author: Judge Tiffany G. Chase

text:
    Rick M. SUTTON v. Jack ADAMS
    NO. 2019-C-0394
    Court of Appeal of Louisiana, Fourth Circuit.
    May 29, 2019
    Kim M. Boyle, Brandon E. Davis, Phelps Dunbar LLP, Canal Place, 365 Canal Street, Suite 2000, New Orleans, LA 70130, COUNSEL FOR RELATOR
    Robert G. Harvey, Sr., Attorney at Law, 600 North Carrollton Avenue, New Orleans, LA 70119, Donald C. Douglas, Jr., The Douglas Law Firm, LLC, 1070 West Causeway App., Suite B, Mandeville, LA 70471, COUNSEL FOR RESPONDENT
    (Court composed of Judge Daniel L. Dysart, Judge Paula A. Brown, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Relator, Jack Adams, seeks review of the trial court's March 25, 2019 judgment denying his motion to dismiss on grounds of abandonment. After consideration of the record before this Court, and the applicable law, we grant the writ and reverse the judgment of the trial court denying Mr. Adams' motion to dismiss on grounds of abandonment.

Relevant Facts and Procedural History

On November 6, 2014, Respondent, Rick Sutton, filed a petition for damages against Mr. Adams alleging breach of contract. The breach of contract petition was allotted to Division "N" of Civil District Court for the Parish of Orleans, and assigned case number 2014-10709. Mr. Sutton subsequently filed a separate petition for damages against Mr. Adams alleging failure to pay wages. The wage petition was allotted to Division "B" of Civil District Court for the Parish of Orleans, and assigned case number 2015-3495. Mr. Adams filed a motion to transfer and consolidate on November 3, 2015, requesting case number 2015-3495 be transferred to Division "N" and consolidated with case number 2014-10709. By order dated November 4, 2015, case number 2015-3495 was transferred to Division "N" and consolidated with case number 2014-10709.

On May 20, 2015, Mr. Sutton filed another petition for damages against Mr. Adams alleging defamation. The defamation petition was allotted to Division "M" of Civil District Court for the Parish of Orleans, and assigned case number 2015-4829. After answering the defamation petition, Mr. Adams filed a motion for summary judgment, in the defamation case, on November 3, 2015. Mr. Sutton filed an opposition to the motion for summary judgment on December 10, 2015.

On January 15, 2016, Mr. Adams filed a motion for sanctions against Mr. Sutton. The motion for sanctions was filed in Division "N" under case number 2014-10709 c/w 2015-3495. Mr. Sutton filed an opposition to the latter motion on February 11, 2016. His opposition was filed in Division "M" under case number 2015-4829 and filed into the record of the defamation case. On January 21, 2019, Mr. Sutton filed a motion to set for trial on the merits in Division "M" under case number 2015-4829.

On February 4, 2019, Mr. Adams filed a motion to dismiss on grounds of abandonment in the Division "M" defamation case, under case number 2015-4829. Mr. Adams argued that the matter was abandoned pursuant to La. C.C.P. art. 561 because it had been more than three years since the last step was taken, by any party, in the prosecution or defense of the matter. Mr. Sutton filed an opposition to the motion dismiss on grounds of abandonment on March 6, 2019. Mr. Sutton maintained that the matter was not abandoned because it had been consolidated with case number 2014-10709. Mr. Adams filed a reply memorandum on March 12, 2019 asserting that case number 2015-4829 was never consolidated with case number 2014-10709 and that the opposition to the motion for sanctions, or the erroneous captioning of certain pleadings, did not count as steps in the prosecution or defense of the matter.

A hearing on the motion to dismiss on grounds of abandonment was held on March 14, 2019. In open court, the trial court denied the motion to dismiss on grounds of abandonment. The trial court's ruling was reduced to writing by judgment dated March 28, 2019. This application for supervisory review followed.

Discussion

This Court is tasked with determining whether steps were taken in the prosecution or defense of case number 2015-4829, within a three year period. The question of whether a step in the prosecution or defense of a case has occurred, within a three year period, is a question of fact which is subject to a manifest error analysis. R.L. Lucien Tile Co. v. Solid Rock Co. , 2016-0690, p. 6 (La.App. 4 Cir. 3/29/17), 215 So.3d 710, 713-714 writ denied , 2017-1041 (La. 10/9/17), 227 So.3d 836.

La. C.C.P. art. 561(A)(1) provides that "an action...is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years...." Mr. Adams argues that the motion for sanctions was filed in case number 2014-10709 c/w 2015-3495 and not in case number 2015-4829. As such, he asserts, the filing of the opposition to the motion for sanctions into the incorrect record was not a step in the litigation of case number 2015-4829 and the matter is abandoned. Conversely, Mr. Sutton maintains that the parties agreed to consolidate case number 2015-4829 with case number 2014-10709 for settlement purposes and therefore, the filing of the opposition to the motion for sanctions was a step in the litigation of case number 2015-4829. He argues that the motion to set for trial on the merits was filed within three years of the opposition to the motion for sanctions and thus, case number 2015-4829 was not abandoned.

La. C.C.P. art. 561 imposes three requirements: "(1) a party take some "step" in the prosecution or defense of the action; (2) the step must be taken in the proceeding and...must appear in the record of the suit; and (3) the step must be taken within three years of the last step taken by either party." R.L. Lucien Tile Co. , 215 So.3d at 714 (citing Clark v. State Farm Mut. Auto. Ins. Co. , 2000-3010, p. 6 (La. 5/15/01), 785 So.2d 779, 784 ). "A "step" in the prosecution or defense is defined as taking formal action before the court which is intended to hasten the matter to judgment...." Id.

The record before this Court demonstrates that the last step in the prosecution or defense of case number 2015-4829 occurred on December 10, 2015 when Mr. Sutton filed an opposition to the motion for summary judgment. We find there was no step taken in the prosecution or defense of case number 2015-4829 within three years of the filing of the opposition to the motion for summary judgment. Although Mr. Sutton filed his opposition to the motion for sanctions under case number 2015-4829, a review of the record reveals that the opposition actually related to the motion for sanctions filed in case number 2014-10709 c/w 2015-3495. Therefore, the filing of the opposition to the motion for sanctions is not considered a "step" in the prosecution or defense of case number 2015-4829 because it did not move the defamation case to judgment.

Further, while Mr. Sutton argues that the parties agreed to consolidate case number 2015-4829 with case number 2014-10709, the record does not reflect that those matters were actually consolidated. As acknowledged by the trial court, there was no motion or order consolidating case number 2015-4829 with case numbers 2014-10709 and 2015-3495. Thus, the last step in the prosecution or defense of case number 2015-4829 occurred on December 10, 2015 when Mr. Sutton filed his opposition to the motion for summary judgment.

Accordingly, case number 2015-4829 was abandoned as a matter of law on December 10, 2018. As such, we grant the writ and reverse the trial court's judgment denying Mr. Adams' motion to dismiss on grounds of abandonment.

WRIT GRANTED; JUDGMENT REVERSED

      Although the caption on the motion to set for trial contained a typographical error and listed the case number as 2018-4829, it was actually being filed under case number 2015-4829.


source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    STATE of Louisiana IN the INTEREST OF S.G., D.G., A.G.
    No. 52,700-JAC
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered June 5, 2019.
    VARHONDA EUGENIA BURRELL, Counsel for Appellant, Mother
    COURTNEY W. FRANKLIN, Counsel for Appellee, State of Louisiana DCFS
    THE LOWERY LAW FIRM, By: Scotty Wayne Lowery, Counsel for Minor Children, S.G., D.G., and A.G.
    FRED D. JONES, Counsel for Appellee, Father of D.G. and S.G.
    Before MOORE, GARRETT, and THOMPSON, JJ.
   GARRETT, J.

FG, the mother of SG, DG, and AG, appeals from a trial court judgment terminating her parental rights and freeing the children for adoption. For the following reasons, we affirm the trial court judgment.

FACTS

On January 11, 2017, 12-year-old SG told a teacher and counselor at her school that she wanted to kill herself because her stepfather, CG, had been touching her inappropriately, including "putting his thing in her crotch." The latest incident occurred the night before, and SG had not bathed or changed clothes. SG also said that her mother and stepfather physically abused her, as well as her brother, DG, who was 13, and her younger sister, AG, who was three. SG reported that her mother and stepfather beat her with a belt. She showed the teacher bruises on her right hand and right upper thigh. She said her stepfather slapped her and dragged her by her hair. SG said that her brother, DG, gets punched in the face when he does something wrong and AG gets "whippings on her butt."

The Louisiana Department of Children and Family Services ("DCFS") was contacted and a worker was sent to the school to interview SG and DG. The mother was summoned to the school and informed of the allegations. She laughed and stated that SG was lying. The mother was instructed that SG needed to go to the hospital for an examination and to have a rape kit completed. She told SG, "I hope it hurts, when they are all in your stuff." The DCFS worker offered to take them to the hospital, but the mother refused.

