislative Auditor’s construction of a “proposal” as consisting of the two ordinances required under Subsection B(2)(a) and (b) is the proper interpretation. This construction expressly harmonizes Subsection B(2)(f) with Subsection B(2)(a) and (b). Moreover, in construing the term “proposal” in Subsection B(2)(f) as consisting of both of the mandated ordinances required in Subsections B(2)(a) and (b), taxpayers who are not provided the opportunity to vote on the increased millages/roll forwards are afforded with additional notice protections so as to allow input before the adoption of the increases.

Accordingly, we conclude that once the Council adopted Ordinance No. 1, it acted on one element of the two-element proposal. Therefore, the proposal was considered and, by adopting Ordinance' No. 1, action was taken. Thus, the Parish was not within the ambit of the plain language of Subsection B(2)(f). Having] 1n failed to adhere to the notice provisions set forth in Subsection B(2)(c), the Parish did not comply with the statutory requirements, and under La. R.S. 47:1705(D), the Legislative Auditor properly declined to certify the Parish’s attempt in 2016 to increase mil-lages/roll forward.

DECREE

The trial court’s judgment is affirmed. Appeal costs in the amount of $1,871.50 are assessed against plaintiff-appellant, the Parish of Ascension.

AFFIRMED.

Higginbotham, J. dissents on the grounds the appeal as moot.

      . It is undisputed that the Council usually meets once a month in Donaldsville, the Parish seat of government, and once a month in Gonzales. Because the majority of the Parish's population resides east of die Mississippi River, the Council’s meetings in Gonzales are more convenient for the majority of the Parish's residents to attend.

      . After the Legislative Auditor filed a declina-tory exception objecting on the basis that the Twenfy-Third Judicial District Court was an improper venue, the parties consented to a transfer of venue to' the Nineteenth Judicial District Court.

      . In its motion for a devolutive appeal, the Parish alleged that "due to the deadlines associated with the certification of the tax rolls by the Ascension Parish Assessor, this requested appeal must be heard and decided ... by November 29, 2016.” But the Parish did not file a request in this court indicating the matter was required to have an expedited hearing date. To the extent that it appears the appeal may be moot in that the statutory deadlines for certification of the tax rolls of Ascension Parish for 2016 have passed, see La. R.S. 47:2126 (the assessor shall deliver to the tax collector the tax roll for the year in which taxes are collectible by November fifteenth); see also La. R.S. 2127(A) (taxes assessed shall be due in that calendar year as soon as the tax roll is delivered to the tax collector, and they shall be paid on or before December thirty-first in each respective year), the question of what constitutes proper notice is likely to present itself again, is an issue of clear public importance, and is almost invariably incapable of full litigation due to the inherently brief duration of taxation periods. Thus, this would be an instance of a challenged practice capable of repetition, yet evading review and, therefore, the appeal is properly before us. See Shepherd v. Schedler, 2015-1750 (La. 1/27/16), 209 So.3d 752, 765 (relying on State v. Rochon, 2011-0009 (La. 10/25/11), 75 So.3d 876, 884).

      . Although the Parish asserts, and the record demonstrates, that the July 21, 2016 meeting was well attended by the public, that some notice was effective is not dispositive of the issue of whether the Parish complied with the requisite notice provisions of La. R.S. 47:1705. It is for the protection of not only those who attended the meeting but for those who did not attend that the Legislature enacted the notice provisions.

