author: PITMAN, J.

text:
    Kelly FARRAR, Plaintiff-Appellant v. CENTERPOINT ENERGY RESOURCES CORP., Defendant-Appellee
    No. 52,557-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019 Rehearing Denied May 16, 2019
    DOWNER, JONES, MARINO & WILHITE, LLC, By: Pamela R. Jones, Counsel for Appellant
    BLANCHARD, WALKER, O'QUINN & ROBERTS, APLC, By: M. Thomas Arceneaux, Stacey D. Williams, Counsel for Appellee
    Before PITMAN, COX, and STEPHENS, JJ.
   PITMAN, J.

Plaintiff Kelly Farrar appeals the judgment of the trial court granting a motion for summary judgment filed by Defendant CenterPoint Energy Resources Corp., d/b/a/ CenterPoint Energy Arkla, and dismissing the suit. For the following reasons, we affirm.

FACTS

Plaintiff sued Defendant, which provided gas service to his home in Minden, Louisiana, alleging that, without his permission, Defendant installed an "Encoder Receiver Transmitter" device ("ERT") on the gas meter at his home. The ERT replaced the analog meter with index dials that had previously measured his utility usage for purposes of reading the meter, but the ERT was still attached to the analog meter with dials. He alleged that this ERT contains a radio transmitter, a radio receiver and a digital encoding and electronic storage device and is electronically programmable. He also alleged that the device not only allows Defendant to monitor gas consumption for billing purposes, but also allows it to "collect precise and detailed measurements about customers' activities within their homes, to collect and store that data, and to communicate data to and from customers' meters." He further alleged that this ability to collect, store and communicate data has resulted in an unreasonable invasion of his privacy in his home because the data collected renders precise information about the details of activities within his home, such as the number of people within the house at any given time; their likely ages, gender and activity level; when they are home; when they wash dishes and clothes and bathe; and when they cook meals. He claimed that this expansive collection of unnecessary data exceeds that necessary for billing purposes and, in fact, is data for which there is a growing market and which Defendant can now sell.

Plaintiff also alleged that the ERT was installed without his permission and that when he discovered his gas usage was being monitored through the device, he demanded that Defendant remove it from his meter. Defendant conditioned the continuation of service upon the acceptance of the ERT, and when he refused, Defendant removed the ERT and discontinued his gas service. Plaintiff claimed he had a constitutional right to privacy under La. Const. art. 1, § 5, against both governmental and private intrusions and noted that the unreasonable invasion of privacy is a tort actionable under La. C.C. art. 2315. He further alleged he was monetarily damaged by termination of gas utility services and that he had to incur the cost of converting to alternative energy sources and purchasing appliances that could be operated by an alternate energy source. He sought monetary damage for injuries resulting from Defendant's invasion of his privacy and the consequent loss of utility services.

Defendant filed a motion for summary judgment, claiming that the ERT allows it to obtain readings of gas usage remotely; thus, it is cost efficient and helps the company keep its rates low. It pointed out that Plaintiff objected to the ERT attached to his meter because he believed it to be an electronic surveillance device that allowed it to know precise details concerning the use of gas in the home and details of activities and persons in the home. When Plaintiff objected to the ERT being located on his meter, it was removed six months after installation, at which time he used gas for heating his home only through central heating and a gas water heater.

Defendant claimed Plaintiff has asserted three ways his privacy was invaded by the ERT: (1) The ERT was installed for purposes of obtaining more information than necessary for billing purposes, which gathering of excessive data was a violation of his right to privacy; (2) Defendant failed to provide any protection against third-party interception of the ERT's transmissions of the excessive data; and, (3) Defendant installed the ERT without his knowledge or consent and without a right to enter his property to install the electronic surveillance device.

Defendant claimed it had an obligation to provide Plaintiff with a meter at his residence that would allow him to see the meter dial and ascertain how much gas was being consumed. It argued that the ERT was installed on the existing meter and did not affect the meter dials or Plaintiff's ability to see them and ascertain how much gas was being consumed. It alleged that it had the authority to install the ERT per the "Standard Gas Tariff" ("the Tariff") filed with the Louisiana Public Service Commission, which provides that it has the right to enter the premises of customers at reasonable hours to change or remove equipment it owns. It asserted that the ERT is not a surveillance device and Plaintiff cannot prove that it gathered more information about him than was necessary for the provision of natural gas and the billing for that service or that it had not provided protection against third-party interception of the ERT's transmissions. Last, it alleged that Plaintiff cannot prove that data about his gas usage was shared with, or sold to, any third party; thus, he has failed to state a viable action for invasion of privacy.

In support of its motion for summary judgment, Defendant filed the affidavit of Bobby R. Burns, its regional operations director; a copy of the Tariff; letters written to it by Plaintiff detailing all the conflicts he had with its employees and his reason for demanding the removal of the ERT; the affidavit of Charles Engelken, its manager of meter reading; the affidavit of Mary James, its IT director in Houston, Texas; and Plaintiff's deposition.

Burns's affidavit states he is Defendant's regional operations director and has been employed for 40 years. He stated that Defendant's operations are governed by the Tariff and that it contains the terms and conditions of service between it and its customers. He stated that the Tariff allows Defendant or its contractors, agents or employees to enter a customer's premises at reasonable hours to repair, replace or modify Defendant's equipment and notes that a copy of the relevant portion of the Tariff is attached to his affidavit. He stated that nothing in the Tariff requires particular metering or measuring devices or regulates the frequency with which Defendant may collect or store data measuring gas usage by a customer. Plaintiff was a customer beginning in August 2003, and the ERT was installed at his residence on September 7, 2014. Plaintiff made repeated requests for the ERT to be removed; and, after he was informed that he would no longer be able to receive gas service to his house if the ERT was removed, he elected to have it removed anyway. The ERT was removed and gas service to his house ended on March 2, 2015.

The affidavit of Engelken stated that the ERTs were installed to accelerate the meter readers' ability to read the meters and thereby reduce that cost. The cost went from $ 1 per meter to $ 0.10 per meter after the ERTs were installed. He stated that the ERT works with the wheel on the meter, counting each revolution of the wheel in order to determine the amount of gas passing through the meter and that the dials of the meter function the same way and remain operational after the ERT is installed. He further stated that the ERT stores the data it collects for 40 days. Starting with the 41st day after the installation of the ERT, the oldest data is replaced by the newest data. Thereafter, as each new day's data is added, the oldest data is replaced. The ERT is only capable of transmitting data. It cannot receive data from remote sources. Once a month, when Defendant's utility vehicle passes by, the ERT is awakened by a signal sent from the vehicle. It transmits data to the vehicle consisting of the meter number, ERT module number and the reading of the gas meter. Transmissions are made over a 900 mhz FM frequency. Only the reading of the gas meter is transmitted, not the stored data. He stated that when the data is received by the meter reader, special software and equipment is used to translate the data into usable information for billing purposes. The software used to translate the data is proprietary and confidential. Prior to and after installation of the ERTs, the only information gathered from individual meters is the volume of gas that passed through the meter between readings. There has been no change in the information that is obtained from the meter reading, just in the way the meter is read.

The affidavit of James states that she is responsible for maintaining the SAP software licensed and used by Defendant for billing purposes and ensuring that it is used in accordance with its policies. She stated that the SAP software used for billing applies the data gathered from meter reads to customer account data in order to generate monthly bills. The data gathered from meter reads includes the meter number, ERT number and the volume of gas that passed through the meter since the last time it was read. Customer account data includes, but is not limited to, the customer's name, address, account number and billing history. All of the data gathered from meter reads remains on servers within Defendant's control, and it does not commercially share or sell the meter reads or customer account data with SAP or any other party.

Defendant's brief in support of its motion for summary judgment points out that the law describes two different types of claims that exist for invasion of privacy, i.e. actionable and non-actionable. It points out that an actionable invasion of privacy arises only when a defendant's conduct is unreasonable and seriously interferes with a privacy interest. The reasonableness of the defendant's acts is determined by balancing the interests of the plaintiff in protecting his privacy from serious invasions with the defendant's interest in pursuing his course of conduct. A defendant's conduct is deemed reasonable and non-actionable when it is properly authorized or justified by circumstances, even if there is a slight invasion of the plaintiff's privacy.

In opposition to the motion for summary judgment, Plaintiff filed his own affidavit and that of Stephen A. DeLurigio, Sr., a professor emeritus and retired professor of operations management from the University of Missouri with an MBA and Ph.D in Management Science/Operations Research. Dr. DeLurigio's affidavit states he was asked to offer an opinion on whether the ERT device captures and transmits data from which detailed information about activities within the home is revealed, the commercial uses of that data and the consequential customer privacy concerns implicated in the over-collection of data. Scientific charts, data and analysis (27 pages) are attached to his affidavit. He concludes his affidavit with statements that the ERT is capable of collecting other data (as proposed by Plaintiff) and that companies are now acquiring information concerning home usage of gas and appliances which might be worth more than the commodities they sell. It was his opinion that the invasions of privacy identified by Plaintiff "are not imaginary or unlikely."

The trial court held a hearing on Defendant's motion for summary judgment on May 1, 2018. Before the hearing began, Plaintiff's attorney asked the trial court to consider her objections to the affidavit testimony of Defendant's witness, Engelken. She told the trial court that they objected to what appears to be expert witness testimony from a lay witness and that Engelken appeared to be making statements about matters that would require a higher level of training, knowledge or expertise than his affidavit would suggest he has. She complained that he was not trying to explain something of which he has personal knowledge, and he does not appear to have any personal knowledge of these meters or the training to give an opinion on them. She asked the trial court to strike large portions of the affidavit, specifically paragraphs 7 through 21.

