text:
    STATE of Louisiana v. John Edward MARSHALL
    No. 2019-KH-0392
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO
   PER CURIAM:

Denied. Applicant does not identify an illegal term in his sentence, and therefore, his filing is properly construed as an application for post-conviction relief. See State v. Parker , 98-0256 (La. 5/8/98), 711 So.2d 694. As such, it is subject to the time limitation set forth in La.C.Cr.P. art. 930.8. The application was not timely filed in the district court, and applicant fails to carry his burden to show that an exception applies. La.C.Cr.P. art. 930.8 ; State ex rel. Glover v. State , 93-2330 (La. 9/5/95), 660 So.2d 1189.

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

CRICHTON, J., recused.

GENOVESE, J., would grant.


source: Caselaw Access Project

author: HUGHES, J., would grant.

license: Public Domain

text:
    STATE of Louisiana v. Steven STILES
    No. 2019-KK-0338
    Supreme Court of Louisiana.
    May 28, 2019
    ON SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF ORLEANS
    Writ denied.
    JOHNSON, C.J., concurs and assigns reasons.
   HUGHES, J., would grant.

GENOVESE, J., would grant and assigns reasons.

Genovese, J., would grant for the following reasons:

This case concerns the legal and procedural consequences of a fatally flawed plea bargain. The state and defendant herein reached an agreement (a constitutional contract) allowing defendant to plead guilty to a felony-grade marijuana offense in exchange for a suspended sentence pursuant to La.C.Cr.P. art. 893. The trial court accepted this agreement. After satisfying his debt to society, defendant moved to set aside his arrest and conviction pursuant to La.C.Cr.P. art. 893(E)(2), which the trial court granted. Thereafter, defendant moved to expunge his arrest and conviction as authorized by La.C.Cr.P. art. 978(A). However, the lower courts denied his motion. Defendant thereafter filed a writ with this Court seeking to reverse the lower courts and have his arrest and conviction expunged.

Article 893(E)(2) allows defendants who received a deferred sentence to request that their convictions be set aside following the satisfactory completion of their probationary period. However, defendant here received a suspended sentence. Thus, the trial court improperly granted defendant's motion to set aside his sentence per Article 893(E)(2).

Legally, defendant was not eligible for a deferred sentence because his conviction stemmed from La.R.S. 40:966(A)(1), a crime which La.C.Cr.P. art. 893(E)(1)(b) specifically excludes from the deferral-eligible offenses. Because defendant was not eligible for a deferral, he was also ineligible to have his conviction set aside per La.C.Cr.P. art. 893(E)(2). Thus, he is not eligible at this time to receive an expungement.

Because a fundamental and principal cause of his agreement to enter his plea was the benefit of La.C.Cr.P. art. 893, the agreement is invalid, and defendant's plea is no good. Defendant should be permitted the opportunity to withdraw his guilty plea. I would remand this matter to the trial court for a hearing to determine whether defendant wishes to withdraw his flawed plea. If so, then the trial court should determine whether defendant's plea was constitutionally infirm and decide whether the plea was induced by what defendant justifiably believed to be a valid plea bargain, but which, as a matter of law, could not be kept. State v. Allah , 17-0785 (La. 1/9/18), 232 So.3d 554.

JOHNSON, Chief Justice, concurs and assigns reasons.

Mr. Stiles seeks review of the district court judgment which denied his motion to expunge his record of arrest and conviction. He contends that he is entitled to an expungement under La.C.Cr.P. art. 978(A)(1) because the district court granted his February 26, 2014 Motion to Set Aside and Dismiss Prosecution. Because his conviction was not validly dismissed, I agree with the decision of the Court to deny his application.

Under La.C.Cr.P. art. 978(A), a person may file a motion to expunge his or her record of arrest and conviction of a felony offense if one of the two situations apply:

(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 893(E).
(2) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the ten-year period, and has no criminal charge pending against him. The motion filed pursuant to this Subparagraph shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment.

On March 16, 2012, Mr. Stiles pleaded guilty under State v. Crosby and La.C.Cr.P. art. 893 to possession with intent to distribute marijuana, a violation of R.S. 40:966(A)(2). He was sentenced to serve five years at hard labor, and his sentence was suspended and he was placed on five years of active probation. Mr. Stiles thus received the benefit of La.C.Cr.P. art. 893(A)(1), pursuant to his plea agreement, which allowed the district court to fully suspend his five-year sentence. Likewise, Mr. Stiles was not eligible to have his sentence deferred because La.C.Cr.P. art. 893(E)(1)(b) prohibits a court from deferring a sentence for a violation of R.S. 40:966(A)(2), the offense to which he pleaded guilty. Accordingly, Mr. Stiles is not eligible to expunge his record pursuant to La.C.Cr.P. art. 978(A)(1) because his conviction was not validly dismissed.

On the other hand, while currently ineligible, Mr. Stiles may nonetheless file a motion in the future to expunge his record of arrest and conviction pursuant to La.C.Cr.P. art. 978(A)(2). For these reasons, I agree with the decision of the Court to deny Mr. Stiles' application.

      Article 893 provides, in pertinent part, as follows:
      (1)(a) When it appears that the best interest of the public and of the defendant will be served, the court, after a first, second, or third conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole.

      Under La.C.Cr.P. art. 978(a), a person may file a motion to expunge his or her record of arrest and conviction under certain circumstances.

      Louisiana Code of Criminal Procedure 893(E)(1)(b) provides, in pertinent part, as follows (emphasis added):
      The court shall not defer a sentence under this provision for an offense or an attempted offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3 or that is defined as a sex offense by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).


author: CLARK, J., recused.

text:
    Stanley R. PALOWSKY, III, Individually, and on Behalf of Alternative Environmental Solutions, Inc. v. Allyson CAMPBELL, et al.
    NO. 2018-C-1115
    Supreme Court of Louisiana.
    December 3, 2018
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.
   CLARK, J., recused.


text:
    Stanley R. PALOWSKY, III, Individually, and on Behalf of Alternative Environmental Solutions, Inc. v. Allyson CAMPBELL, et al.
    NO. 2018-C-1105
    Supreme Court of Louisiana.
    December 3, 2018
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.
   CLARK, J., recused.


author: WEIMER, J., recused.

text:
    STATE of Louisiana v. Blaise GRAVOIS
    NO. 2019-KK-0570
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., recused.

HUGHES, J., would grant.


text:
    Dionisio GONZALEZ, et al. v. Carey Leshawn JIMMERSON, et al.
    NO. 2019-C-0616
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    Robert G. MURPHY and Pamela Murphy v. Shauntal SAVANNAH; State Farm Mutual Automobile Insurance Company, a.k.a. State Farm; State of Louisiana, Through the Department of Transportation and Development
    No. 2018-C-0991
    Supreme Court of Louisiana.
    December 3, 2018
    And, whereas, the Court has this date, pursuant to Article 5, Section 5, of the Constitution of Louisiana, made and issued the following order, to wit- "It is ordered that the writ of review issue; that the District Court and the Court of Appeal send up the record in Duplicate of the case; and that counsel for all parties be notified."
    Now, therefore, the said District Court and the Court of Appeal is hereby commanded, in the name of the State of Louisiana and of this Honorable Court, to send up forthwith to this Court, in accordance with Supreme Court Rule 1, at the City of New Orleans, the record in duplicate of the above-entitled case.


text:
    GUARDIAN MEDICAL GROUP, L.L.C. and Cellution Wellness Center, Inc. v. Cecilia MOUTON, M.D. and the Louisiana State Board of Medical Examiners
    NO. 2019-CC-0629
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    Carl EDGEFIELD v. AUDUBON NATURE INSTITUTE, INC., Audubon Commission and Scottsdale Insurance Company
    NO. 2019-C-0638
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
    HUGHES, J., would grant for the reasons assigned by Judge Lobrano.
    GENOVESE, J., would grant for the reasons assigned by Judge Lobrano.


text:
    IN RE: GRAND JURY SUBPOENA
    NO. 2019-KK-0639
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. Delery WINFIELD
    NO. 2019-KK-0640
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


author: GUIDRY, J., recused.

text:
    ELIO MOTORS, INC. v. LOUISIANA MOTOR VEHICLE COMMISSION
    NO. 2019-C-0656
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   GUIDRY, J., recused.

HUGHES, J., would grant in part.


text:
    Archie JOHNSON v. Dr. Bai Raj BHANDARI
    NO. 2019-C-0658
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


text:
    STATE of Louisiana v. Blaise GRAVOIS
    NO. 2019-KK-0687
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., recused.

