author: CHEHARDY, C.J.

text:
    Shanda BAILEY v. RENT A CENTER and The Hartford Insurance
    NO. 18-CA-677
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, SHANDA BAILEY, Christopher R. Schwartz, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, RENT A CENTER AND THE HARTFORD INSURANCE, Wade A. Langlois, III, Brittany A. Cooper, Gretna
    Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and John J. Molaison, Jr.
   CHEHARDY, C.J.

Defendants, Rent-A-Center and its insurer, Hartford Insurance (collectively "RAC"), appeal a judgment of the Office of Workers' Compensation ("OWC") finding that the plaintiff, Shanda Bailey, was in the course and scope of her employment with RAC when she injured her neck and back, and that the injuries she sustained were such that she was entitled to temporary total disability benefits, supplemental earnings benefits, past and future medical expenses, and penalties and attorney fees. Ms. Bailey answered the appeal seeking additional attorney fees incurred by her counsel for having to oppose the appeal. For the reasons that follow, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

In August of 2017, Ms. Bailey was employed by RAC as a Customer Account Representative. Her job duties included interacting with customers, making customer phone calls, loading and unloading delivery trucks, delivering and picking up rental merchandise, installing merchandise, and keeping company vehicles clean and properly maintained.

On August 14, 2017, while assisting a co-worker in moving a washing machine, Ms. Bailey experienced a "slight sprain" in her back. Ms. Bailey did not consider the back sprain to be anything serious or even an "injury" as she was able to resume working that day and complete the delivery. Consequently, Ms. Bailey did not report the incident or seek medical attention at that time.

Two days later on August 16, 2017, Ms. Bailey was tasked with loading a full-size mattress and box spring into the back of the company van on her own. While she was able to successfully load the box spring into the van, she experienced difficulty in loading the mattress on her own. According to Ms. Bailey, she made two requests for assistance from her supervisor, Tammy Johnson, to no avail. After several failed attempts to successfully maneuver the mattress into the van, Ms. Bailey tried to lift the mattress over her head to guide it into the van and, in the process of doing so, she immediately felt pain in her neck and the top of her back. The accident was unwitnessed.

Ms. Bailey, a type I diabetic who requires an insulin pump, became light-headed and dizzy. She felt the immediate onset of a headache. Concerned that she might pass out or suffer an insulin reaction, Ms. Bailey went into the store to check her blood sugar. She advised her supervisor, Ms. Johnson, that she was "in pain," that her blood sugar was low, and that she was leaving the store in order to seek medical assistance. Ms. Bailey then left RAC with the intent of proceeding to the closest Urgent Care, but due to her dizziness, pain, and inability to transport herself beyond the Walmart parking lot located around the corner, she called her daughter to drive her to Ochsner Kenner Medical Center.

Ms. Bailey presented to the emergency room at Ochsner complaining of "thoracic back discomfort." The emergency room records reflect that Ms. Bailey mentioned the discomfort she had experienced in her back while moving the washing machine at work two days prior, and reported that she had experienced a second work-related injury to her upper back earlier in the day on August 16, 2017, while lifting mattresses. Ms. Bailey denied any prior history of neck or back problems or any physical restrictions at the time of the accident. X-rays of her thoracic spine were taken, and Ms. Bailey was given Toradol and Norflex injections. She was diagnosed with muscle "strain, sprain, [and] spasm," instructed to follow-up with her primary care physician, and was provided a work excuse.

After her initial emergency room visit to Ochsner Kenner, Ms. Bailey reported the incident to her store manager at RAC, Jorge Idiaquez. Though Mr. Idiaquez denied at trial that Ms. Bailey had ever reported the incident to him or that her injury was work related, the Workers' Compensation - First Report of Injury indicates otherwise. According to the report, Mr. Idiaquez notified Rent-A-Center's carrier of the incident on August 18, 2017. Specifically, Mr. Idiaquez reported that Ms. Bailey had reported that she was involved in an accident occurring at work on August 16, 2017, while she was "dragging a mattress." Mr. Idiaquez further reported that Ms. Bailey "stated that she was going to the doctor for her blood glucose. [Ms. Bailey] did not mention about a work related injury until later on that day. [Ms. Bailey] stated that she was trying to grab a full size mattress." Moreover, Tammy Johnson testified by deposition that Mr. Idiaquez mentioned to her several days after the accident (but within the same week) that Ms. Bailey had left the store on August 16, 2017 because she had hurt herself.

After having undergone emergency medical treatment, and after having reported the incident to Mr. Idiaquez, Ms. Bailey testified that she provided RAC

with the work excuse she received from Ochsner, which was dated August 16, 2017 and restricted her from work. This document-which was provided by RAC to plaintiff's counsel in response to a request for production of documents seeking all work slips RAC had in its possession-in addition to the First Report of Injury corroborate Ms. Bailey's contention that RAC was aware that she was injured while in the course and scope of her employment and was restricted from work.

On August 17, 2017, the day following her accident, Ms. Bailey followed up with her primary care physician, Dr. Sudha Mardia, complaining of neck and back pain as a result of lifting a mattress at work. At this visit, Dr. Mardia diagnosed Ms. Bailey with "cervicaligia" and low back pain. Ms. Bailey was provided a "no work" slip, which was later presented to RAC. Ms. Bailey returned to Dr. Mardia on August 21, 2017 with continued complaints of neck and back pain due to her injury and was again restricted from work. When Ms. Bailey presented to Dr. Mardia on August 25, 2017 with ongoing complaints of pain in her neck and back, Dr. Mardia referred her for physical therapy. Ms. Bailey returned to the emergency room at Ochsner Kenner on August 24, 2017, where she complained of and was treated for ongoing thoracic back pain stemming from the accident she sustained at RAC on August 16, 2017.

Ms. Bailey attempted to return to work on August 31, 2017. After remaining at the store for approximately an hour and a half on that day, she left work in order to attend a doctor's appointment with her initial physician of choice, Dr. Dennis Gruwell. At trial, Mr. Idiaquez denied that Ms. Bailey had advised him that she was leaving work to attend a doctor's appointment, but rather he testified that she exhibited no signs of pain that day, appeared frustrated and agitated, and abruptly departed the store stating that she "just was not going to do it."

Dr. Gruwell's records confirm that Ms. Bailey appeared for a scheduled appointment on August 31, 2017 complaining of pain in her upper back, neck and shoulders as a result of "trying to lift a mattress into a van at work." Dr. Gruwell diagnosed Ms. Bailey with cervical and thoracic strains, which he related to the August 16, 2017 work-related accident. Ms. Bailey did not return to work that day because Dr. Gruwell restricted her from work in any capacity at that time. Dr. Gruwell continued to treat Ms. Bailey through January 25, 2018, at which time he stated that "[t]he patient is unable to work in any capacity at this time." Dr. Gruwell's treatment consisted of physical examinations during monthly office visits and various treatment modalities several times per week, including electric stimulation, hot/cold compress treatment, and therapeutic exercises. On occasion massage was attempted but Ms. Bailey generally could not tolerate massage. As of the last work status report prepared by Dr. Gruwell on January 25, 2018, he had Ms. Bailey restricted from work. Further, Dr. Gruwell's records indicate that on February 6, 2018, he recommended that Ms. Bailey be evaluated by a neurosurgeon and indicated that epidural steroid injections may be appropriate. Though Dr. Gruwell's office continuously submitted the requisite 1010 forms to Rent-A-Center's insurer for approval of treatment, these were denied.

Ms. Bailey presented to Dr. Scott Buhler, her choice of orthopedist, on September 13, 2017 for an authorized initial evaluation. Ms. Bailey gave a history of having experienced pain in her neck and back immediately after having lifted a mattress at work on August 16, 2017. Ms. Bailey complained of pain in her thoracic and cervical spine with shooting pains into her left leg and, on exam, she showed a limited range of motion. Dr. Buhler diagnosed Ms. Bailey with having sustained a strain of the musculature in her thoracic spine, cervical spine, and possibly lumbar spine, and he opined that these injuries were consistent with her lifting accident at work on August 16, 2017. Dr. Buhler recommended that Ms. Bailey undergo a more formal physical therapy exercise program in addition to the hot/cold packs, electrical stimulation and massage she had been receiving. At this initial evaluation, Dr. Buhler restricted Ms. Bailey from work "until further notice."

Dr. Buhler testified by deposition that his review of Ms. Bailey's Ochsner Kenner emergency room records correlated to the history she gave to him regarding how and when the work-related accident occurred, the upper thoracic pain she described, and the limited range of motion on exam, all of which were consistent with a lifting injury. On January 11, 2018, Ms. Bailey underwent a thoracic MRI, which revealed mild abnormalities at the T7-8 and T8-9 levels, including small posterior disc protrusions without any significant spinal cord abnormality or compression. According to Dr. Buhler, these findings were in the area of the spine where Ms. Bailey was complaining of pain from the accident. Consequently, he opined that her lifting accident at work could have caused these symptoms. Further, Dr. Buhler agreed with Dr. Gruwell's restrictions for Ms. Bailey from work activities, "until further notice." However, Ms. Bailey did not return to Dr. Buhler because RAC did not authorize additional treatment. At the time of his deposition taken on July 11, 2018, Dr. Buhler opined that Ms. Bailey is now likely capable of engaging in "some form of light duty" work. Lastly, Dr. Buhler related Ms. Bailey's injuries to the accident she sustained on August 16, 2017 while lifting the mattress at work.