      . The Parish’s reliance on City of Kenner v. Kyle, 2012-1262 (La. App. 5th Cir. 4/8/03), 846 So.2d 34, is misplaced. Unlike Kyle, which dealt with the Legislative Auditor's challenge of the constitutionality of the ordinance adopted by the tax recipient body, the matter before us is simply a question of whether the Legislative Auditor properly determined that the Parish was not in compliance with the provisions of La. R.S. 47:1705 as authorized and required to do under Subsection D. Since the Legislative Auditor does not contend that the procedure undertaken by the Parish in providing notice to the public for the July 21, 2016 meeting at which it adopted Ordinance No. 2 was unconstitutional, Kyle is inapposite.


author: GUIDRY, J. WHIPPLE, C.J., PETTIGREW, J., McCLENDON, J.,

text:
    Charles THOMPSON, Individually and in his Capacity as Representative of the Estate of Aaron Thompson v. David CRAWFORD, Desire Crawford, Shane Courrege Individually and d/b/a Spanish Moon, Entergy Corporation, Entergy Gulf States Louisiana LLC, and Entergy Louisiana LLC
    NUMBER 2015 CA 1957
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JULY 12, 2017

      Lewis O. Unglesby, Lance C. Unglesby, Logan H. Greenberg and Peyton M. Murphy, Baton Rouge, LA, Counsel for Plaintiff/Appellee, Charles Thompson, individually and as representative of the Estate of Aaron Thompson
    Joseph R. Ballard, Todd S. Manuel, Sandra Diggs-Miller, Baton Rouge, LA and Thomas M. Flanagan, Andy Dupre, An-ders F. Holmgren, New Orleans, LA, Counsel for Defendant/Appellant, Entergy Gulf States, Louisiana, LLC
    BEFORE: WHIPPLE, C.J., GUIDRY, pettigrew, McClendon, and PENZATO, JJ.
   GUIDRY, J.

|2A utility company appeals a jury’s award of damages in a wrongful death and survival action, contending that certain evi-dentiary rulings by the trial court interdicted the factual determinations of the jury in this matter.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of September 6, 2013, Aaron Dan Thompson (Dan) sat talking with Jenkins Brent Armstrong (Brent) and Shane Courrege in the Spanish Moon bar in Baton Rouge, Louisiana. Brent had been working as a deejay at the bar that night, and Shane, a part owner of the bar, had stopped by to see if any help was needed closing the bar for the night. The three initially sat talking at the counter in the barroom, but eventually made their way to the roof of the building in which the bar was housed. While the three stood talking on the roof, Dan leaned against the parapet wall enclosing the roof and reached out to grab a wire that was hanging about a foot from the building. Nearly 8,000 volts of electricity flowing through the wire immediately transferred to Dan’s body, causing his right hand to catch a flame and burn off as the electricity coursed through his body to exit out his back. Dan fell down dead as a result of his contact with the wire.

A subsequent investigation of the incident revealed that the wire Dan had grabbed was positioned too close to the building, in violation of the National Electrical Safety Code.

On September 4, 2014, Charles James Thompson, Dan’s father, filed a petition for damages against Entergy Corporation, Entergy Gulf States Louisiana, LLC, En-tergy Louisiana, LLC, David and Desire Crawford, and Shane, individually and doing business as “The Spanish Moon.” Mr. Thompson later ^dismissed the claims against Entergy Corporation, Entergy Louisiana, LLC, and David and Desiree Crawford. Mr. Thompson compromised the claims against Shane individually and doing business as the Spanish Moon and consequently dismissed Shane and the Spanish Moon from the suit as well. Thus, the matter proceeded to a jury trial solely against Entergy Gulf States Louisiana, LLC (“EGSL”).

Prior to the commencement of a three-day jury trial, EGSL stipulated to liability, leaving for the jury’s consideration the issues of allocation of fault and assessment of damages. Following the presentation of evidence, the jury rendered a verdict finding EGSL to be 65 percent at fault and Dan to be 35 percent at fault for the electrocution death. The jury awarded $450,000.00 in survival action damages for the pain and suffering it found Dan to have experienced upon being electrocuted. As for Mr. Thompson’s wrongful death claim, the jury awarded $450,000.00 for loss of felicity, $450,000.00 for loss of love and affection, and $450,000.00 for loss of society and companionship, for a total wrongful death award of $1,350,000.00. As a final element of damages, the jury awarded funeral expenses in the amount of $6,068 80, Consistent with the jury’s verdict, the trial court signed a judgment on September 8, 2015, in favor of Mr. Thompson against EGSL in the amount of $1,173,944.70, from which EGSL suspensively appeals.