The mother took SG home and the DCFS worker went to the home to make contact with CG. He denied touching SG and refused to allow the DCFS worker to come into the house. He stated that the mother and SG were not at home. When the DCFS worker insisted, CG allowed her inside, where she encountered the mother and SG. The mother told the worker that she instructed SG not to change clothes, but she did so anyway. The mother denied that SG had bathed. When the DCFS worker informed the mother that SG still needed to go to the hospital, CG, the mother, and the children got into their vehicle. The DCFS worker informed the mother that, due to the accusations, SG should not be around CG. The worker transported the mother and SG to the hospital. According to the worker, the mother was on her cellphone with CG almost constantly.

At the hospital, SG told the nurse that her mother washed her in accordance with CG's instructions. SG told the nurse that CG told the mother "to make sure that she washes her good." The DCFS worker questioned the mother, who then admitted that SG had bathed, but denied telling her to do so.

The trial court issued an oral instanter order on January 11, 2017, followed by a written order on January 12, 2017, removing the children from the home based upon the affidavit of the DCFS worker setting forth the facts stated above.

All three children were initially placed in the same foster home. At a hearing on January 20, 2017, the children were continued in state custody. A court appointed special advocate ("CASA") volunteer was assigned to the case.

On February 16, 2017, the state filed a petition to declare the children to be children in need of care ("CINC"). The petition was filed against the mother, CG, and KS, the biological father of DG and SG. The state alleged passive sexual abuse by the mother, in that she observed possible sexual abuse of SG by CG, and yet left the children in his care, that she interfered with the investigation by having SG bathe before going to the hospital to have a rape kit completed, and that she showed a lack of concern for the safety and well-being of the children after learning of the allegations of sexual abuse.

At some point during these proceedings, the state brought criminal charges against the mother and CG. They fled to Florida, but were apprehended and extradited to Louisiana. They remained in jail during the remainder of these proceedings. The status of the criminal charges against them was not shown on this record.

A hearing was held on March 8, 2017. The mother and CG were not present because they were being extradited from Florida. However, the mother's attorney was present in court to represent her. Psychological evaluations were ordered for DG and SG.

On April 14, 2017, the trial court approved case plans with a goal of reunification. Also on that date, at a hearing in court, the mother stipulated that the children were CINC. The CINC petition was dismissed as to CG. It was reported that DG had two episodes of self-harm and he stated that his mother told him not to like SG because she was the cause of the family being split apart. SG had been hospitalized for psychiatric reasons three times and was moved to a different foster home because she was a danger to herself and the other children in the original foster home.

The DCFS determined that the mother had an extensive history with the agency dating back to 2006. Her parental rights to another child, not at issue here, were terminated and the child was freed for adoption. CG also had a history with the agency, stemming from a May 2015 complaint of lack of adequate supervision.

A hearing was held on July 12, 2017. SG had been transferred to another foster home and then was admitted to Brentwood Hospital, a psychiatric facility. A permanency/case review judgment was entered on July 12, 2017. The court found that the children continued to be CINC. Custody was maintained in the DCFS and the case plan goal continued to be reunification.

In a prehearing report from the DCFS filed with the court in December 2017, it was stated that DG had been discovered "mutually masturbating with another child" in the foster home. DG also admitted sexually molesting AG and another child in the foster home. He was removed from the foster home and admitted to Brentwood.

SG had been placed in numerous foster homes and psychiatric facilities. She exhibited several "meltdowns." During the first incident at the original foster home, SG climbed into a ditch and played in the mud. She told the DCFS worker, "This is just how I calm myself down." During subsequent incidents, the police were summoned. SG hit the officers and threw car seats at them. Allegedly, she stated that she would continue to act out until she was allowed to go with her mother.

AG had become clingy and was sad and distant if she did not receive an individual's sole attention. AG had recently become paranoid that she would be removed from the foster home. She had inquired why one of the children in the home was adopted, but she and DG were not. AG asked if she was going to go away like SG and DG. The DCFS recommended that the case plan goal remain reunification, with a concurrent goal of adoption.

A hearing was held on January 10, 2018. At that time, the CASA volunteer filed a report suggesting that the case plan goal be changed to adoption. Because several of the attorneys had not received the report, the matter was continued.

In a prehearing report to the court by DCFS in February 2018, the agency stated that DG had been placed at the Methodist Children's Home in Sulphur, Louisiana. SG had made numerous threats of suicide and was back in Brentwood. The agency was preparing to admit her to the Methodist Children's Home in Ruston, Louisiana, for residential psychiatric treatment.

A hearing was held on February 28, 2018. The mother consented to changing the case plan goal to adoption, but wanted to continue working her case plan. The permanency/case review hearing judgment, signed in February 2018, changed the case plan goal to adoption.

On March 5, 2018, CG filed, in proper person, a motion to stay the proceedings. He cited the sexual abuse of AG by DG and sought to have AG removed from the foster home. This motion was denied by the trial court on August 8, 2018. On July 30, 2018, CG filed, in proper person, a motion for a continuance, which was also denied on August 8, 2018, because there was no pending action against the mover.

On July 25, 2018, the mother filed, in proper person, a motion for vacation of adjudication, claiming that the adjudication of the children as CINC was tainted by lies and fraud. She argued that there was unspecified new evidence that would vindicate her. The mother claimed she was being denied her right to be heard by the court. This motion was denied by the trial court on August 8, 2018, based upon the mother's stipulation in April 2017 that the children were CINC and the failure to state factual information to support grounds to grant relief under La. Ch. C. art. 667, dealing with vacation of adjudication.

At a hearing held on August 8, 2018, the case plan goal was maintained as adoption. The mother objected to that goal, but it was pointed out that she consented to the goal of adoption at a prior hearing.

On August 14, 2018, the state filed a petition for involuntary termination of parental rights and certification for adoption against the mother, CG, KS, and JG. The petition outlined the requirements of the mother's case plan and alleged that she failed to comply with her case plan of rehabilitation, failed to make significant contact with the children, and there was no reasonable expectation that her conduct would change in the near future. The state alleged that the mother had been incarcerated in the Morehouse Parish jail since February 2017, charged with obstruction of justice and accessory after the fact to the first degree rape of SG.

At the time the petition was filed, DG was 15, SG was 14, and AG was five. The state urged that the children should be freed for adoption in order to have a safe, stable, and permanent home.

The termination of parental rights hearing was held on October 10, 2018. Christy Thomas, a DCFS supervisor for child protective services, testified that the DCFS received a report in January 2017, about sexual abuse of SG by CG, and the children were placed in DCFS care at that time. The mother stipulated that the children were CINC.

Galen Roberts, a DCFS foster care worker, testified that he was involved in this matter from January 2017 to January 2018, and then got the case back from another DCFS worker in September 2018. Case plans for reunification were formulated for the parents in this matter. The mother was to maintain stable housing for the children, submit to a mental health assessment, attend parenting classes, visit the children regularly, and make contributions to their support. She had been incarcerated since February 2017. The mother had never been cooperative in fulfilling her case plan. According to Roberts, the conditions that brought the children into state care had not been addressed.

On cross-examination, Roberts said that he visited the mother in jail. Roberts also saw the children at least once a month. With the exception of Valentine's gifts from the mother in February 2017, before her arrest, and one picture sent after her arrest, he knew of no other contact between the mother and the children. The mother did not inquire about contacting the children.

Roberts stated that the DCFS recommended that the parental rights be terminated and the children freed for adoption due to the parents' lack of progress on their case plans, lack of visitation, and the children's need for permanence. DG and SG were in separate Methodist Children's Homes. AG remained in the original foster home and the foster parents were prepared to adopt her. Roberts stated that DG and SG had not had the opportunity to lead normal and happy lives, but AG was young enough to work through what had happened to her.

Catherine Parker, a DCFS foster care worker, testified that she worked on the case from January through September 2018. Parker went over the mother's case plan with her in jail. The mother inquired about whether the children could be placed with either of her parents. The home of the maternal grandmother was visited and was determined to be unsuitable. The maternal grandfather was deemed an unsuitable placement option because of prior DCFS contact with his home. Parker was not aware that the mother gave the children any cards, letters, drawings, or financial support.

Parker noted that, at the time of the hearing, the children had been in DCFS custody for 20 months and the agency recommended proceeding with adoption.

