text:
    Kristen LAURENT v. Ivan S. PREVOST
    Ivan S. Prevost v. Kristen Laurent
    NO. 2018-CA-0126 NO. 2018-CA-0127
    Court of Appeal of Louisiana, Fourth Circuit.
    JULY 11, 2018
    Nicholas J. Hite, THE HITE LAW GROUP, LLC, 701 Loyola Avenue, Suite 403, New Orleans, LA 70113, COUNSEL FOR APPELLEE, MINOR CHILDREN Y.P., A.P., J.P., AND B.P.
    Lakeisha N. Jefferson, JEFFERSON LAW FIRM, APLC, 4238 Poche Court West, New Orleans, LA 70129, AND N. Kim Ngyen, 2439 Manhattan Blvd., Suite 302, Harvey, LA 70058, COUNSEL FOR PLAINTIFF/APPELLANT, IVAN S. PREVOST
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Sandra C. Jenkins, and Judge Dale N. Atkins )
    Judge Terri F. Love Ivan Prevost ("Mr. Prevost") seeks appellate review of the trial court's modification of custody. We conclude, after review of the record, that the trial court was presented with two permissible views of the evidence as to whether use of kneeling as a form of discipline was abusive requiring modification of the interim custody plan. We cannot say the trial court's finding was manifestly erroneous. Similarly, we find the trial court's appointment of counsel for the minor children was not in contravention to La. R.S. 9:345. We do, however, find ordering Mr. Prevost to obtain the services of an outside supervisor, at his expense, in order to exercise visitation with his children to be an abuse of discretion. Accordingly, we amend the trial court's interim judgment to permit Mr. Prevost visitation with his children under the supervision of a family member.
    FACTUAL BACKGROUND AND PROCEDURAL HISTORY
    This appeal arises from a change in custody of four minor children. Plaintiff Mr. Prevost and Kristen Laurent ("Ms. Laurent") were never married but became intimately involved, and as a result four children were born of the relationship: Y.P., J.P., A.P., and B.P.
    In March 2015, Mr. Prevost filed a petition for protection from abuse against Ms. Laurent, in which he alleged that an investigation by the Department of Children and Family Services (DCFS) was launched as a result of B.P. bringing marijuana to school. B.P. had retrieved the marijuana from Ms. Laurent's kitchen table and brought it to school and was demonstrating for other students how to roll it up and smoke it. B.P. allegedly also told other children and the school social worker, Stephanie Anderson ("Ms. Anderson") that there was a large amount of marijuana at Ms. Laurent's home and that he had only brought a small portion to school with him. A temporary restraining order was issued along with an award of temporary custody in favor of Mr. Prevost.
    After a hearing on the petition for protection from abuse, the trial court rendered an interim judgment, which was signed on June 1, 2015. The interim judgment dismissed Mr. Prevost's petition for failure to prove by the appropriate standard the allegations contained in the petition, granted the parties joint custody of the minor children, and limited Ms. Laurent's physical custodial periods with the minor children. When the temporary restraining order was issued in March 2015, Mr. Prevost acted as the de facto domiciliary parent and continued primary physical custody of the minor children based on the June 2015 interim judgment. Ms. Laurent did not appeal the judgment of custody and visitation.
    In December 2015, a hearing was held on Ms. Laurent's rule for contempt against Mr. Prevost. A number of issues were addressed at the hearing including Ms. Laurent's allegations of denial of visitation, denial of telephone communication with the minor children, Mr. Prevost's failure to participate in the custody evaluation, and Ms. Laurent's failure to pay child support. At the hearing, Ms. Laurent also alleged that Mr. Prevost was physically abusive. The trial court, on its own motion, appointed an attorney to represent the minor children. The judgment was signed in January 2016.
    In July 2017, appointed counsel filed an "Ex-Parte Motion for Temporary Protective Order for Minor Children, Temporary Relocation of Minor Domicile, Contempt of Court, and Modification of Physical Custody." The ex-parte motion sought relief pursuant to La. C.C.P. art. 3945, which alleged Mr. Prevost was physically abusive. However, the ex-parte motion did not include specific dates or incidents when the abuse allegedly occurred. Based on various exceptions filed by Mr. Prevost, appointed counsel amended his pleadings to include more specific allegations. In addition, appointed counsel filed a motion for contempt and a motion to request a Watermeier hearing.
    Thereafter, Mr. Prevost filed a "Motion and Order to Terminate and Vacate Ex-Parte Order of Custody, Motion and Order to Strike Petitioner's Verification Affidavit, Rule for Contempt for Failure to Comply with La. C.C.P. art. 3945 and/or Motion and Order for Imposition of Sanctions, Fees, and Costs, Peremptory Exceptions of No Cause of Action and/or No Right of Action and Dilatory Exceptions of Vagueness and Incorporated Memorandum in Support and Rule for Contempt for Failure to Abide by Judgment." He also filed his opposition to the request for a Watermeier hearing and a "Motion and Order for Imposition of Sanctions, Fees and Costs and Dilatory Exceptions of Vagueness" in response to the motion for contempt filed by appointed counsel for the minor children.
    A hearing commenced on all pending matters in September 2017, including the ex-parte motion filed on behalf of the minor children. The trial court granted sole legal custody of the minor children to Ms. Laurent and granted Mr. Prevost liberal supervised visitation with the minor children. Mr. Prevost timely appeals.
    STANDARD OF REVIEW
    "In child custody cases, appellate courts will not disturb an award of custody absent a manifest abuse of discretion in the trial court." Leard v. Schenker , 09-1438, p. 2-3 (La. App. 4 Cir. 3/24/10), 35 So.3d 1152, 1154 (citing La. C.C. art. 134, Revision Comments-1993, Comment (b) ); Bergeron v. Bergeron , 492 So.2d 1193, 1196 (La. 1986) (stating "the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse"). " '[T]he trial court sitting as a trier of fact is in the best position to evaluate the demeanor of the witnesses, and its credibility determinations will not be disturbed on appeal absent manifest error.' " Alfonso v. Cooper , 14-0145, p. 14 (La. App. 4 Cir. 7/16/14), 146 So.3d 796, 805 (quoting Ruiz v. Ruiz , 05-0175, p. 4 (La. App. 5 Cir. 7/26/05), 910 So.2d 443, 445 ).
    When factual findings are based on determinations of the credibility of witnesses, the manifest/clearly wrong standard of review "demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). "[W]here two permissible views of the evidence exist, the fact-finder's choice cannot be manifestly erroneous or clearly wrong." D.M.S. v. I.D.S. , 14-0364, p. 19 (La. App. 4 Cir. 3/4/15), 225 So.3d 1127, 1140.

      The initials of the minor children are used to protect and maintain the privacy of the minor children involved in this proceeding. See Uniform Rules, Courts of Appeal, Rules 5-1 and 5 -2.

      See Watermeier v. Watermeier , 462 So.2d 1272 (La. App. 5th Cir. 1985).

   However, when the trial court commits a legal error, de novo review is required. Evans v. Lungrin , 97-0541, p. 6-7 (La. 2/6/98), 708 So.2d 731, 735. "When such a prejudicial error of law skews the trial court's finding of a material issue and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo ." Id. , 97-0541, p. 7, 708 So.2d at 735 (citation omitted).

Mr. Prevost asserts that the trial court abused its discretion in finding that his actions rose to the level of abuse warranting a change in custody; that the trial court committed legal error when it granted Ms. Laurent custody of the minor children in contravention to Bergeron ; and that the trial court committed legal error when it appointed an attorney to represent the minor children in contravention of the law.

BERGERON STANDARD

Since the second assigned error concerns the burden of proof relating to the modification of a contested custody judgment, we address this assigned error first. Mr. Prevost contends that the June 2015 judgment was a considered decree and therefore could not be modified unless the heavy burden imposed in Bergeron was met. The Louisiana Supreme Court stated:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Bergeron , 492 So.2d at 1200.

Counsel for the minor children submits that the June 2015 judgment is not subject to the heightened requirements of Bergeron because the judgment is not a considered decree. Counsel argues that the record is silent as to whether any evidence was provided relative to parental fitness and relies on a judgment drafted by Mr. Prevost's counsel and the handwritten note from the trial court thereon, which counsel claims demonstrates that the parties had a stipulated agreement. Although we find this argument meritless , our analysis does not extend that far because the June 2015 judgment was not a decree of permanent custody.

The June 2015 judgment is not subject to Bergeron standards because it was an interim custody plan, and Bergeron only applies to a "considered decree of permanent custody." Id. Therefore, the burden of proof in this case requires that the party seeking a change in the custody arrangement prove: "1) a change in circumstances affecting the welfare of the [child] had occurred since the original decree; and 2) the proposed modification is in the best interests of the [child]." Cerwonka v. Baker , 06-856, p. 6 (La. App. 3 Cir. 11/2/06), 942 So.2d 747, 752 (quoting Aucoin v. Aucoin , 02-0756, p. 5 (La. App. 3 Cir. 12/30/02), 834 So.2d 1245 ).

MODIFICATION HEARING

At the December 2016 hearing, the trial court heard testimony from each party, numerous witnesses, and the minor children via in camera court interviews.

Mr. Prevost testified that he never punched, hit, or grabbed the children or threatened them with physical violence. He was asked whether he had ever caused any of the minor children to kneel on concrete for extended periods of time. He testified that the longest period of time that he ever made the children kneel was 30 minutes. Mr. Prevost explained that he made the children kneel as a form of discipline and as an alternative to spanking. He stated that he found kneeling to be more effective than spanking. Mr. Prevost testified that over the course of the two years that he had primary custody, the minor children were made to kneel about 15 times.