ASSIGNMENTS OF ERROR

On appeal, EGSL asserts the following as errors committed by the trial court relative to the judgment appealed:

A. The [trial] court committed legal error in ruling that [EGSL] owed the plaintiff a duty to admit responsibility for a tort; the court’s admission of prejudicial evidence on this non-existent duty was error and tainted the jury’s award of damages to the plaintiff for the death of his adult son.
B. Solely in the alternative, the [trial] court abused its discretion in awarding the plaintiff $1,350,000 in wrongful-death damages.
|4C. The [trial] court abused its discretion in awarding $450,000 in survival-action general damages.

DISCUSSION

The first issue to be resolved in this appeal is to determine whether it was proper for the trial court to allow the plaintiff to argue and present, evidence of EGSL’s failure to advise Mr. Thompson of its negligence relative to the electrical wire being positioned too close to the Spanish Moon building. At trial, the plaintiff was allowed to present evidence that within a few days following Dan’s electrocution, EGSL learned that the electrical wire Dan grabbed was too close to the building, in violation of the National Electrical Safety Code (NESC), which required the wire to have at least a three-foot clearance from the building. Testimony was solicited from Mr. Thompson regarding whether anyone from EGSL had contacted Mr. Thompson to inform him of the company’s negligence in allowing the electrical wire to be positioned so close to the building. Counsel for Mr. Thompson stated that he was trying to prove a “cover up” and that EGSL was hiding evidence, which counsel argued was an admission or could be considered fault. The trial court overruled EGSL’s objection to the testimony, explaining that the “pleadings set out [a] demand for damages for wrongful conduct causing injury in related damages.”

Although EGSL conceded liability in this matter, its concession does not change the basic principle that in a negligence action, the plaintiff bears the burden of proving fault, causation, and damages, Gaspard v. Safeway Insurance Company, 14-1676, p. 4 (La. App 1st Cir. 6/5/15), 174 So.3d 692, 694, writ denied, 15-1588 (La. 10/23/15), 184 So.3d 18. Moreover, in a civil case, the duty to disclose to one’s adversary arises through specific discovery requests. Wright v. Louisiana Power & Light, 06-1181, pp. 17-18 (La. 3/9/07), 951 So.2d 1058, 1070-71. In .this case, in response to a request for admissions propounded to it, EGSL admitted the clearance violation on which its liability is premised. And while we recognize that there may be instances in the law in which a tortfeasor is required to disclose wrongdoing or negligence of which he is , aware, see Bunge Corporation v. GATX Corporation, 557 So.2d 1376, 1383-84 (La. 1990), we have not found, nor has the plaintiff revealed, where such is required under the circumstances presented herein.

In Bunge Corporation, the Louisiana Supreme Court considered whether a contractor’s failure to disclose the existence of a construction defect that it learned of after it had built a grain storage tank for the plaintiff constituted fraud such that the plaintiffs claim against the contractor would not be subject to a statutory per-emptive period. In determining that issue, the court provided the following general discussion regarding the duty to disclose:

[T]he failure to disclose existence of a known danger, where one knows that another is relying on the appearance of safety, can constitute misrepresentation.
“.., The surgeon who remains silent when he discovers that he has left his tools in the patient’s anatomy, the air 'traffic controller who fails to warn a pilot of air turbulence, the landlord who leases defective premises, the landowner who permits a licensee to enter without warning of hidden perils, the seller of a chattel who fails to disclose its hidden dangers, the person who promises and then fails to pass on information important to another’s welfare, each may be liable to the person with whom he deals, or to others whom harm is to be expected through that person’s reliance. The ‘something like fraud on the part >of the giver,’ which the courts have found in these cases, consists in permitting another to rely upon a tacit assurance of safety, when it is known that there is danger.” Prosser, and Keeton, Torts, 207-08 (1984).
| Jt has long been held that the duty to disclose exists where the parties stand in some confidential or, fiduciary relation to one another, such as that of principal and agent or executor and beneficiary of an estate.