The mother did not testify at the hearing or present any evidence. At the close of the hearing, the trial court stated that the state met its burden of proving abandonment of the children by the parents in accordance with La. Ch. C. art. 1015(5)(b) and (c) in that, as of the time the petition for termination of parental rights was filed, all the parents had failed to provide significant contributions to the children's care and support, and the parents failed to maintain significant contact with the children by visiting them or communicating with them. The court also found that, under La. Ch. C. art 1015(6), at least one year had elapsed since the children were removed from the parents' custody pursuant to a court order; there had been no substantial parental compliance with a case plan for services which had been previously filed by the department and approved by the court as necessary for the safe return of the children; and despite earlier intervention, there was no reasonable expectation of significant improvement in the parents' condition or conduct in the near future, considering the children's ages and their need for a safe, stable, and permanent home. The court found that there was no reasonable expectation of improvement in the near future by any of the parents, and termination of parental rights was in the best interest of all three children. The trial court expressly noted in the record that it found the testimony of Roberts and Parker to be persuasive and credible, and that the mother was advised and aware of the requirements in the case plan. The trial court ordered that all parental rights be terminated and all three children be released for adoption. A judgment to that effect was signed by the trial court on October 10, 2018.

The mother and CG individually filed, in proper person, motions for appeal to the Louisiana Supreme Court, which were granted by the trial court on October 17, 2018, and made returnable to this court. The mother's attorney also filed a motion for appeal, which was granted by the trial court on November 29, 2018. Only the mother's appeal is presently before this court for decision.

TERMINATION OF PARENTAL RIGHTS

On appeal, the mother contends that the trial court erred in finding that the state met its burden of proving grounds for termination of parental rights under La. Ch. C. art. 1015(5) and (6). She also argues that the trial court erred in finding that the evidence overwhelmingly indicated that termination of her parental rights was in the best interest of the children. These arguments are without merit.

Legal Principles

Permanent termination of the legal relationship existing between natural parents and children is one of the most drastic actions the state can take against its citizens. State in Interest of A.L.D. , 2018-1271 (La. 1/30/19), 263 So. 3d 860 ; State ex rel. R.L.T. & S.A.T. , 45,168 (La. App. 2 Cir. 1/27/10), 30 So. 3d 1085. However, the primary concern of the courts and the state remains to determine and insure the best interest of the child, which includes termination of parental rights if justifiable statutory grounds exist and are proven by the state. State in Interest of A.L.D. , supra . See also State in Interest of B.J. , 48,857 (La. App. 2 Cir. 1/15/14), 135 So. 3d 777 ; State ex rel. JT v. J.M. , 46,090 (La. App. 2 Cir. 12/12/10), 56 So. 3d 1009. The State's parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing, by providing an expeditious judicial process for terminating all parental rights and responsibilities and achieving permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest of the child, including termination of parental rights if justifiable grounds exist and are proven by the state. State in Interest of A.L.D. , supra ; State in Interest of B.J. , supra ; State ex rel. R.L.T. & S.A.T. , supra ; State ex rel. K.G ., 2002-2886 (La. 3/18/03), 841 So. 2d 759 ; State in Interest of T.P. , 51,172 (La. App. 2 Cir. 11/16/16), 209 So. 3d 1015.

In any case to involuntarily terminate parental rights, there are two private interests involved: (1) those of the parents and (2) those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody, and management of their children, warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and that inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent. State ex rel. D.L.R. , 2008-1541 (La. 12/12/08), 998 So. 2d 681 ; State in Interest of B.J. , supra ; State ex rel. R.L.T. & S.A.T. , supra .

More than simply protecting parental rights, our judicial system is required to protect the children's rights to thrive and survive. State in Interest of S.M. , 98-0922 (La. 10/20/98), 719 So. 2d 445 ; State in Interest of T.P. , supra ; State in Interest of Z.P. , 52,354 (La. App. 2 Cir. 9/26/18), 255 So. 3d 727. Adults can take years to improve their functioning, but developing children do not have such time, as children's lives are significantly disrupted while their parents are attempting to deal with their own problems. State in Interest of T.P. , supra .

To terminate parental rights, the state must meet the onerous burden of proving one of the statutory grounds for termination set forth in La. Ch. C. art. 1015 by clear and convincing evidence. La. Ch. C. art. 1035(A) ; State in Interest of A.L.D. , supra ; State in Interest of T.P. , supra ; State ex rel. B.H. v. A.H. , 42,864 (La. App. 2 Cir. 10/24/07), 968 So. 2d 881. Clear and convincing evidence requires more than a preponderance, but less than beyond a reasonable doubt. State in Interest of A.L.D. , supra. Proof by clear and convincing evidence requires a showing that the existence of the disputed fact is highly probable, meaning more probable than its nonexistence. State in Interest of T.P. , supra . Once a ground for termination is established, the trial court may terminate parental rights if termination is in the best interest of the child. La. Ch. C. art. 1037(B) ; State in Interest of A.L.D. , supra ; State in Interest of T.P. , supra ; State ex rel. D.L.R. , supra ; State in Interest of B.J. , supra .

Assessment of whether there is a reasonable expectation of significant improvement in the parent's condition in the near future should be made in light of the purposes stated in La. Ch. C. art. 1001, particularly that the proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for the children. State in Interest of T.P. , supra .

Whether termination of parental rights is warranted is a question of fact, and a trial court's determinations will not be set aside in the absence of manifest error. State in Interest of T.P. , supra ; State ex rel. D.L.R. , supra ; State ex rel. K.G. , supra ; State in Interest of B.J. , supra .

The trial court found in this matter that the state proved, by clear and convincing evidence, the statutory grounds for termination of parental rights listed in La. Ch. C. art. 1015(5)(b) and (c), dealing with abandonment of children, and La. Ch. C. art. 1015(6), dealing with the failure to substantially comply with a case plan. This warranted the termination of the mother's parental rights. Those provisions state:

The grounds for termination of parental rights are:
....
(5) Abandonment of the child by placing him in the physical custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
....
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child's care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(6) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent's custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent's condition or conduct in the near future, considering the child's age and his need for a safe, stable, and permanent home.

Regarding the failure to comply with a case plan, La. Ch. C. art. 1036 provides, in relevant part:

C. Under Article 1015(6), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent's failure to attend court-approved scheduled visitations with the child.
(2) The parent's failure to communicate with the child.
(3) The parent's failure to keep the department apprised of the parent's whereabouts and significant changes affecting the parent's ability to comply with the case plan for services.
(4) The parent's failure to contribute to the costs of the child's foster care, if ordered to do so by the court when approving the case plan.
(5) The parent's repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent's lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
....
D. Under Article 1015(6), lack of any reasonable expectation of significant improvement in the parent's conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Discussion

The testimony adduced at the termination hearing showed that both Roberts and Parker discussed FG's case plan with her at length. The trial court found that their testimony was persuasive and credible. With the exception of one picture sent to the children during her incarceration, FG made no effort to communicate with the children. She is not able to provide adequate housing or legal income due to her incarceration. The mother essentially complains that many of the other requirements of her case plan could not be fulfilled due to her incarceration. Her objections are without merit.

Imprisonment is not an excuse to escape parental obligations. State in Interest of B.A.T. , 52,019 (La. App. 2 Cir. 2/28/18), 248 So. 3d 524 ; State ex rel. JT v. JM , supra ; State in Interest of B.J. , supra ; State ex rel. C.M.O. , 2004-1780 (La. App. 4 Cir. 4/13/05), 901 So. 2d 1168. Incarceration is not a defense to failure to support or maintain contact with one's children in a termination-of-parental-rights case, particularly because incarceration results from one's own actions. State ex rel. JT v. JM , supra ; State ex rel. M.H. v. K.W.H. , 40,332 (La. App. 2 Cir. 9/23/05), 912 So. 2d 88 ; State in Interest of A.R. , 2015-497 (La. App. 3 Cir. 11/4/15), 178 So. 3d 280 ; In re H.R. , 2015-136 (La. App. 3 Cir. 6/3/15), 165 So. 3d 1221. See also State in Interest of T.J. , 48,612 (La. App. 2 Cir. 9/11/13), 124 So. 3d 484. Requiring the DCFS to interfere with the Department of Corrections to schedule drug screening, psychological testing, and visitation has been held to be an unreasonable expectation. State ex rel. B.H. v. A.H. , supra ; State in Interest of B.J. , supra .

FG has been in jail, awaiting trial, for approximately two years. She is charged with obstruction of justice and accessory after the fact to the first degree rape of SG, relating to the alleged sexual abuse of the child by CG. Under these circumstances, the trial court was not manifestly erroneous in finding that the State proved by clear and convincing evidence that FG has abandoned her children by failing to provide significant contributions to their care and support and by failing to maintain significant contact with the children by visiting them or communicating with them for any period of six consecutive months. Further, FG has failed to comply with her case plan, largely due to her incarceration which was caused by her own actions. Due to the fact that there is no indication of when she might be released, the trial court correctly found that there was no reasonable expectation of significant improvement in FG's conduct in the near future. The trial court was not manifestly erroneous in ordering the termination of FG's parental rights to DG, SG, and AG.