GUIDRY, J., recused.


author: JOHNSON, C.J., would grant.

text:
    STATE of Louisiana v. Deitray LOMAX
    State of Louisiana v. Deitray Lomax
    NO. 2019-KP-0443
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   JOHNSON, C.J., would grant.


text:
    STATE of Louisiana v. Armand ALFRED
    NO. 2019-KK-0449
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   JOHNSON, C.J., would grant.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Blaise GRAVOIS
    NO. 2019-KK-0499
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   WEIMER, J., recused.


text:
    STATE of Louisiana v. Louis HANDY
    NO. 2019-KK-0705
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.
   HUGHES, J., would grant.


text:
    STATE of Louisiana v. John C. PRIMEAUX
    NO. 2019-KK-0987
    Supreme Court of Louisiana.
    June 17, 2019
    Denied.


author: CHUTZ, J.

text:
    Ronnie James PREJEAN v. Cory MCMILLAN,[ ] Corey's Garden of Eden Services, LLC, and Hallmark Specialty Insurance Company
    2018 CA 0919
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: FEBRUARY 28, 2019
    J. Neale deGravelles, Benjamin Boone Treuting, Baton Rouge, Louisiana, Counsel for Plaintiff-Appellant Ronnie James Prejean
    Lambert J. Hassinger, Jr., Jeffrey Siemann, New Orleans, Louisiana, Counsel for Defendant-Appellee Western World Insurance Company
    Corey McMillan, Baker, Louisiana, Defendant-Appellee, Proper Person
    BEFORE: WELCH, CHUTZ, AND LANIER, JJ.

      The correct spelling of McMillan's first name is Corey.

   CHUTZ, J.

Plaintiff-appellant, Ronnie Janies Prejean, appeals the trial court's grant of summary judgment and the dismissal of his claims against defendant-appellee, Western World Insurance Company (Western World), which provided a commercial lines policy to defendant-appellee, Garden of Eden LLC (GOE), based on a finding that the policy did not provide coverage. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Prejean instituted this lawsuit averring that on October 11, 2012, he had been working as an independent contractor tree surgeon for, or alternatively, an under-the-table cash employee of, Corey's Garden of Eden Services, LLC, GOE, Garden of Eden Services, LLC, and/or its owner Corey McMillan on a job that involved trimming a tree on residential property in Clinton, Louisiana. During operations to remove the tree, Prejean sustained injuries. GOE, McMillan, and Western World were among those named as defendants.

Western World answered the lawsuit and then filed a motion for summary judgment. After a hearing, in a judgment signed on November 6, 2017, the trial court granted summary judgment, concluding that Western World's policy excluded coverage for Prejean's claims, and dismissed the insurer from the lawsuit.

Following the denial of his motion for new trial, Prejean devolutively appealed.

DISCUSSION

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, 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. 966B(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Guste v. Lirette , 2017-1248 (La. App. 1st Cir. 6/4/18), 251 So.3d 1126, 1129.

Interpretation of an insurance policy usually involves a legal question that can be resolved properly in the framework of a motion for summary judgment. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent. La. C.C. art. 2046. Green v. Johnson , 2016-1525 (La. App. 1st Cir. 1/10/18), 241 So.3d 1188, 1191-92.

The purpose of liability insurance is to afford the insured protection from damage claims; therefore, policies should be construed to effect, not to deny, coverage. Thus, a provision which seeks to narrow the insurer's obligation is strictly construed against the insurer, and, if the language of the exclusion is subject to two or more reasonable interpretations, the interpretation which favors coverage must be applied. Hinchcliffe v. Siaotong, 2017-1356 (La. App. 1st Cir. 4/18/18), --- So.3d ----, writ denied, 2018-1113 (La. 10/15/18), 253 So.3d 1304.

Nevertheless, an insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer's liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Green, 241 So.3d at 1192.

In its motion for summary judgment, Western World asserted that whether Prejean is considered an employee, an independent contractor, or a temporary worker, coverage is excluded for his claims under the plain language of the policy. According to the salient provisions of the Western World policy:

SECTION I- COVERAGES
COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY
1. Insuring Agreement
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "bodily injury" or "property damage" to which this insurance applies....
2. Exclusions
This insurance does not apply to....
e. Employer's Liability
"Bodily injury" to:
(1) An "employee" of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business....
COVERAGE C MEDICAL PAYMENTS
1. Insuring Agreement
a. We will pay medical expenses as described below for "bodily injury" caused by accident....
2. Exclusions
We will not pay expenses for "bodily injury":
a. Any Insured
To any insured except a volunteer worker.
b. Hired Person
To a person hired to do work for or on behalf of any insured ....
g. Coverage A Exclusions
Excluded under Coverage A.

In addition, the policy includes the following endorsements:

INDEPENDENT CONTRACTORS EXCLUSION
This insurance does not apply to any claim arising out of operations of any independent contractor or to any act or omission of any insured in the general supervision of such operations.
EXCLUSION--INJURY TO CONTRACTORS OR SUBCONTRACTORS AND THEIR WORKERS
This insurance does not apply to any claim arising from injury to any contractor or subcontractor hired by or through any insured or to any claim arising from injury to any "employee" or "temporary worker" of any contractor or subcontractor who was hired by any insured.
The contractor or subcontractor will be considered to be hired by or through any insured if the contractor or subcontractor was hired directly by any insured or was hired by another contractor or subcontractor who was hired by any insured.
STANDARD PROVISIONS ENDORSEMENT
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART....
5. TEMPORARY WORKER BODILY INJURY EXCLUSION ...
This insurance does not apply to any claim arising from:
1. "Bodily injury" to any "temporary worker."

In Section V, the policy sets forth definitions. An "[e]mployee" does not include a "temporary worker," which "means a person who is furnished to you to substitute for a permanent 'employee' on leave or to meet seasonal or short-term workload conditions."

Despite the allegations set forth in his petition and the policy provisions limiting coverage available to independent contractors and employees, which ostensibly include under-the-table cash employees, Prejean maintains the policy affords coverage for his claims. He points to Coverage C, providing for medical payments, and focuses on the exclusions of medical payments to "Hired Person" set forth in subsection b as well as those excluded under Coverage A in subsection g. Suggesting that the showing made for purposes of summary judgment demonstrates that he is a person who was hired to work for or on behalf of GOE (the named insured under the policy), Prejean reasons that since Coverage A, providing for bodily injury liability, does not expressly exclude him as a hired person, the Western World policy affords coverage for his bodily injury claims. Thus, Prejean asks this court to interpret the policy to find that "Hired Person" is a separate and distinct category from other types of persons who work for or on behalf of any insured.

Mindful that it is only when two or more reasonable interpretations exist that the interpretation which favors coverage must be applied, we find Prejean's interpretation is a strained attempt to enlarge the policy provisions beyond that reasonably contemplated by its terms. Specifically, the language set forth excluding "Hired Person" clearly constitutes a general reference to all the types of "person[s] hired to do work for or on behalf of any insured." This is underscored by the location of the term "Hired Person" in bold and as a title under Subsection 2 containing the "Exclusions" to Coverage C Medical Payments.

A review of the policy shows that the only persons hired to work for or on behalf of any insured to which Coverage A applies are employees under the "Employer's Liability" exclusion set forth in Section 1.2.e of the Commercial General Liability Coverage. All the other types of persons that can be hired to do work for or on behalf of any insured are not excluded under Coverage A but rather specifically excluded by endorsements, i.e., independent contractors, contractors or subcontractors and their workers, and temporary workers.

Because Prejean has not pointed out how "a person hired to do work for or on behalf of any insured" could mean any person other than an employee, an independent contractor, a contractor, a subcontractor, the workers of a contractor, the workers of a subcontractor, or a temporary worker, we conclude the Western World policy is clear and unambiguous and, therefore, must be enforced in accordance with its terms. Since a finding that Prejean is a hired person does not terminate the inquiry as to whether he is afforded coverage for his claims under the Western World policy, we examine each category of hired person for which evidence has been submitted.

According to the policy terms, under the exclusion of Coverage A for "Employer's Liability," Western World's insurance does not apply to bodily injury to an employee of the insured arising out of and in the course of either employment by the insured or the performance of duties related to the conduct of the insured's business. Therefore, insofar as a finding by the trier of fact that Prejean was an employee of GOE at the time of the accident, Prejean's claims are excluded under the Employer's Liability exclusion since it is undisputed that he was "[p]erforming duties related to the conduct of [GOE's] business." Thus, in a capacity as an employee of GOE, Prejean is not afforded coverage under Section I, Coverage A, Exclusion e.(1)(b) of the Western World policy.