Bunge Corporation, 557 So.2d at 1383-84 (footnote marker omitted)(emphasis added). The court further explained:

The confidential relationship is not restricted to any specific association of the parties. While the most frequent illustrations are those of trustee and beneficiary, attorney and client, parent and child, or husband and wife, the term also embraces partners and -co-partners, principal and agent, master and servant, physician and patient, “and generally all persons who are associated by any relation of trust and confidence.”

Bunge Corporation, 557 So.2d at 1384 n.4 (citation omitted).

In the subject case, the evidence presented at trial established that EGSL became aware of the NESC violation after Dan’s electrocution, and it is this after-the-accident-acquired knowledge that Mr. Thompson asserts, and the trial court agreed, "EGSL had a duty to disclose. Yet, Mr. Thompson did not face any danger relative to the wire after the accident occurred nor did he rely on an appearance, of safety nor can it- be said that there existed a confidential relationship between him and EGSL such that a general duty to disclose would exist under the circumstances identified by the Louisiana Supreme Court in Bunge Corporation. Hence, the record and the law reveal that in the only instance in which a duty was imposed on EGSL to admit fault (ie., upon the request for discovery), it complied. Thus, we find that the trial court erred in allowing argument and evidence to be presented to .the jury indicating that ÉGSL wrongly failed to disclose its negligence to Mr, Thompson.

If a trial court commits consequential error by admitting evidence that should have been excluded, the fact finding process is interdicted; thus, the verdict |7is tainted. If the admission or exclusion of evidence tainted a jury verdict, this court steps into the shoes of the factfinder and conducts a de novo review of all of the admissible evidence. Maldonado v. Kiewit Louisiana Co., 12-1868, p. 8 (La. App. 1st Cir. 5/30/14), 152 So.3d 909, 918, writ denied, 14-2246 (La. 1/16/15), 157 So.3d 1129.

Additionally, we find that in this case, the improper examination of witnesses and improper argument by plaintiffs counsel was a direct appeal to passion and- prejudice that tainted the jury’s assessment of damages. Accordingly, in order for the ends of justice to be met, we will review the jury’s survival action and wrongful death damage awards in accord with the proper evidence of record. See Kennedy-Fagan v. Estate of Graves, 07-1062, p. 17 (La. App. 1st Cir. 7/21/08), 993 So.2d 255, 267-68, writ denied, 08-2079 (La. 11/10/08), 996 So.2d 1073; Reese v. Winn-Dixie of Louisiana, Inc., 542 So.2d 68, 73 (La. App. 3d Cir.), writs denied, 546 So.2d 1218, 1222 (La. 1989).

| ^Damages

Although both actions arise from a common tort, survival .and wrongful death actions are separate and distinct. Each right arises at a different time and addresses itself to the recovery of damages for totally different injuries ■ and losses, Taylor v. Giddens, 618 So.2d 834, 840 (La. 1993), The survival action comes into existence simultaneously with the existence of the tort and is transmitted to beneficiaries upon the victim’s death and permits recovery only for the damages suffered by the victim from the time of injury to the mo-merit of death. It is in the nature of a succession right. McGee v. A C and S, Inc., 05-1036, p. 14 (La. 7/10/06), 933 So.2d 770, 779-80. On the other hand, the wrongful death action does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim’s death and thereafter. Wrongful death damages compensate beneficiaries for their own injuries. Taylor, 618 So.2d at 840.

Wrongful Death Award

Louisiana Civil Code article 2315.2(A)(2) provides that when a person dies due to the fault of another, leaving no surviving spouse or children, the parents may bring suit to recover the damages that they sustained as a result of the person’s death. A wrongful death action is intended to compensate the deceased’s loved ones for the losses they sustained as a result of the death. The elements of damage for wrongful death are loss of love, affection, companionship, services, and support, as well as medical and funeral expenses. See Rideau v. State Farm Mutual Automobile Insurance Company, 06-0894, p. 18 (La. App. 1st Cir. 8/29/07), 970 So.2d 564, 580, writ denied, 07-2228 (La. 1/11/08), 972 So.2d 1168.