At the time Mr. Prevost became the de facto domiciliary parent and gained primary physical custody of the children, the evidence shows that the children were exhibiting behavioral problems at school and that the youngest child, B.P., brought marijuana to school that he retrieved from Ms. Laurent's kitchen table. Mr. Prevost produced a number of witnesses at trial, including several teachers and administrators from the minor children's school, who provided the following testimony regarding their interactions and observations of the Prevost children.

Linda Dennis, Mr. Prevost's hired nanny for the minor children, testified that she would watch the children five days a week, Saturday through Wednesday. During her employment, she testified that she never observed Mr. Prevost hit, punch, choke, or drag the children, and she never observed any bruising on the children. Ms. Dennis was also questioned about the type of discipline Mr. Prevost implemented. She stated that Mr. Prevost would always talk to the minor children, and that she had witnessed Mr. Prevost making the children kneel. She testified that "[i]f they did something that they had no business doing, then he would make them get down on their knees." Ms. Dennis testified that on one occasion, after Mr. Prevost had the minor children kneel, she told the boys they could stop after 20 minutes. At trial, she stated that she never saw Mr. Prevost spank the children and that she would rather the boys kneel as a form of discipline than for them to be spanked with a belt.

Kermit Smith, the coach at the minor children's school, testified that he taught all of the minor children during the 2015/2016 and 2016/2017 school years and that he never witnessed any bruising on their bodies when they attended his class in their physical education uniforms. Their physical education teacher Toby Garner also testified that he never saw bruising on the children, nor had the children expressed to him any allegations of abuse. Fourth grade teacher Stacy Clayton taught three of the four children, as did teacher Trynitha Fulton, who both testified to observing no bruising on the children. Ms. Clayton stated that the children did not express concerns about being physically abused, nor did she witness either parent being violent with them.

Jennifer Kagan, the school counselor, also testified that she did not observe any bruising on the children. She indicated that in the past two years, since the children had been in their father's care, she noticed the children's behavior and grades improved. Ms. Kagan classified Mr. Prevost as a "very involved" parent and that she never saw signs of fear or apprehension by the minor children when spending time with their father. Based on her experience and background, Ms. Kagan testified that children who are physically abused are typically "very withdrawn" or aggressive. Children who are physically abused, she stated, are fearful to go home, back away from friends, and their grades drop. While it is possible that an abused child's grades may improve out of fear, Ms. Kagan testified that such a situation does not occur often. Ms. Kagan also testified that based on her interactions with the minor children, she believed J.P. would have revealed to her if he was being physically abused. She further stated that she would not attribute the improvement of the minor children's grades to abuse.

Dean of Students Justin Legett testified that when the minor children were younger they would act out, but that while the children were living with Mr. Prevost, he noticed improvement in the children's behavior. Mr. Legett indicated that in the past when he had to call Mr. Prevost to come to the school because one of the children was acting out, he never witnessed Mr. Prevost acting violently or aggressively with the children. Mr. Legett testified that he is "pretty close" with all four of the minor children and that if either parent was physically abusive, he believed they would have told him. Mr. Legett stated that "if they are having a bad day, they'll just come and talk to me." He testified to having never seen any bruising or injuries. He stated that the children never expressed concern about the discipline they received at home with Mr. Prevost or indicated they were fearful of their father, or fearful for him to be called to the school.

Stephanie Anderson, the school's social worker, testified at trial. She stated that she holds a Bachelor's Degree in Psychology and a Master's Degree in Social Work. She testified that since the children began to live with Mr. Prevost, the children's classroom behavior had improved, and they were not pulled out of the classroom as much. She stated that while in Mr. Prevost's care, the children were more disciplined, "more relaxed then [sic] when they're with mom."

Ms. Anderson testified that she receives annual training in handling situations of physical abuse of a child. She indicated that she had not seen any bruising on any of the Prevost children, noting that she would have noticed signs of physical abuse because the minor children have "very light" complexions. Ms. Anderson testified that she would be surprised if she learned that the children were abused because she saw no visible or emotional signs of abuse. She stated that the children were very friendly and very well-mannered, and she believed that the children would have told her and the school counselor Ms. Kagan first, if they thought they were in danger. She testified that B.P. told her everything regarding the incident when he brought marijuana to school. She indicated that Y.P. and B.P. would "for sure" disclose to her if they were abused. She further indicated that J.P. and A.P. would likely tell Ms. Kagan if they were being abused because they were close with her.

At trial, counsel for the minor children presented the testimony of Ms. Laurent and the in camera interviews of the minor children. Ms. Laurent was asked whether during the time the minor children were living with Mr. Prevost if she ever saw injuries suffered by the children. She testified that a couple of times when she was exercising visitation, she "would catch a bruise or I'd see something on them." She clarified that more often she would become aware of incidents that caused bruising when she would visit the children at school. She "didn't always physically see the bruising...because [the minor children] didn't feel comfortable disclosing that kind of stuff in front of the teachers." Ms. Laurent testified she saw injuries on the children three or four times a month. She testified that she spoke with the school principal and called DCFS regarding the injuries she observed. However, the principal did not testify at trial and evidence of a DCFS report mentioning any of the injuries or incidents Ms. Laurent testified to reporting was also not presented at trial.

Other than reporting this information to DCFS and the school principal, Ms. Laurent testified that she never addressed her concerns or the injuries she saw with Mr. Prevost. She further stated that she had brief conversations with two or three "other teachers" but she never went into detail because she did not trust "all those people at the school." Ms. Laurent was also asked if she ever sought medical attention for the minor children as a result of the bruising she saw. She responded in the negative. Ms. Laurent testified that her children expressed a fear of her disclosing the allegations of abuse "almost constantly." No evidence or testimony was presented regarding Mr. Laurent's home conditions since the children were removed in 2015.

The paramount consideration in any child custody determination is the best interest of the child. La. C.C. art. 131. As the moving party, appointed counsel on behalf of the minor children had the burden to show there was a change in circumstances affecting the welfare of the Prevost children and that a modification was in the best interest of the children. After appointed counsel met with the minor children, counsel filed a pleading with the trial court seeking modification of custody plan that made allegations of abuse. In its oral reasons, the trial court based its decision to modify custody upon a finding that Mr. Prevost's use of kneeling as a form of discipline was abusive.

The record reflects that when the children were removed from Ms. Laurent's home, the minor children were exhibiting behavioral issues at school. The behavioral issues precipitated the children's removal from the classroom and the police and DCFS to become involved. The minor children were originally moved from Ms. Laurent's physical custody after her parental fitness was questioned as a result of one of the minor children bringing marijuana to school that he retrieved from Ms. Laurent's kitchen table. Upon Mr. Prevost obtaining primary custody, the school witnessed marked improvement in all four children's behavior and grades, which they attributed to the structure and discipline Mr. Prevost provided. The trial court found the children's behavior and grades improved since living with their father.

The record also reflects that the minor children expressed to the trial judge a desire to reside with Ms. Laurent full-time. The trial court reasoned that this desire is likely based on the fact that it is the household in which they are "the freest." However, the trial court noted that this consideration is "not always what is best for the children."

Pursuant to La. C.C. art. 228, "[a] child shall obey his parents in all matters not contrary to law or good morals. Parents have the right and obligation to correct and discipline the child in a reasonable manner." The trial court recognized that Mr. Prevost was exercising his right to correct and discipline his children. Additionally, the trial court "believe[d] that there ha[d] been a positive effect" and that "it would be a disservice to the children if they did not have contact with their father." Nevertheless, the trial court reasoned that the frequency of the kneeling was greater than Mr. Prevost testified to, but not as frequent as the children stated. The trial court ultimately found the repeated use of kneeling, as a form of discipline, abusive.

After review of the record and the transcripts of the Watermeier hearing, we find the trial judge was presented with two permissible views concerning whether Mr. Prevost's use of kneeling as a form of discipline was abusive to the extent it was affecting the welfare of the children so as to require a modification of custody. As it relates to the issue of kneeling, we cannot say the trial court's findings were manifestly erroneous. Melerine v. O'Connor , 13-1073, p. 3-4 (La. App. 4 Cir. 2/26/14), 135 So.3d 1198, 1202 (citing Stobart v. State, Dept. of Transp. and Development , 617 So.2d 880, 882-83 (La.1993). However, we find the trial court's ordering Mr. Prevost to obtain, at his expense, the services of an outside supervisor in order to exercise visitation with his children to be an abuse of discretion. We find it is in the best interests of the children that Mr. Prevost be able to visit with his children as soon as possible under the supervision of a family member.

APPOINTMENT OF COUNSEL

Finally, Mr. Prevost contends the trial court committed legal error in its appointment of an attorney for the minor children. He claims that the appointment was made in contravention to La. R.S. 9:345 because the trial court failed to hold a contradictory hearing on the issue and take into account the parties' ability to pay for the representation. The appointment of counsel was made on the court's own motion concurrently with a contradictory hearing. The trial court cited as its basis for the appointment its concern regarding the delayed custody evaluation and Ms. Laurent's implications of abuse toward the minor children. Each party had an opportunity to testify or present argument relative to the appointment. However, neither party objected to the appointment at the hearing or at any subsequent time during the proceedings in this case. Moreover, the record shows the trial court discussed the various steps it took to secure counsel for as little cost as possible for the parties. Therefore, we find no merit to this assignment of error.

DECREE

We find the trial court was presented with two permissible views of the evidence concerning the use of kneeling as a form of discipline. Based on the record before us, we cannot say the trial court's findings were manifestly erroneous. We also find the trial court complied with La. R.S. 9:345 in its appointment of counsel for the minor children. Therefore, we affirm the portion of trial court's judgment that awarded temporary sole custody of the minor children to Ms. Laurent. However, the trial court abused its discretion in ordering Mr. Prevost to obtain the services of an outside supervisor, at his expense, in order to exercise visitation with his children. We find visitation supervised by a family member to be in the best interests of the children.