To the extent that a trier of fact would find that Prejean was an employee of McMillan, individually, the Western World policy likewise does not afford coverage under Section I, Coverage A, Exclusion e.(1)(b) of the Western World policy for Prejean's allegations of liability. Prejean asserts that because under the terms of the Employer Liability exclusion of Coverage A, i.e., to bodily injury to an employee of the insured, since McMillan is "an insured" rather than "the insured," the exclusion is inapplicable. But the policy states, "[t]he word 'insured' means any person or organization qualifying as such under Section II - Who Is An Insured." The insurance agreement also provides that "the words 'you' and 'your' refer to the Named Insured shown in the Declarations and any other person or organization qualifying as a Named Insured under this policy." (Emphasis added.) According to "Section II - Who Is An Insured," if the named insured shown in the declarations is a limited liability company, "you are an insured. Your members are also insureds, but only with respect to the conduct of your business."

Here, it is undisputed that McMillan was the sole member of GOE and that the accident occurred in the conduct of GOE's business. Applying the definition contained in "Section II - Who Is An Insured" to the language utilized in the employer liability exclusion of Coverage A, Western World's insurance does not apply to the bodily injury to an employee of the insured, i.e., "you," or GOE, the named limited liability company including McMillan, GOE's member with respect to the conduct of GOE's business arising out of and in the course of the performance of duties related to the conduct of GOE's business. Thus, under the allegations of the petition and the provisions of the Western World policy, coverage is excluded insofar as any determination that Prejean was an employee of McMillan on October 11, 2012.

Similarly, we conclude that if, after the presentation of evidence offered by GOE and McMillan, the trier of fact determined that Prejean is an independent contractor, there is no coverage for his claims under the Independent Contractors Exclusion endorsement. Likewise, if, after review of the evidence, the trier of fact concluded that Prejean is a temporary worker, Prejean's claims would be met with the Temporary Worker Bodily Injury exclusion set forth in the Standard Provisions Endorsement of the Western World Policy. We also note that while Prejean does not assert he was a contractor, a subcontractor, or the worker of a contractor or subcontractor of GOE, McMillan, or any other insured under the policy, to the extent that a trier of fact would conclude that at the time of the accident Prejean was a contractor, a subcontractor, or one of their workers (separate and apart from an independent contractor of GOE or McMillan), the endorsement setting forth the Injury to Contractors or Subcontractors and Their Workers exclusion would preclude coverage for Prejean's claims under the Western World policy.

Therefore, based on the evidence submitted at the summary judgment hearing, we conclude that at the trial of Prejean's claims, any category of hired person that a trier of fact determined Prejean was while he was injured when working for or on behalf of GOE or McMillan, individually, results in a lack of coverage under the Western World commercial lines policy. Because "hired person" is not a separate and distinct category of those working for or on behalf of any insured such that Prejean can assert coverage, and since the policy does not provide coverage for Prejean as an employee, independent contractor, temporary worker, contractor, a subcontractor, or the worker of a contractor or subcontractor of GOE, McMillan, or any other insured under the policy, the trial court correctly granted summary judgment and dismissed Western World from this litigation.

DECREE

For these reasons, the trial court's judgment is affirmed. Appeal costs are assessed against plaintiff-appellant, Ronnie James Prejean.

AFFIRMED.

      In his petition and supplemental petition, Prejean averred he was high in a "massive water oak" cutting limbs. He had a lanyard tied around the base of one of the main branches on one end and he was tied to the tree's trunk on the other. Additionally, a bull rope was secured around the branch that Prejean was in the process of cutting and the other end was held by McMillan, who was situated on the ground at the base of the tree. McMillan was supposed to hold the rope taut such that the cut branch would remain suspended until safely lowered to the ground. According to the allegations, due to the sun or sawdust in his eyes, McMillan dropped his end of the bull rope and then grabbed it again as the branch was descending, causing the cut branch to fall quickly and splitting the main branch to which Prejean was tied. Prejean was yanked in a violent downward motion, resulting in injury to his left foot.

      Western World filed an earlier motion for summary judgment, which was denied by the trial court, and this court subsequently denied writs. See Prejean v. McMillan, 2014-1805 (La. App. 1st Cir. 4/20/15) (unpublished writ action).

      Although the grant of summary judgment was rendered by Judge Dupont, we find that Judge Janice Clark's signing of the judgment in conformity with Judge Dupont's ruling was within the ambit of the Louisiana Supreme Court's November 14, 2017 order assigning Judge Dupont to sit pro tempore for Judge Clark. See and cf. Donahue v. Donahue, 2016-1853 (La. 11/18/16), 206 So.3d 858, 858-59 (per curiam) (under the plain language of La. R.S. 13:4209B(2), addressing decisions by successor judges, "[i]f a prior judge has stated an affirmative intent to sign a judgment and failed to do so for whatever reason, the successor judge is empowered to sign the judgment," and any other result is contrary to the statutory intent as well as the interests of judicial economy).

      A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. C.C.P. art. 2083C. When the motion for appeal refers to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as having been taken from the judgment on the merits. Byrd v. Pulmonary Care Specialists, Inc., 2016-0485 (La. App. 1st Cir. 12/22/16), 209 So.3d 192, 195. Although Prejean appealed the denial of his motion for new trial, because he referenced the November 6, 2017 judgment granting his motion for summary judgment and dismissing his claims against Western World, and on appeal he briefed only issues relative to November 6, 2017 judgment, the circumstances indicate he actually intended to appeal the grant of motion for summary judgment. Therefore, the appeal is properly before us.

      A volunteer worker is defined as a person who is not an employee of an insured who donates his or her work and acts at the direction of and within the scope of duties determined by an insured, and is not paid a fee, salary, or other compensation. It is undisputed that Prejean was not a volunteer worker at the time of his injury and, therefore, we pretermit a discussion of the coverage available to a volunteer worker under the provisions of the Western World policy.

      We note that other categories of hired person exist within the Western World policy. For example, a leased worker means a person leased to the insured by a labor leasing firm to perform duties related to the conduct of the insured's business. And an executive officer is a person who holds any officer position created by the insured's business organization documents. It is, however, undisputed that Prejean did not fall within the definition of any other category of hired person.


author: WHIPPLE, C.J. McClendon, J., concurring.

text:
    Victoria LEET, Individually and on Behalf of All Others Similarly Situated v. HOSPITAL SERVICE DISTRICT NO. 1 OF EAST BATON ROUGE PARISH, Louisiana d/b/a Lane Regional Medical Center; Alegis Revenue Solutions, LLC; and Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana
    NUMBER 2018 CA 1148
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    J. Lee Hoffos, Jr., Donald W. McKnight, Lake Charles, LA and Derrick G. Earles, Lafayette, LA and Scott R. Bickford, Lawrence J. Centola, III, New Orleans, LA and Andrew J. D'Aquilla, St. Francisville, LA, Counsel for Plaintiff/Appellant, Victoria Leet, Individually and on Behalf of All Others Similarly Situated
    David R. Kelly, Thomas R. Temple, Jr., Joseph J. Cefalu, III, Baton Rouge, LA, Counsel for Defendants/Appellees, Hospital Service District No. 1 of East Baton Rouge Parish, Louisiana d/b/a Lane Regional Medical Center
    Allison N. Pham, Charles A. O'Brien, Baton Rouge, LA and Jonathan M. Herman, Dallas, TX, Counsel for Defendant, Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

In this appeal involving alleged violations of the Health Care Consumer Billing and Disclosure Protection Act, LSA-R.S. 22:1871 et seq. (hereinafter referred to as "the Balance Billing Act"), plaintiff challenges the trial court's judgment that granted the defendant hospital's motion for summary judgment and dismissed plaintiff's claims against it. For the following reasons, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 29, 2014, Victoria Leet was injured in an automobile accident and received treatment at Hospital Service District No. 1 of East Baton Rouge Parish, Louisiana d/b/a Lane Regional Medical Center (referred to herein as "Lane Regional"). At the time of the accident, Leet was insured under the comprehensive medical benefit plan of her husband's employer, Louisiana Machinery Company, LLC. Through a contract between Louisiana Machinery and Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana ("Blue Cross"), Louisiana Machinery's self-funded plan was administered by Blue Cross, and Louisiana Machinery purchased access to the Blue Cross contracted healthcare provider network, which allows its insureds to seek treatment from network providers at the contracted reimbursement rate. Thus, as a covered beneficiary of a plan participant, Leet was able to obtain treatment from specific providers within the Blue Cross preferred provider network for a reduced rate, with her only responsibility being the applicable copay, deductible, or coinsurance. Lane Regional is a contracted health care provider with Blue Cross. Pursuant to its provider agreement with Blue Cross, Lane Regional contractually agreed to accept these reduced rates as payment in full for services provided to Blue Cross insureds.

At the time of treatment, Leet presented her Blue Cross insurance card to Lane Regional. However, on June 24, 2014, prior to submitting a claim for its services to Blue Cross, Lane Regional, through its accounts receivable contractor, asserted a lien, by sending medical lien letters to Leet and her attorney, for the full, undiscounted amount of $ 8,789.35 against any tort recovery Leet may receive from a third party as a result of the automobile accident. By check dated August 21, 2014, USAgencies Casualty Insurance Company ("USAgencies"), the third-party automobile liability insurer, issued a payment to Lane Regional for $ 8,789.35, the full amount of the lien.