We also find that the trial court was not manifestly erroneous in finding that termination of FG's parental rights was in the best interest of the children. In arguing that termination of her parental rights would not be in the best interest of the children, the mother claims that there have been drastic changes in the personalities of DG and SG since they entered DCFS custody. She urges that AG is now exhibiting behavioral problems she did not have before coming into DCFS custody. The record shows that DG and SG have been deeply affected by the years of abuse they suffered in FG's home. When SG reported sexual abuse by CG, FG laughed at her, did not want to seek medical treatment or the completion of a rape kit, and continued to expose all the children to CG. DG reported that FG told him not to like SG because she was the reason the family was split apart. FG's behavior evidences a callousness toward the emotional well-being of her children and a failure to nurture and protect them. SG and DG have both required extensive psychiatric treatment, which has been provided by the DCFS. As noted by Roberts, up to this point, DG and SG have not had an opportunity to lead normal, happy lives. As to AG, she has done well in her foster home placement. Any "behavioral problems" described in this record evidence insecurity at the prospect that she might have to leave the foster home. Termination of FG's parental rights to these children is clearly in their best interest. It is the best hope for these children to obtain stability and some degree of happiness and normalcy in the future.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment terminating the parental rights of the mother, FG, to DG, SG, and AG. Costs in this court are assessed to the mother.

AFFIRMED.

      DG was born January 3, 2003. SG was born July 31, 2004. AG was born May 1, 2013. FG was married to JG at the time all the children were born and was still married to him when this matter arose, even though she lived with CG. DNA testing showed that DG and SG are not JG's biological children. Their biological father is KS. KS lives primarily in Pennsylvania, with his mother. He is on SSI for bipolar disorder and frequently travels as a carnival worker. AG is purported to be the biological child of CG. At some point, another man asserted that he might be AG's biological father, but DNA testing showed that he is not.

      John Doe was also named in the petition to cover any possible father of AG.

      The petition also outlined the case plans for KS, JG, and CG. They failed to fulfill those requirements and their parental rights to the children were also terminated in this proceeding. However, only FG's appeal of the judgment is presently before this court. Therefore, discussion of the other parents will be limited.

      Lora Crain, a DCFS foster care supervisor, also testified that she had worked on this case since the beginning. She largely outlined unsuccessful efforts to facilitate visitation between the children and KS.

      In a DCFS letter to the court on July 30, 2018, Parker stated that she made an unannounced visit to the home of the maternal grandmother. Grandchildren and adult children lived in the house. The house was cluttered, unsanitary, and had a foul odor. Dog feces was observed on mattresses. A bathroom had feces in the toilet. An unidentified substance and cigarette butts were observed in the sink. The maternal grandmother said that "several years back" she shot her husband, the maternal grandfather, for spanking a baby. She said she intended to shoot him, but they told the police and medical personnel that the shooting was an accident. The maternal grandfather survived the incident.

      At the termination hearing, CG's court appointed attorney, Scott E. McElroy, asked to be relieved of his duties in the case as soon as the judgment was signed. The trial court stated, "I will order the withdrawal as soon as you sign the judgment. That will be your last act in this matter." However, no motion to withdraw was filed by the attorney and no written order allowing the attorney to withdraw was issued by the court. However, the trial court minutes state, "Mr. McElroy allowed to withdraw as counsel after the signing of judgment." On October 29, 2018, CG filed a motion in the trial court to proceed with the appeal "pro se without cost." The motion was denied on November 29, 2018. The trial court noted that CG had an attorney appointed to represent him. When no brief was filed with this court, McElroy was contacted and responded by letter that he was not representing CG on appeal. He furnished an address for CG at the Morehouse Parish jail. This court mailed notice to CG at that address on February 28, 2019, advising him that, if no brief was filed within ten days, the appeal would be dismissed. See U.R.C.A. Rule 5-3(c)(2). No response was received. On April 9, 2019, CG's appeal was dismissed by this court.

      La. Ch. C. art. 1001 states:
      The purpose of this Title is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs, by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption. In all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proved. Termination of parental rights is to be considered the first step toward permanent placement of the child in a safe and suitable home, and if at all possible, to achieve the child's adoption. The procedural provisions of this Title shall be construed liberally. The proceedings shall be conducted expeditiously to avoid delays in resolving the status of the parent and in achieving permanency for children.


author: McCLENDON, J.

text:
    Allison JUGE v. SPRINGFIELD WELLNESS, L.L.C. d/b/a Springfield Wellness Center/Therapia Associates and Dr. Richard Mestayer, III
    2018 CA 0736
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    R. Ray Orrill, Jr., Bobby Ray T. Malbrough, Metairie, Louisiana, Counsel for Plaintiff/Appellant, Allison Juge
    Ron S. Macaluso, Hammond, Louisiana, Counsel for Defendants/Appellees, Springfield Wellness, L.L.C. d/b/a, Springfield Wellness Center/Therapia, Associates and Dr. Richard Mestayer, III
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

The plaintiff appeals the trial court judgment that granted the defendants' motion for summary judgment and dismissed the plaintiff's claims with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 19, 2013, the plaintiff, Allison Juge, filed a Petition for Damages in Medical Malpractice, Negligence and Invasion of Privacy against the defendants, Springfield Wellness, LLC d/b/a Springfield Wellness Center Therapia Associates (Springfield) and Dr. Richard Mestayer, III. Therein, she alleged that on March 6, 2013, she paid $ 10,000.00 in advance for ten treatment sessions at Springfield for the treatment of her anxiety and post-traumatic stress disorder (PTSD) diagnoses.

She further asserted that although she received ten intravenous co-enzyme therapy treatments, she did not receive any individualized or group therapy, psychotherapy, hypnotherapy, or counseling. Ms. Juge further asserted that Dr. Mestayer billed her health insurance company for services he never performed. As a result, Ms. Juge contends that she has suffered injuries and damages, including exacerbation and aggravation of anxiety, depression, and PTSD, as well as loss of employment, loss of income, loss of enjoyment of life, mental anguish, and medical expenses.

In her petition Ms. Juge also asserted an invasion of privacy cause of action against Springfield only. She alleged that, while at Springfield, she took a leave of absence from her position as a paralegal with the law firm of Beirne, Maynard & Parsons, L.L.P. (Beirne) and that Beirne requested information regarding the anticipated length of her short-term disability. She further contended that Springfield forwarded to Beirne private and confidential records that contained a diagnosis that Ms. Juge was "alcohol dependent," which misinformation resulted in her being fired from her position and caused her greater anxiety and depression. Ms. Juge maintained that the private and confidential information was disclosed to her employer without her consent and was intended by her to be disclosed only to her health care providers or their representatives and to her health and disability insurance carrier. Therefore, Ms. Juge urged that she suffered injuries and damages, including loss of employment, earnings, and income, with a loss of benefits, damage to her reputation, humiliation and embarrassment, mental anguish, and aggravation and exacerbation of her anxiety and depression.

On January 17, 2017, the defendants filed a motion for summary judgment, asserting that they were entitled to judgment as a matter of law. Particularly, with regard to Ms. Juge's first cause of action for medical malpractice and negligence, the defendants asserted that she had not produced or offered any expert testimony or expert reports as to the standard of care required of the defendants or that the alleged breach of the standard of care caused injury or damages to Ms. Juge. As to Ms. Juge's second cause of action, Springfield argued that, not only did Ms. Juge consent to the disclosure to her employer, she presented no records, documents, or other admissible evidence that substantiated her allegation that the alleged disclosure resulted in Ms. Juge's termination from employment. Rather, Springfield urged, Ms. Juge's termination was the result of a reduction in work force.

Ms. Juge opposed the motion for summary judgment, and following a hearing on March 20, 2017, the trial court took the matter under advisement. On November 29, 2017, the trial court issued written Reasons for Judgment, granting the motion for summary judgment. On January 3, 2018, the trial court signed its judgment, and Ms. Juge appealed.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Georgia-Pacific Consumer Operations, LLC v. City of Baton Rouge, 17-1553 (La.App. 1 Cir. 7/18/18), 255 So.3d 16, 21, writ denied, 18-1397 (La. 12/3/18), 257 So.3d 194 ; Crosstex Energy Services, LP v. Texas Brine Company, LLC , 17-0895 (La.App. 1 Cir. 12/21/17), 240 So.3d 932, 935, writ denied, 18-0145 (La. 3/23/18), 238 So.3d 963. 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. LSA-C.C.P. art. 966A(3).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential claims of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966D(1).

Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Georgia-Pacific Consumer Operations, LLC, 255 So.3d at 22. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. 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. Id.