On April 18, 2018, at the request of RAC, Ms. Bailey underwent a second medical opinion (SMO) by orthopedic surgeon, Dr. Kevin Watson. While Dr. Watson conceded the possibility that Ms. Bailey could have sustained a muscle strain of her thoracic spine from lifting at work, he ultimately determined that the "inconsistent complaints" he noted in his review of her medical records and what he referred to as the "nonorganic" signs of pain, "call[ed] in[to] question the validity of her subjective complaints." Moreover, Dr. Watson opined that Ms. Bailey's complaints of pain were possibly non-physiological in nature and could be attributable to her "stress, job dissatisfaction, [and the] Workers' Compensation litigation." Additionally, Dr. Watson discounted the findings on the MRI as being caused by trauma or other injury, but rather, determined the "minimal disc protrusions" observed were more likely consistent with the degenerative process as they are often seen in asymptomatic patients. Based upon his examination of Ms. Bailey and his review of her medical records, Dr. Watson found "no objective evidence of injury to her neck or back" and concluded that she sustained no objective injury as a result of her work at RAC.

While under Dr. Gruwell's care, Ms. Bailey filed a Form 1008, Disputed Claim for Compensation, which was received by the Office of Workers' Compensation on September 6, 2017. Ms. Bailey alleged that no medical or indemnity benefits were paid by RAC and that no medical treatment was authorized as a result of her work-related accident. RAC answered the Form 1008 on October 20, 2017 denying that Ms. Bailey suffered an accident on August 16, 2017 in the course and scope of her employment.

Following a trial, the OWC took the matter under advisement. Thereafter, on August 20, 2018, the OWC issued a judgment, in which it ruled the following: Ms. Bailey is entitled to temporary total disability benefits of $ 300.00 per week, retroactive to August 16, 2017, through January 25, 2018, for a total of $ 6,900.00, together with legal interest; RAC is ordered to pay Ms. Bailey supplemental earnings benefits in the amount of $ 300.00 per week, retroactive to January 25, 2018 through the date of judgment, together with legal interest, and to continue to pay supplemental earnings benefits to Ms. Bailey until such time as a modification is appropriate; RAC is ordered to pay medical expenses, subject to any reductions allowed by the Louisiana Workers' Compensation Fee Schedule, in the following amounts: $ 3,832.00 to Dr. Dennis Gruwell; $ 2,804.99 to Ochsner Kenner Medical Center; $ 650.00 to Magnolia Diagnostics; and, any Medicaid lien owed to St. Charles Community Health Center; RAC is ordered to approve and pay for Ms. Bailey's ongoing treatment with Dr. Scott Buhler; and, pursuant to La. R.S. 23:1201(I), RAC is ordered to pay $ 8,000.00 in penalties to Ms. Bailey, and $ 15,000.00 in attorney fees to her attorney.

RAC appeals this judgment.

ASSIGNMENTS OF ERROR

On appeal, RAC submits four assignments of error: (1) the OWC erred in determining that Ms. Bailey established an unwitnessed work-related accident occurred on August 16, 2017; (2) the OWC erred in finding that Ms. Bailey carried her burden of proving disability and causation; (3) the OWC erred in determining Ms. Bailey established her entitlement to workers' compensation benefits; and (4) the OWC erred in awarding Ms. Bailey penalties and attorney fees. Ms. Bailey answered the appeal, seeking appellate attorney fees and costs of the appeal.

STANDARD OF REVIEW

It is well-settled that factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Winford v. Conerly Corp. , 04-1278 (La. 3/11/05), 897 So.2d 560, 569. In applying the manifest error standard, the appellate court must determine not whether the fact finder was right or wrong, but whether the fact finder's conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc. , 96-2840 (La. 7/1/97), 696 So.2d 551, 556. Consequently, when there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Galiano v. Lucky Coin Machine Company , 15-2065 (La. 1/8/16), 184 So.3d 689. Moreover, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Similarly, "[i]f the [fact finder's] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut. Ins. Co. , 558 So.2d 1106, 1112 (La. 1990). Accordingly, if the evidence in the record on appeal supports the factual determinations of the trier of fact, we are required to affirm the findings.

DISCUSSION

An employee seeking workers' compensation benefits must prove "personal injury by accident arising out of and in the course of his employment." La. R.S. 23:1031(A). An "accident" is defined as "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La. R.S. 23:1021(1). Where the employee is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an "accident" within the meaning of La. R.S. 23:1021(1). Garcia v. Rouses Enter. , 15-0007 (La. App. 5 Cir. 5/14/15), 170 So.3d 1157, 1160.

The employee in a workers' compensation action has the burden of proving a work-related accident by a preponderance of the evidence. Garcia, supra. An employee may prove that an unwitnessed accident occurred in the course and scope of his employment by his testimony alone if the employee can prove (1) no other evidence discredits or casts serious doubt upon the employee's version of the incident; and (2) the employee's testimony is corroborated by the circumstances following the alleged incident. Id. Corroboration of the employee's testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Id.

In determining whether an employee has discharged his burden of proof, the fact-finder "should accept as true a witness' uncontradicted testimony, although the witness is a party, absent circumstances casting suspicion on the reliability of this testimony." Garcia, supra. The fact-finder's determination as to whether the employee's testimony is credible and whether the employee has discharged his burden of proof are factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Id. If the lower court's findings are reasonable in light of the entirety of the record, the appellate court may not reverse. Id. Consequently, when there are two permissible views of the evidence, the fact-finder's choice between them cannot be manifestly erroneous. Id.

In this case, Ms. Bailey testified that she experienced pain in her upper back and shoulder area immediately after attempting to lift a mattress at work. While the various medical records differ somewhat regarding their respective descriptions of the exact area of Ms. Bailey's pain-i.e. , whether it was her upper back, her neck area, in between her shoulders, or mid back-the medical records consistently substantiate that Ms. Bailey sustained an injury that occurred at work while moving a mattress, and that the injury was to her thoracic spine. The medical testimony and records further corroborate that Ms. Bailey's complaint of pain in her thoracic spine was consistent with her description of how the accident occurred-lifting a mattress. Although testimony was offered by RAC to suggest that Ms. Bailey did not attempt to lift a mattress and that she did not report a work-related accident, as the fact-finder, the OWC was permitted to accept Ms. Bailey's version of events and reject that of Mr. Idiaquez and Ms. Johnson. Additionally, Ms. Bailey's version is corroborated by the medical evidence and the testimony of Dr. Buhler. Our review of the testimony and evidence presented at the hearing convinces us that the purported discrepancies upon which RAC relied to deny Ms. Bailey's claim are minor and do not cast serious doubt upon or seriously challenge the credibility of her version of the incident. Therefore, in view of the record before us, we cannot find that the OWC manifestly erred in concluding that Ms. Bailey sustained a work-related injury by accident on August 16, 2017. RAC's first and second assignments of error are without merit.

In RAC's third assignment of error, it argues that the OWC erred in holding Ms. Bailey was entitled to workers' compensation benefits. As we found above, Ms. Bailey proved her disability stems from the injury she sustained on August 16, 2017. Because this disability continued for more than two weeks, she is entitled to benefits from the date of her injury. See La. R.S. 23:1224. This assignment of error is also without merit.

In its final assignment of error, RAC argues the OWC erred in assessing penalties and attorney fees under La. R.S. 23:1201(I). Penalties and attorney fees in workers' compensation are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc. , 98-2271 (La. 6/29/99), 737 So.2d 41, 46. Whether penalties and attorney fees are warranted is a factual determination, which will not be disturbed in the absence of manifest error. Williams v. Rowe-Treaudo , 11-0046 (La. App. 5 Cir. 9/27/11), 75 So.3d 502, 508.

Under La. R.S. 23:1201(I), when an employer fails to pay workers' compensation benefits, penalties and attorney fees shall be assessed if the employer did not reasonably controvert the claim. Redmann v. Bridgefield Cas. Ins. Co. , 11-651 (La. App. 5 Cir. 2012), 88 So.3d 1087, 1096, writ denied , 12-710 (La. 5/18/12), 89 So.3d 1192. A claim is "reasonably controverted" if the employer has some valid reason or evidence upon which to base its denial of benefits. Id. To determine whether a claimant's right to benefits has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time the employer refused to pay the benefits allegedly owed. Rowe-Treaudo, supra. Penalties and attorney fees should not be imposed in doubtful cases, where a bona fide dispute exists as to the employee's entitlement to benefits, and the mere fact that an employer loses a disputed claim is not determinative. J.E. Merit Constructors, Inc. v. Hickman , 00-943 (La. 1/17/01), 776 So.2d 435, 438.