Meanwhile, on July 15, 2014, several weeks after asserting the lien, Lane Regional filed an insurance claim with Blue Cross, seeking reimbursement for the services provided to Leet. Thereafter, on September 16, 2014, after initially "pend/denying" the claim while awaiting additional information, Blue Cross paid Lane Regional for the claim at the reduced, contracted reimbursement rate of $ 1,477.74. Despite efforts by Leet's attorney to have Lane Regional reimburse Leet the full amount of any payment over the reduced, contracted rate for the services provided, Lane Regional retained the full, undiscounted payment from USAgencies. With regard to the payment of the reduced, contracted rate from Blue Cross, Lane Regional, after first attempting to return the $ 1,477.74 payment to Blue Cross, issued a refund to Leet on December 1, 2014, in the amount of $ 1,477.74, as reimbursement of the overpayment on her account.

Thereafter, on December 10, 2014, Leet filed a petition styled "Class Action Petition for Payment of a Thing Not Due, for Damages, for Declaratory Relief, and for Injunctive Relief" in the Twentieth Judicial District Court. Through original and amending petitions, Leet named as defendants Lane Regional; Alegis Revenue Group, LLC, Lane Regional's accounts receivable contractor; and Blue Cross.

Regarding the claims against Lane Regional, Leet, individually and on behalf of the class, alleged that Lane Regional, in filing a lien and collecting the full, undiscounted rate for services provided to Leet, violated LSA-R.S. 22:1874 of the Balance Billing Act and that, as a result of these allegedly illegal billing practices by Lane Regional, she and those similarly situated were entitled to repayment of all overpayments, damages for mental anguish and emotional distress, loss of profits or use, out-of-pocket expenses, and all other damages allowed by law, as well as attorney's fees, costs, and expenses. Leet, individually and on behalf of all others similarly situated, also sought declaratory judgment, declaring that the practices of Lane Regional were in violation of law and in breach of contract and that all actions at law asserted by Lane Regional be deemed unenforceable and cancelled, and preliminary and permanent injunctive relief, enjoining Lane Regional from refusing to accept a patient's health insurance when a patient has been involved in a liability accident and from maintaining actions at law in violation of LSA-R.S. 22:1874.

Subsequently, on December 15, 2014, five days after Leet filed suit, but before service was perfected on Lane Regional, Lane Regional issued a second payment to Leet in the amount of $ 7,211.61, representing the remaining sums it had retained over the contractually reduced reimbursement rate less Leet's $ 100.00 copayment.

After transfer of the suit from the Twentieth Judicial District Court to the Nineteenth Judicial District Court, removal of the suit to federal court, and a remand back to the state district court, Lane Regional filed a motion for summary judgment on February 23, 2018, contending that it was entitled to judgment in its favor as a matter of law, dismissing plaintiff's claims against it. Specifically, Lane Regional contended that: (1) as a public entity, it was entitled to immunity pursuant to LSA-R.S. 9:2798.1 ; (2) it did not violate the Balance Billing Act, nor was plaintiff entitled to general damages for its alleged violation of the Act; (3) plaintiff's claims were moot because she received full redress from Lane Regional; and (4) Lane Regional did not breach any "contract" or "quasi-contract" for which plaintiff would have a claim against it, nor did plaintiff sustain any compensable damages for any alleged breach.

Following a hearing on the motion, the trial court found that Leet's claims were moot because Lane Regional had reimbursed her "all amounts that could conceivably be due to her" and, thus, pretermitted ruling on Lane Regional's remaining arguments in support of its motion. Because Leet was the only identified class representative, the trial court, by judgment dated April 18, 2018, granted Lane Regional's motion for summary judgment and dismissed Leet's claims against it with prejudice. From this judgment, Leet appeals.

SUMMARY JUDGMENT

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. Jones v. Anderson, 2016-1361 (La. App. 1st Cir. 6/29/17), 224 So.3d 413, 417. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show 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. 966(A)(3). 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. LSA-C.C.P. art. 966(A)(4).

The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is then 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. 966(D)(1).

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Crosstex Energy Services, LP v. Texas Brine Company, LLC, 2017-0895 (La. App. 1st Cir. 12/21/17), 240 So.3d 932, 936, writ denied, 2018-0145 (La. 3/23/18), 238 So.3d 963. 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. Crosstex Energy Services, LP, 240 So.3d at 936. Because it is the applicable substantive law that determines materiality, whether a particular issue in dispute is material can be seen only in light of the substantive law applicable to the case. Jones, 224 So.3d at 417.

DISCUSSION

The Balance Billing Act prohibits a health care provider from collecting or attempting to collect amounts from an insured patient in excess of the contracted reimbursement rate, a practice referred to as "balance billing." See Emigh v. West Calcasieu Cameron Hospital, 2013-2985 (La. 7/1/14), 145 So.3d 369, 371. Specifically, LSA-R.S. 22:1874 provides, in pertinent part, as follows:

A. (1) A contracted health care provider shall be prohibited from discount billing, dual billing, attempting to collect from, or collecting from an enrollee or insured a health insurance issuer liability or any amount in excess of the contracted reimbursement rate for covered health care services.
(2) No contracted health care provider shall bill, attempt to collect from, or collect from an enrollee or insured any amounts other than those representing coinsurance, copayments, deductibles, noncovered or noncontracted health care services, or other amounts identified by the health insurance issuer on an explanation of benefits as an amount for which the enrollee or insured is liable.
(3) However, in the event that any billing, attempt to collect from, or the collection from an enrollee or insured of any amount other than those representing copayment, deductible, coinsurance, payment for noncovered or noncontracted health care services, or other amounts identified by the health insurance issuer as the liability of the enrollee or insured is based on information received from a health insurance issuer, the contracted health care provider shall not be in violation of this Subsection.
* * *
B. No contracted health care provider may maintain any action at law against an enrollee or insured for a health insurance issuer liability or for payment of any amount in excess of the contracted reimbursement rate for such services. In the event of such an action, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney fees and court costs. However, nothing in this Subsection shall be construed to prohibit a contracted health care provider from maintaining any action at law against an enrollee or insured after a health insurance issuer determines that the health insurance issuer is not liable for the health care services rendered.

(Emphasis added). An insured has an implied right of action under the Balance Billing Act grounded in individual restitution where a health care provider collects or attempts to collect amounts from the insured patient in excess of the contracted reimbursement rate. Anderson v. Ochsner Health System, 2013-2970 (La. 7/1/14), 172 So.3d 579, 583-585. Moreover, where a health care provider asserts a lien pursuant to LSA-R.S. 9:47 52 for the full amount of undiscounted charges, that practice constitutes "an action at law" prohibited by LSA-R.S. 22:1874(B), thus entitling the insured injured person to a private right of action under the express language of LSA-R.S. 22:1874(B). Anderson, 172 So.3d at 585.

On appeal, Leet contends that the trial court erred in granting Lane Regional's motion for summary judgment because genuine issues of material fact remain, including issues as to damages and the right to collect costs and attorney's fees for Lane Regional's actions in maintaining an action at law in violation of LSA-R.S. 22:1874. Noting that at the time suit was filed, Lane Regional was retaining funds owed to her that it had collected by "balance billing" through the use of a medical lien, Leet argues that a contracted health care provider cannot "balance bill" an insured patient in violation of the Balance Billing Act and then avoid damages, costs, and attorney's fees by reimbursing the patient the amount of the overpayment after a lawsuit is filed. She further contends that there are genuine issues of material fact as to how being denied access to her money damaged her.

Additionally, Leet notes that in her petition, she also sought both declaratory and injunctive relief, declaring Lane Regional's actions to be in violation of law and enjoining the continuation of this wrongful billing practice. Accordingly, she asserts that Lane Regional's reimbursement to Leet of overpayments on her account does not render these requests for relief moot. Thus, Leet argues that the trial court erred in granting summary judgment.

Contrariwise, Lane Regional contends that general damages are not permitted under the Balance Billing Act and that Leet is not entitled to attorney's fees and costs because under the Act, a "prevailing party" is only entitled to recover attorney's fees and costs incurred in defending against an "action at law" maintained by the health care provider. Additionally, Lane Regional avers that Leet's requests for injunctive and declaratory relief, which it acknowledges were not presented to or addressed by the trial court, became moot when her claim for damages was dismissed, as well as by the fact that Lane Regional voluntarily ceased the complained-of behavior. We disagree.