The Medical Malpractice Claim

To establish a claim for medical malpractice, a plaintiff must prove the following by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) the defendant breached that standard of care; and (3) there was a causal connection between the breach and the resulting injury. LSA-R.S. 9:2794A; Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1006. It is also well established that to meet the burden of proof in a medical malpractice action, the plaintiff generally is required to produce expert medical testimony as a matter of law. Fagan v. LeBlanc, 04-2743 (La.App. 1 Cir. 2/10/06), 928 So.2d 571, 575. Notably, the jurisprudence recognizes limited exceptions to the requirement of expert testimony in those instances where the claim arises out of an "obviously careless act" from which a lay person can infer negligence.

Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228, 1233. Normally, in cases involving patients with complicated medical histories and complex medical conditions, causation is simply beyond the province of lay persons to assess without the assistance of expert medical testimony. See Pfiffner, 643 So.2d at 1234 ; Jackson v. Suazo-Vasquez, 12-1377 (La.App. 1 Cir. 4/26/13), 116 So.3d 773, 776. Thus, the jurisprudence has recognized that an expert witness is generally necessary as a matter of law to prove a medical malpractice claim. Fagan, 928 So.2d at 575.

Accordingly, the first issue before us is whether the alleged negligence in this case is an obviously careless act that infers negligence and does not require expert testimony. Upon our review of the record, and contrary to Ms. Juge's assertions, we find that this is not a case of obvious negligence where a lay person can infer fault and causation of an alleged injury without expert guidance. Ms. Juge's diagnoses of PTSD, anxiety, and depression involve complex medical issues, and expert medical testimony is necessary to determine the applicable standard of care, whether there was a breach of that standard of care, and whether the alleged breach was the cause of any injury to Ms. Juge.

In their motion for summary judgment and supporting documents, the defendants sufficiently pointed out that Ms. Juge did not submit, appropriately file, or otherwise timely introduce any medical affidavit or testimony that established the standard of care, that the defendants breached the standard of care, or a causal relationship between the alleged negligent acts and any damages. The defendants offered excerpts from their Requests for Production of Documents propounded in December of 2013 and Ms. Juge's responses thereto, their Interrogatories also propounded in December of 2013 and Ms. Juge's responses, and Ms. Juge's depositions, to show that Ms. Juge had no expert report from any medical provider. The burden then shifted to Ms. Juge to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the defendants were not entitled to judgment as a matter of law. See LSA-C.C.P. art. 966D(1).

In her opposition to the motion, Ms. Juge offered copies of her medical records from Integrated Behavioral Health, Inc., where she was treated by her psychiatrist, Dr. Leslie Lawrence; her medical records from her therapist, Paula Sheinberg, LCSW; her request to take the deposition of Dr. Harry Johnson, her internist; her requests to take the depositions of certain Springfield personnel and the defendants' response thereto; Dr. Mestayer's progress notes at Springfield and his billing statement; her compilation of notes from her stay at Springfield; and her own affidavit. Ms. Juge asserted that the medical records sufficiently showed that the defendants' treatment exacerbated her condition and established deviations from the applicable standard of care in the fields of psychiatry, psychology, and addictionology.

Ms. Juge also alleged that Dr. Mestayer never once "treated" her, yet he billed her in excess of $ 11,000.00 for his "treatment." She alleged that her insurance company was fraudulently billed for services that were never performed, and in order to justify the intravenous co-enzyme treatment, her medical records were altered by labeling her an "alcoholic." However, the defendants maintain that Ms. Juge received the treatment that she requested and that the present matter is a billing dispute rather than a medical malpractice claim.

As a preliminary matter, we point out that after the hearing on the motion for summary judgment, Ms. Juge filed Plaintiff's Post-Hearing Memorandum with Supporting Affidavit of Dr. John J. Kokemor. Ms. Juge also attached to the memorandum a certified copy of Ms. Juge's medical records from Dr. Johnson, Ms. Juge's primary physician from 1996 to 2015. The defendants filed an objection to the memorandum, but the record does not indicate that the trial court ruled on the objection. See LSA-C.C.P. art. 966D(2). Nonetheless, it does not appear that the trial court considered the post-trial memorandum or its attachments as no reference was made to Dr. Kokemor or Dr. Johnson in the trial court's Reasons for Judgment, and the trial court referred to Ms. Juge's admission that no expert report had been provided to rebut the motion for summary judgment. Moreover, LSA-C.C.P. art. 966B(2) provides that, unless extended by the court and agreed to by all of the parties, any opposition to the motion for summary judgment and "all documents in support of the opposition shall be filed and served ... not less than fifteen days prior to the hearing on the motion." Consequently, Dr. Kokemor's affidavit and the accompanying documents will not be considered herein.

At the hearing on the motion for summary judgment, Ms. Juge admitted that she had not produced any expert medical reports and relied only on the submitted medical records to prove a breach of the applicable standard of care by the defendants and that the alleged breach caused her injury. Ms. Juge was required to produce expert medical evidence sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial. Because Ms. Juge has failed to do so, she has failed to establish a genuine issue of material fact. Consequently, on our de novo review, we find that the trial court properly granted summary judgment dismissing Ms. Juge's medical malpractice and negligence claim.

The Invasion of Privacy Claim

The right of privacy involves the basic right of a person to be let alone in his private affairs. Roshto v. Hebert, 439 So.2d 428, 430 (La. 1983). Unwarranted invasion of a person's right of privacy may give rise to liability for the resulting harm. The determination of whether a person's conduct constitutes the tort of invasion of privacy depends on the facts and circumstances of each case. Id. ; Bradix v. Advance Stores Company, Inc., 17-0166 (La.App. 4 Cir. 8/16/17), 226 So.3d 523, 530.

The tort of invasion of privacy is directed at redressing the damage which an individual suffers when legally recognized elements of his right to privacy have been violated. Tate v. Woman's Hosp. Foundation, 10-0425 (La. 1/19/11), 56 So.3d 194, 197. An actionable invasion of privacy occurs only when the defendant's conduct is unreasonable and seriously interferes with the plaintiff's privacy interest. The reasonableness of the defendant's conduct is determined by balancing the conflicting interests at stake, the plaintiff's interest in protecting his privacy from serious invasions, and the defendant's interest in pursuing his course of conduct. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1389 (La. 1979). Courts have held that when a person consents to the release of information, there is no invasion of privacy. Tate, 56 So.3d at 198. Moreover, a defendant's conduct is reasonable and non-actionable, even though it may slightly invade a plaintiff's privacy if the action is properly authorized or justified by the circumstances. Parish Nat'l Bank v. Lane, 397 So.2d 1282, 1286 (La. 1981) ; Tatum v. New Orleans Aviation Bd., 11-1431 (La.App. 4 Cir. 4/11/12), 102 So.3d 144, 146-47, writ denied, 12-1847 (La. 11/9/12), 100 So.3d 838.

A tort of invasion of privacy can occur in four ways: (1) by appropriating an individual's name or likeness; (2) by unreasonably intruding on physical solitude or seclusion; (3) by giving publicity which unreasonably places a person in a false light before the public; and (4) by unreasonable public disclosure of embarrassing private facts. Alessi, 76 So.3d at 1143 ; Jaubert, 375 So.2d at 1388.

Ms. Juge does not suggest that Springfield appropriated her name or likeness or intruded on her physical solitude or seclusion, therefore eliminating the first two theories of invasion of privacy. In her reply brief, Ms. Juge argues that the disclosure of the false information falls under the third theory of recovery, or the "false light" invasion of privacy. This cause of action arises from publicity which unreasonably places the plaintiff in a false light before the public. The publicity need not be defamatory in nature, but must be objectionable to a reasonable person under the circumstances and must contain either falsity or fiction. Brunner v. Holloway, 17-0674 (La.App. 1 Cir. 11/2/17), 235 So.3d 1153, 1161 ; Perere v. Louisiana Television Broadcasting Corp., 00-1656 (La.App. 1 Cir. 9/28/01), 812 So.2d 673, 676. Also, unlike a defamation action, it is not necessary that there be malicious intent on the part of the defendant. Perere, 812 So.2d at 676. A right to privacy in one's medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. State v. Skinner, 08-2522 (La. 5/5/09), 10 So.3d 1212, 1219.

Ms. Juge asserted that during the course of her treatment at Springfield, her employer requested information regarding the anticipated length of her short-term disability. Ms. Juge alleged that, in response, Springfield forwarded to Beirne private and confidential records that contained a diagnosis that Ms. Juge was alcohol dependent, which was false. Ms. Juge urged that Springfield's disclosure of her inaccurate medical records to her employer placed her in a false light and resulted in her termination. She argued that even if the disclosure was authorized, which she refutes, she never consented to the disclosure of false, fraudulent, and inaccurate information. Specifically, Ms. Juge emphatically denied checking off "alcohol abuse" on any of the forms presented to her by Springfield and asserted that any such check marks were forgeries. Ms. Juge makes the argument that Springfield had to justify the IV NAD treatments and the $ 10,000.00 charge for the treatments and, therefore, added false and inaccurate information to Ms. Juge's medical records.