In this case, the First Report of Injury reported by Mr. Idiaquez to RAC's carrier documents that Ms. Bailey reported her injury to him on the date of the accident, August 16, 2017. Although Mr. Idiaquez attempted to deny that Ms. Bailey ever reported her injuries to anyone at RAC as work-related, under cross-examination he conceded that when he reported the incident to RAC's carrier on August 18, 2017, he did know that Ms. Bailey was alleging she had sustained a back injury on the job. Prior to her termination from RAC, Ms. Bailey consistently presented work excuses or "no work" slips from her medical providers to RAC. At trial, RAC failed to show that it possessed information that reasonably contravened the factual and medical information presented to it by Ms. Bailey from the date of her work-related accident. Moreover, while Mr. Idiaquez testified that after Ms. Bailey was released to return to light-duty, she was offered light-duty work and denied it, Mr. Idiaquez could not state whether he made a phone call or actually spoke to Ms. Bailey in person to inform her of the light-duty work offer nor could he state the date of the alleged offer. Ms. Bailey denied that she was ever offered light-duty work in this case. In view of the foregoing, and upon our review of the record, we cannot find that the OWC manifestly erred in concluding that RAC failed to reasonably controvert Ms. Bailey's claim for workers' compensation benefits and, thus, that penalties and attorney fees were warranted in this case. This assignment of error lacks merit.

Ms. Bailey answered this appeal pursuant to La. C.C.P. art. 2133 seeking additional attorney fees incurred by counsel in opposing RAC's appeal. A workers' compensation claimant who timely answers the appeal is entitled to increased attorney fees to reflect additional time incurred in defending against an employer/insurer's unsuccessful appeal, especially where the claimant makes a clear showing of the employer's arbitrary and capricious refusal to pay the claim. Hamilton v. Compass Group USA/Morrison , 07-501 (La. App. 5 Cir. 11/27/07), 973 So.2d 803, 809. Because our decision in this case denies RAC relief, we grant Ms. Bailey's request and award counsel for Ms. Bailey $ 2,500.00 in attorney fees for the defense of this appeal.

DECREE

For the foregoing reasons, we affirm the judgment of the Office of Workers' Compensation finding that Shanda Bailey suffered an accident and injury in the course and scope of her employment on August 16, 2017, entitling her to workers' compensation benefits as set forth in the judgment. We also affirm the judgment ordering Rent-A-Center to pay medical expenses and ordering Rent-A-Center to approve and pay for Ms. Bailey's ongoing treatment with Dr. Scott Buhler. We further affirm the judgment awarding penalties against Rent-A-Center and Hartford in the amount of $ 8,000.00, and the award of attorney fees. We grant Ms. Bailey's request for attorney fees on appeal in the amount of $ 2,500.00 and assess costs of this appeal against Rent-A-Center.

AFFIRMED.

      This work slip, in addition to several others obtained by Ms. Bailey during the course of her treatment, was produced by RAC in discovery. All of the work slips were introduced into evidence at trial and are contained in the appellate record.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    Sondier KNIGHT v. IMPERIAL TRADING CO.
    NO. 19-CA-41
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, SONDIER KNIGHT, DaShawn P. Hayes, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, IMPERIAL TRADING CO., B. Scott Cowart, Jennifer A. O'Connell, Baton Rouge
    Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and John J. Molaison, Jr.
   CHAISSON, J.

In this Workers' Compensation case, Sondier Knight appeals a judgment sustaining an exception of prescription filed by Imperial Trading Company ("Imperial"), which dismissed Ms. Knight's claim with prejudice. For the reasons set forth herein, we affirm the judgment of the trial court.

FACTS & PROCEDURAL HISTORY

On April 26, 2017, Ms. Knight presented herself to the West Jefferson Medical Center emergency room with complaints of left arm, shoulder and chest pain. According to the doctor's notes from that visit, these injuries were sustained at work and were the result of "lifting or pulling a heavy object." Ms. Knight was discharged that day with a diagnosis of "chest pain-muscle strain," with instructions to follow-up with her family doctor in one to two days. Ms. Knight did not follow-up with her family doctor as instructed. She never returned to work at Imperial after this accident.

Three months later, on July 26, 2017, Ms. Knight presented herself to the SouthShore Physician Group with complaints of left shoulder and chest pain that she related to her April 26, 2017 accident at work. She was diagnosed with thoracic strain, left shoulder strain and left anterior chest contusion, and was prescribed a course of office therapy three times per week.

On May 30, 2018, more than one year after her alleged April 26, 2017 work-related accident, Ms. Knight filed a Disputed Claim for Compensation against Imperial seeking workers' compensation benefits for the injuries she sustained in the April 26, 2017 accident. Imperial filed an answer to the Disputed Claim for Compensation in which it denied all of Ms. Knight's allegations, including whether an accident occurred on April 26, 2017.

Along with its answer, Imperial also filed a peremptory exception of prescription in which it argued that Ms. Knight's claim for compensation had prescribed pursuant to La. R.S. 23:1209(A), because it was filed more than one year from the date of the accident. In opposition to this motion, Ms. Knight argued that prescription had not yet run on her claim because her injury did not develop immediately after the accident, but rather only when she was diagnosed by the SouthShore physician on July 26, 2017. Following a hearing, the trial court rendered judgment sustaining Imperial's exception of prescription and dismissed Ms. Knight's claim with prejudice. It is from this judgment that Ms. Knight now appeals.

DISCUSSION

This Court recently articulated the law on prescription of claims for workers' compensation benefits in Eugene-Robinson v. East Jefferson General Hospital :

Under La. R.S. 23:1209(A), claims for workers' compensation benefits must be filed within (1) one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment of supplemental earnings benefits; or (3) one year from the date the injury develops, if the injury does not result at the time of or immediately after the accident, but no more than three years from the date of the accident. See Roussell v. V.J. Rollo Security Service, Inc. , 10-245 (La. App. 5 Cir. 10/12/10), 50 So.3d 900, 902.
Generally, development of the injury means development of the disability, which is usually identified as the time it becomes clear that the employee is no longer able to perform her employment duties in a satisfactory manner. Swearingen v. Air Products & Chemical, Inc. , 481 So.2d 122, 124 (La. 1986). Thus, an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Winford v. Conerly Corp. , 04-1278 (La. 3/11/05), 897 So.2d 560, 564. For purposes of prescription, the jurisprudence has identified two situations that signify the date a developing injury manifests as a disability: (1) the date the employee is forced to discontinue working due to the injury; or (2) the date the employee receives a medical diagnosis which determines that he is disabled. Id. at 565.

17-433 (La. App. 5 Cir. 12/27/17), 237 So.3d 93, 97.

At issue here is whether prescription began to run on Ms. Knight's claim on April 26, 2017, the date of her purported accident, or whether, as argued by Ms. Knight, prescription began to run on July 26, 2017, the date that she claims her injury developed into a disability which prevented her from working. Relevant to our inquiry is the question of which party bears the burden of proof on the exception of prescription.

Ordinarily, the party urging prescription bears the burden of proof at trial of the exception; however, if the petition is prescribed on its face, the burden shifts to the plaintiff to show the action is not prescribed. Palazola v. IMC Consulting Engineers, Inc. , 16-22 (La. App. 5 Cir. 6/30/16), 197 So.3d 782, 784.

Upon review of Ms. Knight's Disputed Claim for Compensation, we find that it is prescribed on its face. Although the information provided in the claim form is quite sparse, it clearly states April 26, 2017, as the date of the purported accident. The description of the accident states simply: "As plaintiff was moving products, she fell and hit conveyor belt." Although the claim form advises claimants that they may attach a letter or petition with additional information, there is nothing in the record to indicate that Ms. Knight chose to do so. Ms. Knight's claim form confirms that no indemnity benefits have been paid and appears to seek those benefits from the date of her accident on April 26, 2017. In short, there is nothing in the claim form to indicate that Ms. Knight suffered a developmental injury or that she only became disabled from work on any date other than April 26, 2017. On the record before us, Ms. Knight raises for the first time the argument of a delayed disability from work in her opposition to Imperial's exception of prescription.

Having determined that the claim is prescribed on its face, and that the burden of proof shifted to Ms. Knight to show that her claim is not prescribed, we next examine the evidence introduced by Ms. Knight. As previously stated, when the issue of delayed development of disability is raised for the purpose of defeating an exception of prescription, "the jurisprudence has identified two situations that signify the date a developing injury manifests as a disability: (1) the date the employee is forced to discontinue working due to the injury; or (2) the date the employee receives a medical diagnosis which determines that he is disabled." Eugene-Robinson v. East Jefferson General Hospital , 237 So.3d at 97.

Regarding the date that Ms. Knight discontinued working, while Ms. Knight acknowledges that she never returned to work after the accident, she argues that the reason she discontinued work was because she was fired by Imperial. In its memorandum in support of its exception of prescription, Imperial concedes that Ms. Knight was "fired for cause" from her employment the day after the alleged accident, but provides no information as to the reason that Ms. Knight was terminated. The evidence in the record before us simply provides no information from which this Court can determine, one way or the other, whether Ms. Knight's discontinuance of work was "due to the injury," and therefore we do not view this information as favorable to either party on the exception of prescription. We therefore decline to accept Imperial's suggestion that Ms. Knight's discontinuance of work from the time of the alleged accident is sufficient proof that she was disabled on that date. However, we do note that Ms. Knight, as the party with the burden of proof on this exception, has introduced no evidence to show that, but for being fired by Imperial, she was otherwise able to work from the date of the accident until July 26, 2017.