The matter is remanded to the trial court to conduct a status hearing within 30 days to address the following: 1) the custody evaluation; and 2) Mr. Prevost's supervised visitation with the minor children. Accordingly, we affirm as amended and remand with instructions.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS

LEDET, J., CONCURRING IN PART WITH REASONS

JENKINS, J., CONCURS IN PART, DISSENTS IN PART

ATKINS, J., CONCURS IN PART FOR REASONS ASSIGNED BY JUDGE LEDET

LEDET, J., CONCURRING IN PART WITH REASONS

The narrow custody issue before the trial court on September 12, 2017, was whether Ms. Laurent should continue to have temporary, physical custody of the children, which she obtained ex parte pursuant to La. C.C.P. art. 3945. I concur in the majority's decision affirming the trial court's judgment ordering a change in custody to Ms. Laurent and awarding supervised visitation to Mr. Prevost. The trial court's judgment was based on its factual finding that Mr. Prevost abused the minor children; the trial court's factual finding is supported by the record on appeal. In all other respects, I agree with the majority's decision.

Accordingly, I respectfully concur in part.

JENKINS, J., CONCURS IN PART, DISSENTS IN PART

I concur with the majority's finding that the trial court committed no legal error in appointing an attorney for the minor children pursuant to La. R.S. 9:345.

I concur for the reasons assigned by Judge Ledet with respect to the trial court's factual finding that Mr. Prevost abused his minor children.

I dissent from the majority's decision to affirm the trial court's order granting Mr. Prevost "liberal supervised visitation with the minor children at least every other weekend until such time as he demonstrates satisfactory completion of a parenting class where he is to learn techniques of discipline."

La. R.S. 9:341 governs restrictions on visitation in child custody matters:

A. Whenever the court finds by a preponderance of the evidence that a parent has subjected his or her child to physical abuse, or sexual abuse or exploitation, or has permitted such abuse or exploitation of the child, the court shall prohibit visitation between the abusive parent and the abused child until such parent proves that visitation would not cause physical, emotional, or psychological damage to the child . Should visitation be allowed, the court shall order such restrictions, conditions, and safeguards necessary to minimize any risk of harm to the child. All costs incurred in compliance with the provisions of this Section shall be borne by the abusive parent. (Emphasis in original.)

The trial court, after hearing testimony and reviewing the evidence introduced at the September 12, 2017 hearing on the Motion for Modification of Physical Custody (and other matters), made the following factual findings regarding Mr. Prevost's physical abuse of the minor children:

THE COURT: And while much of their [the children's] testimony is very similar, the amount of detail that they were able to provide to me, and the things that actually differ, cause me to believe that they have actually been subject to what The Court would consider to be abusive behavior by Mr. Prevost.

The Court continued its discussion of Mr. Prevost's repeated acts of physical abuse:

THE COURT: Now let me tell you what for me is turning, turns the tide in this particular case. And that is indeed the punishment of kneeling on the concrete outside of the home over a two year period of time over approximately 15 times with an average time of 30 minutes each time. That is abusive. It is abusive to require a child to kneel on concrete for 30 minutes. And while I don't believe it has happened as often as the children have indicated, I do believe it has happened more than what Mr. Prevost has indicated.
And it is for this reason that I am indeed granting custody of the minor children to Ms. Laurent, subject to the liberal, supervised visitation of Mr. Prevost until he is able to demonstrate that he has taken a parenting class wherein he is to learn techniques of discipline.

Based on the trial court's factual findings regarding Mr. Prevost's history of physical abuse of his minor children, I find that the trial court committed legal error in granting Mr. Prevost liberal supervised visitation. I find nothing in the record that would satisfy Mr. Prevost's burden of proving under La. R.S. 9:341 that visitation would not cause physical, emotional or psychological damage to the children. Because the trial court did not have authority to order visitation, I would vacate that portion of the trial court's judgment granting liberal visitation to Mr. Prevost.

Finally, I dissent from the majority's decision to classify the trial court's judgment as awarding Ms. Laurent temporary custody of the minor children. Although the majority refers to the trial court's award of "temporary sole custody" to Ms. Laurent, nowhere in the December 12, 2017 judgment does the trial court state that its custody determination is "temporary" or "interim." Instead, the judgment states that "the minor children's 'Motion for Modification of Physical Custody' is hereby GRANTED," that "Kristen Laurent shall be the sole legal custodian of the minor children," and that "Ivan Prevost shall be granted liberal supervised visitation."

The confusion as to whether the December 12, 2017 judgment is a temporary or a permanent custody and visitation decree appears to have arisen when the appointed attorney for the minor children filed an "ex parte " motion for "modification of physical custody" in August 2017. In the motion, counsel for the children erroneously stated that the trial court had rendered a "considered decree" on June 1, 2015, which had established "joint legal custody" of the minor children. The June 1, 2015 judgment, however, which was rendered following a hearing on a petition for protection from abuse, was not a "considered decree." The judgment stated as follows:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that, on an interim basis, the parties are granted Joint Custody of their minor children in common. Ms. Laurent is granted, on an interim basis, a 'liberal' visitation schedule.... (Emphasis added.)

In this same ex parte motion, the attorney for the children compounded the confusion by also referring to a January 19, 2016 judgment as a "considered decree" establishing a physical custody schedule. Again, the January 19, 2016 judgment was not a "considered decree." It set an interim holiday visitation schedule between Christmas 2015 and Easter 2016, and ordered the parties to submit to a custody evaluation.

In Ventura v. Rubio , 00-0682 (La. App. 4 Cir. 3/16/01), 785 So.2d 880, this Court discussed the problem of trial courts issuing judgments meant to rule on issues of interim or temporary custody but issuing judgments that appear to resolve permanent custody issues. This Court stated, in pertinent part, as follows:

The case at bar is an example of a recurrent problem that this court has observed respecting interim and temporary orders issued in domestic relations matters. The trial courts in domestic matters are issuing judgments intended as interim or temporary orders, only to be effective until a trial on the merits, but without specifically designating in the judgment that the orders are, in fact, interim or temporary only and without setting a date for a trial from which permanent orders would emanate. Additionally, orders intended as interim or temporary are issued without an explanation as to what, if anything, they are based upon. In the absence of a record indicating the facts forming the basis of an interim or temporary order, no reviewing court can conduct a proper review as to whether the trial court has abused its discretion in entering the orders. The result is that interim and temporary orders effectively operate, because of delay, as permanent orders, thereby denying the parties a timely and appropriate adjudication of the issues....

Ventura , 00-0682, p. 14, 785 So.2d at 890-91.

Thus, in order to expedite and facilitate prompt disposition of domestic relations matters, the Ventura decision requires trial courts to do the following when entering interim and temporary orders in domestic matters:

(1) have a court reporter present during discussions leading up to the order, and if the court reporter is unavailable, a recording capable of transcription shall be made of discussions by the judge, and if recording equipment is unavailable, the judge shall specify factual information upon which each part of the order is based in sufficient detail that a reviewing court may ascertain the nature and extent of information relied upon;
(2) at the time of the ruling issuing the interim or temporary order, the court shall set a date for the merits trial of final order, and the date shall not be more than 120 calendar days from date of service of pleadings directed to issues of support and custody; and
(3) the trial court may not circumvent trial of the final orders by entry of one or more new interim or temporary orders or by modification of original interim order.

Id. , 00-0682, pp. 17-18, 785 So.2d at 892-93.

In Ventura , the Court found that the transcript of the hearing clearly indicated that all orders were to be interim or temporary, but that the judgment varied from that, and there was no clear indication that the custody and visitation orders were interim or temporary pending a full trial on those issues. The Court, therefore, amended that part of the judgment "to state that the orders relative to custody and visitation [were] temporary only." The Ventura Court further ordered that the trial of the "permanent matters" be set "not later than 90 calendar days from the date of [the] decision, and that, if necessary, interim and temporary orders may issue as warranted under the circumstances...." Id. , 00-0682, p. 18, 785 So.2d at 893.

Here, as in Ventura , there is no clear indication that the custody and visitation orders in the December 12, 2017 judgment are interim or temporary, pending a full trial on those issues. I, therefore, dissent from the majority's conclusion that this is a temporary custody order. I would follow Ventura and amend the judgment to state that "the orders relative to custody and visitation are temporary only." As in Ventura , I would also amend the judgment to order that "the trial of the permanent matters be set not later than 90 calendar days from the date of this decision," and further state that, "if necessary, interim and temporary orders may issue as warranted under the circumstances but not in contradiction of this decision."

ATKINS, J., CONCURS IN PART FOR THE REASONS ASSIGNED BY JUDGE LEDET

      The judgment drafted by counsel for Mr. Prevost was rendered moot on June 2, 2015. The trial court prepared its own written judgment, signed on June 1, 2015, which indicated its judgment was rendered after consideration of the evidence, testimony, pleadings, and the law presented at the May 11, 2015 hearing. A plain reading of the June 1, 2015 judgment reflects that it was not issued pursuant to a stipulated agreement.

      The record on appeal includes the transcripts of the Watermeier hearings with the four minor children, which the trial court judge conducted at the children's school. See Watermeier v. Watermeier , 462 So.2d 1272 (La. App. 5th Cir. 1985). The trial court judge, at the close of the September 12, 2017 hearing, expressly stated that the children's testimony caused her "to believe that they have actually been subject to what [t]he Court would consider to be abusive behavior by Mr. Prevost."