Following Dan’s death, Mr. Thompson testified that he could not sleep for four days after viewing the pictures of Dan’s body following the electrocution, and | sthat even at the time of trial, he still had trouble sleeping, stating that he was lucky to get two to three hours of sleep a night. He said his doctor gave him a prescription for Ambien to help him sleep, but the medication had not been very successful. He further testified that on Fridays, it is hard for him to get through the day, because Dan died on a Friday, so he just does not like Fridays. Mr. Thompson’s current wife, Ping Thompson, corroborated his testimony and recounted coming home one Friday night after work at around 1 a.m., because she worked the night shift, to find the whole house dark and Mr. Thompson sitting in the back yard. She said Mr. Thompson was crying, and he told her he wanted to die, which scared her so much that she changed her work schedule so that she no longer worked on Fridays.

While it is impossible to place a monetary value on the life of a child, our jurisprudential system has established that a monetary award is the appropriate remedy to one who has suffered the loss of a loved one as a result of the negligence of another. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 833 (La. 1991). Dan was 34 years old when he died. Mr. Thompson testified that he divorced Dan’s mother in 1994, and following the divorce,' Dan initially resided with his mother, but then Dan later moved to Baton Rouge to reside with Mr. Thompson. In 1998, Dan, while still residing in Baton Rouge, moved out of Mr. Thompson’s home to live on his own. Then in 2000, Mr. Thompson moved to Arizona, after which Mr. Thompson testified that the two would see each other roughly once a year and talk on the phone at least once a week. Mr. Thompson acknowledged that for the 15 years prior to the accident (after Dan moved out in 1998), Dan lived on his own and did not financially support Mr. Thompson. Dan was the third oldest of Mr. Thompson’s five sons.

ImDespite the inherent difficulties in determining such an award, on de novo review, we conclude that $450,000.00 is an appropriate amount to award Mr: Thompson for the wrongful death of his adult, unmarried son on whom he did not rely for financial support and who maintained a separate domicile in another state.

Survival Action Award

When a person dies due to the fault of another, leaving no surviving spouse or children, the parents acquire the right to recover all damages for the injury to that person that resulted in his death. La. C.C. art. 2315.1(A)(2). Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. In determining survival damages, the court should consider the severity and duration of any pain or any pre-impact fear experienced by the deceased, and any other damages sustained by the deceased up to the moment of death. Maldonado, 12-1868 at p. 37, 152 So.3d at 936. “Survival damages are properly awarded if there is even a scintilla of evidence of pain or suffering on the part of the decedent, and fright, fear, or mental anguish during an ordeal leading to the death is compensable.” Leary v. State Farm Mutual Automobile Insurance Company, 07-1184, pp. 3-4 (La. App. 3d Cir. 3/5/08), 978 So.2d 1094, 1098, writ denied, 08-0727 (La. 5/30/08), 983 So.2d 900 (quoting Patrick v. Employers Mutual Casualty Company, 99-94, p. 17 (La. App. 3d Cir. 8/11/99), 745 So.2d 641, 652, writ denied, 99-2661 (La. 11/24/99), 750 So.2d 987).

|1VA jury may award damages for pain and suffering in a survival action where there is the smallest amount of evidence of pain, however brief, on the part of the deceased, based on his actions or otherwise. Etcher v. Neumann, 00-2282, p. 16 (La. App. 1st Cir. 12/28/01), 806 So.2d 826, 840, writ denied, 02-0905 (La. 5/31/02), 817 So.2d 105. The survival action permits recovery only for damages actually suffered by the deceased from the time of injury to the moment of death, including pain and suffering, loss of earnings, and any other damages sustained before death. Where there is no indication that a decedent consciously suffered, an award for pre-death pain and suffering should be denied. Sacco v. Allred, 02-0141, pp. 11-12 (La. App. 1st Cir. 2/19/03), 845 So.2d 528, 538.