In response, Defendant's attorney stated that Engelken had been employed as manager of meter reading for Defendant for 38 years. He argued that Engelken's affidavit sets forth his personal knowledge of the things to which he attested. He knows how the meters and ERT work, how they are installed and what the meter readers do every month. He argued that it was not expert testimony, but, instead, factual testimony about how the meter readers acquire the information and which information they receive from the meter for the purpose of processing bills. The trial court overruled Plaintiff's objection and allowed the affidavit to "stand for what it is" and stated that it would "receive it for however it's helpful here."

The hearing continued and the trial court attempted to ascertain exactly how Plaintiff thought his privacy was being invaded by the meter. Plaintiff contested that the device placed on his home was not even a "meter" and stated that he believed the device was an electronic reporting device, similar to an encoder receiver transmission, that does not measure gas the same way the dial meter did. He objected to the data being collected being accessible to the public and argued that Defendant was collecting much more data than it needed for billing purposes and that it was amassing a gigantic database of information about its customers. Plaintiff believed there is a market for this information and claimed that Dr. DeLurgio's affidavit defines the market for the court. His argument ended with a statement that there is a genuine issue of material fact as to how the ERT works and that he has proof from people with engineering backgrounds that they do not work in the fashion described by Engelken.

The trial court granted Defendant's motion for summary judgment and stated that it could not find any genuine issue of material fact since the ability to violate someone's privacy is different than an actual violation of privacy. A judgment was signed dismissing Plaintiff's case against Defendant. Plaintiff appeals that judgment.

DISCUSSION

Plaintiff argues that the trial court committed legal error by denying his objection to the lay witness opinions contained in the affidavit of Defendant's employee, Engelken, and by not excluding his lay witness opinions from the summary judgment record. He asserts that Engleken's affidavit did not indicate his own knowledge of how the ERT worked, how it measures gas usage, how it functions, the settings to which it is or could be programmed, or any of the capabilities of the device. He argues that his own affidavit and that of Dr. DeLurgio establish that the ERT unreasonably invades the customer's right to in-home privacy and that Defendant could find a market for the information it collects.

Plaintiff further argues that his objection to Engelken's affidavit should have been granted because Defendant failed to carry its initial burden of production.

La. C.C.P. article 967(A) provides, in pertinent part:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

La. C.E. art. 701 concerns opinion testimony by lay witnesses and states that if the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.

As a general rule, a lay witness is permitted to draw reasonable inferences from his or her personal observations. If the testimony constitutes a natural inference from what was observed, no prohibition against it as the opinion of a non-expert exists as long as the lay witness states the observed facts as well. State v. Davis , 44,656 (La. App. 2 Cir. 11/18/09), 26 So.3d 802, writ denied , 09-2768 (La. 6/25/10), 38 So.3d 355.

When an objection to an affidavit in support of or in opposition to a motion for summary judgment is made in accordance with La. C.C.P. art. 966(D)(2), the only issue to be determined is whether that affidavit is in compliance with La. C.C.P. art. 967. Mariakis v. N. Oaks Health Sys. , 18-0165 (La. App. 1 Cir. 9/21/18), 258 So.3d 88.

The trial court is vested with much discretion in determining whether to allow lay witness testimony as to an opinion or inference, in accordance with La. C.E. art. 701, including the admissibility of evidence. Its decision to admit or exclude evidence will not be reversed on appeal in the absence of a clear abuse of discretion. FIE, LLC v. New Jax Condo Ass'n, Inc. , 16-0843 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, writ denied , 18-449 (La. 5/25/18), 243 So.3d 544, and writ denied , 18-446 (La. 5/25/18), 243 So.3d 545.

In the case at bar, the trial court determined that Engelken's affidavit met the requirements for admission into evidence as required by La. C.C.P. art. 966(D)(2) and agreed to "allow the affidavit to stand for what it is." We find no abuse of discretion in its ruling. This assignment of error is without merit.

Plaintiff's remaining three assignments of error concern specifically whether or not summary judgment was appropriate in this case. He first argues that the trial court erred by shifting the burden to the nonmoving party to establish a disputed material fact prior to the moving party carrying its initial burden of proof on the invasion of privacy issue. He contends that had the trial court correctly disregarded those portions of Engelken's affidavit upon which Defendant relies to show no genuine issues of material fact, it would have been clear that summary judgment is not appropriate in this case, and the burden would never have shifted.

Plaintiff next argues that since he filed his affidavit and that of Dr. DeLurgio, the trial court was forced to weigh evidence and the credibility of witnesses to reach a determination that no genuine issues of fact exist, and that is not a function the court should have to perform when the issue is summary judgment.

Last, Plaintiff argues that genuine issues of material fact remain and were in dispute since there was a huge discrepancy between Defendant's evidence of how the ERT works and how he and Dr. DeLurgio claim it works. He contends that Dr. DeLurgio's testimony established there was a market for the data collected and that Defendant had a strong commercial motive to over-collect data and bank it in anticipation of future use. He argues that there is a genuine issue of material fact concerning whether Defendant is actually collecting data, subject to sale, or at least interception by the public, that causes an invasion of his privacy. For these reasons, he asserts that the trial court erred in granting the motion for summary judgment and dismissing his case.

Defendant argues that Plaintiff's petition only asserts a cause of action for invasion of privacy and that he seeks monetary damages for that invasion and consequent loss of utility services. It points out that Plaintiff now claims he filed suit seeking damages arising from invasion of privacy, breach of contract and violations of its statutory duties to provide him with a meter he could view and from which he could calculate usage at any time and to bill him in accordance with usage measured from the viewable meter. It also argues that Plaintiff did not raise the "false meter" argument until the opposition to the motion for summary judgment. He did not plead breach of contract or violations of its statutory duties and did not seek damages for such breach or violation. To argue that he did is an improper attempt to expand the scope of his pleadings, to which it specifically objected.

Defendant further argues that Plaintiff has no actionable claim for invasion of privacy. It was reasonable for it to install the ERT as part of its efforts to reduce costs and provide quality service to its customers. Plaintiff only offered his theories and speculation as to what data it collects from the ERT-enabled meter and the use of that data. At the end, the trial court recognized that the mere potential to violate privacy is different than an actual violation of privacy.

Defendant asserts that the trial court did not err by shifting the burden to Plaintiff to establish a disputed material fact because it had presented proof, in the form of the affidavits of several people, showing that Plaintiff's alleged cause of action for invasion of privacy lacked merit. It argues that when the burden shifted to Plaintiff to show that a genuine issue of material fact remained, the trial court examined what Plaintiff had produced and simply concluded that while the potential might exist for it to gather the information that Plaintiff claimed was being stored and potentially sold, the trial court could not find any proof that it had actually occurred. Thus, it found that the ability to violate privacy "is different than a violation" of privacy.

Defendant contends that the trial court did not engage in the weighing of evidence, assessment of credibility or fact-finding assessments in order to reach that conclusion; rather, Plaintiff simply could not show the existence of a genuine issue of material fact. For these reasons, it asserts that the trial court properly granted the motion for summary judgment and dismissed Plaintiff's suit.

The procedure for motions for summary judgment is found in La. C.C.P. art. 966, which states that after an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum and supporting documents 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(A)(3).

La. C.C.P. art. 966 (D)(1) states:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

Summary judgments are subject to a de novo review using the same criteria as the trial court to determine whether summary judgment is appropriate. Arceneaux v. Amstar Corp. , 15-0588 (La. 9/7/16), 200 So.3d 277 ; Zeno v. Great S. Coaches of Arkansas, Inc. , 51,370 (La. App. 2 Cir. 5/17/17), 223 So.3d 599.

A fact is material if its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery, i.e., material facts are those which potentially insure or preclude recovery, affect a litigant's ultimate success or determine the outcome of the legal dispute. Chreene v. Prince , 52,351 (La. App. 2 Cir. 9/26/18), 256 So.3d 501, citing Wells v. Town of Delhi , 51,222 (La. App. 2 Cir. 4/5/17), 216 So.3d 1095, writ denied , 17-0753 (La. 9/22/17), 227 So.3d 821.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Solomon v. Taylor Brokerage Servs., Inc. , 33,832 (La. App. 2 Cir. 10/4/00), 768 So.2d 799.

La. Const. art. I, § 5, states, in pertinent part, that every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

In Tate v. Woman's Hosp. Found. , 10-0425 (La. 1/19/11), 56 So.3d 194, the Louisiana Supreme Court stated:

The tort of invasion of privacy is directed at redressing the damage which an individual suffers when legally recognized elements of his right to privacy have been violated. Gorman v. Swaggart , 524 So.2d 915, 920 (La. App. 4 Cir.1988). The right to privacy is defined in Louisiana as "the right to be let alone." Pack v. Wise , 155 So.2d 909, 913 (La. App. 3rd Cir.1963), writ denied , 245 La. 84, 157 So.2d 231 (1963). A tort of invasion of privacy can occur in four ways: (1) by appropriating an individual's name or likeness; (2) by unreasonably intruding on physical solitude or seclusion; (3) by giving publicity which unreasonably places a person in a false light before the public; and (4) by unreasonable public disclosure of embarrassing private facts. Jaubert v. Crowley Post-Signal, Inc. , 375 So.2d 1386 (La. 1979).