      A "considered decree" is an award of permanent custody in which the trial court receives evidence of parental fitness to exercise care, custody, and control of children. Rodriguez v. Wyatt , 11-82, p. 9 (La. App. 5 Cir. 12/12/11), 102 So.3d 109, 114.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Linda MOUTON, et al. v. AAA COOPER TRANSPORTATION, et al.
    Cory Mouton v. AAA Cooper Transportation, et al.
    17-666 17-667
    Court of Appeal of Louisiana, Third Circuit.
    July 18, 2018 Rehearing Denied September 12, 2018
    Derrick Earles, David C. Laborde, Jeff D. Easley, Laborde Earles Law Firm, LLC, 603 N. Washington St., Marksville, LA 71351, COUNSEL FOR PLAINTIFFS/APPELLEES: Linda Mouton and Cory Mouton
    S. Daniel Meeks, Nicholas J. Lorusso, Phyllis E. Glazer, Kristen E. Meeks, Meeks & Associates, L.L.C., 3401 West Esplanade Ave., South, Suite 3, Metairie, LA 70002, (504) 355-0020, COUNSEL FOR DEFENDANTS/APPELLANTS: Arthur Huguley, AAA Cooper Transportation, Inc. and ACE American Ins. Co.
    Court composed of Sylvia R. Cooks, Phyllis M. Keaty, and Van H. Kyzar, Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

This appeal arises out of a tragic accident which occurred on April 24, 2014, on Interstate 10, in Lafayette Parish. On that date, Arthur Huguley was operating a tractor-trailer rig in the course and scope of his employment with AAA Cooper Transportation, Inc. (AAA Cooper). The decedent, Curley Mouton, was driving in his Mack truck behind the AAA Cooper tractor-trailer.

While driving his tractor-trailer eastbound on Interstate 10, between mile markers 96 and 97, Mr. Huguley testified he heard a "loud bang." Mr. Huguley continued driving on the interstate for approximately two miles after hearing the "loud bang." Fearing he might have a tire blowout, Mr. Huguley decided to engage in a "wiggle" maneuver. This maneuver is accomplished by intentionally swaying the trailer back and forth, which allows the driver to see his trailer tires in his side view mirrors to determine if he suffered a blowout. Mr. Huguley chose to perform this "wiggle" maneuver rather than pulling onto the shoulder and getting out and inspecting his tires. When the "wiggle" maneuver was initiated, this apparently caused the blown out tire to rapidly come apart, which resulted in pieces of the tire flying into the air. Mr. Huguley later testified he recognized his back trailer tire had blown, because he saw tire debris flying in the air behind his rig.

Mr. Mouton was traveling behind the tractor-trailer as the debris began flying through the air. Shortly thereafter, the Mack truck being driven by Mr. Mouton left its lane of travel, struck and traveled through a guardrail on Interstate 10, flipped over, hit a tree, and landed upside down in a drainage ditch. Mr. Mouton died as a result of the crash.

Plaintiffs, Linda Mouton (the surviving spouse of the decedent) and Cory Mouton (the major son of the decedent) filed separate wrongful death and survival actions against Defendants, Arthur Huguley, AAA Cooper, and Ace American Insurance Company (Ace). The suits were consolidated by the trial court.

Following a trial by jury, a verdict was returned in favor of Plaintiffs. The jury apportioned ten percent (10%) fault to Mr. Huguley and ninety percent (90%) fault to AAA Cooper for placing a defective tire on its tractor-trailer. Curley Mouton was found to be free from fault. The jury awarded damages in the following amounts:

Survival Action Damages Conscious Pain and Suffering, Mental and Physical $ 50,000.00 Past Medical Expenses $ 1,213.55 Funeral Expense $ 16,488.67 Wrongful Death Damages (sustained by Linda Mouton) Loss of Financial Support $100,000.00 Loss of Services $ 10,000.00 Loss of Love and Affection $150,000.00 Past and Future Mental Anguish, Grief and Anxiety $150,000.00 Wrongful Death Damages (sustained by Cory Mouton) Loss of Services $ 10,000.00 Loss of Love and Affection $ 75,000.00 Past and Future Mental Anguish, Grief and Anxiety $ 75,000.00

In response to the jury verdict, Mr. Huguley and AAA Cooper separately filed Motions for Judgment Notwithstanding the Verdict (JNOV) and Motions for New Trial on Liability. The trial court denied these motions. Plaintiffs filed their own JNOV, seeking an increase in the survival action general damage award. The trial court granted the motion and increased the award for general damages in the survival action from $50,000.00 to $150,000.00. Costs were also taxed. In total, after the granting of the JNOV, the amount of damages awarded to both Plaintiffs was $737,702.52, plus court costs.

On February 8, 2017, the trial court signed a judgment which taxed costs for expert fees and increased the survival action general damage award to $150,000.00. On March 1, 2017, Defendants filed a motion for suspensive appeal, obtained a signed order of appeal, and posted an appeal bond. The record was lodged in this court and briefs were filed. On review, this court determined the February 8, 2017, Final Judgment did not contain proper decretal language, including the names of the parties against whom judgment was rendered (with a specification of the percentages of fault as assessed by the jury) and a specification of the increase in the award of general damages in the survival action and other damages awarded by the jury. This court then issued a rule ordering Defendants to show cause, by brief only, why their appeal should not be dismissed as having been taken from the February 8, 2017 judgment that lacked proper decretal language, or, in the alternative, why the appeal should not be suspended pending the receipt of a judgment containing proper decretal language.

On January 10, 2018, this court issued a ruling suspending the appeal and remanding the matter to the trial court with instructions to issue a judgment containing proper decretal language. Following remand and the issuance of a final judgment with proper decretal language, this consolidated appeal was lodged.

In their appeal, Defendants have asserted the following assignments of error, which are summarized below:

1. The jury erred in assessing no fault to Mr. Mouton.
2. The jury erred in assessing ten percent (10%) fault to Mr. Huguley.
3. The trial court erred in allowing Plaintiffs to argue various theories of how the accident occurred without supporting evidence.
4. The trial court erred by allowing Mr. Gillen to testify as an expert in the "rules of the road" governing commercial truck drivers.
5. The testimony of Mr. Gillen was so prejudicial that the appellate court should conduct a de novo review of the jury's findings of fact.
6. The trial court committed legal error when it allowed the Plaintiffs to argue to the jury that AAA Cooper was liable under La.Civ.Code arts. 2317 and 2317.1.
7. The Plaintiffs failed to plead a cause of action upon which relief could be granted against AAA Cooper under La.Civ.Code arts. 2317 and 2317.1, and therefore, that cause of action should not have been argued to the jury or included in the jury instructions.
8. The jury committed manifest error by apportioning any fault directly to AAA Cooper under La.Civ.Code arts. 2317 and 2317.1 when the Plaintiffs failed to prove every essential element of that claim.
9. The trial court erred in disregarding the jury's vast discretion and granting the JNOV increasing the award of general damages in the survival action; and, in the alternative, the award was abusively high and should be reduced.
10. The trial court erred by awarding certain fees to Plaintiffs for Mr. Gillen's services.

ANALYSIS

I. The Jury's Findings of Fault.

Several of Defendants' assignments of errors contend the jury erred in its apportionment of fault. The appellate standard of review when examining a jury's findings of fault are well settled. An appellate court must give the jury's apportionment of fault great deference on review and must affirm that apportionment of fault unless it is manifestly erroneous or clearly wrong. Dupree v. City of New Orleans , 99-3651 (La. 8/31/00), 765 So.2d 1002. Thus, we review the facts of the case only to determine if the jury's fault assessments were manifestly erroneous. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Dep't of Transp. and Dev. , 617 So.2d 880 (La.1993). Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of fact. Rosell v. ESCO , 549 So.2d 840 (La.1989).

a. Fault of Curley Mouton.

Defendants first argue the jury erred in finding Curley Mouton free from fault in causing the accident. On review, we find the jury's determination that Mr. Mouton was free from fault was reasonable based on the evidence presented at trial.

Todd Dauphinet, who was driving behind both Mr. Huguley's tractor-trailer and Mr. Mouton's truck when the accident happened, witnessed the accident, and gave the following statement at the scene:

There was a 18-wheeler with a trailer in the left lane and a TK Stanley truck [Mr. Mouton's vehicle] was behind them. The front truck blew a tire going into the right lane together. But she [Mr.
Mouton] had no room to go and was pushed over to the right lane. Last I seen truck was in the air.

In his testimony, Mr. Dauphinet expressed his opinion that Mr. Mouton did nothing wrong in his driving. He stated he was approximately "three vehicles behind" Mr. Mouton's truck. He testified at the time Mr. Mouton's vehicle left the road, the air was full of thick, white smoke and he "could see [Mr. Mouton's] truck veering to the right towards the center line and then it worked back to the left side and then all of a sudden it took an immediate right and it just hit the hand rail."

Susie Wilridge was driving her vehicle behind Mr. Mouton's truck at the time of the accident, and testified she saw "smoke and debris, tire debris." She stated the debris "was coming at me." Ms. Wilridge further testified as follows concerning the events immediately precipitating Mr. Mouton's vehicle leaving the road:

Q. What about the Mouton vehicle? Did you see whether it braked or not?
A. It broke hard and then moved suddenly to the right. And then moved over like he was trying to get out of the way. Because the 18-wheeler was right there within a car or two lengths.
Q. Did you say you saw some smoke as well?
A. Yes, I did.
Q. This debris that you saw on the roadway, rolling towards to you, how big was the debris?
A. As large as approximately two feet and then variable sizes.
Q. Was there a lot of it?
A. Yes.
Q. What did the Mouton vehicle do then?
A. I don't know at that time. I just saw it veered off and hit the railing and flip because I was driving, I broke hard, saw what was going on, looked and just kept trying to remain in control of my vehicle.
....
Q. How would you describe his departure from the roadway?
A. I would say it was fast. It wasn't like immediately but he was moving over like trying to get out of the way of hitting someone.
Q. What did you see the Mouton vehicle do once it left the roadway? Or did you see it?
A. All I saw was he hit the guard rail and then it was moving - - flipped over. I couldn't look anymore than that because I had to look where I was going.