The only evidence presented to the jury regarding Dan’s pre-death mental and physical pain and suffering came from the testimony of Brent, Shane and the consulting forensic, engineer, Frederick Brooks. On questioning by plaintiff’s counsel, Brooks testified:

Q. All right, sir. Now, the other question I have, and if you can’t answer this, I understand: Do you know how long it takes from when he makes that contact until when he is rendered unconscious?
A. That—That’s medical, Mr. Ungles-by. I can’t really—I mean, my experience, it’s quick. It’s not instantaneous. But I don’t—I don’t pretend to be a medical doctor—
Q. ' Uh-huh.
A. —to make [that] analysis.
Q. However long it takes the electricity to move through it?
A. It’s quick. I mean, but! don’t know, you know, I’ve seen, I’ve investigated accidents where people have lost consciousness and consciousness is returned. T mean, it’s a lot of variations. I mean, I think that’s asking for a medical opinion and I really can’t give it.

Likewise, when questioned about electric chair executions, Brooks admitted that while he could testify.about water and its effect on the flow of electricity, he lacked the medical knowledge to discuss the pain experienced by someone being | ^.electrocuted. Brooks did, however, explain that in contacting á live electrical wire with' the palm of your hand, “your involuntary muscles that contract when electricity goes through it, is going to cause you to grasp onto [the wire]. And, typically, in that case, you may not be able to let go.”

As previously discussed, Brent and Shane were with Dan the night he was electrocuted. Brent appeared to have observed the most, and he testified the most extensively about what happened when Dan grabbed the electrical wire, because he was looking directly at Dan when he grabbed the wire, whereas Shane was facing more towards Brent when Dan grabbed the wire. As Brent described:

We were standing there talking and it happened very quickly. I can’t remember what we were talking about honest- ■ ly. But I just remember him reaching out just grabbing the line and it was very quick. It all happened really fast. And after that, he just almost [seized] up and tilted back.

When asked if Dan said anything or made any sound after he grabbed the- power line, Brent said “no,” there was “nothing after that.” He said that even as he observed a flame shooting out of Dan’s hand, there was “no sound at all.” When asked if he saw any signs of consciousness in Dan. or whether Dan moved after he grabbed the power line, Brent said “no” and explained that “[h]e grabbed the power line. He fell back. And that’s all I ever saw. There was nothing after that. .No movement that I saw.” When, further asked if he heard Dan “running” or “making any gurgling sounds,” Brent again said “no.”

Shane testified that he did not see Dan grab the wire, but that when he turned to look at Dan, he saw Dan’s hand clasped around the power line already. Shane said he saw Dan’s hand on fire and that Dan was “very still.” He said that it seemed like a “really long time” arid “[i]t was probably literally like about a minute or so,” until Dan’s “hand kind of melted off and he slumped onto the roof.” On further questioning, Shane stated that, he did not know if it was the coroner or Lathe.fire department, but someone told hirii “that they thought the amount of voltage going through the line, that [Dan] died instantly.”

In Sacco, there were witnesses that testified that immediately following a single-car accident in which the defendant driver left the road and drove the car into a canal, the victim passenger, who had a blood-alcohol level of ;225, was unconscious and not breathing, but started breathing or gargling after CPR was performed on him. There was one account that the victim never regained consciousness, never spoke, nor exhibited any reactions with his eyes and another account that the victim was kind of breathing and gasping, semi-conscious, and his eyes “kept opening and staying closed for a certain amount of time.” Sacco, 02-0141 at pp. 12-13, 845 So.2d at 538-39. The trial court ultimately determined that the victim “did not consciously suffer as a result of the accident,” and this court determined that finding not to be clearly wrong. Sacco, 02-0141 at p. 13, 845 So.2d at 539.