When an individual has a right of privacy, other members of society have a corresponding duty not to violate that right. Jaubert v. Crowley Post-Signal, Inc. , supra. Even where a right to privacy is found to exist, Louisiana courts have distinguished between invasions of that right which are actionable and those which are not. Id. An actionable invasion of privacy occurs only when the defendant's conduct is unreasonable and seriously interferes with the plaintiff's privacy interest. Id. The reasonableness of the defendant's conduct is determined by balancing the conflicting interests at stake, the plaintiff's interest in protecting his privacy from serious invasions, and the defendant's interest in pursuing his course of conduct. Id.

When one member of society infringes upon another's right to be let alone, it constitutes a breach of duty, or fault, and may be actionable under La. C.C. art. 2315. Zellinger v. Amalgamated Clothing , 28,127 (La. App. 2 Cir. 4/3/96), 683 So.2d 726 (on reh'g ).

Naperville Smart Meter Awareness v. City of Naperville , 900 F.3d 521 (7th Cir. 2018), is instructive in the case at bar. In that case, a non-profit organization that opposed a city's replacement of analog electricity meters with digital "smart meters" brought an action against the city, alleging that its collection of energy-consumption data from smart meters constituted an unreasonable search under the Fourth Amendment of the U.S. Constitution and an unreasonable search and invasion of privacy under the Illinois Constitution. The plaintiff's first two complaints were dismissed without prejudice, but it was denied the right to file a third amended complaint. On appeal, the court found that the collection of smart meter data at 15-minute intervals was a "search" under the Fourth Amendment, citing , Kyllo v. United States , 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), which stated that "Where ... the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search.' " This case involves a public utility, not a private company, but the appellate court, while admitting that the collection of data could be deemed a search, assessed whether the collection of the data was reasonable. It did so by applying the balancing test and concluding that the collection of smart meter data was a reasonable search that did not violate the Fourth Amendment. For that reason, the plaintiff's request to file a third amended complaint was denied.

In St. Julien v. S. Cent. Bell Tel. Co. , 433 So.2d 847 (La. App. 3 Cir. 1983), the plaintiffs filed suit against the telephone company alleging that it violated their right to privacy when its employee, assisted by an apartment complex employee, entered their apartment without consent or authority and wrongfully seized telephone units. The appellate court found there had been an intrusion of privacy by the telephone company. It also found that while the Louisiana Public Service Commission had broad power to adopt reasonable and just rules, regulations and orders affecting the service and operation of telephone utilities, it did not believe the mere filing of a tariff by a utility could justify actions otherwise prohibited by law. It found the tariffs were subordinate to constitutional provisions and stated that, "[a]ssuming, arguendo, that the tariffs were controlling, there is nothing in the language of such regulations which grants the right to enter a subscriber's premises in his absence and remove equipment without consent." It rendered judgment in favor of the plaintiffs in the nominal amount of $ 1,000.

In the case sub judice , Defendant is a gas utility company whose purpose is to provide gas service to the citizens. It has the authority to enter Plaintiff's property and place the ERT on the meter and also the right to condition service to Plaintiff's home based on the ERT's presence affixed to the meter. The cost of reading the meter was reduced substantially by the placement of the ERT on customers' meters, falling from $ 1 per meter to $ 0.10 per meter. When Plaintiff vehemently objected to the ERT on his meter and consented to it being removed and gas service to his home being terminated, the ERT was removed at his request.

Since Defendant did not bear the burden of proof at trial on the issue that was before the court on the motion for summary judgment, its burden on the motion did not require it to negate all essential elements of Plaintiff's claim, action or defense, but, rather, had to point out to the court the absence of factual support for one or more elements essential to Plaintiff's claim, action or defense. Therefore, once Defendant showed that Plaintiff's claim was not an actionable one under the law because its alleged invasion of privacy was based on a reasonable course of conduct, and the invasion of privacy was minimal, the burden shifted to Plaintiff to produce factual support sufficient to establish the existence of a genuine issue of material fact or that Defendant was not entitled to judgment as a matter of law.

Plaintiff's affidavit and that of his expert, Dr. DeLurigio, along with data related to scientific investigations, descriptions of how the ERT works, the potential for the sale of the collected data to third parties and Dr. DeLurigio's opinion that Plaintiff's fears could be validated, failed to carry the burden to show that his claim was actionable. Defendant's intrusion was not unreasonable when compared to Plaintiff's interest in protecting his privacy. As the trial court implied, the potential for an abusive invasion of privacy might be present, but the evidence produced by Plaintiff did not establish the existence of a genuine issue of material fact or that Defendant was not entitled to judgment as a matter of law.

For the foregoing reasons, these assignments of error are without merit.

CONCLUSION

The judgment of the trial court granting summary judgment in favor of Defendant CenterPoint Energy Resources Corp. and against Plaintiff Kelly Farrar is hereby affirmed. Costs of the appeal are assessed to Plaintiff Kelly Farrar.

AFFIRMED.

APPLICATION FOR REHEARING

Felicia Toney Williams, Daniel Milton Moore III, Frances Jones Pitman - Writing, Jeff Cox, and James Mark Stephens.

Rehearing denied.

      However, Plaintiff was unable to state that he had proof that Defendant had sold the collected data or provided it to third parties.


source: Caselaw Access Project

author: McCALLUM, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF T.A.G.
    No. 52,722-JAC
    Court of Appeal of Louisiana, Second Circuit.
    April 10, 2019
    VARHONDA EUGENIA BURRELL, Counsel for Appellant, J.G.S.
    SCOTT ERIC McELROY, Counsel for Appellee, State of Louisiana
    THE LOWERY LAW FIRM, By: Scotty Wayne Lowery, Counsel for Appellee, T.A.G.
    Before STONE, McCALLUM, and BLEICH (Pro Tempore), JJ.
   McCALLUM, J.

The child's interest is paramount. A child has a right to live in a safe, secure environment and to be reared by a person capable of caring for them. We begin our analysis of this case there.

J.G.S. ("mother") appeals a judgment terminating her parental rights and freeing her daughter for adoption. Because we conclude that the State satisfied its burden of proving that the mother had statutorily abandoned the child and that termination was in the best interest of the child, we affirm the judgment.

FACTS

The mother's daughter, T.A.G., was born in Baton Rouge on July 18, 2014. At the time, the mother was 24 years old and an inmate at the women's prison in St. Gabriel, Louisiana. No father was listed on T.A.G.'s birth certificate.

L.H., the mother's maternal grandmother, went to Baton Rouge to care for T.A.G. a few days after her birth. T.A.G. remained with L.H. in Bastrop for approximately a year before she began living with her mother.

J.C. of Bastrop is a friend of the mother's family. On June 6, 2016, the mother asked J.C. to get T.A.G. The next day, the mother returned for T.A.G., but she stayed with the mother for only a couple of days before she was returned to J.C. T.A.G. was kept by J.C. for a few days before the mother again returned for her. T.A.G. remained with the mother for a couple of days before she brought her to J.C. T.A.G has remained in J.C.'s care and custody since that time.

On June 29, 2016, J.C. filed a petition for custody of T.A.G. She was awarded temporary sole custody of T.A.G., with the mother having no visitation rights. The next month, the order of temporary custody was continued in full force and effect pending a hearing officer conference.

The hearing officer conference was held on October 28, 2016, with the mother, who was unrepresented by counsel, participating by phone. The hearing officer recommended that J.C. receive sole custody, with the mother having reasonable telephone and supervised visitation rights in Morehouse Parish. No objections to the recommendation were raised, and the recommendation was adopted by the district court.

On the date of the hearing officer conference, J.C. told the mother that she could call T.A.G. at 2:00 p.m. on every Sunday, and that she would consider expanding telephone visitation if that went well. J.C. also told the mother that supervised visitation would need to be set up through the Wellspring Supervised Visitation Program, a Monroe agency which facilitates supervised visitation.

Dates of occurrences are not entirely clear from this record. At some point following the hearing officer conference, the mother apparently went to a CADA rehab facility in Shreveport for 28 days. After her stay at the rehab facility, the mother went to Oxford House in Shreveport for three to four months. The mother also apparently began living in Lake Charles at some point.

On July 7, 2017, the mother was incarcerated in Concordia Parish after violating her parole conditions for not transferring her parole status from parish to parish. She had to complete a 90-day sentence.

On November 21, 2017, J.C. drove to Ferriday to bring the mother back to L.H.'s home in Bastrop following her release. J.C. had left T.A.G. with L.H. while she traveled to Ferriday. This was the first time in over a year that the mother had physical contact with her daughter.

L.H. thought the mother spent the next two or three months at her home. J.C. recalled that the mother remained with L.H. for a couple of days before she began residing at Monroe's Oxford House, which is a sober living facility. After leaving Oxford House, the mother moved to an apartment in Monroe and obtained employment. The mother remarried in April of 2018.

On May 23, 2018, the District Attorney for the Fourth Judicial District, pursuant to La. Ch. C. art. 1004(F), granted authority to a special assistant district attorney to file a petition to terminate the mother's parental rights as to T.A.G. The petition to terminate the mother's parental rights and free T.A.G. for adoption was filed in Morehouse Parish on June 13, 2018. The petition alleged that T.A.G.'s father had never been married to the mother and was deceased. The grounds asserted for termination were that: (1) prior attempts to rehabilitate the mother had been unsuccessful, and she had already surrendered her parental rights over one child and had her parental rights over another child terminated; (2) the mother abandoned T.A.G. by placing her in the physical custody of J.C. in June of 2016 and not seeing her again until November of 2017, not exercising telephone visitation during the designated time, and not exercising supervised visitation; and (3) the mother abandoned T.A.G. by not contributing to her care and support since June 6, 2016.