Valerie Wilridge was riding with her mother and testified she found "nothing out of the ordinary" with Mr. Mouton's driving. She stated as follows:

A. We were driving behind him [Mr. Mouton].
Q. Okay. At any time was he driving erratically or speeding?
A. No.
Q. Was he driving normal?
A. Yes. We were driving just below the speed limit.
Q. Okay. How do you remember that?
A. I remember that because the traffic was very heavy. So no one was really able to go the speed limit.

As Plaintiffs note, even the testimony of Mr. Huguley indicates Mr. Mouton was driving safely and within the posted speed limit:

Q. Mr. Huguley, you saw Mr. Mouton driving for several minutes at various times before this accident, correct?
A. One time when I passed him, when I was coming up on him to pass him.
Q. You also saw him another time in the mirror?
A. Correct.
Q. One or two times?
A. Well, two or three times.
Q. Over a period of a couple of miles, you think?
A. Correct.
Q. Every time you saw him you were driving faster than he was, correct?
A. Correct.
Q. In fact, you were passing him.
A. Correct.
Q. You never saw him drive recklessly?
A. No.
Q. You never thought he was speeding?
A. Correct.
Q. You never saw him drive erratically; is that correct?
A. Correct.

Defendants contend there was no explanation offered at trial as to why Mr. Mouton lost control of his vehicle. Obviously, Mr. Mouton was unable to testify as to why he lost control of his vehicle. However, the testimony was clear that Mr. Mouton was operating his vehicle in a safe and careful manner, and suddenly veered off the road as white smoke and tire debris flew out from the AAA Cooper tractor-trailer. Thus, we cannot say the jury manifestly erred in determining Mr. Mouton was not at fault in causing the accident.

b. Fault of Arthur Huguley.

Defendants next contend the jury erred in assessing ten percent (10%) fault to Mr. Huguley. At trial, Mr. Huguley testified as follows concerning the sequence of events just prior to the accident:

Q. As you were passing Mr. Mouton and the two other vehicles you heard a loud bang, didn't you?
A. Correct.
Q. As a truck driver, you thought that was a tire.
A. It sound like a tire but it didn't sound like a tire but it sound like a tire.
Q. So, it sounded like a tire but it didn't sound like a tire?
A. Right.
Q. But being the driver that you are, you knew it was a tire.
A. No. It's like I say, it sound like a tire and it didn't sound like a tire. It sounded like it was on the westbound side. So once I check my left mirror to see what was going on on the westbound side, I didn't see anything.
Q. What did you do next?
A. What I did - I, uh, realized, well, if it's not on the westbound side, it's a possibility it could have been my tire. So I did a maneuver, what I call and a lot of more truckers call, "a wobble."
Q. Wobble?
A. Yes.

Mr. Huguley then explained to the jury what a "wobble" or "wiggle" maneuver is for:

Q. And the purpose of this technique is if you suspect you have a flat tire, rather than have to pull over and get out and check your tire, you can wiggle the trailer, correct?
A. Correct.
Q. And when you wiggle the trailer, if you have a flat tire, that wiggle makes debris fly off the tire, doesn't it?
A. Not necessarily.
Q. If you have a flat tire, most of the time a wiggle makes debris fly off the tire, doesn't it?
A. The debris gonna come off the tire anyway. The wiggle is to check it to make sure it's your tire.
...
Q. With respect to a flat tire, this wiggle allows you check to see if you have a flat tire?
A. Not really. What it - what it does is, well, what it does is you gradually turn the steering wheel to the left and it offset the trailer so you can see anything coming off. You gradually pull it back to the right just a little bit to see if anything is coming off your trailer. So, by me doing that, that let me know that it was my tire.
...
Q. If you have a flat, usually - "usually" you can see debris flying off the tire.
A. Correct.

Mr. Huguley's testimony established, as he was passing Mr. Mouton around mile marker 96 or 97, he heard a loud bang and realized he may have suffered a tire blow out. Rather than pulling to the shoulder of the interstate and checking his tires, he continued driving for another two miles. He then decided to attempt a "wiggle/wobble maneuver" to help determine if he indeed suffered a tire blow out. By all testimony, this then caused his tire to rapidly disintegrate, causing debris to fly through the air. Valerie Wilridge stated there were pieces of tire "everywhere," and that her mother broke hard and had to swerve to avoid the debris. She further testified tire debris would likely have struck the Wilridge vehicle, but it was striking Mr. Mouton's truck in front of them.

At trial, Mr. Huguley acknowledged the Commercial Driver's Manual instructs a driver, if he believes he may have suffered a tire blow out, to immediately pull off the road and check the tires, "even if the vehicle seems to be handling all right." He testified:

Q. You just heard a loud bang or pop or whatever it was. You didn't pull over like the bible [the Commercial Driver's License Manual] says you should do, right?
A. Correct.
Q. What did you do next?
A. I did what they call - that I call a wiggle.

Thus, Mr. Huguley's own testimony confirms, rather than following the Commercial Driver's License Manual, he decided to employ the "wobble/wiggle" technique, which caused a large amount of tire debris to fly through the air at Mr. Mouton's vehicle. Mr. Gillen, Plaintiff's accident reconstructionist, testified that the departure angle Mr. Mouton's truck made in leaving the road indicated "a very extreme departure consistent with a sudden evasive maneuver by the driver." Mr. Gillen further testified:

Q. Do you have an opinion as to whether or not that was a reasonable action for [Mr. Huguley] to continue driving down the highway?
A. I am of the opinion that that was not a reasonable action.
Q. Why was that?
A. For a professional truck driver or any driver to continue traveling down the interstate at an interstate speed suspecting that you may have possibly have experienced a blowout. I think that the safer option was what the commercial driver's license manual outlines and what your regular driver's license manual outlines. Reduce your speed; hold on to the steering wheel to maintain steerage;
move over to the right and stop out of the roadway to check your tires.
Q. And in your experience as an expert in the field of accident reconstruction and rules of the road, that someone would have an ample opportunity to do that in the three mile span on an interstate highway with what Mr. Huguley characterized as light traffic ahead of him?
A. Yes, sir. I think they had. Had he simply adjusted his speed, he could have reduced his speed to accommodate the traffic that he says was to his right. Let that traffic clear. Then move over to the right. Pull onto the shoulder. This is a straight long section of interstate with a ten foot wide paved shoulder wide enough to accommodate his eight foot wide truck. He ultimately pulled over to the shoulder and was clear of the roadway. But he had a three mile opportunity to do that prior to where he ultimately stopped.
Q. He also had an exit to do it, didn't he?
A. Yes, sir. He did. He went past the Scott exit.
Q. Mr. Gillen, what about the wiggle of his truck? You heard him testify about that?
A. I did. Yes, sir.
Q. Do you have an opinion as to whether or not a professional truck driver who suspects that they have a flat tire should wiggle a truck and trailer while traveling 67 miles an hour down the interstate highway?
A. I am of the opinion that that is a completely unsafe maneuver. You're creating an instability with that trailer, which Mr. Huguley has acknowledged he was carrying a 44,000 pound load. To put that in perspective a Suburban, pretty big vehicle, weighs about 5,000. So he's got the equivalent of nearly nine Suburbans loaded in his trailer and he is testifying that he's going to wiggle that so he can get a better view of the tire rather than pull over and check on the shoulder. I have never seen that advocated in any driving manual. I have never heard of a truck driver doing that. And, again, I don't think that was a safe maneuver at all.

After a review of the above testimony of the witnesses and experts, it is apparent the jury's finding of fault on the part of Mr. Huguley cannot be said to be manifestly erroneous.

c. Fault of AAA Cooper.

AAA Cooper was found at fault by the jury because it found the failed tire which led to the accident was defective. As Plaintiffs note, the following stipulation concerning the failed tire occurred at trial:

THE COURT: Do you have a stipulation in reference to the plugs and patches?
MR. LABORDE (Counsel for Plaintiffs): We have a stipulation regarding the retread tire. Your Honor, there was a conference among counsel and the Court just before our recess. And in light of defendant's [sic] not calling Keith Rombard, it is my understanding that defense counsel is willing to stipulate that the tire that blew out in this accident has been recapped or retreaded three times.
MR. MEEKS (Counsel for Defendants): And that is in Mr. Gillen's report.
MR. LABORDE: And that it had been plugged twice and patched twice before this accident.
MR. MEEKS: Yes, Your Honor.
THE COURT: Okay.

As Plaintiffs note, this stipulation is sufficient to form a reasonable basis for the trial court to assign fault on the basis of custodial liability. The Louisiana Supreme Court long ago in Kent v. Gulf States Utilities Co. , 418 So.2d 493, 497 (La.1982), stated:

In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk , and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing.

The facts established the tire in question was approximately six to seven years old and had been retreaded three separate times. It was also plugged twice and patched twice. It was undisputed that AAA Cooper was aware of the tire's history. Despite this AAA Cooper made the choice to continue to use the tire rather than replace it with a new one. Mr. Huguley testified in his deposition he preferred new tires to retread tires because retread tires fail more often. However, Mr. Huguley noted that decision of which tires were placed on the tractor-trailer was made by AAA Cooper and not him.

Defendants insist there was no proof that the failed, retreaded tire was a cause of the accident. This assertion is made despite the clear, unequivocal testimony of several witnesses that the Mouton vehicle sharply veered off the interstate right as tire debris began flying from the AAA Cooper tractor-trailer. The jury clearly found the defective tire was a cause of the accident and held AAA Cooper at fault for knowingly placing a defective tire on its tractor-trailer. We find no manifest error in this finding.