Based on the record before us, we can discern no basis for finding that Dan consciously suffered. The matter before us offers even less evidence than was offered in Sacco to establish that the victim consciously suffered. None of the. evidence offered by Mr, Thompson established that Dan was conscious, suffered, or even lived for any appreciable time after he grabbed the wire. And while the expert witness, Brooks, testified that in his experience, loss of consciousness is “quick,” but not “instantaneous,” he admitted that his testimony could not be definitive of the issue of Dan’s consciousness because he was not a “medical doctor” and he lacked the medical knowledge to authoritatively state that Dan’s loss of consciousness was not instantaneous.

The horrific nature of the wounds to Dan’s body clearly would cause a conscious person to suffer extreme pain, but if Dan died instantaneously, he could not have felt the physiological harm the electricity was causing to his body. As the |Mevidence offered by Mr. Thompson failed to provide sufficient proof that Dan consciously suffered, we find the record does not support a survival action award, and hence, the award must be vacated.

CONCLUSION

Reviewing this matter de novo based on the prejudicial evidentiary error committed by the trial court, we reduce the jury’s wrongful death award to $450,000.00 and vacate the jury’s survival action award. In so ruling, we east all costs of this appeal to the appellee, Charles Thompson.

VACATED IN PART AND AMENDED IN PART.

Whipple, C.J. dissents in part for reasons assigned.

Pettigrew, J. concurs in parts and dissents in part and assign reasons.

McClendon, J. concurs in part and assign reasons.

WHIPPLE, C.J.,

dissenting in part.

lil respectfully dissent from the portion ■of the majority opinion vacating the survival action award.

Both the bar owner and the other witness testified that the decedent began shaking after clutching the wire, and that this went on for what seemed like “a long time.” And while his voluntary grasp of the wire soon became or resulted in an involuntary clutching of the wire, it is undisputed that the decedent remained standing throughout his electrocution, and slumped only after his hand was completely burned away.

The defendants argue there should be no award for the decedent’s conscious pain and suffering, asserting that this testimony (which portions are cited by the majority) clearly establishes that he died immediately or instantaneously at the moment of the initial contact. In my view, the testimony and photographic evidence do not so demonstrate. The majority opinion discounts the. testimony, wherein the |2expert, Mr. Brooks, opined that in his experience, loss of consciousness is “quick,” but is not “instantaneous.”-

In my view, the plaintiff produced evidence which was sufficient to establish, by more than a scintilla, that the decedent suffered for some period of time, albeit brief, until his hand was burned off and he slumped to the ground. Here, the facts are akin to (yet even more egregious than) those in Maldonado, where the decedent’s survival damages were awarded based upon the decedent’s brief consciousness as he fell sixty feet to the ground and where the author herein dissented as to the low amount rendered by the majority and Ly v. State, through Department of Public Safety and Corrections, 92-1054 (La. App. 1st Cir. 11/24/93), 638 So.2d 197, writ denied, 93-3134 (La. 2/25/94), 634 So.2d 835, where this court reaffirmed that an award for such is proper where there is even the smallest amount of evidence of pain on the part of the decedent and concluded that an award was proper even given the lack of a precise cause and time of death between an initial impact collision and a second impact collision in which the decedent was burned to death in her vehicle. See Ly v. State, through Department of Public Safety and Corrections, 633 So.2d at 205.

The decedent herein was not killed in an instantaneous explosion. Even accepting the defendants’ version's of what occurred, the record demonstrates that the decedent remained standing for a period of time, and remained so until his hand was burned off, whereupon he thereafter slumped to the ground. While Entergy categorizes this as a mere minute, the record shows otherwise, and Mr. Thompson should be compensated for the pain and suffering his son endured. Contrary to the reasoning of the majority, there was no legal requirement that plaintiff show that his son’s suffering lasted for an “appreciable time after he grabbed the wire.” Accordingly, I respectfully dissent and would render judgment in favor of the plaintiff awarding him damages for the survival action claim.