After the mother obtained counsel, the termination hearing was continued a couple of times before finally being held on November 14, 2018, when the court heard testimony from the mother, J.C., and L.H. The parties agreed before the hearing that termination would be sought only on the abandonment grounds found in La. Ch. C. art. 1015(5)(b) and (c). Termination would not be sought on the art. 1015(4)(k) ground of prior surrender and termination of parental rights that had been alleged in the petition. This is the case even though the mother alluded to one of her children having been adopted in her testimony.

The court found against the mother and provided oral reasons for judgment following the hearing. The court found uncontroverted testimony that the State had met its burden of proof under La. Ch. C. art. 1015(5)(b) that the mother failed to provide significant care and support to T.A.G. for six consecutive months. The court also found that while the question of whether there was a lack of significant contacts for six months was a little harder to resolve, the State had met its burden under La. Ch. C. art. 1015(5)(c) of proving a lack of significant contact for six consecutive months. The court concluded that termination of parental rights was in T.A.G.'s best interest as she was well-cared for and in a stable environment with someone who ensured that she received all necessary therapy. Finally, the court noted that the alleged father was deceased, and that no father had come forward according to the putative father registry.

A written judgment in accordance with the oral reasons for judgment was signed on December 6, 2018. The mother appealed, arguing that the court erred in: (1) finding that the State had met its burden of proving the grounds for termination; (2) finding that the termination was in the best interest of T.A.G.; and (3) denying her motion to dismiss after the State put on its evidence.

DISCUSSION

The termination of parental rights involves a two-pronged inquiry. First, the State must establish the existence of at least one ground for termination under La. Ch. Code art. 1015. If a ground for termination is found, then the trial court must determine whether the termination is in the best interest of the child. State in Interest of C.F. , 2017-1054 (La. 12/6/17), 235 So.3d 1066.

Parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, this parental interest is often at odds with the child's interest in establishing secure, stable, long-term, and continuous relationships in a home with proper parental care. State ex rel. D.L.R. , 2008-1541 (La. 12/12/08), 998 So.2d 681 ; State ex rel. K.G. , 2002-2886 (La. 3/18/03), 841 So.2d 759.

In State in Interest of C.F. , supra , the Louisiana Supreme Court explained the considerations underlying a termination of parental rights:

Under La. Ch. Code art. 1001, the purpose of a termination of parental rights proceeding is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs. In all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved. Termination of parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if possible, to achieve the child's adoption. The interests of the parent must be balanced against the child's interest, but the child's interest is paramount. More than simply protecting parental rights, our judicial system must protect the child's right to thrive and survive. A child has an interest in the termination of rights that prevent adoption and inhibit the child's establishment of secure, stable, long term, continuous family relationships. While the interest of a parent is protected in a termination proceeding by enforcing procedural rules enacted to insure that the parental rights are not thoughtlessly severed, those interests must ultimately yield to the paramount interest of the child. Children have a right to live in a safe, secure environment and to be reared by someone who is capable of caring for them.

Id. , 2017-1054 at pp. 15-16, 235 So.3d at 1075 (internal citations omitted).

La. Ch. C. art. 1015 sets forth the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. The grounds include:

(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
* * *
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.

Because the termination of parental rights is a severe and terminal action, the legislature has mandated that in order to terminate these rights, the state must satisfy an onerous burden of proof. State ex rel. B.H. v. A.H. , 42,864 (La. App. 2 Cir. 10/24/07), 968 So.2d 881. Thus, the petitioner bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence. La. Ch. C. art. 1035(A). Proof by clear and convincing evidence requires a showing that the existence of the disputed fact is highly probable, meaning more probable than its nonexistence. State in Interest of J.M.L. , 47,201 (La. App. 2 Cir. 4/11/12), 92 So.3d 447.

Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. However, the primary concern of the courts and the State remains to determine and insure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the State. State ex rel. J.M. , 2002-2089 (La. 1/28/03), 837 So.2d 1247.

The evidence must clearly show a manifestation of an intent to permanently avoid all parental responsibility and all reasonable doubt should be resolved against such a conclusion because a decree of termination of parental rights is in derogation of the natural rights of parents. State in Interest of C.E.K. , 2017-0409 (La. App. 4 Cir. 12/21/17), 234 So.3d 1059, writ denied , 2018-0143 (La. 3/9/18), 237 So.3d 523. La. Ch. C. art. 1015(5) requires that the circumstances demonstrate an intention to permanently avoid parental responsibility. Id .

An appellate court reviews a trial court's findings as to whether parental rights should be terminated according to the manifest error standard of review. State in Interest of B.J. , 48,857 (La. App. 2 Cir. 1/15/14), 135 So.3d 777.

Significant contributions to care and support

The trial court found that the State met its burden under La. Ch. C. art. 1015(5)(b) of proving that the mother had failed to provide significant contributions to the care and support of T.A.G. for six consecutive months. More specifically, the court stated that the evidence was uncontroverted that there was no significant contribution during any point in time since June of 2016. The court did not consider a DVD, a necklace, toys, an outfit, and Christmas presents to be significant contributions.

According to J.C., the mother sent a package containing a DVD, stuffed animal, and a toy necklace in June of 2017. She recalled that the mother gave Christmas presents to T.A.G. in 2017, and bought a dress for T.A.G. in March of 2018. She also purchased clothing after the petition to terminate was filed. The mother hosted a birthday party for T.A.G. in August of 2018, and bought gifts for the birthday party. Members of the mother's family have given birthday and Christmas presents to T.A.G. L.H. has purchased clothing.

T.A.G., who has medical insurance coverage through Medicaid, was behind on her immunizations when she came into J.C.'s care. She also had untreated ear infections and was partially deaf because she needed tubes placed in her ears. T.A.G. underwent therapy from 8:30 a.m. to 2:30 p.m., Tuesday through Thursday, in order to overcome speech, behavioral, and developmental delays.

T.A.G. receives a monthly check for $ 785 in Supplemental Security Income. The mother explained how her brother and L.H. went to a local Social Security office to arrange for T.A.G. to start receiving this check.

J.C. did not request child support payments at the hearing officer conference, and there is no child support order. J.C. testified that she initiated a support proceeding on December 15, 2016, in an attempt to collect child support. A hearing was held on July 5, but the mother was unable to be located for service, and no further progress was made in the matter.

J.C. testified that she discussed with the mother about providing financial support, and she believed that the mother understood that she had an obligation to financially support T.A.G. She told the mother that although she understood things were hard for her and that she was able to care for T.A.G., it remained the mother's responsibility to make a good faith effort. She further told the mother that she would not push the issue of financial support if the mother made such an effort. J.C. acknowledged that she had not pushed the financial support issue to any great extent.

The mother testified that J.C. replied in the negative when she asked her during a couple of phone conversations if she needed to send money. The mother also recalled that J.C. recognized that she was struggling financially, so she did not have to worry about providing financial support. J.C. denied that the mother ever asked if she needed to send money. Although the court never directly addressed J.C.'s credibility on this particular issue, the court specifically referred to J.C.'s credible testimony about the contacts ground. Obviously, the decision of the trial court was based largely on credibility determinations of the various witnesses. The trial court is in the better position to make such determinations. Only the trial judge can observe the variations of demeanor and tone of voice that bear heavily on the determination of credibility.

When the mother was questioned at trial about what it meant to financially support T.A.G., she replied:

To get the things that she needs, to make sure that she's taken care of, going to the doctor, to love and care for her, to know whether she's about to get sick, to provide the clothes that she needs, make sure that she's wearing the right size shoes, the right size dresses or clothes, to get her into -- The mother things.

The mother then added that she had not been able to do those things because J.C. had full custody of T.A.G.

It is apparent that the mother operated under an assumption that she could avoid financially supporting her daughter while she got her life in order and overcame any addiction issues. Nevertheless, the mother acknowledged at trial that she had an obligation to financially support T.A.G. While she asserted that she tried to fulfill this obligations, the fact remains that she did not provide monetary contributions for T.A.G.'s care and support.

We note that the mother spent three months in jail in 2017. However, incarceration is not a defense for the failure to support or maintain contact with one's children in a termination of parental rights case because incarceration results from one's own actions. State in Interest of B.J. , supra . We also note that the mother testified that she had been working at the same job for six months. This places her working at least as early as May of 2018, yet she did not contribute financially to her daughter's support.

A necklace, a DVD, some articles of clothing, Christmas and birthday presents, and meals during visitation are not significant contributions to T.A.G.'s care and support from June of 2016 through May of 2018. The evidence clearly and convincingly manifested an intent by the mother to permanently avoid all parental responsibility by failing to provide significant contributions to T.A.G.'s care and support. At the very least, the trial court was not manifestly erroneous in basing termination on the State having established the La. Ch. C. art. 1015(5)(b) ground by clear and convincing evidence.

The mother contends that she presented evidence rebutting the claim of abandonment through the affirmative defense of her addiction being a disability. She asserts that she did not abandon T.A.G., but instead was receiving treatment for her disability.

La. Ch. C. art. 1035(B) states that a "parent asserting a mental or physical disability as an affirmative defense to abandonment under Article 1015(5) bears the burden of proof by a preponderance of the evidence."

The mother did not establish this affirmative defense. She testified that she went into a CADA rehab facility for a month in 2016 before going to Oxford House in Shreveport. J.C. testified that the mother went to Oxford House in Monroe in late 2017. There was also reference to a sobriety date. However, there was no evidence about the extent of the mother's addiction or if it even played a role in her incarceration.