II. Plaintiffs' Pleadings.

Defendants argue in several related assignments of error that Plaintiffs did not plead a cause of action upon which relief could be granted against AAA Cooper under La.Civ.Code arts. 2317 and 2317.1.

As Plaintiffs point out, Defendants did not object to the inclusion of a fault blank for AAA Cooper, and therefore, that cause of action should not have been argued to the jury or included in the jury instructions. Louisiana Code of Civil Procedure Article 1793(C) addresses such an instance and provides:

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.

Pursuant to that article, this court has repeatedly held that a party waives its right to object to jury instructions on appeal if it does not object to the charges at trial. See Libersat v. J & K Trucking, Inc. , 00-192 (La.App. 3 Cir. 10/11/00), 772 So.2d 173, writ denied , 01-458 (La. 4/12/01), 789 So.2d 598 ; Lee v. Auto. Cas. Ins. Co. , 96-517 (La.App. 3 Cir. 11/6/96), 682 So.2d 995, writ denied , 96-2949 (La. 1/31/97), 687 So.2d 409 ; Stroud v. Liberty Mut. Ins. Co. , 429 So.2d 492 (La.App. 3 Cir.), writ denied , 437 So.2d 1147 (La.1983). Accordingly, Defendants have waived that argument.

Further, a review of Plaintiffs' petition shows it alleges that Defendants failed to maintain the tractor-trailer "in a proper fashion and for its intended use." It was also asserted Defendants "fail[ed] to promulgate and adhere to reasonable safety standards" and "fail[ed] to act as a prudent owner/operator/employer of commercial vehicles." Clearly these allegations in the petition set forth the defect theory of the failed tire.

AAA Cooper also argues in brief the jury assessed it with ninety percent (90 %) fault solely on the basis of custodial liability. Such a conclusion is based only on speculation, as we cannot divine the reasoning the jury used in reaching its fault assessments. As Plaintiffs point out, it is certainly reasonable that AAA Cooper was found at fault for using a defective tire that had been repaired on seven separate occasions independent of custodial liability.

Plaintiffs also note the jury was not informed that fault on the verdict form could have been jointly rendered in solido against AAA Cooper and Mr. Huguley. AAA Cooper stipulated at trial that Mr. Huguley was in the course and scope of his employment with it at the time of the accident. Therefore, AAA Cooper would be responsible for the entire judgment amount as a result of vicarious liability regardless of the allocation of fault between itself and Mr. Huguley. As we have found no manifest error in the jury's determination that Mr. Mouton was not at fault in causing the accident, any error in the apportionment of fault between AAA Cooper and Mr. Huguley would be harmless.

III. Assignments of Error Related to Plaintiffs' Expert.

a. Qualification of Michael Gillen as an Expert.

Defendants next contend the trial court erred in allowing Plaintiffs' expert Michael Gillen to testify as an expert in accident reconstruction. It was established Mr. Gillen began investigating accidents in 1977 when he joined the Baton Rouge City Police Department. By his estimate, Mr. Gillen, during his nearly twenty years as a police officer, investigated over two thousand accidents. In 1996, he began National Collisions Technologies, Incorporated (NCTI), a company that investigates accidents. He estimated he had worked as an accident reconstructionist on approximately one thousand five hundred cases since starting NCTI.

Mr. Gillen stated he had training from numerous universities, the Louisiana Highway Safety Commission and the Federal Highway Administration. He also has taught numerous continuing education courses in accident investigation and reconstruction. Mr. Gillen noted the Federal Highway Administration has a minimum standard guideline of three hundred hours for formal tested courses in accident reconstruction, and he had completed about one thousand three hundred hours of courses in accident investigation and reconstruction. These included courses specific to commercial vehicles.

Mr. Gillen noted he has been qualified as an expert in accident reconstruction in city, state and federal courts in Louisiana and Mississippi. The trial court, after noting Mr. Gillen previously appeared as an expert in its court, accepted him as an expert in this case.

Interestingly, Defendants cite Cheairs v. State ex rel. DOTD , 03-680 (La. 12/3/03), 861 So.2d 536, in their discussion of the applicable law on qualifying experts. As Plaintiffs note, in Cheairs the Louisiana Supreme Court addressed the issue of whether the expert in that case was properly qualified to testify. That expert, as in this case, was Michael Gillen. The court concluded, specific to Mr. Gillen's qualifications as an expert:

In this case, plaintiff offered the expert testimony of Michael S. Gillen, a retired 20-year veteran of the Baton Rouge City Police Department, who had been employed since 1993 by a private corporation, National Collision Technologies, as a traffic reconstructionist....
[T]he district court properly found that Gillen was qualified to testify concerning the standards set forth by the MUTCD and properly admitted the expert testimony of Gillen, who is qualified by experience, skill, and training, to state his opinion[.]

Id. at 540, 544-45.

"In reviewing the decision of a trial court in qualifying a witness as an expert, courts typically place the burden on the party offering the witness as an expert and consider that the decision to accept or reject the offer rests within the sound discretion of the trial court." State v. Craig , 95-2499, pp. 8-9 (La. 5/20/97), 699 So.2d 865, 870, cert. denied , 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). Therefore, a trial court's decision to qualify an expert witness will not be overturned absent an abuse of discretion. State v. Castleberry , 98-1388 (La. 4/13/99), 758 So.2d 749. We find no abuse of discretion by the trial court in allowing Mr. Gillen to testify as an expert in this case.

Defendants specifically argued the trial court erred in allowing Mr. Gillen to "testify as an expert in the 'rules of the road' governing commercial truck drivers." We find no merit in this contention, as Mr. Gillen simply read from the requirements of the Commercial Drivers' License Manual, which was admitted into evidence. Mr. Huguley acknowledged he was familiar with that manual and agreed they were the "rules of the road for a truck driver."

b. Costs Taxed for Mr. Gillen's Expert Testimony .

Defendants also argue the expert costs taxed to them for Mr. Gillen's testimony were not reasonable. Plaintiffs were awarded $8,575.00 for Mr. Gillen's services and testimony in conjunction with the case. Mr. Gillen claimed $2,449.00 in costs associated with his trial attendance, travel and mileage. He also charged $6,126.00 for his investigation of the accident and his preparation for trial. Plaintiffs submitted the invoices from NCTI in their motion to tax costs. The trial court stated as follows regarding the amount claimed:

... with the $8,575, I've seen Mr. Gillen's work. He's a well qualified expert. He came in and I know what his preparation time and his travel time and his testimony time. I find $8,575 to be reasonable for an expert with his knowledge and his trial preparation.

Defendants also infer it was inappropriate for employees of NCTI to recheck diagrams and computations made by Mr. Gillen. However, as Plaintiffs note, they retained NCTI, of which Mr. Gillen is the owner and corporate representative, to investigate and reconstruct the accident. Thus, we find nothing improper or unreasonable with the involvement of NCTI's associates in the preparation of Plaintiffs' case.

The trial court has great discretion in fixing fees for expert witnesses and determining the reasonableness of costs incurred by the prevailing party. Otwell v. Diversified Timber Services, Inc. , 04-924 (La.App. 3 Cir. 1/26/05), 896 So.2d 222, writ denied , 05-467 (La. 4/22/05), 899 So.2d 575. In this case, we do not find an abuse of discretion by the trial court.

IV. Trial Court's Granting of the JNOV.

Defendants contend the trial court erred in granting the JNOV and increasing the award of general damages in the survival action from $50,000.00 to $150,000.00.

Louisiana Code of Civil Procedure Article 1811 governs the use of JNOV. As outlined by the supreme court in Scott v. Hospital Service District No. 1 , 496 So.2d 270, 274 (La.1986), a JNOV is warranted when "the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict[.]" The motion should be granted "when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover." Id. (quoting Robertson v. Penn , 472 So.2d 927, 929 (La.App. 1 Cir.), writ denied , 476 So.2d 353 (La.1985) ).

In Anderson v. New Orleans Public Service, Inc. , 583 So.2d 829, 832 (La.1991), the Louisiana Supreme Court discussed appellate review of a JNOV:

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

In the instant case, Defendants argue that the trial court erred in granting Plaintiffs' motion for JNOV, which thereby raised the total general damage award in Mr. Mouton's survival action from $50,000.00 to $150,000.00. We disagree. In granting the JNOV motion, the lower court signaled its view that the facts and inferences of the case at bar point so strongly and overwhelmingly in favor of increasing the general damages awarded to Mr. Mouton that reasonable persons in the exercise of impartial judgment could arrive at no other conclusion. Such a view finds support in the record evidence.

Survival damages may be appropriately awarded for the pre-death mental and physical pain and suffering of the deceased. Temple v. Liberty Mut. Ins. Co. , 330 So.2d 891 (La.1976). "In determining survival damages, the court should consider the severity and duration of any pain or any pre-impact fear experienced by the deceased, and any other damages sustained by the deceased up to the moment of death." Leary v. State Farm Mut. Auto. Ins. Co. , 07-1184, p. 4 (La.App. 3 Cir. 3/5/08), 978 So.2d 1094, 1098, writ denied , 08-727 (La.5/30/08), 983 So.2d 900.

Mr. Mouton's death certificate reads that he died of "positional asphyxiation" and "multiple traumatic injuries." The Acadian Ambulance Report stated that Mr. Mouton's body was "mottled and purple." Despite this brutal cause of death, it was established that Mr. Mouton survived the crash for some period of time.

At trial, Todd Dauphinet testified as follows concerning what he saw and heard when he approached Mr. Mouton's truck after the crash:

Q. When you got to the truck, what did you do?
A. I ran down from my vehicle down to the embankment to the truck. I got inside partially to see if I could see anybody and at that time I couldn't see anybody. I just saw some hair laying on the top of the truck which was upside -
Q. - The truck was upside down, right side up?
A. Yes. Upside down. So, I just asked if everybody was alright and I could hear a moan inside the truck. And after I say, "Can I help? Or do you need help?" and they said like "Help me" it sounded like. But it was a moan.
Q. It was saying, "Help me?"
A. It sounded that way. It was like a vague moan with just a little voice, like.
Q. Were you the first one as far as you know to get to the truck?
A. Yes.
Q. Describe the inside of the truck from what you saw.
A. It was pretty much smashed to the top.