At the outset, we reject Lane Regional's contention that an award of general damages is not permitted by the Balance Billing Act. In Anderson, the Louisiana Supreme Court, in holding that an insured has an implied right of action, reasoned that nothing in the Balance Billing Act expressly prohibits such a private right of action. Anderson, 172 So.3d at 583. Noting that the legislative purpose and spirit of the law is the protection of the consumer, the Court further concluded that the legislative intent supported the existence of a private right of action to sue under LSA-R.S. 22:1877. Importantly, in concluding that nothing in the Balance Billing Act "strips an aggrieved insured of his/her right to recover ... or prevent[s] him/her from being made whole" (emphasis added), the Supreme Court cited both LSA-Const. art. I, § 22 ("every person shall have an adequate remedy by due process of law ... for injury to him in his person, property, reputation, or other rights") and LSA-C.C. art. 2315(A) ("[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it"). Thus, the Court found that an insured has an implied right of action grounded in individual restitution. Anderson, 172 So.3d at 584-585.

Notably, in specifically relying, in part, on LSA-C.C. art. 2315(A), and quoting its language that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it" (emphasis added), the Supreme Court did not limit the types of damages recoverable to merely attorney's fees and costs, as suggested by Lane Regional's interpretation of the Balance Billing Act. Indeed, the Court's reliance on LSA-C.C. art. 2315 in Anderson, in our view, negates Lane Regional's argument that an award of general damages is not permitted by the Balance Billing Act.

Accordingly, we conclude that the mere fact that a health care provider finally tenders to the insured (after the filing of suit) sums collected and retained over the contracted reimbursement amount does not necessarily render the insured's claim for damages moot. If there is evidence of other damages caused by the health care provider's actions in violation of the Balance Billing Act, there may remain a viable claim for damages.

In the instant case, disputed questions of fact exist as to the damages Leet suffered as a result of Lane Regional's failure to return funds belonging to her for a period of months. Leet argues that Lane Regional not only attempted to collect through an action at law, it actually collected and improperly retained funds belonging to her for a period of several months. Leet testified that Lane Regional's failure to reimburse the overpayment to her when received resulted in her incurring additional financial expense. Specifically, she testified that prior to the accident in question, she had gotten behind on her mortgage payments. When she became aware that she would be receiving a sum of approximately $ 8,000.00 in payment of her medical expenses in relation to the accident, Leet informed her mortgage company that she would make a lump sum payment in that amount. However, according to Leet, when Lane Regional then refunded her only a fraction of that amount, her mortgage company thought she had been lying and instituted foreclosure proceedings. Although she was still living in the same home at the time of her deposition testimony and the same mortgage company still held the mortgage, Leet testified that the delay in Lane Regional forwarding her the full sum to which she was entitled caused her to incur additional expenses with her mortgage company.

Additionally, we note that a summary judgment "may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." LSA-C.C.P. art. 966(F). See also McGrew v. Waguespack, 2014-0251 (La. App. 1st Cir. 12/30/14), 168 So.3d 690, 695. Further, "[a] court cannot render ... summary judgment dismissing a claim that has not been challenged by the pleading." Cason v. Saniford, 2013-1825 (La. App. 1st Cir. 6/6/14), 148 So.3d 8, 14, writ denied, 2014-1431 (La. 10/24/14), 151 So.3d 602.

As acknowledged by Lane Regional in its brief filed with this court, it did not raise the issues of Leet's claims for declaratory or injunctive relief in its motion for summary judgment, and these issues were not raised at the hearing or considered by the trial court in its oral ruling on the motion. Thus, the trial court erred in dismissing Leet's claims for declaratory judgment and injunctive relief.

Accordingly, because genuine issues of material fact remain as to Leet's damages claim under the Balance Billing Act and because her claims for declaratory and injunctive relief were not placed before the trial court in Lane Regional's motion for summary judgment, the trial court's judgment granting Lane Regional's motion for summary judgment was wrongful and must be reversed.

CONCLUSION

For the above and foregoing reasons, the April 18, 2018 judgment, granting Lane Regional's motion for summary judgment and dismissing Leet's claims against it, is hereby reversed. This matter is remanded for further proceedings consistent with the views expressed herein. Costs of this appeal in the amount of $ 3,139.50 are assessed against the Hospital Service District No. 1 of East Baton Rouge Parish, Louisiana d/b/a Lane Regional Medical Center.

REVERSED AND REMANDED.

McClendon, J. concurs for reasons assigned.

McClendon, J., concurring.

Based on the Louisiana Supreme Court's holding in Anderson v. Ochsner Health System , 13-2970 (La. 7/1/14), 172 So.3d 579, 584-85, finding a private right of action grounded in individual restitution, I concur in the majority's holding.

      Alegis Revenue Group, LLC was at times improperly referred to as "Alegis Revenue Solutions, LLC" and "Alegis Corporation" in the petitions.

      However, the court shall consider any documents filed in support of or in opposition to the motion for summary judgment to which no objection is made. LSA-C.C.P. art. 966(D)(2).

      Louisiana Revised Statute 9:4752 grants a health care provider a privilege for the health care provider's "reasonable charges or fees" against an injured person's recovery from another for those injuries.

      Louisiana Revised Statute 22:1877 provides as follows:
      A. (1) Any enrollee or insured who receives a bill or consolidated activity statement and bill from a contracted health care provider in violation of R.S. 22:1874(A), or a health insurance issuer acting on behalf of an enrollee or insured, may file a complaint with the Consumer Protection Division of the Department of Justice.
      (2) The enrollee or insured, or health insurance issuer acting on behalf of the enrollee or insured, shall provide to the attorney general a copy of the original bill or consolidated activity statement and bill issued pursuant to R.S. 22:1873 and such additional information that may be requested by the attorney general, documenting an attempt by a contracted health care provider to collect or the collection of any amount from the enrollee or insured that is the liability of the health insurance issuer or that is in excess of the contracted reimbursement rate. In the event it is determined that billing activity was based on information received from the health insurance issuer, the contracted health care provider shall not be in violation, and the attorney general shall refer the violation to the commissioner.
      (3) If the attorney general concludes, based on the information submitted, that a contracted health care provider has attempted to collect, or collected, any amount from the enrollee or insured that is the liability of the health insurance issuer or that is in excess of the contracted reimbursement rate, the attorney general may pursue remedies as provided for in R.S. 51:1401 et seq., beginning with a notice of unfair trade practices.
      (4) Any contracted health care provider who has demanded or received payment from an enrollee or insured for any amount which he is prohibited from billing or collecting by R.S. 22:1874(A) shall correct his billing and refund any such amount paid within forty-five days of service of the notice of unfair trade practices.
      (5) The notice of unfair trade practices shall be satisfied by the attorney general within thirty days of receipt of information from the contracted health care provider that shows that any such billing or collection efforts were not in violation of R.S. 22:1874(A).
      (6) In the event that a contracted health care provider fails to comply with a notice of unfair trade practices, the attorney general may proceed in accordance with the Unfair Trade Practices and Consumer Protection Law, R.S. 51:1401 et seq.
      B. (1) Any enrollee or insured or contracted health care provider or noncontracted facility-based physicians providing services in a base health care facility who identifies that a health insurance issuer is in violation of R.S. 22:1871 through 1876 shall be entitled to request a cease and desist order from the commissioner of insurance as provided in this Subsection.
      (2) The enrollee, insured, contracted health care provider, or noncontracted facility-based physicians providing services in a base health care facility shall provide to the commissioner documentation of such violation.
      (3) If the commissioner concludes, based on the information submitted, that a health insurance issuer has violated this Section, the commissioner shall, within sixty days of receipt of such information, issue to such health insurance issuer a written order directing the health insurance issuer to cease and desist such violation.
      (4) Any health insurance issuer shall correct such violation within forty-five days of service of the cease and desist order issued by the commissioner.
      (5) The cease and desist order shall be rescinded by the commissioner within ten days of receipt of information from the health insurance issuer that it was not in violation.
      (6) In the event that a health insurance issuer fails to comply with the cease and desist order issued by the commissioner, the commissioner may subsequently subject the health insurance issuer to a fine of fifty percent of any amount in violation of R.S. 22:1875 up to a maximum fine of one thousand dollars per claim, or for such violations not related to a reimbursement amount, a fine of one thousand dollars per violation.
      C. The commissioner shall not be authorized to issue a cease and desist order or to levy a fine against the Office of Group Benefits. If the commissioner concludes, based on the information submitted, that the Office of Group Benefits has violated this Section, the commissioner shall, within sixty days of receipt of such information, notify the commissioner of administration in writing.

      Additionally, in holding that LSA-R.S. 22:1874(B) of the Balance Billing Act expressly grants an insured a right of action as well for the recovery of all costs incurred, including attorney's fees and court costs, where a contracted health care provider has maintained an "action at law" against an insured for payments in excess of the contracted reimbursement rate, the Court reasoned that the explicit right to recover "all costs incurred" is "a clear recognition that a private right of action is available." Anderson, 172 So.3d at 585-586.