Regarding the date of receipt of a medical diagnosis of disability, the record reveals that no witnesses were called to testify at the hearing of the exception of prescription. The only evidence introduced by Ms. Knight in support of her claim of a developmental injury consists of a letter from SouthShore Physician Group concerning her July 26, 2017 medical exam. Although she offers this letter as evidence that her disability was not diagnosed until July 2017, the language of the letter does not support her position. There is nothing in the letter that mentions a diagnosis of disability, inability to work, or that the injury had developed over time. To the contrary, the letter makes reference to the April 26, 2017 accident and states that "[i]n all medical probability the patients' signs and symptoms are causally related to the accident." Such language appears indicative of a situation in which the purported accident and the disabling injury were immediately apparent on April 26, 2017, and not one of a developmental injury.

CONCLUSION

Because Ms. Knight's claim is prescribed on its face and she has failed to meet her evidentiary burden to show it has not prescribed, we find that the trial court correctly sustained Imperial's exception of prescription. Accordingly, we affirm the judgment of the trial court dismissing Ms. Knight's claim with prejudice.

AFFIRMED

      Although both parties appear to agree that Ms. Knight's employment was terminated, it is unclear from the record the reason for her termination.

      At the hearing of the exception, Imperial introduced affidavits from Cheryl Analla, its Vice President of Administration, and Wynnetria Shorter, the handling adjuster for Ms. Knight's claim, verifying that no indemnity or medical benefits have been paid to Ms. Knight as the result of her alleged April 26, 2017 accident. Ms. Knight did not present any evidence to contest this assertion. Therefore, it is undisputed that the second prescriptive period under La. R.S. 23:1209(A), running from the date of the last payment of indemnity benefits, is not applicable to this case.

      In support of their exception of prescription, Imperial also introduced into evidence medical records from Ms. Knight's April 26, 2017 visit to the emergency room at West Jefferson Medical Center. At that time, Ms. Knight was diagnosed with "chest pain - muscle strain", but no mention was made of any diagnosis of disability or inability to work.

      We note that Imperial's Answer to Ms. Knight's appeal in which it sought to contest a finding that an accident occurred is moot in light of our decision to affirm the judgment of the trial court dismissing Ms. Knight's claim with prejudice.


author: LILJEBERG, J.

text:
    Trieonne Washington JONES v. Shaun Adel JONES
    NO. 19-CA-66
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLEE, TRIEONNE WASHINGTON JONES, Cynthia A. De Luca, Rebecca Gilson
    COUNSEL FOR DEFENDANT/APPELLANT, SHAUN ADEL JONES, Natashia Carter Benoit
    Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and Hans J. Liljeberg
   LILJEBERG, J.

Appellant, Shaun Adel Jones, seeks review of the trial court's July 9, 2018 Judgment addressing custody and visitation issues. Shaun does not contest the substance of the trial court's custody rulings, but contends the trial court erred by finding its ruling rendered from the bench following the February 15, 2017 custody trial was an interim order, rather than a considered decree subject to the Bergeron standard. Shaun also objects to the trial court's appointment of a custody evaluator at a subsequent status conference and contends that certain portions of the July 9, 2018 Judgment fail to properly set forth the custody and visitation terms addressed on the record following the status conference.

As explained more fully below, we affirm the trial court's July 9, 2018 Judgment, but remand the matter to the trial court to amend certain portions of the judgment as instructed herein. The record indicates that Shaun stipulated to the interim nature of the trial court's custody and visitation rulings. Furthermore, we do not find that the trial court abused its discretion by appointing a custody evaluator.

FACTUAL AND PROCEDURAL BACKGROUND

The parties, Shaun Adel Jones and Trieonne Washington Jones, share custody of three minor children born during their marriage. On March 21, 2013, Trieonne filed a petition for divorce, which included a request for joint custody and for designation as the domiciliary parent. On May 6, 2013, the parties entered into a stipulation designating Trieonne as the "primary custodial parent," but did not stipulate to a visitation schedule.

On June 2, 2014, Shaun filed a motion to modify custody and child support alleging Trieonne improperly limited his visitation with the children. Shaun argued that it was in the best interest of the children to award him "joint/shared custody" with either no domiciliary parent or both parties designated as co-domiciliary parents.

He also asked that the parties exercise equal visitation and custodial time with the children. The matter was set for hearing on July 7, 2014, and the minute entry from that hearing date indicates "the parties stipulated to maintaining joint custody." On August 25, 2014, the trial court issued a written judgment providing as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED the parties will continue the present custody arrangement with mother, Trieonne W. Jones, as domicile parent, and with father, Shaun A. Jones having custody every other weekend from Friday to Sunday and furthermore Mr. Jones shall have the right to request additional weekday visitation by contacting Trieonne Jones.

The trial court signed a judgment of divorce on August 28, 2014. On October 8, 2014, Shaun filed a motion for contempt alleging Trieonne failed to adhere to the new weekend visitation schedule and refused to allow him weekday visitation with the children. On November 5, 2014, the parties entered into a consent judgment maintaining joint custody. Trieonne remained as the domiciliary parent and Shaun's visitation was extended to every other week from Thursday through Monday. The parties also agreed to summer and holiday visitation schedules and to enroll in Our Family Wizard within 30 days.

On April 28, 2016, Shaun filed a motion for contempt and to modify custody. In his motion, Shaun again alleged it would be in the best interest of the minor children for the parties to have "joint/shared custody" with equal visitation time and either no domiciliary parent or both parties designated as co-domiciliary parents. On May 20, 2016, Trieonne filed an ex parte motion for temporary sole custody. The trial court denied her request for temporary sole custody and set the matter for hearing. Also on August 17, 2016, Trieonne filed a motion asking the trial court to conduct a Watermeier hearing with the children to allow the trial court to evaluate their concerns in determining custody. On December 15, 2017, Trieonne moved to voluntarily dismiss her ex parte motion for temporary sole custody, which the trial court granted. A minute entry from a January 23, 2017 hearing date states the trial court would not hold a Watermeier hearing, but would briefly speak to the minor children in chambers.

After several continuances, the trial court set a trial date for Shaun's motion to modify custody on February 15, 2017. Shaun called six witnesses to testify, including himself, and introduced numerous exhibits into evidence before resting his case. Prior to presenting her case, Trieonne moved for directed verdict arguing that Shaun failed to meet his burden to obtain a modification of the consent custody order entered into between the parties on November 5, 2014. Trieonne argued that Shaun failed to prove it was in the best interest of the children for the parties to share custody with a 50/50 visitation schedule and no domiciliary parent designation.

After hearing oral argument on Trieonne's motion for a directed verdict, the trial court apparently declined to grant a directed verdict and instead chose to proceed directly to granting Shaun's motion to modify custody as follows:

1) The trial court determined the parties would share 50/50 custody with a 2, 2, 3 visitation schedule. The trial court indicated that it would allow the attorneys to explore whether the parties could agree on how they would allocate the visitation days.
2) With respect to the domiciliary parent, the trial court stated as follow:
You are domiciliary parent, ma'am, however, that is only to where they reside. All school decisions are going to be made together. All health and welfare decisions will be made together. In this case, the domicile is the address as to where they reside, but you're going to share everything.
3) With respect to holidays, the trial court stated one party would exercise visitation on Christmas Eve and the other would have Christmas Day, with the schedule flipping every other year. The trial court further stated the parties would follow their regular schedule for the remaining holidays.
4) The trial court determined that Shaun would bring their son for haircuts, and Trieonne would bring the girls to dance rehearsals and recitals.
5) The trial court ordered that all contact and email lists should include both parents' contact information, including but not limited to doctors, girl scouts, and sports related activities.
6) With respect the children's activities, the trial court determined that both parties must concur on Our Family Wizard before signing the children up for additional activities.
7) Finally, the trial court ordered the parties to send and return all of the children's uniforms, clothes and equipment when exchanging custody.

After the trial court provided its ruling, Trieonne's counsel noted that she only asked for a directed verdict and did not forego the right to present her client's case:

MS. GAUFF: I asked for directed verdict. I didn't forego my ability to put on a case, so I'm going to note - - so please note our objection to the court's ruling without permitting us to put on a case.
THE COURT: Do you want to put on your case?
MS. GAUFF: I'm just making a record - -
THE COURT: No, I'm saying, do you want to?
MS. GAUFF: I'm putting - - the Court has ruled so I'm just making my objection and protecting the record.

After this exchange with the trial court, Trieonne's counsel moved to withdraw as counsel with respect to any further custody issues. The trial court granted counsel's request to withdraw and signed a written order to that effect on March 14, 2017.