Because we conclude that the trial court was not manifestly erroneous in finding that the "failed to provide significant contributions" ground was proven by clear and convincing evidence, it is unnecessary for this Court to examine the ruling on the additional "failed to maintain significant" ground found in La. Ch. C. art. 1015(5)(c). The State need only establish one ground for termination under art. 1015 ; however, the court must also find that termination is in the child's best interest. La. Ch. C. art. 10137(B); State in Interest of J.F. , 52,095 (La. App. 2 Cir. 4/11/18), 249 So.3d 939.

Best Interest

The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parent to be terminated. State in Interest of A.L.D. , 2018-1271 (La. 1/30/19), 263 So.3d 860 ; State ex rel. S.M.W. , 2000-3277 (La. 2/21/01), 781 So.2d 1223.

La. Ch. C. art. 1037(B) provides:

When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parent against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child's attachment to his current caretakers.

T.A.G. has developed a bond with her mother's family, as well as her father's family. However, J.C. expressed a desire to keep those bonds intact if she is allowed to adopt T.A.G. The mother feared that J.C. would not allow her to visit with T.A.G. if she adopted her. L.H. had similar concerns.

The mother testified that her visits with T.A.G. were great. She described how T.A.G. will cry and wrap her arms and legs around her when the visits end.

Some discord arose between J.C. and the mother over how T.A.G. referred to the two women. J.C. complained that T.A.G. had regressed in her therapy because of the stress that was caused in part by the mother correcting T.A.G. if she referred to J.C. as "mom" or to her as "Mama J." J.C. thought it was unfair to correct T.A.G. about this in light of her young age.

J.C. works for a family marble business. This allows her to adjust her work schedule to accommodate T.A.G.'s therapy schedule. J.C.'s teenage son lives with them. She asserted that her income is sufficient to maintain her household. L.H. thought that J.C. provided a good and safe environment for T.A.G, and that T.A.G. had stability in J.C.'s home.

The mother married on April 24, 2018, and has a couple of stepchildren. She has lived at the same Monroe address for eight months. She completed an inpatient program and has a sobriety date of July 7, 2017. She has worked at the same job for six months, and also worked at a dry cleaner for a couple of months.

We note that L.H. testified that she had supported J.C. in her earlier effort to obtain custody and did not feel differently in 2018, but thought that the mother was on the road to recovery. While it is laudable that the mother has obtained treatment for her addiction and appears to be on the right path, that does not negate the fact that she was in prison when T.A.G. was born, leaving it up to her maternal grandmother to care for T.A.G. Once she was released from prison, the mother began caring for T.A.G. before deciding to leave her with the same person who is now seeking to terminate the mother's parental rights and to ultimately adopt T.A.G. J.C. has been able to provide T.A.G. with a safe and secure environment, and as was shown by the testimony about T.A.G.'s medical treatment, she is capable of caring for T.A.G.

This record supports the trial court's finding that termination was in the best interest of the child. Accordingly, we will not disturb the judgment terminating the parental rights.

Motion to dismiss

The mother argues that the trial court erred in denying her motion to dismiss. J.C. was asked on direct examination whether the mother had ever made any cash contribution for T.A.G.'s care. J.C. replied that the mother had not, then began listing some of the material goods that the mother had given. She mentioned a DVD, stuffed animal, and toy necklace in 2017; a Christmas present in 2017; a dress in March of 2018; and some clothes since the petition was filed. On cross-examination by the mother's attorney, J.C. stated that she had not pushed the support issue hard. On cross-examination by T.A.G.'s attorney, J.C. testified that she had a discussion with the mother about financially supporting T.A.G., and she agreed that the mother understood that she had an obligation to financially support T.A.G. The court denied the motion to dismiss on the ground that the State had made a prima facie case.

The State then called the mother to testify. She was questioned about what she had done to contribute to T.A.G.'s support. She denied ever sending a text message that she could send money, but stated that she and J.C. talked over the phone about it, and J.C. told her that she knew she was struggling and trying to get back on her feet. The State rested after the mother was questioned by T.A.G.'s attorney. The mother reurged her motion to dismiss, which the court again denied.

There is no merit to the mother's argument, and the trial court properly denied this motion.

CONCLUSION

Ever mindful that the termination of parental rights is a severe and terminal action, we nevertheless conclude where we began: the best interest of the child. T.A.G. has already suffered emotional and physical harm due to the unfortunate circumstances surrounding her early years. Therefore, at the mother's cost, the judgment is AFFIRMED.

BLEICH, J. (Pro Tempore ), dissents with written reasons.

BLEICH, J. (Pro Tempore ), dissents.

The due process rights and right to counsel of the mother in this parental termination case were violated ab initio . This created a dynamic in which this mother was inevitably going to lose her child. From a constitutional, fundamental fairness standpoint, this parent did not have a chance to avoid experiencing her daughter being permanently taken away from her. Mechanical arithmetic calculations should not dictate the sacred rights of family dynamics nor become the underpinning for the dissolution of a family.

In cases such as this, when endeavoring to render justice, the juvenile court must examine the totality of the circumstances and evidence presented to determine whether they indicate that a parent has intended to permanently avoid parental responsibility and abandoned the child. State in Interest of T.J., 48,612 (La. App. 2 Cir. 09/11/13), 124 So.3d 484 ; State ex rel. T.M.H ., 99-433 (La. App. 5 Cir. 11/30/99), 748 So.2d 1216 ; State in Interest of J.K ., 97-336 (La. App. 3 Cir. 10/29/97), 702 So.2d 1154 ; State in Interest of P.R.B ., 622 So.2d 716 (La. App. 5 Cir. 1993).

The judicial system must not be the conduit for implementation of self-serving private, virtually sinister agendas that are concealed from the courts. The judicial system must not be misled and used to trample the rights of a parent. This case, from a procedural standpoint, involved these phenomena. As a result, this writer is compelled to respectfully dissent.

The result of a parental termination case is, to the losing parent, perhaps the ultimate punishment that can foisted upon that parent. Great care in the system, therefore, is required.

The United States Supreme Court has addressed the ultimate finality in this type proceeding in Lassiter v. Department of Social Services of Durham County, N.C. , 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1981) :

This Court's decisions have ... made plain ... that a parent's desire for and right to 'the companionship, care, custody and management of his or her children ' is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest , protection.' Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) (emphasis added).

In M.L.B. v. S.L.J., 519 U.S. 102, 117-119, 117 S.Ct. 555, 564-566, 136 L.Ed.2d 473 (1996), the Supreme Court expanded the import of Lassiter, supra .

Lassiter concerned the appointment of counsel for indigent persons seeking to defend against the State's termination of their parental status . The Court held that appointed counsel was not routinely required to assure a fair adjudication; instead, a case-by-case determination of the need for counsel would suffice, an assessment to be made "in the first instance by the trial court, subject ... to appellate review." 452 U.S. at 32, 101 S.Ct. at 2162.
For probation-revocation hearings where loss of conditional liberty is at issue, the Lassiter Court observed, our precedent is not doctrinaire; due process is provided, we have held, when the decision whether counsel should be appointed is made on a case-by-case basis. See Gagnon v. Scarpelli , 411 U.S. 778, 790, 93 S.Ct. 1756, 1763-764, 36 L.Ed.2d 656 (1973). In criminal prosecutions that do not lead to the defendant's incarceration, however, our precedent recognizes no right to appointed counsel. See Scott v. Illinois , 440 U.S. at 373-374, 99 S.Ct. at 1161-1162. Parental termination cases, the Lassiter Court concluded, are most appropriately ranked with probation-revocation hearings: While the Court declined to recognize an automatic right to appointed counsel, it said that an appointment would be due when warranted by the character and difficulty of the case. See Lassiter , 452 U.S. at 31-32, 101 S.Ct. at 2161-2162.
Significant to the disposition of M.L.B.'s case, the Lassiter Court considered it "plain ... that a parent's desire for and right to 'the companionship, care, custody, and management of his or her children' is an important interest," one that " 'undeniably warrants deference and, absent a powerful countervailing interest, protection.' " Id . at 27, 101 S.Ct. at 2159 (quoting Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972) ). The object of the proceeding is "not simply to infringe upon [the parent's] interest," the Court recognized, "but to end it"; thus, a decision against the parent "work[s] a unique kind of deprivation." Lassiter , 452 U.S. at 27, 101 S.Ct. at 2160. For that reason, "[a] parent's interest in the accuracy and justice of the decision ... is ... a commanding one." Ibid . ; see also id . at 39, 101 S.Ct. at 2165-2166 (Blackmun, J., dissenting) ("A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child...." (footnote omitted) ).
Santosky held that a "clear and convincing" proof standard is constitutionally required in parental termination proceedings. 455 U.S. at 769-770, 102 S.Ct. at 1403-1404. In so ruling, the Court again emphasized that a termination decree is "final and irrevocable." Id . at 759, 102 S.Ct. at 1398 (emphasis in original). "Few forms of state action," the Court said, "are both so severe and so irreversible." Ibid. As in Lassiter , the Court characterized the parent's interest as "commanding," indeed, "far more precious than any property right." 455 U.S. at 758-759, 102 S.Ct. at 1397.
Although both Lassiter and Santosky yielded divided opinions, the Court was unanimously of the view that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. " 455 U.S. at 774, 102 S.Ct. at 1405 (Rehnquist, J., dissenting). It was also the Court's unanimous view that "[f]ew consequences of judicial action are so grave as the severance of natural family ties ." Id. at 787, 102 S.Ct. at 1412 (emphasis added).