      While Lane Regional did raise other arguments in support of its motion for summary judgment in the trial court below, the trial court specifically pretermitted consideration of those arguments. Moreover, Lane Regional gave only cursory mention to those arguments in its appellate brief without fully briefing those arguments. Accordingly, we decline to address these alternate arguments as well. See Dan-Cin Construction Company, Inc. v. Thrasher, 2008-1552 (La. App. 1st Cir. 2/13/09), 9 So.3d 205, 208 (as a general rule, appellate courts will not consider issues that were not addressed by the trial court).


author: WHIPPLE, C.J.

text:
    STATE of Louisiana v. Jamal TITUS
    NUMBER 2018 CU 1511
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 28, 2019
    Travis Turner, Keyojuan Turner, Gonzales, LA, Counsel for Plaintiff/Appellant, Ashley Armstead
    Hillar Moore, III, Baton Rouge, LA, Counsel for Plaintiff/Appellee, Louisiana Department of Children and Family, et al.
    Austin H. Benton, Baton Rouge, LA, Tiffany L. Foxworth, Baton Rouge, LA, Counsel for Defendant/Appellee, Jamal Titus
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

In this custody matter, the mother, Ashley Armstead, appeals from a judgment of the family court denying her request to relocate the minor children and designating the father, Ja'mal Titus, as the domiciliary parent. For the reasons that follow, we affirm the judgment of the family court.

FACTS AND PROCEDURAL HISTORY

Ashley Armstead ("Ashley") and Ja'mal Titus ("Ja'mal") are the parents of two minor children, J.T., born in 2006, and A.T., bom in 2008. The parties never married; however, Ja'mal is listed as the father of the children on their birth certificates.

Based on the agreement of the parties, on March 17, 2014, the family court signed a stipulated judgment in which the parties agreed that Ashley and Ja'mal would share joint physical custody of the minor children, with Ashley designated as the domiciliary parent. The judgment further provided that the parties were to enroll in the Our Family Wizard Program through the East Baton Rouge Parish Family Court, communicate regarding the care of the children and all school and extracurricular activities, and permit the noncustodial parent contact with the children daily by telephone between 8:00 and 9:00 p.m. Ja'mal was awarded physical custody of the minor children three weekends per month from Thursday at pickup from school until Sunday at 3:00 p.m., with the exchange location designated as the maternal grandmother's home on The House of Lancaster Drive in Baton Rouge, unless otherwise mutually agreed upon by the parties. Ashley was awarded physical custody of the minor children on the weekend Ja'mal was exercising monthly military drill duties. The parties agreed to alternate weekly visitation during the summer.

On September 8, 2017, Ja'mal filed a rule to modify physical custody and support, contending that on September 4, 2017, Ashley notified him via a text message that she had relocated with the minor children from Baton Rouge, Louisiana, to Youngsville, Louisiana, a distance of over 75 miles from Ashley's address in Baton Rouge, and, further, that she had done so without first obtaining his consent. Ja'mal contended that the move was "reckless and harmful" to the children, disrupted their schooling, completely changed every aspect of their lives, and prevented him from exercising his designated periods of visitation and physical custody of the children. Ja'mal averred that this change in circumstances in the lives of the children warranted a modification of the physical custody schedule. Thus, he requested that the family court order that the children be immediately returned to Baton Rouge to primarily reside with him and that Ashley be awarded alternating weekend visitation. Ja'mal further requested that he be designated as the domiciliary parent, contending that Ashley frequently enrolled the children in different schools and school districts, which he averred was "turbulent" for the emotional development and stability of the children.

Ashley filed an answer and reconventional demand, contending she had recently married in July of 2017, and that she and the children moved to Youngsville to live with her husband, Marcus Amos. Ashley further contended that although the distance to Youngsville is less than 75 miles, she notified Ja'mal of the move via text message and that subsequently, with the help of counsel, she provided notice to Ja'mal pursuant to LSA-R.S. 9:355.4. Ashley further averred that she relocated for a job opportunity as a registered nurse at Women and Children's Hospital in Lafayette and that the children's material, educational, and emotional needs could continue to be met at their new home. Accordingly, Ashley requested that the previous custody arrangement remain in place with a new designated exchange location.

Pending a trial on the matter, an interim stipulated judgment was entered into by the parties on October 17, 2017. The matter was ultimately tried before the family court on January 8, 2018. At the conclusion of trial, the family court ruled orally, finding that the relocation was in excess of 75 miles such that the relocation statutes applied, and that Ashley failed to meet her burden of showing that the relocation was in good faith and in the best interest of the children pursuant to LSA-R.S. 9:355.14. In so ruling, the family court found that Ashley's testimony that she found a job that paid slightly more than her nursing job in Baton Rouge was insufficient to meet her burden, when there was no evidence that Ashley searched for a higher paying job in Baton Rouge or the surrounding area. The court determined that instead, the purpose of Ashley's move to Youngsville was to live with her husband. The family court found that Ashley failed to properly notify Ja'mal of the relocation, ordered that the children be returned to East Baton Rouge Parish immediately, and ordered that Ashley be sanctioned by paying Ja'mal's expenses in objecting to the relocation pursuant to LSA-R.S. 9:355.6.

As to designation of the domiciliary parent, the family court then reviewed the best interest factors outlined in LSA-C.C. art. 134 and determined that it was in the best interest of the children that Ja'mal be designated as the domiciliary parent. The family court awarded Ashley two weekends of visitation per month, with one being the weekend Ja'mal had military drill duties, and ordered that the parties were to alternate weekly visitation during the summer and share holidays.

On April 2, 2018, the family court signed a "Considered Decree," finding that there had been a material change in circumstances since the 2014 stipulated judgment, which had designated Ashley as the domiciliary parent of the minor children, and thereby ordered that:

(1) Ashley's request to relocate J.T. and A.T. to Youngsville was denied;
(2) J.T. and A.T. were to be returned to East Baton Rouge Parish immediately;
(3) Ashley's status as the domiciliary parent of J.T. and A.T. was terminated;
(4) Ja'mal was designated as the domiciliary parent of J.T. and A.T.;
(5) Ja'mal's request for make-up visitation was denied;
(6) J.T. and A.T. were to be exchanged at the maternal grandparent's home on The House of Lancaster Drive in Baton Rouge, unless otherwise mutually agreed upon by the parties;
(7) J.T. and A.T. primarily reside with Ja'mal and that Ashley be provided with physical custody of the minor children for two weekends a month, with one of those weekends being the weekend that Ja'mal is attending military drill;
(8) Ja'mal and Ashley equally share physical custody of J.T. and A.T. during the children's summer vacation from school;
(9) The parties equally share the children's holidays from school and mutually agree on a holiday visitation schedule. In the event that the parties are unable to agree upon a holiday schedule, the parties may request that the trial court establish a court date for the purpose of setting a holiday schedule. Until the parties agree on a holiday schedule, the current holiday schedule found within the previous judgments in this matter would apply;
(10) Ashley was in contempt of court for failing to facilitate visitation from the time she moved to Youngsville until the interim visitation judgment was rendered on October 17, 2017;
(11) Ashley was responsible for payment of $ 3,500.00 in reasonable expenses, including attorney's fees, for her act of contempt and failure to comply with the relocation statute (to be paid within 90 days of the rendering of judgment); and
(12) All court costs were assessed to Ashley.

Following the denial of her motion for new trial, Ashley filed the instant appeal, contending that the family court: (1) erred in denying her motion for new trial after improperly applying the relocation statutes; (2) erred by improperly weighing the factors for consideration of the best interest of the child set forth in LSA-C.C. art. 134 ; and (3) erred in designating Ja'mal as the domiciliary parent and uprooting the children from their mother with whom they have primarily resided since birth.

DISCUSSION

Assignment of Error Number One

In her first assignment of error, Ashley contends that the family court erred in denying her motion for new trial. Specifically, she contends that the relocation statutes were incorrectly applied herein, where the relocation distance is less than 75 miles utilizing radial or "as-the-crow-flies" miles to calculate the distance, rather than roadway miles.

The statutes that govern the relocation of a child's residence, codified in LSA-R.S. 9:355.1, et seq. , apply if there is a court order awarding custody and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than 75 miles from the principal residence of the child at the time that the most recent custody decree was rendered. LSA-R.S. 9:355.2(B)(3).