On March 17, 2017, Trieonne's current counsel filed a motion to enroll on behalf of Trieonne with respect to custody issues, as well as the collection of past due child support. On March 27, 2017, Trieonne filed a motion to reset the trial regarding custody issues. In this motion, Trieonne alleged that at some unspecified time after the February 15, 2017 custody trial, "the Court determined that TRIEONNE WASHINGTON was not given the opportunity to present her case in chief to the court. The matter was then considered an open custody trial to be reset by Ms. Jones for presentation of her case in chief." Trieonne further averred that "the Court converted her bench ruling to an interim judgment pending the completion of the hearing." The record does not include any judgment, transcripts or minute entries evidencing these alleged determinations by the trial court. However, on March 27, 2017, the trial court signed the order presented with Trieonne's motion to reset and scheduled the continuation of the custody trial on May 22, 2017.

According to the parties, they did not continue the custody trial on May 22, 2017, but rather conducted a status conference with the trial court. On that same morning, Trieonne also filed a motion to appoint a custody evaluator alleging that additional issues had arisen since the February 15, 2017 custody trial. Trieonne argued that good cause existed to appoint a custody evaluator because this matter involved serious allegations by both parties of abusive conduct, physical abuse, inappropriate sleeping arrangements for the children and refusals to co-parent. According to the transcript from the May 22, 2017 status conference, the parties agreed to additional terms with respect to custody and visitation that clarified the rulings rendered by the trial court on February 15, 2017. The transcript indicates that Shaun's counsel acknowledged on the record that the trial court's rulings following the custody trial were interim:

MS. BENOIT: Your honor, with respect to what we're doing today, we're doing a clarification of interim judgment that was rendered on 2/15/2016.
MS. GILSON: Not 2016.
MS. BENOIT: 2017. It's not meant to change anything, we just wanted clarification. With respect to things that are going to be clarified, your honor, the parties are going to exercises [sic] their 50/50 custody on the following schedule: Monday and Tuesday will be Dad's day, Wednesday and Thursday will be Mom's day, they will alternate the weekends. [Emphasis added.]

Shaun's counsel also clarified the terms as to when, where and how the parties would transfer physical custody of the children. She also stated that the court was appointing Daniel Roussel as a custody evaluator and the payment terms for each party. After reciting these matters into the record, the trial court had both parties sworn in and asked if they agreed to abide by the terms counsel recited into the record. Both parties responded affirmatively. Shaun's counsel did not raise any objections to the terms she recited into the record.

The next filing in the record relating to custody is a document entitled "Court Form Stipulation" dated January 22, 2018, indicating that the "custody matter" was set for March 26, 2018. The custody issues were eventually reset to May 29, 2018, and Shaun contends that on that date, the parties held a status conference during which they debated the legal standard that should apply to the outstanding custody issues. Shaun contends the trial court initially indicated it would apply the Bergeron standard, but subsequently changed its position. This change in position allegedly prompted his counsel to request that the trial court enter a judgment regarding the February 15, 2017 custody trial and the May 22, 2017 status conference. The minute entry from the May 29, 2018 status conference does not reference any discussions regarding the applicable legal standard, but states the "parties will submit ... a Stipulated Judgment on Custody by June 1, 2018 with the court." The minute entry further stated that the matter was set for trial on August 1 and 2, 2018.

The record does not contain a stipulated judgment presented by the parties. Rather, on July 9, 2018, the trial court rendered a detailed written judgment setting forth the custody and visitation terms rendered following the February 15, 2017 custody trial and May 22, 2017 status conference. The July 9, 2018 Judgment provides in relevant part as follows:

This matter came before this Honorable Court on the 15th day of February, 2017, pursuant to 'Trial' on the issue of custody. Present in court were TRIEONNE JONES, with her attorney, Nghana Guaff and SHAUN JONES with his attorney, NaTashia Carter Benoit. Pursuant to the pleadings filed, evidence submitted, witness testimony and argument of counsel, the Court did rule as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the Motion for modification is granted and the parties herein are awarded joint and shared (50/50) custody of the three minor children born of the marriage; with the custodial periods to be exercised on a rotating 2/2/3 schedule. If the parties are in agreement they can select a set 2/2/3 schedule or a week to week schedule, but they must agree to this in writing;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that said joint shared custody is to be exercised on an interim basis pending the completion of the trial, and that this order shall not be construed as a considered decree requiring that Trieonne Jones carry the heightened Bergeron standard during the second portion of the trial.
This matter came before this Honorable Court on the 22ND day of May 2017, pursuant to status with the Court. Present in court were TRIEONNE JONES, with her attorney, Rebecca Gilson and SHAUN JONES with his attorney, NaTashia Carter Benoit. Pursuant to the pleadings filed and argument of counsel, the Court did rule as follows:
IT IS ORDERED, ADJUDGED AND DECREED that TRIEONNE JONES'S 'Motion to Appoint a Custody Evaluator' is herein granted as an order of the court over the objection of SHUAN JONES, the custody evaluator appointed is Danny Roussel and counsel for the parties shall contact him within 10 business days.
IT IS ORDERED, ADJUDGED AND DECREED that the parties shall give Dr. Roussel Practitioner Access to Our Family Wizard to assist him in making his recommendation.
IT IS ORDERED, ADJUDGED AND DECREED that TRIEONNE JONES shall advance the full cost of the evaluator's fees and cost with SHUAN JONES to reimburse her twenty-five (25%) percent of said amounts within 6 months if he has returned to work, in the event Mr. Jones has not been able to return to work he shall be allowed three (3) month extensions upon presenting adequate proof to opposing counsel.
* * *
IT IS ORDERED, ADJUDGED AND DECREED that TRIEONNE JONES shall be designated as the children's domiciliary parent.
IT IS ORDERED, ADJUDGED AND DECREED that all school decisions, as well as health and welfare decisions, shall be made by both parties together.
IT IS ORDERED, ADJUDGED AND DECREED that the parties' agreement to modify their rotating 2/2/3, to a set 2/2/3 schedule is made an order of the Court wherein Dad shall maintain custody of the minor children on Monday and Tuesday of each week and Mom shall maintain custody of the minor children on Wednesday and Thursday of each week, with the weekend to be alternated/rotated, and that any changes to the schedule shall be made in writing.

On July 25, 2018, Shaun filed a "Notice Of Intent To Appeal and Request To Stay The Custody Proceedings Pending Ruling On The Appeal," as well as a "Motion for Appeal." The trial court refused to grant the motion for appeal pursuant to an order signed on July 30, 2018. On that same day, Shaun filed a writ of mandamus and request for stay with this Court. This Court granted the writ of mandamus and stay as follows:

Considering the application, the trial court shall grant relator's pending Motion for Appeal, and set a return date pursuant to La. C.C.P. art. 2121. A stay of these proceedings is hereby granted and shall remain in effect until further orders by this Court.

On August 8, 2018, the trial court entered an order granting Shaun's motion for appeal. Due to delays relating to Shaun's failure to promptly pay appeal costs and Trieonne's filing of motions to dismiss the appeal, the record was not lodged with this Court until February 19, 2019.

DISCUSSION

In his first assignment of error, Shaun argues the trial court erred by declaring the ruling it rendered from the bench following the February 15, 2017 custody trial as an interim order, rather than a considered decree, and by further declaring that the trial court would not apply the Bergeron standard to the continuation of the custody trial.

Shaun argues the record and transcript from the February 15, 2017 custody trial show that the ruling rendered on that day was a considered decree. He argues that in Silbernagel v. Silbernagel, 06-869 (La. App. 5 Cir. 4/11/07), 958 So.2d 13, 17, this Court explained that a "considered decree" is an award of permanent custody after the trial court received evidence of parental fitness to exercise care, custody and control of children. He argues that it is evident from the trial court's extensive ruling and reasons provided from the bench that it considered the evidence presented and weighed and balanced all of the factors required pursuant to La. C.C. art. 134 when considering the best interest of a child and fitness of the parents. Shaun further notes that the trial court offered Trieonne the opportunity to proceed with her case after her counsel objected to the trial court's premature ruling. Shaun argues that by failing to accept the trial court's offer to try her client's case, Trieonne's counsel elected to accept the trial court's ruling.

Shaun finally argues that the trial court did not indicate in its reasons that the judgment was interim or that the custody trial would be continued to another date. He contends it was abuse of discretion and error for the trial court to declare its February 15, 2017 ruling from the bench as interim because this determination is not supported by the transcript or the law.

In response, Trieonne argues she was not provided the opportunity to present her case prior to the trial court's decision to modify custody and visitation on February 15, 2017, and further notes she formally objected on the record. Trieonne contends that in custody matters, the paramount concern is the best interest of the children. She contends that it is harmful to the children for the trial court to enter into a considered decree regarding custody after hearing evidence only from one side.

Trieonne also argues that following the May 22, 2017 status conference, Shaun's counsel stated on the record that the trial court's February 15, 2017 ruling was an interim judgment and proceeded to read the clarifying terms discussed during the status conference into the record. She claims that she relied on opposing counsel's representation that she agreed the February 15, 2017 custody ruling was an interim determination. She further notes that the parties agreed to abide by these terms on the record and under oath, without lodging any objections to the terms. Trieonne also argues that prior to entering a final judgment, a trial judge may, at his or her discretion, change the substance or result of interlocutory rulings.