See also, Santosky v. Kramer , 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

This writer suggests that also applicable in this analysis are La. Const. art. I, §§ 2, 24. Cf. In re Adoption of B.G.S. , 556 So.2d 545 (La. 1990).

A complete review of this record creates conclusions of that which did-and did not-occur, all of which led to the trial court's determination that this mother would endure a "complete and permanent separation of the parent from the child." Cf. La. Ch. C. art. 608.

This is a case involving a petition to terminate the parental rights of J.G.S., the biological mother of the child "T.A.G.," D.O.B. 07/18/14. These proceedings started as a "private" matter brought by one J.C., the temporary custodian of T.A.G., who had formerly been a beloved and trusted confidante of the mother, for whom she had actually babysat in earlier years. The landscape of caring for T.A.G. by J.C. quickly changed from the time that J.G.S. desperately needed J.C.'s help as a trusted confidante, into J.C.'s becoming an adversary.

On 06/06/16, J.G.S. temporarily, so she thought, delivered T.A.G. to J.C. Then, only days later, J.C., represented by her private attorney, formally requested an order of temporary custody which was granted to J.C. on 06/29/16. During this period, J.G.S., undergoing treatment for addiction and without funds, was informed of a "hearing officer conference of 10/28/16." J.G.S., however, was not present at this hearing, participating-without counsel-only by telephone. This "hearing" would set in motion a number of hurdles for J.G.S., one of which was her well-founded, later and often emphasized by J.C., perception that J.C. was in charge of what J.G.S. could or could not do with her child. Many of these were impossible for the mother to have accomplished. As just one example, the supposed allowable visitation that the mother could have, according to the edict of a hearing officer, was to have been in Morehouse Parish only; however, J.C. concocted a location, insisting that the mother use that location, self-designated by J.C. without court authority, in another parish.

In financial straits, overcoming some time in prison and drug rehabilitation, the mother had some difficulty in forwarding cash payments. She did, however, along with supportive and involved extended family, make minor contributions for the support and material happiness of T.A.G. Still being concerned, the record reflects that J.G.S. offered to make payments to J.C. which were rejected. During the interim, however, the record reflects that T.A.G. was in fact receiving Social Security disability insurance ("SSDI") assistance from the government in the amount of $ 795 per month ($ 9,540 per year). T.A.G. was not in a destitute situation.

The record clearly shows two separate deficiencies, bordering on being violative of due process, concerning counsel. The first, as alluded to, was that at no time during the hearing officer process, which set in motion the scenario of who was "in control," i.e. J.C., did J.G.S. have counsel, nor was she able to afford to hire an attorney. There was then another questionable development in this case.

The initial "temporary custody" proceeding took on the powerful, draconian aura of a petition to terminate the parental rights of J.G.S. concerning her daughter. When this occurred, the record shows that the theretofore private attorney was appointed as a special assistant district attorney to represent the "State of Louisiana" in the termination proceeding. This was accomplished pursuant to statutory authority. However, at this juncture it defies logic to conclude that the representative of the government was in any position in which he would have shed his loyalty to J.C. Counsel for the state did then at that time possess dual loyalties, not in accord with a statement suggesting a relative position of neutrality as required by the U.S. Supreme Court in Lassiter , 452 U.S. at 27-28, 31, 101 S.Ct. at 2160, 2162, 68 L.Ed.2d 640 :

A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore a commanding one. Since the State has an urgent interest in the welfare of the child, it shares the parent's interest in an accurate and just decision .... the complexity of the proceeding and the incapacity of the uncounseled parent could be ... great enough to make the risk of an erroneous deprivation of the parent's rights insupportably high .

This "dual loyalty" of J.C.'s counsel is reflected-as throughout the record it is shown-in that J.C. had the specific the goal of adopting T.A.G. This could not have been accomplished without the termination of parental rights, thus causing T.A.G. to be "eligible" for adoption by J.C.

The termination of parenthood proceedings began, with concomitant questions of valid service of process upon J.G.S., without J.G.S.'s having counsel. Commendably, the trial judge did in fact correct that situation, noting that the mother did in fact and legally have the right to counsel. This was, however, at no fault of the trial court, well after J.C. had de facto and perceived de jure authority to dictate to the mother how, where, when and why she could visit the child, and under what circumstances, if any, she would accept monetary payments from J.G.S. for the support of T.A.G. The deprivation of the mother's rights at the beginning of the proceedings not only tainted the proceedings but assisted in creating the factual basis for the court's decision. Under the totality of the circumstances, it is apparent to this writer that the mother was "set up" for a fall vis-à-vis both her opportunity to visit as well as her payment of monetary support. No amount of common sense is overused in concluding why J.C., with an ultimate goal of adopting T.A.G., secreted her motive from the mother. It is unknown from the record if J.C. was told not to accept money from J.G.S., but the expiration of time in J.G.S.'s doing so was operating in favor of J.C.'s goal.

Ultimately, the trial court found that termination of parental rights was to be the decree. In so doing, the trial court committed error in finding that J.G.S. had violated the arithmetic considerations of six months non-compliance with La. Ch. C. art. 1015(5)(b) and (c).

As to the arithmetic issues of non-support and visitation, the jurisprudence has reflected a common-sense cognizance of multiple reasons and/or exceptions that exist to excuse or ameliorate rigid compliance with these requirements. See , State ex rel. B.H. v. A.H. , 42,864 (La. App. 2 Cir. 10/24/07), 968 So.2d 881 ; State in Interest of K.D. , 586 So.2d 692 (La. App. 2 Cir. 1991) ; In re H.R.K. , 07-1310 (La. App. 3 Cir. 03/26/08), 980 So.2d 200 ; State in Interest of P.R.B. , 622 So.2d 716 (La. App. 5 Cir. 1993) ; State in Interest of DLB , 612 So.2d 871 (La. App. 4 Cir. 1993).

The trial court was also charged with the requirement of having to find that the termination was in the best interest of the child. In doing so, the court stated:

I also find that termination of parental rights is in the best interest of this child. She is well cared for in a stable environment with someone who makes the effort to ensure that she gets all the therapy and treatment that she needs and is maintained on a regular schedule.

Significantly, the trial court never made a finding that J.G.S. was incapable of providing that same stable environment .

Simply because one person may provide a wholesome atmosphere to a child, with the result being a permanent termination of parental rights, does not mean that the mother cannot. The record does show that J.G.S., the mother, has improved her life, picked herself up, remarried and is capable of providing for T.A.G. The finding of "best interest" should not be based upon a "beauty contest" simply because someone is perhaps more capable than a parent.

It is only after the trial court has found that the alleged grounds set forth in any paragraph of La. Ch. C. art. 1015 have been proven by the evidentiary standards of La. Ch. C. art. 1035 (in this case, subsection (A) of article 1035 required proof by clear and convincing evidence of each element of the ground(s) for termination) that the court is to determine whether termination is in the best interests of the child. La. Ch. C. art. 1037(B) ; State in Interest of A.L.D. , 18-1271 (La. 01/30/19), 263 So.3d 860 ; State ex rel. L.B. v. G.B.B. , 02-1715 (La. 12/04/02), 831 So.2d 918 ; State in Interest of T.M.P. , 13-1006 (La. App. 4 Cir. 10/23/13), 126 So.3d 741. As noted by this Court in State in Interest of D.G. v. Danny G. , 30,196 (La. App. 2 Cir. 10/29/97), 702 So.2d 43, 45, "the law poses the best interest determination as a separate consideration and envisions examination of any special conditions or exceptional circumstances that may exist." Furthermore, "[t]he trial court's determination that an element of a statutory subsection for the termination of parental rights has been proven does not inherently satisfy the additional requirement that termination be in the best interest of the child." State in Interest of T.M.P., supra at 757, citing State ex rel. I.D.H. v. Thomas , 34,962 (La. App. 2 Cir. 05/09/01), 787 So.2d 526, 529.

The initial-controlling paragraph-of La. Ch. C. art. 1015 states:

Abandonment of the child by placing him in the physical custody of a non-parent ... or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility ...

The entirety of the evidence in the record, when taken as a whole, shows that: the mother, J.G.S., had problems which she corrected; she was duped into trusting her primary opponent, which was not the State of Louisiana, but J.C.; there were jurisprudentially acceptable explanations for T.A.G.'s mother's non-compliance with or variance from the arithmetic provisions of La. Ch. C. art. 1015 ; there was no basis for concluding that J.G.S. intended to permanently avoid parental responsibility; and, there was, at best, an incomplete and thus erroneous finding of what is in the "best interest" of T.A.G.

Under the facts of this case, both from evidentiary and due process perspectives, forever and irrevocably terminating the parental rights of the mother J.G.S. to her child T.A.G., affirming the trial court is inappropriate.

The finding of the trial court should be reversed.

      La. Ch. C. art. 1015(4)(k) states: "The parent's parental rights to one or more of the child's siblings have been terminated due to neglect or abuse, prior attempts to rehabilitate the parent have been unsuccessful, and the court has determined pursuant to Article 672.1, that current attempts to reunite the family are not required."

      La. Ch. C. art. 1015(4) was redesignated La. Ch. C. art. 1015(5) pursuant to 2016 La. Acts No. 608 § 1.

      There is NOTHING in the appellate record reflecting what was testified to or specifically designated by the hearing officer or any witness at this hearing officer conference.