Louisiana Code of Civil Procedure article 1972 provides that a new trial shall be granted: (1) when the verdict or judgment appears clearly contrary to the law and the evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or (3) when the jury was bribed or has behaved improperly so that impartial justice has not been done. Moreover, pursuant to LSA-C.C.P. art. 1973, a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. The standard of review of a denial of a motion for new trial, whether based on peremptory or discretionary grounds, is that of abuse of discretion. Jackson v. Wise, 2017-1062 (La. App. 1st Cir. 4/13/18), 249 So.3d 845, 856, writ denied, 2018-0785 (La. 9/21/18), 252 So.3d 914. When a motion for new trial is filed, it is the mover's burden to prove to the trial court that she is entitled to a new trial. Jackson v. Wise, 249 So.3d at 856.

The basis of Ashley's motion for new trial pursuant to LSA-C.C.P. art. 1972 was her post-trial discovery of Holley v. Holley, 2017-325 (La. App. 5th Cir. 11/20/17), 232 So.3d 717. In Holley, the court held that the appropriate method used to measure "miles" under the relocation statutes is by radial miles, or "as the crow flies," rather than by surface or road miles. Holley v. Holley, 232 So.3d at 727. Ashley avers that her discovery of this case constitutes "new evidence," which she could not, with due diligence, have obtained prior to trial, and that this jurisprudence establishes that the relocation statutes were incorrectly applied herein, where the distance between the parties' homes was less than 75 miles. In support, Ashley attached two "As the Crow Flies" Distance Calculators showing the distance from Ja'mal's home in Baker to Ashley's home in Youngsville as 61 miles and the distance from Ja'mal's mother's residence at Cedar Line Drive in Baton Rouge to Ashley's home in Youngsville as 65 miles. Ashley further urged that a new trial was warranted pursuant to LSA-C.C.P. art. 1973 based upon her claims of ineffective assistance of counsel, where she claimed that her trial counsel: (1) failed to object to questions posed to her; (2) failed to alert the court or offer evidence of the improper application of the relocation statute; and (3) failed to file a motion to request that the court conduct a Watermeier interview of the children.

Following a hearing, the family court denied Ashley's motion for new trial with reasons. In its reasons, the court pointed to its finding at trial that the relocation distance was 75.8 miles utilizing "Google Maps" and 76 miles utilizing "Apple Maps," and disagreed with the finding of the appellate court in Holley. Rejecting the use of radial miles or the "as-the-crow-flies" method of measurement to calculate the distance for relocation, the family court stated:

The mode of transportation in the modem world is by automobile, not boat, plane, helicopter, or some sort of aerocar reminiscent of The Jetsons' television show. The only practical and economical way of traveling between places is in an automobile and by using surface roads. Using any other method to calculate the distance would lead to absurd consequences. Flying in a plane, helicopter or aerocar directly from the old residence to the new residence would be impractical, as it would be by boat. Additionally, it would be impossible in Louisiana to walk in a straight line from one residence to the other without either being stopped by a marsh or body of water or without trespassing on private property. This Court is not bound by the ruling in Holley and the use of road miles is clearly not contrary to the law.

The family court further noted that Holley was decided prior to trial herein, and although the court would not have ruled differently, with due diligence, evidence of radial miles nonetheless could have been obtained before or during trial and the issue could have been argued at trial. The court thus determined that Ashley failed to meet any of the peremptory grounds set forth in LSA-C.C.P. art. 1972 as a basis for warranting a new trial.

The court further rejected the discretionary grounds urged by Ashley, i.e., her claims of ineffective assistance of counsel, as a basis for a new trial under LSA-C.C.P. art. 1973. The family court found instead that it was an attorney's prerogative as to whether to object to questions or offer evidence and that the court had advised Ashley's trial counsel that the court would not conduct an interview with the children for the purpose of determining the best interest of the children due to the ages of the children, which were nine and ten at the time of trial.

Finally, the family court held that the allegations set forth in Ashley's motion for new trial were not verified by an affidavit of the applicant as required by LSA-C.C.P. art. 1975.

On review, we agree that Ashley failed to meet her burden of proof that she was entitled to a new trial on either the peremptory or discretionary grounds alleged. We note that the discovery of a non-binding case or court ruling from another jurisdiction, whether newly discovered or not, is not considered "evidence," where knowledge of the law is presumed. Moreover, to the extent that Ashley relies on the Google map introduced at trial that showed a distance of 74.1 road miles, less than a mile shy of 75 miles, she concedes in brief and at trial that in arriving at that distance, she opted to have the route computed by the shortest distance, not time of travel. Cf. Bush v. Bush, 2013-0922 (La. App. 1st Cir. 12/27/13), 137 So.3d 49, 51-52 (where the mother argued that the relocation statutes should not apply, as her relocation from Ponchatoula to Slidell was within the state of Louisiana and was less than 75 miles, and this court held that those facts alone would not prevent a court from determining whether a relocation of the children would be in their best interest, particularly where the court had previously restricted the mother from relocating outside of Tangipahoa Parish).

After thoroughly reviewing the record herein, we agree with the reasons assigned by the family court and find no abuse of the family court's discretion in denying Ashley's motion for new trial.

Assignments of Error Two and Three

In these assignments of error, Ashley contends that: (1) the family court erred in finding that she failed to meet her burden of proving that the relocation was in good faith and in the best interest of the children; and (2) in thereafter improperly weighing the factors to consider the best interest of the child set forth in LSA-C.C. art. 134 and designating Ja'mal as the domiciliary parent of the minor children, when they have resided with Ashley since birth.

With regard to relocation of the children, a parent proposing relocation of the principal residence of the child has the burden of showing that: (1) the request for relocation is made in good faith; and (2) the relocation is in the child's best interest. LSA-R.S. 9:355.10 ; Curole v. Curole, 2002-1891 (La. 10/15/02), 828 So.2d 1094, 1097. A trial court's determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Curole v. Curole, 828 So.2d at 1096.

Louisiana Revised Statute 9:355.14 sets forth twelve factors which the court must consider in determining whether the proposed relocation is in the best interest of the child. Hernandez v. Jenkins, 2012-2756 (La. 6/21/13), 122 So.3d 524, 528. When considering these factors, there is no requirement that the court give preferential consideration to any factor. Gray v. Gray, 2011-548 (La. 7/1/11), 65 So.3d 1247, 1255. Although there are twelve factors for the court to consider, it is not necessary for the court to expressly analyze each factor in its oral or written reasons for judgment in a relocation case. Bush v. Bush, 137 So.3d at 51.

Moreover, a person proposing relocation of a child's principal residence shall notify any person recognized as a parent and any other person awarded custody or visitation under a court decree as required by LSA-R.S. 9:355.5. LSA-R.S. 9:355.4(A). The notice requirements of a proposed relocation are as follows:

A. Notice of a proposed relocation of the principal residence of a child shall be given by registered or certified mail, return receipt requested, or delivered by commercial courier as defined in R.S. 13:3204(D), to the last known address of the person entitled to notice under R.S. 9:355.4 no later than any of the following:
(1) The sixtieth day before the date of the proposed relocation.
(2) The tenth day after the date that the person proposing relocation knows the information required to be furnished by Subsection B of this Section, if the person did not know and could not reasonably have known the information in sufficient time to provide the sixty-day notice, and it is not reasonably possible to extend the time for relocation of the child.
B. The following information shall be included with the notice of intended relocation of the child:
(1) The current mailing address of the person proposing relocation.
(2) The intended new residence, including the specific physical address, if known.
(3) The intended new mailing address, if not the same.
(4) The home and cellular telephone numbers of the person proposing relocation, if known.
(5) The date of the proposed relocation.
(6) A brief statement of the specific reasons for the proposed relocation of a child.
(7) A proposal for a revised schedule of physical custody or visitation with the child.
(8) A statement that the person entitled to object shall make any objection to the proposed relocation in writing by registered or certified mail, return receipt requested, within thirty days of receipt of the notice and should seek legal advice immediately.
C. A person required to give notice of a proposed relocation shall have a continuing duty to provide the information required by this Section as that information becomes known.

LSA-R.S. 9:355.5.

In the instant case, the family court did not specifically find that Ashley's move was in bad faith, but, after reviewing the best interest factors, the court found that Ashley failed to meet her burden of showing that the relocation was in the best interest of the children. In this regard, the family court determined that the testimony established that prior to the move, the children were doing well in Baton Rouge and all of their family and support was located in Baton Rouge. The court further found that Ashley knew that she was moving to the Youngsville/Lafayette area, that she had an obligation to notify Ja'mal, and that her notification via a text message to Ja'mal was not a proper method of notification. The court further determined that the reason for the relocation was Ashley's marriage to Mr. Amos, not for a better job opportunity. Although the family court declined to impose sanctions for frivolous or unwarranted relocation, the court, citing Ashley's failure to give Ja'mal proper notice of the relocation, ordered that the children be returned to East Baton Rouge Parish immediately pursuant to LSA-R.S. 9:355.6(2) and that Ashley pay Ja'mal's reasonable expenses in objecting to the move pursuant to LSA-R.S. 9:355.6(3).