Mr. Dauphinet originally thought Mr. Mouton was a woman because of the high-pitched voice he heard and the fact the body was so mangled he could not tell whether it was a man or woman.

Brock Begnaud, who arrived at the scene with the Lafayette Fire Department, stated he did get a "vocal response" from Mr. Mouton, although he described the response as "garbled, illegible." He testified the total extraction time to remove Mr. Mouton from the vehicle was ninety-eight minutes. At some point during the extraction, he stated Mr. Mouton became unresponsive. At that point, which Mr. Begnaud guessed was "fifteen or twenty minutes" after he arrived at the accident scene, Acadian Ambulance personnel were called in to check Mr. Mouton's vital signs. When it was determined he showed no signs of life, Mr. Mouton was pronounced deceased. As it took the fire department ten to fifteen minutes to arrive at the scene after receiving the call, it is clear Mr. Mouton survived the accident impact for approximately twenty-five to thirty-five minutes.

After leaving the interstate, Mr. Mouton's truck went through the guardrail, struck a concrete retaining wall, impacted a tree and flipped upside down. The cab of the vehicle was crushed and the hood ripped off. Mr. Mouton's body was badly mangled, and he suffered multiple traumatic injuries. He hung upside down in his cab, undoubtedly in excruciating pain for approximately thirty minutes, until he eventually choked to death. All this while enduring the painful realization that his life was ending.

Examining the record before us, we cannot say the trial court erred in finding the facts and inferences pointed so strongly and overwhelmingly in favor of the Plaintiffs that the motion for JNOV was properly granted. We also find no merit to Defendants' contention that the amount of damages awarded by the trial court was abusively high.

V. Plaintiffs' Answer to the Appeal .

Plaintiffs answered the appeal and requested this court modify the awards for general damages to Cory Mouton and Linda Mouton. They assert these damage awards were an abuse of the jury's discretion and were abusively low.

In considering whether an award of general damages is excessive or inadequate, we are guided by the decision in Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La.1993), cert. denied , 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), wherein our supreme court noted that "the discretion vested in the trier of fact is 'great,' and even vast, so that an appellate court should rarely disturb an award of general damages." Under Youn , "[t]he initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the 'much discretion' of the trier of fact." Id. at 1260. Only after the initial inquiry is answered in the affirmative should the appellate court increase or reduce the award. Id. In making the initial inquiry, the reviewing court should not use "a scale of prior awards in cases with generically similar medical injuries to determine whether the particular trier of fact abused its discretion in the awards to the particular plaintiff under the facts and circumstances peculiar to the particular case." Id. at 1260. Such prior awards should be considered only after the reviewing court concludes that there has been an abuse of discretion. Id.

The jury awarded wrongful death general damages of $300,000.00 to Linda Mouton and $150,000.00 to Cory Mouton. Plaintiffs contest these awards on appeal but did not include in brief what it considered an appropriate award nor any cited cases which would indicate the jury's awards were inadequate and an abuse of discretion. It is well settled that "[g]eneral damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty." Miller v. LAMMICO , 07-1352, p. 27 (La. 1/16/08), 973 So.2d 693, 711. We have thoroughly considered the particular facts and circumstances of the losses suffered by Plaintiffs in this matter and cannot say the jury abused its great discretion in making its damage awards.

DECREE

For the foregoing reasons, the judgment of the lower court is affirmed in all respects. All costs of this appeal are assessed to Defendants-Appellants.

AFFIRMED.

      Mr. Dauphinet testified he originally thought Mr. Mouton was a she, because when he got to the scene the body was so badly mangled he could not tell whether it was a man or woman, and Mr. Mouton's voice at that time was very high pitched.


author: HIGGINBOTHAM, J.

text:
    Alex TALBERT v. RESTORATION HARDWARE, INC., Ozark Motor Lines, Inc.
    NO. 2017 CA 0986
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: May 31, 2018
    Charlotte McDaniel McGehee, Christopher L. Whittington, Baton Rouge, LA, Attorneys for Plaintiff-Appellant, Alex Talbert
    Thomas J. Eppling, Sara P. Scurlock, Metairie, LA, Attorneys for Defendant-Appellee, Ozark Motor Lines, Inc.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

In this personal injury case, the trial court granted summary judgment in favor of the defendant dismissing plaintiff's claims as to them.

FACTS AND PROCEDURAL HISTORY

On December 7, 2012, in conformance with a transportation services agreement with Restoration Hardware, Inc., Ozark Motor Lines, Inc. picked up an Ozark trailer from Restoration Hardware, in Maryland, that was preloaded and sealed by Restoration Hardware laborers. Ozark conducted a pre-trip inspection, and then transported the trailer to Baton Rouge, Louisiana. Ozark delivered the trailer to Exel Inc.'s distribution facility in Baton Rouge on December 11, 2012, to be unloaded by Exel. On that day, after the seal was broken by Exel, Mr. Alex Talbert, an employee of Exel, was unloading the trailer with his co-worker, Mr. Ryan August. Mr. Talbert was removing a large box containing a table located on the top of several other smaller boxes when the boxes below shifted causing several boxes to fall on him. After the incident, Mr. Talbert filed a petition for damages contending that the trailer had been improperly loaded or loaded with defective boxes causing boxes to fall on him, which caused him injury. In Mr. Talbert's petition, he named Restoration Hardware and Ozark as defendants. Eventually, Restoration Hardware was dismissed from the suit by Mr. Talbert.

On October 23, 2015, Ozark filed a motion for summary judgment, which was denied by the trial court. On January 9, 2017, Ozark filed a second motion for summary judgment attaching additional documents to its motion. The matter came before the trial court on April 17, 2017, after which the trial court granted Ozark's motion for summary judgment and dismissed Mr. Talbert's claims. It is from this judgment that Mr. Talbert appeals, contending that the trial court erred in finding that Ozark's second motion for summary judgment was not precluded under issue preclusion and in finding that no issue of material fact remained.

STANDARD OF REVIEW

When reviewing summary judgments, appellate courts conduct a de novo review of the evidence, using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555 (La. App. 1st Cir. 8/11/08), 993 So.2d 725, 729-30. 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. Code Civ. P. art. 966(A)(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2).

The burden of proof is on the mover. La. Code Civ. P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must 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. La. Code Civ. P. art. 966(D)(1). 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. The Shaw Group v. Kulick, 2004-0697 (La. App. 1st Cir. 4/8/05), 915 So.2d 796, 800, writ denied, 2005-1205 (La. 11/28/05), 916 So.2d 148.

As Mr. Talbert is asserting a claim of negligence, he has the burden of proving the five elements of the duty-risk analysis: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant s substandard conduct was a cause-in-fact of the plaintiff's injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries; and (5) actual damages. Bufkin v. Felipe's Louisiana, LLC, 2014-0288 (La. 10/15/14), 171 So.3d 851, 855. A negative answer to any of the elements of the duty/risk analysis prompts a no-liability determination. Joseph v. Dickerson, 99-1046 (La. 1/19/00), 754 So.2d 912, 916. Duty is a question of law. The inquiry is whether a plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support his or her claim. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 2002-1376 (La. App. 1st Cir. 5/9/03), 849 So.2d 622, 627, writ denied, 2003-1579 (La. 10/3/03), 855 So.2d 315. In negligence cases, there is an almost universal duty on the part of a defendant to use reasonable care to avoid injury to another. Rando v. Anco Insulations Inc., 2008-1163 (La. 5/22/09), 16 So.3d 1065, 1086. When no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Boland v. West Feliciana Parish Police Jury, 2003-1297 (La. App. 1st Cir. 6/25/04), 878 So.2d 808, 816, writ denied, 2004-2286 (La. 11/24/04), 888 So.2d 231.

LAW AND ANALYSIS

In his first assignment of error, Mr. Talbert contends that Ozark's second motion for summary judgment filed on January 9, 2017, should be precluded under the principle of issue preclusion in La. R.S. 13:4231 because it is the same as Ozark's first motion for summary judgment filed on October 23, 2015, wherein the trial court denied the motion and found that there were issues of material fact as to whether Ozark had a duty to inspect the load. Louisiana Revised Statute 13:4231 embraces the broad usage of the phrase "res judicata" to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). The denial of an initial motion for summary judgment does not bar a second summary judgment motion under the doctrine of res judicata. See Bozarth v. State LSU Medical Center/Chabert Medical Center, 2009-1393 (La. App. 1st Cir. 2/12/10), 35 So.3d 316, 323. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any time up to final judgment. Berry v. Paul Revere Life Insurance Company, 2008-0945 (La. App. 1st Cir. 7/9/09), 21 So.3d 385, 386, n.1, writs denied, 2009-2220, 20092241 (La. 12/18/09), 23 So.3d 942, 945. An interlocutory judgment cannot serve as the basis for a plea of res judicata. Spiers v. Roye, 2004-2189 (La. App. 1st Cir. 2/10/06), 927 So.2d 1158, 1170, n.9 (per curiam; on rehearing). Furthermore, the jurisprudence of this and other circuits specifically allows a trial court to consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied. Bozarth, 35 So.3d at 323. Therefore, we find no merit to Mr. Talbert's first assignment of error.