This matter presents an unusual procedural scenario. While the trial court heard evidence from Shaun at the February 15, 2017 custody trial, it granted his requests for shared custody, equal visitation time and shared decision-making authority without a full trial on the merits. We further recognize that the trial court offered Trieonne the opportunity to present her case, but her counsel declined and opted to note her client's objections to the ruling.

However, it is not necessary for this Court to determine whether the trial court's rulings constitute a "considered decree" under these circumstances. As noted above, on May 22, 2017, Shaun's counsel stated on the record that the trial court's February 15, 2017 ruling was an "interim judgment" and did not lodge any objections to the designation of this ruling as an interim judgment. A stipulation has the effect of a judicial admission or confession, which binds all parties and the court. Ponson v. Ponson , 17-469 (La. App. 5 Cir. 3/14/18), 241 So.3d 1213, 1221. Furthermore, Shaun was sworn in and stated on the record that he agreed with the terms that his attorney recited into the record.

Based on the foregoing, we find that Shaun and his counsel stipulated to the interim nature of the February 15, 2017 ruling. The parties, as well as the trial court, recognized that Trieonne should have the opportunity to present her case with respect to the custody and visitation issues in order to determine the custody arrangement that is in the best interest of the children. Accordingly, we do not find the trial court erred or abused its discretion by declaring in its July 9, 2018 Judgment that its rulings from the bench on February 15, 2017 were interim and not a considered decree. Furthermore, because the trial court's prior custody ruling is not a considered decree, the trial court did not err by finding the Bergeron standard would not apply to future custody proceedings.

In his second assignment of error, Shaun argues the trial court erred by appointing a custody evaluator and by ordering him to pay a portion of the costs. Shaun complains the trial court allowed Trieonne to file the motion to appoint the custody evaluator at the May 22, 2017 status conference without any prior notice to Shaun. As a result, he contends he and his counsel were ambushed by the request. He claims his counsel adamantly objected to the request to appoint a custody evaluator and requested that the trial court set the motion for hearing at a later date to allow Shaun the opportunity to file an opposition. Shaun contends that the trial court noted his objection to the appointment of the custody evaluator, but elected to grant the motion and select an evaluator. He argues the appointment of the custody evaluator was not necessary as the trial court had previously interviewed the children in chambers and conducted a trial on the merits.

In opposition, Trieonne argues that Shaun's counsel read the terms regarding the appointment of the custody evaluator into the record on May 22, 2017, and Shaun agreed to the terms. Trieonne further notes that pursuant to La. R.S. 9:331 the trial court has discretion to appoint a custody evaluator for good cause shown. Trieonne finally contends Shaun participated in the custody evaluation and did not voice any objection to the process until after he received the evaluator's report.

La. R.S. 9:331 provides:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

As noted above, in her motion requesting the appointment of the custody evaluator, Trieonne noted circumstances had changed since the February 15, 2017 custody trial, and further noted the parties raised serious allegations against each other including abusive conduct, physical abuse, inappropriate sleeping arrangements for the children and allegations of refusal to co-parent.

The trial court discussed the parties' inability to effectively co-parent in great detail during her ruling on February 15, 2017. In Lucky v. Way , 51,706 (La. App. 2 Cir. 9/1/17), 245 So.3d 110, 130, writ denied , 17-1657 (La. 10/27/17), 228 So.3d 1233, the appellate court recognized that the parties' inability to agree on important parenting issues constituted good cause to appoint a custody evaluator. Furthermore, the decision as to whether a psychological evaluation should be ordered in a custody proceeding lies within the trial court's discretion. Bourque v. Bourque , 03-1254 (La. App. 5 Cir. 3/30/04), 870 So.2d 1088, 1091.

We do not find the trial court abused its discretion by finding good cause existed to appoint a child custody evaluator. The record indicates a long history of acrimony exists between the parties where parenting issues are concerned. Furthermore, Shaun indicated under oath on May 22, 2017 that he agreed to the terms his attorney recited into the record, which included terms regarding the appointment and payment of the custody evaluator.

In his final assignment of error, Shaun complains the trial court's judgment does not accurately reflect the rulings rendered on February 15, 2017, as well as the matters clarified on the record on May 22, 2017.

Shaun first argues the transcript from the May 22, 2017 status conference indicates that no changes were made, nor rulings rendered, as to domiciliary parent issues. The July 9, 2018 Judgment provides that the trial court entered the following rulings regarding the domiciliary parent on May 22, 2017:

IT IS ORDERED, ADJUDGED AND DECREED that TRIEONNE JONES shall be designated as the children's domiciliary parent.
IT IS ORDERED, ADJUDGED AND DECREED that all school decisions, as well as health and welfare decisions, shall be made by both parties together.

After reviewing the transcripts, we agree these decisions were rendered at the February 15, 2017 custody trial. Accordingly, we order the trial court to amend the July 9, 2018 Judgment to indicate that the rulings listed above regarding the domiciliary parent designation and decision-making authority were part of its rulings rendered on February 15, 2017.

Shaun also appears to contest the substance of the judgment with respect to the domiciliary parent designation. He contends that following the February 15, 2017 custody trial, the trial court revoked Trieonne's previous designation as domiciliary parent. He further contends the trial court made a "specific designation of the children's domicile for residential purpose only."

Our review of the February 15, 2017 transcript indicates that the trial court designated Trieonne as the domiciliary parent. However, the trial court also stated that the parties would share authority with respect to decisions regarding school, and the health and welfare of the children. Pursuant to La. R.S. 9:335(B)(3), a court can designate a domiciliary parent and also enter an order to allocate decision-making authority between the parties. See also Hodges v. Hodges , 15-585 (La. 11/23/15), 181 So.3d 700, 709. Accordingly, we find no error with the substance of the trial court's ruling on these issues.

Shaun also complains that the trial court erroneously indicated that the following items set forth in the July 9, 2018 Judgment were determined at the May 22, 2017 status conference as opposed to during the February 15, 2017 custody trial:

IT IS ORDERED, ADJUDGED AND DECREED that both parties' names shall be on all contact lists, email lists, and pick-up/drop-off lists.
* * *
IT IS ORDERED, ADJUDGED AND DECREED that the prior holiday schedule shall remain in effect.
IT IS ORDERED, ADJUDGED AND DECREED that SHAUN JONES shall be permitted to take the parties' son to get his hair cut.
IT IS ORDERED, ADJUDGED AND DECREED that TRIEONNE JONES shall have the parties' two daughters every year for dance rehearsal and for the weekend and for the weekend [sic] of the dance recital and is permitted to check them out early on that day from school to get their hair done. SHAUN JONES may have makeup visitation for those days if he so chooses.
IT IS ORDERED, ADJUDGED AND DECREED that the children shall not be signed up for any further extracurricular activities unless both parties agree in writing on Our Family Wizard.
IT IS ORDERED, ADJUDGED AND DECREED that all uniforms, clothes, and equipment shall be sent to the party exercising custody and returned when the custodial period is over.

Shaun does not contest the substance of these rulings. However, we again agree the transcripts indicate the trial court recited all of these rulings into the record at the February 15, 2017 custody trial. These items were not discussed nor mentioned as part of the clarifications that Shaun's counsel read into the record following the May 22, 2017 status conference. Accordingly, we order the trial court to amend the July 9, 2018 Judgment to indicate that the items listed above were also part of its rulings rendered on February 15, 2017.

DECREE

Based on the foregoing, we affirm the trial court's July 9, 2018 Judgment and remand the matter for the trial court to amend the judgment as instructed herein.

AFFIRMED AND REMANDED TO AMEND JUDGMENT

      Appellant's name is spelled as both "Shaun" and "Shuan" throughout the entire appellate record. For purposes of this opinion, we spell appellant's name as "Shaun."

      Bergeron v. Bergeron , 492 So.2d 1193 (La. 1986). When a considered decree is at issue, the party seeking a change of custody bears the burden of proving that a continuation of the present custody is so deleterious to the child as to justify a modification of custody, or of proving by clear and convincing evidence that any harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Id. at 1200.

      La. R.S. 9:315.9 defines "shared custody" as "a joint custody order in which each parent has physical custody of the child for an approximately equal amount of time."

      Our Family Wizard is a website which facilitates communications between separated and divorced parents.

      See Watermeier v. Watermeier , 462 So.2d 1272 (La. App. 5th Cir.), writ denied , 464 So.2d 301 (La. 1985). A Watermeier hearing is a hearing in chambers, outside the presence of the parents, but in the presence of their attorneys, with a record of the hearing to be made by the court reporter to inquire as to the competency of a child to testify as to custody.

      The oral ruling rendered by the trial court following the February 15, 2017 custody trial indicates the trial court met with the minor children in chambers.

      Trieonne argues in her appellate brief that on February 16, 2017, the trial court "informed the parties via e-mail on February 16, 2017 that the [February 15, 2017] ruling was interim only because Ms. Jones was not provided an opportunity to present her case." In a motion to supplement the record filed with this Court, Trieonne clarifies that the trial court allegedly declared the ruling was interim in a March 13, 2017 email. In her request to supplement the appellate record, Trieonne sought to introduce a chain of emails between the trial court and the parties that allegedly commenced on February 16, 2017. However, this Court denied Trieonne's motion to supplement the record. Appellate courts are courts of record and must limit their review to evidence in the record before them. La. C.C.P. art. 2164 ; State, Dept. of Social Services v. Macon , 09-1088 (La. App. 5 Cir. 6/29/10), 44 So.3d 744, 749.