In its motion for summary judgment, Springfield urged that Ms. Juge consented to the disclosure of her personal information to her employer, that the disclosure was not inaccurate, and that the disclosure was not the cause of her termination. Springfield submitted several documents in support of its argument. We find that Springfield sufficiently pointed out the absence of factual support for one or more elements essential to Ms. Juge's invasion of privacy claim, and the burden shifted to Ms. Juge to produce factual support for her claim. In opposition, Ms. Juge relied on the same documents submitted for her first cause of action.

Our review of the record shows that Dr. Mestayer's progress notes for Ms. Juge indicated that she was at Springfield for increased alcohol consumption and that she suffered from "alcohol abuse." However, Ms. Juge continues to assert that although she used alcohol, she did not abuse alcohol. In her affidavit, she attested that she has no history of alcohol abuse and never stated to anyone at Springfield that she was alcohol dependent. Ms. Juge reported that she was seeking treatment for anxiety and PTSD. Nevertheless, Ms. Juge admitted to filling out a Psychological and Substance Abuse History form presented to her upon her admission to Springfield. Therein, Ms. Juge admitted alcohol use. The form contained the question, "What, if any, is a problem substance (substances) for you at present?" Ms. Juge reported "alcohol if any." Ms. Juge also admitted to signing an Adult Checklist of Concerns form, wherein "Alcohol use" was checked.

Additionally, Ms. Juge admitted to signing a General Medical Records Release and Authorization for Use of Disclosure of Protected Information. However, in response to Springfield's Uncontested Statement of Material Facts regarding this form, Ms. Juge maintained that she did not authorize disclosure of her medical records to her employer and only authorized disclosure to her short-term disability insurer. Therefore, we must determine if Springfield inappropriately released Ms. Juge's confidential medical records to Beirne.

Reviewing the admissible evidence regarding the motion for summary judgment, we find two different copies of the same General Medical Records Release and Authorization for Use of Disclosure of Protected Information signed on February 20, 2013, by Ms. Juge. One copy indicates that Ms. Juge checked off the authorization for the release of "all records." Otherwise, the form is blank. A second copy of the General Medical Records Release and Authorization for Use of Disclosure of Protected Information likewise has "all records" checked, but also contains check marks for the following:

The information may be used/disclosed for each of the following purposes:
? At my request (only the patient can check this box)
? For my health care
? For payment/insurance
? For employment purposes
? Other: ____________

We find that an issue of fact exists as to whether Ms. Juge authorized and consented to the disclosure of her confidential medical information to Beirne. However, while this issue is troubling, we find that Ms. Juge failed to sufficiently show that the disclosure unreasonably placed Ms. Juge in a false light before the public. The evidence clearly shows that Ms. Juge indicated concern over her alcohol use at the time that she sought treatment at Springfield. Therefore, we cannot say that the disclosure of records that contained a doctor's notation regarding "alcohol abuse" cast Ms. Juge in a false light. Accordingly, Ms. Juge's invasion of privacy claim must fail.

Considering the above, we affirm the judgment of the trial court that granted summary judgment and dismissed the medical malpractice, negligence, and invasion of privacy claims of Ms. Juge against Springfield and Dr. Mestayer.

CONCLUSION

For the foregoing reasons, the January 3, 2018 judgment is affirmed. All costs of this appeal are assessed to the plaintiff, Allison S. Juge.

AFFIRMED.

      The intravenous treatments were NAD detox treatments for addictive substances. NAD stands for Nicotinamide Adenine Dinucleotide, which, according to Ms. Juge, is a metabolic co-enzyme said to replenish drained enzymes and target brain restoration to cells harmed or depleted by addiction.

      On November 13, 2013, the parties, through their attorneys, signed a Joint and Irrevocable Stipulation that Ms. Juge did not and would not assert a cause of action against Dr. Mestayer regarding her invasion of privacy claim, which the trial court accepted on November 20, 2013.

      The hearing on the motion for summary judgment, originally scheduled for April 24, 2017, was rescheduled at the request of the defendants' counsel to March 20, 2017.

      We note that no medical review panel was involved in this matter. At the hearing on the motion for summary judgment, counsel for the defendants stated that the medical malpractice claim did not go before a medical review panel because "my clients were not enrolled in the Patients Compensation Fund."

      Examples of obvious negligence that could be inferred by a lay person include "obviously careless act[s], such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient's body[.]" Pfiffner, 643 So.2d at 1233. Other examples of obvious negligence include the "[f]ailure to attend a patient when the circumstances demonstrate the serious consequences of this failure, and failure of an on-call physician to respond to an emergency when he knows or should know that his presence is necessary[.]" Pfiffner, 643 So.2d at 1234. See also Turner v. Rabalais, 17-0741 (La.App. 1 Cir. 12/21/17), 240 So.3d 251, 256, writ denied , 18-0123 (La. 3/9/18), 237 So.3d 1193.

      We note that prior to the hearing on the motion for summary judgment, the defendants objected to the documents Ms. Juge filed in opposition to the motion for summary judgment. The record does not indicate that the trial court ruled on the objection. See LSA-C.C.P. art. 966D(2).

      Ms. Juge also makes the argument that she tried to depose several employees from Springfield in February of 2015 and again in April and December of 2016 and that the defendants clearly and intentionally refused to provide dates for the depositions. We note that Ms. Juge did not file a motion to continue the hearing on the motion for summary judgment, nor did she move to keep the record open for the depositions. Further, Ms. Juge filed no motions to compel the depositions.

      Dr. Johnson's medical records were attached to the affidavit of Sandra Martin, Dr. Johnson's office manager.

      Arguably, the fourth category for an invasion of privacy claim, the unreasonable public disclosure of embarrassing private facts, might be applicable. However, Ms. Juge did not brief this theory of recovery, and we decline to consider same. See Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4B(4).

      The documents offered by Springfield in support of its motion included copies of certain Requests for Production of Documents in December of 2013 and Ms. Juge's responses thereto, Ms. Juge's records from Springfield, excerpts from Ms. Juge's depositions, the response to a subpoena duces tecum directed to Beirne, a notice of employment by Beirne to the Louisiana Workforce Commission dated July 10, 2013, indicating that Ms. Juge's employment position was eliminated, Ms. Sheinberg's medical records regarding Ms. Juge, Dr. Rachel Murphy's STD Statement of Disability for Ms. Juge, which was signed by Ms. Juge and authorized the disclosure of her medical records to her insurance company, and Springfield's General Medical Records Release and Authorization for Use or Disclosure of Protected Health Information signed by Ms. Juge.

      Although Ms. Juge stated in her affidavit that she did not check off "Alcohol use" on the form, she admitted in her response to Springfield's Statement of Uncontested Material Facts that she checked off "Alcohol use," stating in part that she "admitted occasional alcohol use."


author: HIGGINBOTHAM, J.

text:
    Tomica SIMON v. John FERGUSON, Master Vac Industrial Services, LLC, and National Union Fire Insurance Company
    NO. 2018 CA 0826
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    Jennifer O. Robinson, Lafayette, LA, Derek E. Elsey, Baton Rouge, LA, Attorneys for Plaintiff-Appellee, Tomica Simon
    Henry St. Paul Provosty, Lena D. Giangrosso, Zachary P. Fickes, New Orleans, LA, Attorneys for Defendants-Appellants, John Ferguson, Master Vac Industrial Services, LLC, and National Union Fire Insurance Company
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

Defendant, John Ferguson, appeals the trial court's judgment granting partial summary judgment regarding liability in favor of plaintiff, Tomica Simon.

FACTS AND PROCEDURAL HISTORY

On October 31, 2016, Ms. Simon was traveling southbound on Interstate 110 in East Baton Rouge Parish when she was hit from behind by Mr. Ferguson. On December 8, 2016, Ms. Simon filed suit against Mr. Ferguson; Master Vac Industrial Services, LLC, Mr. Ferguson's employer; and National Union Fire Insurance Company, contending that she was injured as a result of the accident and requesting damages. While a trial date was pending, Ms. Simon filed a motion for partial summary judgment on the issue of liability. Following a hearing, the trial court granted Ms. Simon's motion for partial summary judgment. A judgment was signed in conformance with the trial court's ruling on April 19, 2018. It is from this judgment that Mr. Ferguson appeals.

RULE TO SHOW CAUSE

After examination of the record, which revealed that the April 19, 2018 judgment at issue appeared not to be a final appealable ruling, this court, ex proprio motu , issued a rule to show cause as to why the appeal should or should not be dismissed.

The April 19, 2018 judgment was signed as follows, in pertinent part:

IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff's Motion for Partial Summary Judgment regarding liability is hereby GRANTED .
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Judgment is final and thus appealable pursuant to La. C.C.P. Art. 1915.