PETTIGREW, J.,

CONCURS IN PART AND DISSENTS IN PART, AND ASSIGNS REASONS.

hi respectfully concur with the majority that the trial court erred in allowing argument and evidence to be presented to the jury indicating that EGSL wrongfully faded to disclose its negligence to Mr. Thompson.

I respectfully disagree with the majority only awarding Mr. Thompson $450,000.00 in damages for the wrongful death award. As to the survival action damages, I dissent for the reasons assigned by Judge Whipple.

McCLENDON, J.,

concurring in part.

| (While the wrongful death award of $450,000.00 is on the higher end of the spectrum, given the horrific circumstances of the decedent’s death, I concur in the majority’s award.

      , The Crawfords were named defendants as the co-owners of the property and building in which the Spanish Moon operated.

      . According to Frederick Brooks, a consulting and forensic engineer who investigated the scene of the electrocution following Dan's death, the “National Electrical Safety Code is an embodiment of rules for the safe construction, installation, and operation of electric utility and communications for utility facilities.” He explained that clearance allows enough air separation between energized conductors in places where people activity may occur to protect people from electric contact aboveground. Brooks was offered as an expert in the fields of the NESC, electric utility operating practices, and electrical safety, but the trial court accepted him as an expert in electrical engineering.

      . At trial, Dennis Lytle, the operations and safety manager for EGSL, testified that following the accident, EGSL made sure the scene was secured until the line could be rebuilt to proper clearance. Furthermore, Mr. Thompson, an electrical engineer, testified that when he went to the Spanish Moon on September 10, 2013, he noticed the electrical wire appeared to be too close to the building.

      . Indicative of the deliberate appeal to passion and prejudice are the following questions presented by plaintiff’s counsel in examining Lytle:
      Q. Now, we get to Christmas. All right. I’m going to assume, Mr. Lytle, you can imagine, without much effort, what Christmas was like for these people after they had lost their son and their brother; right?

      Q. Before Christmas, do any of these folks that you’re working with have any meetings and say: hey, let's find the Thompsons and let them know what really happened?

      Q. Sir—[you] are an employee head of safety, but you’re also a citizen of the United States, and you're a man, and you’re a father; right?
      A. Yes.
      Q. So, sir, common decency, knowing what you knew, and by that, I don't mean just you, your company knew about the role your knowledge played in that boy’s death; you felt no moral compunction to say: y’all, we got to tell this family so that they don’t go through the rest of their life thinking—

      Q.—it's all their son's fault?
      Notably, in regards to the last question quoted above, the trial court finally sustained EGSL’s objection to such questions, finding that the prejudicial effect of that question outweighed the probative value.

      . Mr. Thompson testified that when he took the medication, he would only take half a pill, because he did not want to take a whole pill. He further said, "[i]t would help me fall asleep. An hour later, I'm awake and I can’t go back to sleep unless I take the other half to go back to sleep.”

      . In Kennedy-Fagan, this court held "there is one element of damages in wrongful death actions intended to compensate the victims for the loss of love, affection, and companionship, i.e., the emotional loss." Hence, it was determined that "[i]t was legal error for the jury to make three separate awards for this one element of damage.” Kennedy-Fagan, 07-1062 at p. 18, 993 So.2d at 268. In .the present matter, the jury likewise granted Mr. Thompson separate awards for his emotional loss; however, pursuant to our de novo review, we render one single award for the loss. See also Mendoza v. Mashburn, 99-499, pp. 5, 22-23 (La. App. 5th Cir. 11/10/99), 747 So.2d 1159, 1163 and 1172, writs not considered, 00-0040, 000043. (La. 2/18/00), 754 So.2d 957 and writ denied, 00-0037 (La. 2/18/00), 754 So,2d 976 (wherein the jury awarded each parent $500,000.00 for mental anguish and $500,000.00 for loss of love and affection, for a total of $1,000,000.00 each in wrongful death damages, but the appellate court reduced the amount awarded each parent to $350,000.00 total).