      La. R.S. 9:335(B) provides as follows:
      (1) In a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.
      (2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.
      (3) The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise . All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child. [Emphasis added.']


text:
    Hope Jones MCGILLION, et al v. Jennifer ENGLADE, et al
    Gary A. Mejia, on Behalf of Deibi A. Mejia-Medina v. Jennifer R. Englade, et al
    NO. 18-CA-621 NO. 18-CA-621 C/W 18-CA-622 C/W 19-CA-2
    Court of Appeal of Louisiana, Fifth Circuit.
    May 29, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, HOPE JONES MCGALLION AND IRVIN NUNEZ, Ron A. Austin, Harvey, Catherine H. Hilton, New Orleans
    COUNSEL FOR PLAINTIFF/APPELLEE-2ND APPELLANT, (2ND APPLNT) GARY A. MEJIA, ON BEHALF OF DEIBI A. MEJIA-MEDINA, Brian D. Katz, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, ST. JOHN THE BAPTIST PARISH SHERIFF'S OFFICE MIKE TREGRE, Mark E. Hanna, Trevor M. Cutaiar, New Orleans
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and John J. Molaison, Jr.
   CHEHARDY, C.J.

In these consolidated wrongful death and personal injury cases, plaintiffs appeal the grant of summary judgment filed by defendant, Mike Tregre, individually, and in his official capacity as Sheriff of St. John the Baptist Parish. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

Factual and Procedural History

The designated record before us shows that, in the late evening of May 25, 2013, deputies from St. John the Baptist Parish responded to a 9-1-1 call from a security guard at a daiquiri shop in St. John the Baptist Parish reporting that four "highly intoxicated" individuals were leaving the bar in a vehicle and driving away. When a deputy arrived at the bar, the security guard gestured to a vehicle that was exiting the parking lot onto Airline Highway. The deputy stopped the vehicle and found Rechelle Hotard, Jennifer Englade, Joshua Jones, and Michael Gunter in that vehicle. A second deputy requested criminal background information on these four individuals and vehicle information on the vehicle. The dispatcher reported that Hotard, who was being belligerent, had an outstanding warrant. As a result, the deputies arrested Hotard.

When the dispatcher, Christina Blank, ran a criminal history check on Jennifer Englade, she learned that Englade had four DWI convictions, including one from 2012, and a 'flag' on her license for failure to maintain liability insurance on the vehicle involved in the stop. However, the dispatcher, who was a longtime friend and former roommate of Englade, did not reveal Englade's criminal history to the road deputies. Further, the dispatcher did not report that Englade, the owner of the vehicle, had a 'flag' on her license for failure to maintain liability insurance.

The road deputies stated that they did not perform field sobriety tests on Englade or the two male occupants. Yet, rather than allowing Englade to depart the scene in the vehicle she owned, all of the deputies reported that they told Englade and the two men to "walk to Walgreens" to wait on a ride. There is a dispute regarding whether any deputy searched for the keys to the vehicle before leaving Englade, the owner of the vehicle, in the parking lot with her vehicle.

Within a few hours of that stop, at approximately 1:45 a.m. on May 26, 2013, Jennifer Englade, who was intoxicated, lost control of her vehicle, and struck an oncoming vehicle head-on, killing one of her passengers, Joshua Jones, as well as the driver of the oncoming vehicle, Romisha Meiji; a passenger in her vehicle, Esther Centeno; and Ms. Centeno's unborn child. The remaining passenger in the oncoming vehicle, Deibi Mejia-Medina, was severely injured, but survived. As a result of this accident, five wrongful death and personal injury lawsuits were filed and later consolidated, including: an action filed by Hope Jones McGillion, on behalf of her and Joshua Jones' minor children, Kelsey Jones, Madyson Jones, and Dallin Jones; an action filed by Irvin Nunez, on behalf of his and Romisha Meiji's minor child, Jadelyn Nunez; and, an action filed by Gary A. Mejia, on behalf of his brother, Deibi A. Mejia-Medina.

In their lawsuits, plaintiffs named as defendant, inter alia , the Sheriff of St. John the Baptist Parish, Mike Tregre. Specifically, plaintiffs allege that Sheriff Tregre is liable for a failure to supervise and train his officers, which resulted in the officers' failure to follow proper procedures during a motor vehicle traffic stop, including, but not limited to: failing to check intoxication levels of the driver and passengers; failing to investigate and/or report the arrest and/or conviction records of the driver and passengers; failing to determine if the vehicle in question was properly insured; and, failing to secure the motor vehicle in question. The plaintiffs contend that Tregre's failures allowed co-defendant, Jennifer Englade, to maintain access to her vehicle, which she used within hours to kill three adults and an unborn child and to grievously injure another adult.

On July 3, 2018, Sheriff Tregre filed a motion for summary judgment, alleging that "discretionary immunity applies to insulate the Sheriff from liability and, in the alternative, the actions of Sheriff's deputies cannot be considered to be a legal cause of the claimed damages." Further, the Sheriff alleges that punitive damages are not available against him. To his motion, Sheriff Tregre attached deposition excerpts from the following individuals: co-defendant, Jennifer Englade; Deputy Christina Blank, a dispatcher for the St. John the Baptist Parish Sheriff's Office (SJBPSO); Detective Sergeant Brian Schum of the SJBPSO; Lieutenant Michelle Piearson of the SJBPSO; Deputy Arthur Ponder of the SJBPSO; and, Mario Jackson, a security guard working at a daiquiri shop in St. John the Baptist Parish on the night of the fatal accident.

Plaintiffs opposed the motion, alleging that there are genuine issues of material fact regarding multiple issues, including, but not limited to: the identity of the driver of the vehicle at the time of the traffic stop; the 911 dispatcher's purposeful omission of information regarding the vehicle owner's multiple DWI convictions and the 'flag' on her driver's license for lack of insurance on the vehicle; the failure of the Sheriff's deputies to perform field sobriety tests during their investigation of reportedly intoxicated persons driving a vehicle; and, the failure to secure either the vehicle or the vehicle's owner. To their oppositions, plaintiffs attached deposition excerpts from the following individuals: co-defendant, Jennifer Englade; Mario Jackson, a security guard working at a daiquiri shop in St. John the Baptist Parish on the night of the fatal accident; Deputy Faron Duhe, a dispatcher for SJBPSO; Deputy Christina Blank, a dispatcher for SJBPSO; Detective Sergeant Brian Schum of the SJBPSO; Lieutenant Jose Rel of the SJBPSO; Lieutenant Michelle Piearson of the SJBPSO; Deputy Arthur Ponder of the SJBPSO; and, an affidavit from Commander Kenny Sanders (Ret.) of the Caddo Parish Sheriff's Office as an expert in general police procedures and law enforcement training.

After considering the Sheriff's motion and the exhibits, and the plaintiffs' oppositions, the trial court determined that all of the deputies' actions at the time of the stop of the vehicle three hours prior to the fatal crash fell within the ambit of the deputies' discretion. Accordingly, the trial court rendered summary judgment in favor of Sheriff Tregre, finding the Sheriff was immune from all liability under La. R.S. 9:2798.1, and dismissed the plaintiffs' tort claims and any claims for punitive damages alleged against him. Plaintiffs appeal that judgment.

Law and Argument

Appellate courts review the granting of summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Larson v. XYZ Insurance Company , 16-0745 (La. 5/3/17), 226 So.3d 412, 416 ; Gutierrez v. State Farm Fire & Cas. Ins. Co. , 13-341 (La. App. 5 Cir. 10/30/13), 128 So.3d 509, 511. The version of La. C.C.P. art. 966 in effect at the time of the summary judgment hearing in this case provides, "a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3).

In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead, to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett , 04-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of a legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765-66. Conclusory allegations and unsupported speculation will not support the finding of a genuine issue of material fact. Trench v. Winn-Dixie Montgomery LLC , 14-152 (La. App. 5 Cir. 9/24/14), 150 So.3d 472, 476.

Although it may appear unlikely from the record that one party can prevail, summary judgment cannot be granted once the court detects the existence of a material fact. Dearie v. Ford Motor Co. , 583 So.2d 28, 29 (La. App. 5th Cir. 1991), writ denied , 588 So.2d 1117 (La. 1991). If the evidence presented is subject to conflicting interpretations, or reasonable minds might differ as to its significance, summary judgment is not proper; only when reasonable minds must inevitably concur is summary judgment warranted and any doubt should be resolved in favor of a trial on the merits. Id. at 30. The mere belief that the litigant is unlikely to prevail upon the merits is not sufficient to warrant summary judgment, thus depriving the litigant of a trial. Boye v. Daiquiris & Creams No. 3, Inc. , 11-118 (La. App. 5 Cir. 11/15/11), 80 So.3d 505, 507, writ denied , 11-2778 (La. 2/17/12), 82 So.3d 290. The weighing of conflicting evidence and making evaluations of credibility have no place in the summary judgment procedure. Dearie , 583 So.2d at 30.