      The majority has chosen not to discuss the dubious finding of the trial court as to failure to visit. The majority might find this unnecessary based on the emphasis on La. Ch. C. art. 1015(5). The writer, however, concludes that the provision of subsection La. Ch. C. art. 1015(5)(b) was also not proven by the elevated standard of proof of clear and convincing evidence.

      There is indication from the trial court's reasons that J.C. was somehow unwilling or unable to promote contact with the mother's family, which certainly was not in the "best interest" of the child.
      I do make a finding for the record the testimony is abundantly clear that contact with Ms. Hunter [maternal grandmother] on the maternal side of the family is extremely important to this child... I encourage Ms. J.C. to re-open the lines of communication with Ms. Hunter so that those visits can take place. [Record page 133.]

      The writer also observes that there are (or should be) only two private interests involved in an involuntary termination of parental rights case: those of the parent and those of the child. See, State ex rel. H.A.B. , 10-1111 (La. 10/19/10), 49 So.3d 345, 366,


author: Judge Tiffany G. Chase

text:
    Joseph MCCLOSKEY, Matthew Squyres and Allen Roberts v. HIGMAN BARGE LINES, INC., et al.
    NO. 2018-CA-1008
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 2019
    Steven J. Rando, LAW OFFICE OF STEVEN J. RANDO, L.L.C., 3530 Canal Street, New Orleans, LA 70119, Colin J. Lagarde, LAGARDE LAW, L.L.C, 3530 Canal Street, New Orleans, LA 70119, Richard Charles Stanley, Eva J. Dossier, STANLEY REUTER ROSS THORNTON & ALFORD, L.L.C., 909 Poydras Street, Suite 2500, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE
    Patrick J. McShane, Lara N. Dicristina, R. Patrick Ray, FRILOT, L.L.C, 1100 Poydras Street, Suite 3700, New Orleans, LA 70163--3700, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

This matter involves a dispute over damages awarded as a result of a personal injury incident. Certain Underwriters at Lloyd's of London (hereinafter "Lloyd's of London"), the excess insurer, challenges the amount of damages the trial court awarded for past medical expenses. The plaintiffs answer on appeal, contesting certain elements of the trial court's award. After consideration of the record before this Court, and the applicable law, we affirm the judgment of the trial court.

Facts and Procedural History

Joseph McCloskey, Matthew Squyres and Allen Roberts were involved in an automobile accident on July 9, 2014. While traveling westbound on Interstate 10, in St. Bernard Parish, plaintiffs' vehicle was rear ended by a truck owned by Higman Barge Lines, Inc. After granting plaintiffs' motion for partial summary judgment on the issue of liability, the trial court reserved the issues of causation and damages for trial.

A five day bench trial began on December 11, 2017. On the last day of trial, Diagnostic Management Affiliates, Preferred Provider Organization, LLC (hereinafter "DMA"), a non-party, filed a motion to quash a trial subpoena issued to DMA. In the alternative, DMA sought a protective order. Specifically, DMA requested that the trial court preclude testimony and production of documentation, sought by Lloyd's of London, regarding payments between DMA and its contracted physicians. A hearing was held January 16, 2018, on the motion to quash. By judgment dated January 31, 2018, the trial court granted DMA's motion finding testimony and production of documentation from DMA is precluded by the collateral source rule.

After taking the merits of the matter under advisement, the trial court entered judgment on August 2, 2018, in favor of plaintiffs. Specifically, the trial court's award is as follows:

Mr. McCloskey, Jr.

Past medical expenses .....................$ 462,296.33
Future medical expenses ..................$ 453,281.00
Past wages .........................$ 33,381.00
Future wages .........................$ 156,245.00
General damages .........................$ 1,600,000.00

Mr. Squyres

Past medical expenses ......................$ 170,641.56
Future medical expenses ...................$ 35,000.00
Past wages .........................$ 0
Future wages .........................$ 0
General damages .........................$ 350,000.00

Mr. Roberts

Past medical expenses ......................$ 274,284.05
Future medical expenses ...................$ 189,546.00
Past wages .........................$ 57,732.78
Future wages .........................$ 169,688.07
General damages .........................$ 500,000.00

Lloyd's of London appealed the trial court's judgment. Plaintiffs subsequently filed an answer to the appeal.

Lloyd's of London presents two assignments of error: (1) the trial court improperly granted DMA's motion to quash the trial subpoena and subpoena duces tecum, thus committed legal error by not allowing Lloyd's of London to call a DMA representative as a witness at trial; and (2) the trial court erred in awarding Mr. McCloskey future medical expenses for pain management because it was not supported by the evidence.

Jurisdictional Issue

As a threshold matter, we are tasked with determining whether the trial court's judgment of January 31, 2018, granting DMA's motion to quash is properly before this Court. DMA filed its motion to quash subpoena, or in the alternative motion for protective order, on December 15, 2017, the last day of the five day bench trial. At the conclusion of trial, the trial court left the record open and set a hearing on the motion to quash for January 16, 2018. On January 31, 2018, the trial court issued a judgment granting the motion, finding the information sought from DMA is precluded by the collateral source rule. No judicial review was sought from this judgment.

Lloyd's of London maintains that the judgment is an interlocutory judgment, not immediately appealable, and can be raised in its appeal. Conversely, plaintiffs argue that Lloyd's of London failed to timely request review of the judgment on DMA's motion to quash and as such, waived the right to seek review of the January 31, 2018 judgment.

The determination of discovery questions as to a non-party in the case is a final appealable judgment. St. Bernard Port , Harbor & Terminal Dist. v. Violet Dock Port, Inc., L.L.C. , 2014-0286 (La.App. 4 Cir. 8/27/14), 147 So.3d 1266, n.1 ; See also, Larriviere v. Howard , 2000-186, p. 3 (La.App. 3 Cir. 10/11/00), 771 So.2d 747, 750 (citing R.J. Gallagher Co. v. Lent, Inc. , 361 So.2d 1231 (La.App. 1 Cir. 1978) ); La. C.C.P. arts. 1841, 2083(A). As such, the January 31, 2018 judgment in favor of DMA and against the Defendants was subject to the time delays set forth in La. C.C.P. arts. 2087, 2123. The Defendants motion for suspensive appeal was filed on September 12, 2018. Accordingly, the appeal of the January 31, 2018 judgment is untimely and is therefore dismissed.

Discussion

Past Medical Expenses

Lloyd's of London challenges whether the amounts billed by DMA is a recoverable element of plaintiffs' damages award. We answer that inquiry in the affirmative.

An award of special damages is subject to a manifest error standard of review. "Special damages are those which...may be determined with relative certainty, including medical expenses and lost wages." Kaiser v. Hardin , 2006-2092, p. 11 (La. 4/11/07), 953 So.2d 802, 810. The appellate court must first conclude that no reasonable factual basis exists for the trial court's award and secondly, that the award is clearly wrong. Kaiser , 2006-2092, p. 12, 953 So.2d at 810.

The trial court awarded plaintiffs' past medical expenses. These expenses included the amount billed by DMA for plaintiffs' past medical procedures. Plaintiffs must prove that their injuries and associated treatments were the result of the accident at issue in order to collect past medical expenses. Levy v. Lewis , 2016-0551, p. 16 (La.App. 4 Cir. 5/17/17), 219 So.3d 1150, 1160. "Absent bad faith, 'it is error for the trier of fact to fail to award the full amount of medical expenses that are proven by a preponderance of the evidence that were incurred as a result of an accident.' " Watson v. Hicks , 2015-0046, p. 26 (La.App. 4 Cir. 5/27/15), 172 So.3d 655, 675 (quoting Earls v. McDowell , 2007-2017, p. 8 (La.App. 5 Cir. 5/15/07), 960 So.2d 242, 248 ).

The trial court found the medical expenses incurred by plaintiffs resulted from injuries sustained in the accident at issue. Each plaintiffs' treating physician testified regarding treatment and procedures performed. Additionally, each plaintiffs'

medical expenses were itemized and bills entered into evidence. This itemization included the medical procedures which were funded by DMA. Applying a manifest error standard of review, we find a reasonable factual basis exists for the trial court's award. Given that the medical procedures and treatments of each plaintiff was the result of injuries sustained in the accident, plaintiffs are entitled to recover the full amount of medical expenses associated with such procedures and treatments. We find no merit to this assignment of error.

Pain Management Medical Expenses

Lloyd's of London asserts that the trial court erred in awarding Mr. McCloskey damages for future medical expenses associated with his pain management treatment. Lloyd's of London maintains that future pain management was not warranted because Mr. McCloskey was discharged from his pain management doctor as a result of testing positive for cocaine. We find this assignment of error lacks merit.

The trial court found credible the testimony of Mr. McCloskey's treating physician, Dr. Everett Robert (hereinafter "Dr. Robert"), which established future pain management was required as a result of surgeries Mr. McCloskey received relative to the July 9, 2014 accident. Dr. Robert testified that he recommends Mr. McCloskey see a pain specialist four times a year for the remainder of his life. Dr. Robert also noted that Mr. McCloskey's discharge from a pain management clinic was irrelevant. He maintained that he continues to recommend Mr. McCloskey receive pain management treatment. Dr. Robert recommended future pain management treatment irrespective of Mr. McCloskey's drug use. The trial court agreed with Dr. Robert's recommendation, stating that Mr. McCloskey's positive drug test does not preclude him from being treated by another physician once he is no longer using drugs. "[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Stobart v. State through Dept't of Transp. & Dev. , 617 So.2d 880, 882 (La. 1993).