Mr. Ferguson filed a responsive brief to this court's show cause order arguing that the judgment should be considered final because the judgment contains language disposing of the claims in this matter. In the alternative, Mr. Ferguson requested that this court exercise its supervisory jurisdiction, convert the appeal to a writ in the interest of judicial efficiency, and address the merits of the assigned errors regarding the imposition of liability on him. The rule to show cause was referred to the panel hearing the merits of the appeal.

LAW AND ANALYSIS

We cannot determine the merits of an appeal unless our appellate jurisdiction is properly invoked by a valid final judgment. Texas Gas Exploration Corporation v. Lafourche Realty Company, Inc. , 2011-0520, 2011-0523 (La. App. 1st Cir. 11/9/11), 79 So.3d 1054, 1061, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698.

I. Partial Final Judgment

Louisiana Code of Civil Procedure article 1915 authorizes the immediate appeal of partial final judgments, including partial summary judgments, with an appropriate designation by the trial court. The April 19, 2018 judgment addressing only liability is a partial summary judgment under the provisions of La. Code Civ. P. art. 966(E), and falls squarely within the parameters of La. Code Civ. P. art. 1915(B). Thus, La. Code Civ. P. art. 1915(B)(1) requires that the trial court designate a partial summary judgment as a final judgment after an express determination that there is no just reason for delay. In the absence of such a determination and designation, the judgment shall not constitute a final judgment for the purpose of an immediate appeal. La. Code Civ. P. art. 1915(B)(2). In this case, the trial court struck through the portion of the judgment which sought to certify this partial judgment as final and appealable. As the trial court did not designate the partial judgment as final and appealable, the judgment remains interlocutory, and the appeal is not properly before this court.

II. Decretal Language

Additionally, for a judgment to be a final judgment it must contain appropriate decretal language. See Carter v. Williamson Eye Center , 2001-2016 (La. App. 1st Cir. 11/27/02), 837 So.2d 43, 44. Importantly, for the language to be considered decretal, it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Id. These determinations should be evident from the language of a judgment without reference to other documents in the record. Laird v. St. Tammany Parish Safe Harbor , 2002-0045, 2002-0046 (La. App. 1st Cir. 12/20/02), 836 So.2d 364, 366. The absence of the necessary decretal language means that the judgment is not final and appealable.

Here, the judgment which Mr. Ferguson wishes to appeal merely provides that plaintiff's motion for partial summary judgment regarding liability is granted. The judgment neither identifies the losing party (where there are multiple defendants) nor the dispositive relief granted. That information is only determinable from reference to the motion for summary judgment itself. It is impossible to determine, without resort to extrinsic evidence, what relief was ordered or even who was found liable for the accident. Accordingly, as written, the judgment lacks the required decretal language and is not a final appealable judgment.

III. Conversion to an Application for Supervisory Writs

The judgment in this case is not a final appealable ruling because it is a partial final judgment without a designation of finality by the trial court, and it does not contain appropriate decretal language. This court has discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs. See Stelluto v. Stelluto , 2005-0074 (La. 6/29/05), 914 So.2d 34, 39. Generally, appellate courts have exercised that discretion when the motion for appeal was filed within the thirty-day time period allowed for the filing of an application for supervisory writs of review under Rule 4-3 of the Uniform Rules, Courts of Appeal, and where reversal of the trial court's decision would terminate the litigation, or where clear error in the trial court's judgment, if not corrected, will create a grave injustice. See Mapp Construction, LLC v. Amerisure Mutual Insurance Company , 2013-1074 (La. App. 1st Cir. 3/24/14), 143 So.3d 520, 528 ; see also Reed v. Finklestein , 2001-1015 (La. App. 4th Cir. 1/16/02), 807 So.2d 1032, 1033-34, writ denied, 2002-0550 (La. 4/26/02), 814 So.2d 560.

However, when the jurisdictional defect lies in the non-finality of a judgment (as opposed to an appeal from an interlocutory judgment), an appellate court will generally refrain from the exercise of its supervisory jurisdiction when an adequate remedy exists by appeal, particularly when an adequate remedy by appeal will exist upon the entry of a judgment containing the requisite precise, definite, and certain decretal language necessary for appellate review. This is because in the absence of precise, definite and certain decretal language, the judgment is defective, and this court lacks jurisdiction to review the merits, even if we were to convert the matter to an application for supervisory writs. See Boyd Louisiana Racing, Inc. v. Bridges , 2015-0393, 2015-0395 (La. App. 1st Cir. 12/23/15), 2015 WL 9435285, *4 (unpublished). The April 19, 2018 judgment not only was interlocutory, but also lacked proper decretal language. Accordingly, we decline to exercise our discretion to convert this appeal of a judgment that is not final for lack of precise language to an application for supervisory writs of review.

CONCLUSION

For the foregoing reasons, we dismiss the appeal and remand to the district court for further proceedings. Appeal costs are assessed to defendants, Mr. John Ferguson, Master Vac Industrial Services, LLC, and National Union Fire Insurance Company.

APPEAL DISMISSED; REMANDED.

McClendon, J., concurs.

      Louisiana Code Civil Procedure article 966(E) provides: "[a] summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties."


text:
    Matthew MORRIS and Complete Construction Contractors, LLC v. TRUST TECHNOLOGIES, LLC and Jeff Hanson
    2018 CA 0831
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    Robert N. Aquiluz, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants, Matthew Morris and Complete Construction Contractors, L.L.C.
    Azelie Ziegler Shelby, Sarah K. Lunn, Stephanie L. Willis, Baton Rouge, Louisiana, Counsel for Defendants/Appellees, Trust Technologies, LLC and Jeff Hanson
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

In this appeal, the plaintiffs contend that the trial court abused its discretion and erred in failing to grant them a preliminary injunction that would enjoin the defendants from depriving the plaintiffs of full access to and use of certain computer information. For the reasons that follow, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL HISTORY

Matthew Morris is the sole owner and managing member of Complete Construction Contractors, LLC (CCC), a Louisiana residential and commercial construction company. On February 7, 2017, a warrant for the search and seizure of property located at the Baton Rouge office of CCC was issued for "[c]ompany [owned] computers, cellular phones, digital storage devices, customer ... files and billing invoices, and any information that would identify past or present employees." Jeff Hanson, the owner of Trust Technologies, LLC, d/b/a Trust IT, had been providing computer support and services to CCC since 2014. At the time of the search, Mr. Hanson was contacted by CCC for assistance, and he went to CCC's office. Law enforcement personnel advised Mr. Hanson to preserve all existing computer data in his possession.

On August 12, 2017, after the issuance of the search warrant and the arrest of Mr. Morris, Mr. Hanson sent a letter by email to Mr. Morris and CCC giving notice that Trust IT would no longer be providing technical services to CCC as of September 15, 2017. Mr. Hanson further stated that he wanted to give CCC as much notice as possible so it could secure a new IT provider and that Trust IT would provide assistance for the transition.

On September 13, 2017, Mr. Hanson sent an email to Mr. Morris and Ashley Morris, Mr. Morris's wife, wherein Mr. Hanson gave an update of various matters, including ShareSync data. With regard to the ShareSync data, Mr. Hanson stated:

I will not be able to transfer the account to Matt directly. On the day of the original raid in February, law enforcement directed me to ensure that any data we provided for CCC was protected and to not delete any of that data. In light of my conversations with Matt yesterday, I contacted law enforcement to confirm it was acceptable to transfer the ShareSync account from Trust IT to Matt. They instructed me not to do so and retain custodianship of the account. As a result, we will continue as originally planned and provide the ShareSync data on a hard drive.

The following day, Mr. Hanson sent another email to Mr. and Mrs. Morris again advising them of the termination of services to CCC on September 15, 2017. Mr. Hanson advised Mr. Morris that he was not jeopardizing Mr. Morris's litigation in any way through the termination of services, stated that the data to be delivered to the plaintiffs could be accessed by them, and again recommended that they immediately secure the services of a new IT company. With respect to Mr. Morris's requests for additional IT services, Mr. Hanson agreed to keep the ShareSync account open until October 15, 2017. On September 21, 2017, Mr. Hanson gave Mrs. Morris an external USB hard drive containing data for CCC. The receipt for the hard drive also contained a list of its contents with a screenshot of the files.

Mr. Hanson's deposition was taken on October 3, 2017. He testified that he did not have access or control to many of CCC's accounts, including RackSpace, QuickBooks, LastPass, Xactimate, BuilderTrend, NexVortexIP, GoDaddy, iPhones, iPads, iCloud, and Wunderlist. He also testified regarding the ShareSync account, stating that it is a cloud-based file storage and sharing system. Mr. Hanson testified that he had custodial access to the ShareSync account, but that Mr. Morris had access to the account and could see what files were deleted and restore them. Mr. Hanson stated that he, however, was the only person who could permanently delete a file. Mr. Hanson agreed to maintain the ShareSync account, provided that Mr. Morris and CCC pay the cost of keeping it open for one year in advance.