We turn first to the question of punitive damages. Our review reveals that the plaintiffs did not appeal the grant of summary judgment on this issue. Even if they had appealed, we note that La. C.C. art. 2315.4 allows the imposition of punitive damages against the intoxicated driver but, with few exceptions, not against others that might have contributed to the accident. Berg v. Zummo , 00-1699 (La. 4/25/01), 786 So.2d 708, 718. Thus, we affirm the grant of summary judgment in favor of Sheriff Tregre on the issue of punitive damages.

Next, we turn to whether discretionary immunity applies to insulate the Sheriff from liability. In 1985, the Louisiana Legislature adopted La. R.S. 9:2798.1, which exempts public entities from liability for their employees' discretionary or policy-making acts. Hardy v. Bowie , 98-2821 (La. 9/8/99), 744 So.2d 606, 613 ; Sunlake Apartment Residents v. Tonti Development Corp. , 522 So.2d 1298, 1304 (La. App. 5th Cir. 1988). "Under [the discretionary function] doctrine, governmental decision makers exercising discretionary functions are immune from suit, because the courts should not chill legislative discretion in policy formation by imposing tort liability for discretionary decision." Hardy, supra .

Generally, discretionary immunity under La. R.S. 9:2798.1 applies to specific fact situations which satisfy the rule enunciated in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Under Berkovitz, the court must first consider whether the government employee had an element of choice and whether his course of action was not specifically prescribed by the statute, regulation, or policy. Conduct cannot be discretionary unless it involves an element of judgment or choice. Id. at 1958. Thus, discretionary immunity will not apply when a specific course of action is prescribed as the employee has no rightful option but to adhere to the directive. Id.

On the other hand, when discretion is involved, the court must then determine whether that discretion is the kind shielded by the exception: one grounded in social, economic, or political activity. Fowler v. Roberts, 556 So.2d 1 (La. 1989) ; Kniepp v. City of Shreveport, 609 So.2d 1163 (La. App. 2 Cir. 1992), writ denied, 613 So.2d 976 (La. 1993) ; Rick v. State Dep't of Transp., 93-1776, 93-1784 (La. 1/14/94), 630 So.2d 1271. If it is, then the doctrine applies and the employee or agency is insulated from liability; if it is not, the employee or agency is liable for any negligence. Simeon v. Doe, 618 So.2d 848 (La. 1993).

Applying this test to the facts of the instant case, we find that the evidence attached in support of and in opposition to summary judgment revealed that the dispatcher, Christina Blank, in contravention of her assigned job duties, withheld information from her fellow deputies by omitting the fact that the owner of the stopped vehicle had four DWI convictions and had a flag on her driver's license for failing to insure the vehicle in question. Blank had no discretion but to adhere to the directives of her job as a dispatcher set in place by her employer, Sheriff Tregre, which she violated. Thus, the Sheriff cannot be exempt from liability for the failure of his employee, who abandoned her job duties and violated the Sheriff's policy. Cormier v. T.H.E. Ins. Co. , 98-2208 (La. 9/8/99), 745 So.2d 1, 6-9.

In her deposition, Deputy Blank admits that, when asked, she did not report to her fellow officers the fact that Jennifer Englade had four DWI convictions or that her license was 'flagged' for failure to maintain insurance on the vehicle stopped at the scene. Deputy Blank also admits that Jennifer Englade was her friend and Englade had lived with her at least five times in the past twenty-five years. Deputy Blank reported that she signed a statement to her supervisor admitting her "horrible mistake." We note that, even if her conduct could be called discretionary, Deputy Blank's omissions may "constitute ... fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct" sufficient to trigger the exception to discretionary immunity found in La. R.S. 9:2798.1(C)(2). For that reason, summary judgment on the basis of discretionary immunity is improper.

Finally, we turn to the plaintiffs' negligence claims against Sheriff Tregre and his deputies. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Lemann v. Essen Lane Daiquiris, Inc. , 05-1095 (La. 3/10/06), 923 So.2d 627, 632-633. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his conduct to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the harm or the plaintiff's injuries (the cause-in-fact element); (4) the risk of harm was within the scope of protection afforded by the duty breached (the legal cause element); and (5) actual damages (damages element). Lazard v. Foti , 02-2888 (La. 10/21/03), 859 So.2d 656, 659.

Therefore, to carry the burden on his motion for summary judgment, Sheriff Tregre was required to show an absence of factual support for any essential elements of the negligence cause of action. Sheriff Tregre specifically sought summary judgment on the basis that there was an absence of factual support for the plaintiffs' contention that the risk of harm was within the scope of protection afforded by the duty owed, i.e. the Sheriffs' deputies' actions could not be a legal cause of the harm that occurred.

Based upon our de novo review of the limited record before us, we find that a genuine issue of material fact exists regarding at least two issues. First, we note that there is conflicting evidence regarding whether the deputies' decision to leave the owner of the vehicle with the unsecured vehicle could be a legal cause of the harm that occurred. Clearly, as their deposition excerpts revealed, the deputies told all three remaining occupants of the vehicle - which includes Jennifer Englade - to walk away from the vehicle, which supports the theory that the deputies perceived that the owner of the vehicle, Jennifer Englade, was intoxicated at that time. If, as the Sheriff's current argument suggests, no deputy perceived Englade to be intoxicated, then there was no necessity to instruct her to walk away from her vehicle that night; yet, every deputy stated that they told all three remaining occupants to walk away from the vehicle that night. This constitutes conflicting evidence. The weighing of conflicting evidence and making evaluations of credibility have no place in the summary judgment procedure. Dearie , 583 So.2d at 30.

Second, we find that a dispute sufficient to trigger a genuine issue of material fact exists regarding the identity of the driver prior to the traffic stop by SJBPSO deputies. After reviewing the deposition excerpts attached to the defendant's motion for summary judgment and the plaintiffs' oppositions, we find that, in his deposition as well as two separate statements given to police a short time after this incident, Mario Jackson states that the "tall, blonde" woman was driving the Pontiac G6 when the four patrons left the bar. The deputies noted that Jennifer Englade was tall and blonde while Rechelle Hotard, the other woman in the vehicle that night, was short and brunette.

In sum, our review of the limited record before us reveals disparities that suggest that reasonable minds could, under the particular facts of this case, foresee that an automobile accident might happen as the result of the allegedly negligent conduct of the deputies on the night in question, and, therefore, this matter was not ripe for summary judgment. Finally, as this litigation will likely continue for some time, we caution the parties that we are in no way suggesting that these are the only genuine issues of material fact present in this case.

Conclusion

Based on the foregoing, we affirm summary judgment in favor of Sheriff Tregre on the issue of punitive damages but, in all other respects, summary judgment is reversed. This matter is remanded for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

      The two male occupants did not have a criminal history.

      On September 2, 2014, Jennifer Englade pled guilty to three counts of vehicular homicide, one count of third degree feticide, and one count of first degree vehicular negligent injuring. On September 25, 2014, the trial judge sentenced Englade for each count of vehicular homicide, to thirty years at hard labor and a fine of $ 15,000.00; for third degree feticide, to five years at hard labor and a fine of $ 2,000.00; and for negligent injuring, to five years at hard labor and a fine of $ 2,000.00. The sentences were ordered to run concurrently with credit for time served. Although Englade did not appeal her sentences, she sought post-conviction relief, which was denied. See State ex rel. Englade v. State , 15-1826 (La. 11/15/16), 206 So.3d 189.

      As noted, there are two more lawsuits arising out of this accident. In both, the plaintiffs seek damages for the death of Esther Centeno: the first was filed by Natividad Cabrera on behalf of her granddaughter and Centeno's daughter, Laylanie Polanco, and, the second was filed by Carlos Polanco, individually and on behalf of his minor daughter with Centeno, Laylanie Polanco. Although their matters were consolidated with the three cases at issue in this appeal, neither Cabrera nor Polanco have appealed the summary judgment granted in favor of Sheriff Tregre. For previous litigation arising out of Centeno's claims, see Polanco v. Englade, et al, 15-334 (La. App. 5 Cir. 12/9/15), 182 So.3d 340, 341.

      To their oppositions, plaintiffs also attached a statement from Keith Carroll of the SJBPSO dated June 3, 2013 and a copy of the "Inmate Possession Form." In his reply, the Sheriff objected to both documents, which were not properly authenticated by affidavit or deposition, and the trial court did not consider these exhibits. See La. C.C.P. art. 967.

      Pursuant to Acts 2015, No. 422, § 1, effective January 1, 2016, La. C.C.P. art. 966 was extensively revised.

      "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." La. C.C.P. art. 966(A)(4). Further, "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." La. C.C.P. art. 966(D)(2).Comment (k) of La. C.C.P. art. 966 explains that "[s]ubparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion."

      La. R.S. 9:2798.1 reads, in pertinent part:
      A. As used in this Section, "public entity" means ... political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
      B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
      C. The provisions of Subsection B of this Section are not applicable:
      (1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the ... discretionary power exists; or
      (2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.