In his remaining assignments of error, Mr. Talbert contends that the trial court erred in finding no issue of material fact remained regarding the negligence of Ozark. Specifically, Mr. Talbert argues that under 49 CFR 392.9, issues of material fact remain as to whether Ozark had a duty to inspect the load for safety, and that the trial court erred in finding a lack of evidence that shifting during transit caused the boxes to fall on Mr. Talbert when his expert opined that the boxes fell because of a change in the structural configuration during transit.

In its motion for summary judgment, Ozark argues that there was no evidence of a duty owed by Ozark, and even if the court found a duty on the part of Ozark, there was no evidence of a breach of that duty or causation. Neither side disputes that Ozark picked up a preloaded sealed trailer from Restoration Hardware, did a pre-trip inspection which did not involve breaking the seal or reviewing the load, and transported the trailer to Exel where employees of Exel removed the seal and unloaded the trailer. Ozark pointed out that it was not involved in the loading or unloading of the trailer and contends that because Ozark was not present during the loading or unloading of the trailer, it had neither the opportunity, nor the obligation to inspect the load prior to, during, or after its transport.

In response, Mr. Talbert contends that Ozark had a duty to inspect the load and confirm that it was properly distributed and adequately secured based on 49 C.F.R. 392.9, and that Ozark breached that duty because Ozark did not break the seal and inspect the load. 49 C.F.R. 392.9 provides:

a) General. A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless-
(1) The commercial motor vehicle's cargo is properly distributed and adequately secured as specified in §§ 393.100 through 393.136 of this subchapter.
(2) The commercial motor vehicle's tailgate, tailboard, doors, tarpaulins, spare tire and other equipment used in its operation, and the means of fastening the commercial motor vehicle's cargo, are secured; and
(3) The commercial motor vehicle's cargo or any other object does not obscure the driver's view ahead or to the right or left sides (except for drivers of self-steer dollies), interfere with the free movement of his/her arms or legs, prevent his/her free and ready access to accessories required for emergencies, or prevent the free and ready exit of any person from the commercial motor vehicle's cab or driver's compartment.
(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section, the driver of a truck or truck tractor must-
(1) Assure himself/herself that the provisions of paragraph (a) of this section have been complied with before he/she drives that commercial motor vehicle;
(2) Inspect the cargo and the devices used to secure the cargo within the first 50 miles after beginning a trip and cause any adjustments to be made to the cargo or load securement devices as necessary, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from, the commercial motor vehicle; and
(3) Reexamine the commercial motor vehicle's cargo and its load securement devices during the course of transportation and make any necessary adjustment to the cargo or load securement devices, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from, the commercial motor vehicle. Reexamination and any necessary adjustments must be made whenever-
(i) The driver makes a change of his/her duty status; or
(ii) The commercial motor vehicle has been driven for 3 hours; or
(iii) The commercial motor vehicle has been driven for 150 miles, whichever occurs first.
(4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.

It is Ozark's position that because the trailer was sealed, subsection four of the regulation is applicable. Subsection four provides that the rules of paragraph b do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it in order to inspect its load or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its load impracticable.

When Ozark picked up the trailer it was already sealed, and according to the deposition of Justin Southerland, Mr. Talbert's supervisor, the seal was still intact when the trailer arrived at Exel for unloading. Mr. Southerland stated that it is Exel's policy that the load is inspected upon opening of the trailer, and if there is any damage noticed upon opening the trailer, then pictures are taken and the damage is reported. Mr. Southerland noted that the seal is used to keep the integrity that the trailer had never been opened until the truck arrives.

In his deposition, Mr. Larry Hendricks, an employee with Ozark, stated on at least four occasions the Ozark driver was not allowed to review the load after he picked it up according to the instructions of Restoration Hardware and, that Ozark would not break the seal without permission of Restoration Hardware. Mr. Bryan Hooper, the corporate representative of Restoration Hardware, acknowledged in his deposition that if a carrier requested to inspect a trailer he would comply, but noted that he cannot recall that happening stating, "in my 20 years of distribution, I don't recall a carrier wanting to inspect a load routinely prior to it leaving a yard, provided it's sealed." Mr. Barry Lee Brunstein, a safety consultant in the motor carrier industry, acknowledged that he was sure Restoration Hardware did not intend for Ozark to break the seal, but pointed out that Restoration Hardware would have had no problem if Ozark wanted to.

After review of the evidence, we find that because the trailer was sealed, Ozark was instructed not to open the seal, and Ozark's role was limited to transporting the trailer, Ozark had no duty under 49 C.F.R. 392.9 to inspect the trailer and/or confirm that the load was secured with restraints. The fact that Restoration Hardware would have allowed the driver to break the seal if he had requested to do so, does not negate the applicability of subsection four of the regulation. Thus, Ozark's duty in transporting the trailer was of reasonable care and as we will address below, there was no evidence submitted in opposition to Ozark's motion for summary judgment to indicate that Ozark breached that duty.

In his deposition, Mr. Southerland pointed out that there were no issues reported to him at the time the trailer was opened, and the record reveals that there was no notable event recorded during the transport. In his deposition, Mr. Talbert stated that he did not recall if he saw the trailer being opened or the seal being removed. According to Mr. Talbert, he and Mr. August were trying to remove a large box containing a table that was jammed. Mr. Talbert stated that he was pushing the box towards Mr. August causing the lighter boxes to crush underneath it and fall on top of him. Mr. Talbert acknowledged that he knew of no acts of negligence on the part of Ozark that caused his injuries. The boxes that fell on Mr. Talbert were in the second group of boxes, as Exel employees had already unloaded the boxes closest to the rear.

In favor of his position that Ozark breached a duty and was the cause in fact of Mr. Talbert's accident, Mr. Talbert attached the affidavit of A.J. McPhate, a mechanical engineer, who concluded that in his opinion the boxes fell due to a change in the structural configuration during transit. Because Ozark did not object to Mr. McPhate's affidavit, the affidavit is in evidence and must be considered. See La. Code Civ. P. art. 966D(2). See also Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 2017-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 2018 WL 1324414, *5. The trial court correctly considered Mr. McPhate's affidavit, however, unlike in Thompson, the trial court also considered the deposition of Mr. McPhate, which was attached to Ozark's motion for summary judgment, and found no factual basis in the record for Mr. McPhate's opinion that the boxes shifted during transport.

In his deposition, Mr. McPhate noted that he was not sure how the trailer was loaded, did not know the type of boxes used, and that outside of Mr. Talbert's testimony, he was not aware of any conclusive evidence that the boxes shifted during transport. He further acknowledged that he had no factual evidence to support his theory of shifting and there was no evidence that the contents of the boxes moved. Mr. McPhate based his opinion on the fact that something changed, because the boxes supporting the table were stable at the time Restoration Hardware loaded the trailer. Mr. McPhate admitted that Mr. Talbert, in pulling the heavy box, could have caused the boxes to tumble. Finally, as Mr. Brunstein pointed out, placing the heavier box on top was a "bad form in loading." Mr. McPhate, in his affidavit, stated that the loading of the heavy boxes on top of the stack of boxes contributed significantly to the forces of transit, and the heavier box should have been loaded on the floor.

Mr. McPhate stated that the contents of the boxes may have shifted significantly during transit. Mr. McPhate's opinion is not sufficient to raise an issue of material fact when there is no evidence in the record that Ozark breached a duty of reasonable care. It takes more than the existence of a mere possibility to prove a fact by a preponderance of the evidence in order to defeat summary judgment. See Hawkins v. Fowler, 2011-1495 (La. App. 1st Cir. 5/2/12), 92 So.3d 544, 547-48, writ denied, 2012-1449 (La. 10/8/12), 98 So.3d 860. See also Hanks v. Entergy Corp., 2006-477 (La. 12/18/06), 944 So.2d 564, 578 ("[p]roof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not.") The record is devoid of any evidence that Ozark in transporting the trailer, failed to exercise reasonable care. There was no evidence introduced of anything unusual happening during the transportation of the trailer. The load was sealed when leaving Maryland and sealed when arriving in Baton Rouge, and when the seal was broken, there was nothing presented to the supervisor to indicate that a problem occurred during transit. After reviewing Mr. McPhate's affidavit as well as his deposition, we agree with trial court's conclusion that there is a lack of a factual basis for Mr. McPhate's opinion regarding causation. See Mitchell v. Aaron's Rentals, 2016-0619 (La. App. 1st Cir. 4/12/17), 218 So.3d 167, 176. Therefore, Mr. Talbert failed to produce factual support sufficient to establish the existence of a genuine issue of material fact. See La. C.C.P. art. 966(D)(1).

As Ozark set forth evidence pointing out to the court that there is an absence of factual support that it owed a duty to Mr. Talbert to inspect the contents of the trailer under 49 C.F.R. 392.9 or breached the general duty of reasonable care, and Mr. Talbert failed to produce factual support sufficient to satisfy his evidentiary burden of proving the elements of the duty-risk analysis by a preponderance of the evidence, we find the trial court correctly granted Ozark's motion for summary judgment.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of defendant-appellee, Ozark Motor Lines, Inc., and dismissing the claims of plaintiff-appellant, Mr. Alex Talbert is affirmed. All costs of the appeal are assessed to Mr. Talbert.

AFFIRMED.

Penzato, J. concurs

      In Thompson, this court held that when an affidavit of an expert is introduced in a motion for summary judgment and is admitted into evidence, the trial court is statutorily obligated to consider the expert's opinion regardless of how conclusory it may be. Thompson, 2018 WL 1324414, *5 In Thompson, which was a medical malpractice case, this court determined that the affidavit of plaintiff's expert wherein the expert opined that the defendant's treatment of plaintiff fell below the standard of care was sufficient to raise a genuine issue of material fact. Thompson, 2018 WL 1324414, *5. In this matter, unlike in Thompson, the evidence includes not only the conclusory affidavit of Mr. McPhate, but also his deposition testimony which clearly shows that his opinion is not based upon facts which can be proven in this case.