Based upon the record before this Court, we find the trial court's award of damages for pain management was reasonably supported by the testimony. The trial court's conclusion was reasonable and will not be disturbed upon review. We find no merit to this assignment of error.

Plaintiffs' Answer to Appeal

Through their answer to Lloyd's of London's appeal, the plaintiffs seek review of the trial court's award for lost wages, prescription medications and general damages. We will discuss each in turn.

Lost Wages

Plaintiffs maintain the trial court erred in not considering each of their testimony as evidence of cash payments received as part of the trial court's lost wage calculation. The trial court found insufficient evidence presented to establish that cash payments from plaintiffs' employer should be included in the base pay calculation.

The manifest error standard of review is consistently applied by this Court when reviewing an award for lost wages. Ploger v. Reese , 2001-2243, p. 13 (La.App. 4 Cir. 5/22/02), 819 So.2d 1114, 1121. "Lost earnings need not be proven in every case with mathematical certainty; however, the law requires such proof as reasonably establishes the claim. This may consist of the plaintiff's own testimony." Id. , p. 10, 819 So.2d at 1120 (citations omitted). To support their claims for lost wages plaintiffs submitted payroll documentation from their employer, Duxworth Roofing and Sheet Metal (hereinafter "Duxworth"), as well as federal tax documentation. Plaintiffs also testified that a portion of their earnings was received in cash payments. They testified that on payday, every week, employees would pick up a check with an envelope containing cash attached to the check. The trial court considered this testimony in reaching its conclusions as to each individuals lost wage claim. We now consider the merits of each plaintiffs claim.

Mr. McCloskey and Mr. Roberts lost wage claims

In its reasons for judgment, the trial court found that: (1) Mr. McCloskey did not establish that he received cash payments from Duxworth; and (2) Mr. Roberts did not provide reliable verification of the likely cash payments he received from Duxworth. "A trial court has broad discretion in assessing awards for lost earnings, but there must be a factual basis in the record for the award." Burch v. SMG, Schindler Elevator Corp. , 2014-1356, p. 13 (La.App. 4 Cir. 4/7/16), 191 So.3d 652, 662. The record supports a factual basis for the trial court's award and its determination of lack of evidentiary support for Mr. McCloskey and Mr. Roberts' claims.

Mr. McCloskey testified that he was paid $700.00 per week. He maintained that $500.00 of that was paid by check, as represented by Duxworth's payroll documentation, and the remainder was received in cash. Mr. Roberts testified that he was making $120.00 per day working at Duxworth, a portion of which was paid in cash. Additionally, he testified that he was making between $150.00 and $200.00 on the weekends at a second job as an oyster shucker. He claimed that credit card tips were electronically deposited and that cash tips were pocketed. Lloyd's of London argued that the additional money sought by Mr. Roberts was not represented on payroll or federal tax documentation and that it was money given to employees for expenses, not income. Mr. McCloskey and Mr. Roberts also offered the testimony of Donovan Squyres as corroboration that Duxworth paid a portion of its employee earnings in cash. Donovan Squyres was Mr. McCloskey and Mr. Roberts' supervisor and had knowledge of Duxworth's pay day procedure. Donovan Squyres testified that Duxworth would give employees a weekly per diem in addition to regular earnings because they were staying on location at the job site. However, an official representative of Duxworth did not testify at trial, although a subpoena was issued, and no official testimony established that the cash was additional income Duxworth provided to its employees. The trial court, while acknowledging the likelihood that Duxworth made cash payments to its employees, noted that the cash payments could not be sufficiently verified.

The trial court awarded lost wages to Mr. McCloskey and Mr. Roberts, but refused to include cash payments in its calculations. It is not the role of this Court to reverse the factual findings of a trial court unless it is determined that a reasonable basis does not exist for the trial court's factual determinations and that the trial court's finding was clearly wrong. Waters v. Oliver , 2016-1262, p. 6 (La.App. 4 Cir. 6/22/17), 223 So.3d 37, 43. The trial court reviewed all the evidence and chose not to include cash payments as income in the lost wage calculation. While acknowledging that plaintiffs probably received cash payments, the trial court found insufficient evidence to include cash payments in its award. The record before this Court demonstrates that the trial court's findings are reasonably supported. We therefore do not find that the trial court's ruling was manifestly erroneous. We find no merit to this assignment of error.

Mr. Squyres lost wage claim

Mr. Squyres argues the trial court erred in not awarding him any lost wages. Like the other plaintiffs, Mr. Squyres submitted documentation showing previous income earned. He testified that he worked at Duxworth in 2003, 2004, 2009 and 2014. In order to recover for lost wages, a plaintiff is tasked with proving that he would have been earning wages if not for the accident subject of the litigation. Burch , 2014-1356, p. 13, 191 So.3d at 662.

Mr. Squyres offered his own testimony to support his claim for lost wages. Although a plaintiff's own testimony can be used to establish a claim for lost wages, the trial court is allowed broad discretion is assessing awards for lost earnings. See Driscoll v. Stucker , 2004-0589, p. 29 (La. 1/19/05), 893 So.2d 32, 53. While Mr. Squyres presented previous income documentation, the inconsistencies and gaps in years of income fail to adequately attribute loss of earnings to the July 9, 2014 accident. Additionally, as noted by the trial court in its reasons for judgment, Mr. Squyres did not offer testimony from an economist regarding his loss of earnings. The record demonstrates that Mr. Squyres did not establish that he would have been earning wages if not for the accident. As such, we find a reasonable basis exists for the trial court's determination. We find no merit to this assignment of error.

Prescription Medication

Mr. McCloskey and Mr. Roberts argue that the trial court abused its discretion by using the cost of generic medication, as opposed to name brand medication, when calculating the award for future medical expenses.

A trial court is given great discretion in assessing a quantum associated with an award of general and special damages. Guillory v. Lee , 2009-0075, p. 14 (La. 6/26/09), 16 So.3d 1104, 1116. Dr. Stokes' reports contained amounts for both generic and name brand medications for the future prescription needs of Mr. McCloskey and Mr. Roberts. At trial, Dr. Stokes submitted cost for both generic and brand name medications. He explained that cost is contingent upon the medication a physician prescribes. He further testified that his reports include cost for both- generic and name brand- because the patents for name brand medications expire over time, resulting in a reduction in cost. Additionally, Dr. Stokes opined that neither of plaintiffs' treating physicians indicated that name brand medications were required. The trial court was not obligated to base its award for future cost of prescriptions on name brand medications. "[T]he appropriate amount of damages, by a trial judge..., is a determination of fact, one entitled to great deference on review." Id. at 1116. The trial court's award for prescription medication was based on factual evidence presented and not clearly wrong. We find no merit to this assignment of error.

General Damages

Lastly, Mr. Roberts seeks review of the trial court's award of $500,000.00 in general damages. He argues that the nature of his injuries warrants a higher award. Mr. Roberts also contends that the trial court improperly relied on older cases to calculate the award, which does not allow for consideration of an increase in cost of living and passage of time.

Prior to questioning the inadequacy or excessiveness of a trial court's general damage award, this Court must first look to the individual circumstances of the current case, not prior awards. Reck v. Stevens , 373 So.2d 498, 501 (La. 1979). "Only after making the finding that [t]he record supports that the lower court abused its much discretion can the appellate court disturb the award...." Id. at 500.

Awards for general damages "are inherently speculative; therefore, the trial court is afforded much discretion, and the appellate court may not disturb the trial court's award unless an articulated analysis of the facts and circumstances of the case reveals an abuse of that discretion." Cline v. Cheema , 2011-1029, p. 15 (La.App. 4 Cir. 2/22/12), 85 So.3d 260, 269 (citing Bouquet v. Wal-Mart Stores,Inc. , 2008-0309, pp. 4-5 (La. 4/4/08), 979 So.2d 456, 459 ). The trial court has abused its discretion if the award is so disproportionate to the injury that it shocks the conscience. Wendel v. Travelers Ins. Co. , 2014-0002, p. 6 (La.App. 4 Cir. 10/8/14), 151 So.3d 828, 834.

A review of the record establishes that the trial court did not abuse its discretion in determining Mr. Roberts' general damages award amount. We do not find that the amount awarded is so low and disproportionate that it shocks the conscience. Mr. Roberts suffered injuries to his shoulder, back, ear and head. In its reasons for judgment, the trial court noted that as a result of the accident, Mr. Roberts would suffer permanent restrictions which would limit the type of work he could perform in the future. The trial court also took into account the testimony of Mr. Roberts' wife regarding the effects of his pain and suffering. Considering the vast discretion afforded to the trial court, and the fact that it took into account all elements associated with Mr. Roberts' injuries, we find no abuse of discretion in the trial court's award of $500,000.00 in general damages. Therefore, no circumstances exist under which to disturb the trial court's award. We find no merit to this assignment of error.

Conclusion

For the reasons stated, we affirm the judgment of the trial court.

AFFIRMED

      For ease of discussion we will refer to the parties by their last name when referencing them individually and as "plaintiffs" when referencing them in the collective.

      The trial court also awarded damages to the fourth plaintiff, Donovan Squyres. However, he reached a post-trial settlement and is not a party on appeal.

      Prior to trial, plaintiffs' entered into a "Gasquet Settlement" with Higman Barge Lines, Inc., the driver and its primary insurance carrier. As such, the total amount awarded to each plaintiff was reduced by the settlement amount. See Gasquet v. Commercial Union Ins. Co. , 391 So.2d 466 (La.App. 4 Cir. 1980).

      The motion to quash was originally fax filed on December 13, 2017.