Shortly thereafter, on October 5, 2017, Mr. Morris and CCC filed a Petition for Temporary Restraining Order and Preliminary Injunction against Trust Technologies, LLC and Mr. Hanson, asserting that if Mr. Hanson and Trust IT shut down the various accounts, metadata evidence would be permanently lost, which would result in the spoliation of evidence needed to defend against allegations in civil and criminal proceedings against Mr. Morris. The plaintiffs asserted that Mr. Hanson and Trust IT refused to preserve the data, and they prayed for a temporary restraining order and, after due proceedings, a preliminary mandatory injunction to prevent irreparable harm. The trial court issued a temporary restraining order and set the matter for hearing.

The hearing on the petition was held on November 27, 2017 and November 30, 2017, after which the trial court took the matter under advisement. Post-trial memoranda were filed to try to narrow the issues before the court, and on January 12, 2018, the trial court denied the petition for a preliminary injunction and vacated the temporary restraining order. The trial court signed a judgment on February 14, 2018, and the plaintiffs filed a suspensive appeal.

In their appeal, the plaintiffs assign the following as error:

1. The trial court erred when it required [the plaintiffs] to prove they would suffer irreparable loss, damage, or other harm that cannot be adequately compensated in money damages or is not susceptible to measurement by pecuniary standards to obtain a preliminary injunction enjoining defendant[s] from denying [the plaintiffs] full and effective access to their data and from taking any action that would result in the destruction of [the plaintiffs] data.
2. The trial court abused its discretion and erred when it ruled that [the plaintiffs] did not establish they would suffer irreparable loss, damage[,] or other harm that cannot be adequately compensated in money damages or is not susceptible to measurement by pecuniary standards if a preliminary injunction was not granted.

DISCUSSION

The writ of injunction is a harsh, drastic, and extraordinary remedy. It should only issue in those instances where the moving party is threatened with irreparable loss or injury and is without an adequate remedy at law. Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa , 04-0270 (La.App. 1 Cir. 3/24/05), 906 So.2d 660, 664. Irreparable injury has been interpreted to mean a loss that cannot be adequately compensated in money damages or measured by a pecuniary standard. Id.

Generally, plaintiffs seeking issuance of a preliminary injunction bear the burden of establishing by a preponderance of the evidence a prima facie showing that they will prevail on the merits and that irreparable injury or loss will result without the preliminary injunction. LSA-C.C.P. art. 3601 ; Hill v. Jindal , 14-1757 (La.App. 1 Cir. 6/17/15), 175 So.3d 988, 1002, writ denied, 15-1394 (La. 10/23/15), 179 So.3d 600. However, a threat of irreparable injury need not be shown when the deprivation of a constitutional right is at issue or when the act sought to be enjoined is unlawful. Id. The only issues to be considered at a hearing on a preliminary injunction are whether the moving party has met its burden of proving that it is entitled to the relief sought as a matter of law and the likelihood that it will likely prevail on the merits of the case. Louisiana Ass'n of Self-Insured Employers v. Louisiana Workforce Com'n , 11-1892 (La.App. 1 Cir. 3/28/12), 92 So.3d 397, 400.

Although the judgment on the preliminary injunction is interlocutory, a party aggrieved by a judgment either granting or denying a preliminary injunction is entitled to an appeal. LSA-C.C.P. art. 3612B; Hill , 175 So.3d at 1002. We are, however, mindful that appellate review of a trial court's issuance of a preliminary injunction is limited. The issuance of a preliminary injunction addresses itself to the sound discretion of the trial court and will not be disturbed on review unless a clear abuse of discretion has been shown. Hill , 175 So.3d at 1002.

In their appeal, the plaintiffs maintain that if the defendants shut down or close various computer services provided by CCC, metadata would be destroyed preventing them from defending themselves in their pending civil litigation and criminal proceedings. They contend that their request for injunctive relief was filed to prevent the closing of the accounts and maintain the status quo to prevent the spoliation of evidence and ensure access to the data. Particularly, the plaintiffs assert that if the computer programs are shut down, metadata will be lost that is essential to their defenses. They allege that the defendants refuse to transfer the ShareSync account to them and that they had to pay the first year's "ransom" to the defendants so as not to lose the data.

To the contrary, the defendants assert that they have provided all of the data in their possession. They further contend that all data and accounts are maintained in the defendants' names and are paid for by the defendants, with the sole exception of the ShareSync account. The defendants also maintain that they have never prevented or restricted the plaintiffs from using or accessing data, including metadata, housed in the ShareSync account.

After consideration of the law and evidence, the trial court determined that "the plaintiffs have failed to present evidence sufficient to establish that the plaintiffs will suffer irreparable loss, damage or other harm that cannot be adequately compensated in money damages or is not susceptible to measurement by pecuniary standards" and denied the relief requested.

Based upon our review of the record, we can find no abuse of discretion by the trial court in denying the plaintiffs' petition for a preliminary injunction. The record shows that the plaintiffs have neither been denied access to the ShareSync data, nor were they ever threatened by the defendants that their data would be destroyed. Although the plaintiffs argued that the defendants threatened no less than six times to close the accounts and delete the metadata, Mr. Hanson testified several times that he was willing to keep the ShareSync account open indefinitely if the plaintiffs would pay in advance to keep it open. He further testified that while closing the account would destroy metadata, this problem could be resolved by the hiring of a new IT provider.

Additionally, for the first time on appeal, the plaintiffs assert a violation of the Fourth Amendment to the United States Constitution. The plaintiffs maintain that the metadata is their intellectual property and that denying them access as a custodian to the metadata in the ShareSync account amounts to a seizure in violation of the Fourth Amendment. Further, they argue that refusing to give them full access to the data violates Louisiana law as well. Therefore, they contend that they do not have to show irreparable injury in order to obtain the preliminary injunction.

Rule 1-3 of the Uniform Rules of Louisiana Courts of Appeal provides:

The scope of review in all cases within the appellate and supervisory jurisdiction of the Courts of Appeal shall be as provided by LSA-Const. Art. 5, § 10 (B), and as otherwise provided by law. The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.

Because the plaintiffs failed to submit this argument to the trial court, we find that the issue is not properly before us on appeal.

We also point out that if the plaintiffs are given custodial access to the ShareSync account, they would have the ability to destroy evidence, which is what the plaintiffs assert they are trying to prevent, and contrary to the direction of law enforcement. Rather than hindering the plaintiffs, this safeguard protects both the plaintiffs and the defendants.

Following our review of the record, we find that the plaintiffs failed to show that irreparable harm would occur without the issuance of a preliminary injunction. Accordingly, we cannot say that the trial court abused its discretion in failing to grant the preliminary injunction.

CONCLUSION

For the foregoing reasons, the February 14, 2018 judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiffs, Matthew Morris and Complete Construction Contractors, LLC.

AFFIRMED.

      The warrant was issued in connection with multiple criminal counts against Mr. Morris for residential contractor fraud, a violation of LSA-R.S. 14:202.1 ; contractor misapplication of payments, a violation of LSA-R.S. 14:202 ; theft of assets of an aged or disabled person, a violation of LSA-R.S. 14:67.21 (before its repeal by Acts 2017, No. 281 § 3); filing or maintaining false public records, a violation of LSA-R.S. 14:133 ; insurance fraud, a violation of LSA-R.S. 22:1924 ; and engaging in the business of contracting without authority, a violation of LSA-R.S. 37:2160. In addition to the criminal proceedings, more than twenty civil lawsuits have been filed against Mr. Morris or CCC in five parishes.

      The notice set forth the services Trust IT provided to Mr. Morris and CCC, which would be deactivated, and Trust IT requested that the plaintiffs make alternate arrangements before the termination date. The services provided were:
      • ShareSync Business-Grade File Sync
      • Mobile Device Management
      • Antivirus software
      • Trust I.T.'s remote connectivity service
      The notice also provided that Trust IT would give to CCC all of its ShareSync data on an external hard drive, and that "[p]ursuant to instructions by law enforcement and a previously served warrant, we will retain a copy of the ShareSync data, but will not produce this data to anyone other than [CCC] without a court order requiring us to produce same."

      Mrs. Morris received the data as Mr. Morris was incarcerated.

      The receipt provided that the USB hard drive contained:
      1. ShareSync data from Matt's account as of 02-07-17
      2. ShadowProtect Images from file server as of 02-07-17
      3. QuickBooks data as of 02-07-17
      4. Miscellaneous info from the CCC customer file
      5. Export from IT Glue documentation system. Important: Passwords were exported in unencrypted, human-readable format. You will need to secure this data.

      Metadata is data about data. It can show revisions and deletion of data.

      At oral argument, it was represented that the criminal proceedings had been resolved, but that civil litigation was still pending.

      The plaintiffs allege violations of computer-related crimes. See LSA-R.S. 14:73.1, et seq.