We have thoroughly reviewed the testimony and evidence presented herein. As the family court correctly found, it is uncontroverted that these children have done exceptionally well in school and are very talented. We have no doubt that Ashley's efforts in raising the children attributed to their good character and success. Nonetheless, on review, we find no abuse of discretion in the trial court's determination that Ashley failed to meet her burden of establishing that a relocation to Youngsville from Baton Rouge, where they have resided their entire lives, where their father, maternal grandparents, and paternal grandparents live, and where the children are involved in extra-curricular activities and are thriving in school, was in the children's best interest.

As to Ashley's contention that the family court erred in designating Ja'mal as the domiciliary parent, we note that in child custody matters, each case must be viewed in light of its own particular set of facts and circumstances. Major v. Major, 2002-2131 (La. App. 1st Cir. 2/14/03), 849 So.2d 547, 550. The best interests of the child is always the paramount consideration in determining child custody. LSA-C.C. art. 131 ; Evans v. Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708 So.2d 731, 738.

A trial court's determination of a child's best interests is usually based heavily on factual findings. Henry v. Henry, 2008-0689 (La. App. 1st Cir. 9/23/08), 995 So.2d 643, 645. The trial court is in the best position to ascertain the best interests of the child given the unique set of circumstances. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Major v. Major, 849 So.2d at 550.

It is well settled that an appellate court cannot set aside a trial court's factual findings in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the trial court's findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced it would have weighed the evidence differently had it been the trier of fact. Rosell v. ESCO, 549 So.2d at 844. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through the Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993).

In cases, such as the instant case, where the underlying custody decree is a stipulated judgment, a party seeking a modification must prove that: (1) there has been a change in circumstances materially affecting the welfare of the children since the original (or previous) custody decree was entered; and (2) that the proposed modification was in the best interest of the children. Tinsley v. Tinsley, 2016-0891, 2016-0892 (La. App. 1st Cir. 1/18/17), 211 So.3d 405, 412.

In determining the best interest of a child, LSA-C.C. art. 134 enumerates twelve non-exclusive factors to be considered by the court, which include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

In considering the best interest factors, the family court herein determined that the emotional ties between the parent and child, capacity to provide love, affection, spiritual guidance and education, as well as capacity to provide for material needs was equal as to both parties. However, with regard to the length of time the children have lived in a stable environment and the desirability to maintain continuity, the court found there has been a change in circumstances since the children were moved to Youngsville.

With reference to the moral fitness of the parties as it affects the welfare of the children, the court found that although Ja'mal may have been late picking up the children a few times and missed some visitation in 2016, he was an engaged parent. The court further stated that it did not approve of Ja'mal's use of "less than flattering terms" in certain text messages to Ashley and commended Ashley for her grace and composure, yet noted that there was no evidence that the children were exposed to those messages or that they materially affected the children or their best interests. In weighing the willingness and ability of each party to facilitate and encourage a close and loving relationship between the child and other party, however, the court noted that Ashley fell way short of Ja'mal in that respect.

After hearing all of the testimony presented, the family court further determined that the evidence established that Ashley failed to confer with Ja'mal pursuant to LSA-R.S. 9:336, which provides that "[j]oint custody obligates the parents to exchange information concerning the health, education, and welfare of the child and to confer with one another in exercising decision-making authority," when making decisions concerning the children's education and special events such as J.T.'s baptism.

On review, we find no error in the family court's determination that Ashley's relocation to Youngsville constituted a material change in circumstances since their previous stipulated judgment in 2014, which designated Ashley as the domiciliary parent, and that after considering the best interest factors, Ja'mal should be designated as the domiciliary parent of A.T. and J.T.

Under the circumstances presented herein, and after a thorough review of the testimony and evidence, we agree with the family court that Ashley failed to meet her burden of establishing that it was in the best interest of the children to relocate to Youngsville. Thus, we are unable to say the family court erred in designating Ja'mal as domiciliary parent.

Accordingly, we find no merit to these assignments of error.

CONCLUSION

For the above and foregoing reasons, the April 2, 2018 judgment of the family court is hereby affirmed. Costs of this appeal are assessed to the appellant, Ashley Armstead.

AFFIRMED.

McClendon, J. dissents in part for reasons assigned.

MCCLENDON, J., dissenting in part.

I disagree with the majority's conclusion that the trial court properly applied the relocation statutes. LSA-R.S. 9:355.2B.(3) provides that the relocation provisions apply to an order regarding custody of a child where "[t]here is a court order awarding custody and there is an intent to establish the principal residence of a child at any location within the state that is at a distance of more than seventy-five miles from the principal residence of the child at the time that the most recent custody decree was rendered." During the trial on the father's rule to modify custody, the children's mother introduced uncontroverted evidence that the distance between the children's principal residence in Baton Rouge, Louisiana and their new residence in Youngsville, Louisiana is only 74 miles. Consequently, the relocation statutes do not apply.

The trial judge disregarded the mother's evidence and, instead, conducted his own evidentiary search, using his mobile phone, to determine the distance between the two residences. The trial court then relied on his findings to apply the relocation statutes. Because the only evidence admitted into the record established that the distance between the relevant domiciles is less than 75 miles, I believe the trial court erred in applying the relocation statutes and in holding the mother in contempt and in ordering her to pay $ 3,500 in reasonable expenses, including attorney's fees. Considering this, I dissent in part.

      We note that at times, "Ja'mal" is also referred to as "Jamal" in the record.

      In order to protect the privacy of the minor children, we will refer to them by use of their initials throughout the opinion herein. See generally Uniform Rules - Courts of Appeal, Rules 5-1 and 5 -2.

      Ja'mal testified that he joined the Army in May of 2008 and currently serves as a member of the Army Reserves.

      In response to Ja'mal's request for production of documents, Ashley provided a Google map from her parents' home on The House of Lancaster Drive in Baton Rouge to Ashley's home in Youngsville, which showed a distance of 74 miles.

      The judgment erroneously refers to the trial date as January 8, 2017.

      Although Ashley's motion for appeal references the August 7, 2018 judgment denying her motion for new trial, it is clear from Ashley's brief that her first assignment of error pertains to the denial of her motion for new trial, whereas her second and third assignments of error challenge rulings of the family court in the April 2, 2018 judgment on the merits. Although a judgment denying a motion for new trial is an interlocutory order and is generally not appealable, see LSA-C.C.P. art. 2083(C), when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. See Hickman v. Exxon Mobil Corporation, 2017-0235 (La. App. 1st Cir. 7/18/18), 255 So.3d 1097, 1101, writ denied , 2018-1463 (La. 11/20/18), 256 So.3d 996 ; Carpenter v. Hannan, 2001-0467 (La. App. 1st Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. Moreover, an appellate court may consider interlocutory judgments, such as the denial of a motion for new trial, as part of an unrestricted appeal from a final judgment. Henry v. Sullivan, 2016-0564 (La. App. 1st Cir. 7/12/17), 223 So.3d 1263, 1272. Thus, on review, we find that the issues set forth in Ashley's assignments of error concerning the denial of her motion for new trial and the propriety of the judgment on the merits are properly before us in this appeal.

      In Watermeier v. Watermeier, 462 So.2d 1272 (La. App. 5th Cir. 1985), writ denied, 464 So.2d 301 (La. 1985), the court held that in child custody hearings, the judge may conduct an interview with the child in chambers, outside of the presence of the parents, but in the presence of their attorneys, with a record being made by a court reporter. Pursuant to Watermeier, only after the judge has determined the competency of a child as "a person of proper understanding," should the judge continue to interview the child. Further, the attorneys may not participate by questioning, cross-examining, or registering objections to the judge's questions. Watermeier, 462 So.2d at 1275.

      Louisiana Code of Civil Procedure article 1975 provides that:
      A motion for a new trial shall set forth the grounds upon which it is based. When the motion is based on Article 1972(2) and (3), the allegations of fact therein shall be verified by the affidavit of the applicant.

      Ashley contends in brief that evidence was also submitted from Bing.com and Mapquest showing driving routes with distances of less than 75 miles, but we are unable to locate any such evidence in the record before us on appeal.

      In 2012, LSA-R.S. 9:355.12 was amended and renumbered as LSA-R.S. 9:355.14. See LA Acts 2012, No. 627, § 1.

      The factors listed in LSA-R.S. 9:355.14(A) include:
      (1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child's life.
      (2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development.
      (3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
      (4) The child's views about the proposed relocation, taking into consideration the age and maturity of the child.
      (5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
      (6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
      (7) The reasons of each person for seeking or opposing the relocation.
      (8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
      (9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
      (10) The feasibility of a relocation by the objecting person.
      (11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
      (12) Any other factors affecting the best interest of the child.

      Ashley testified that she wrote a letter to Ja'mal notifying him that she and the children were moving to Lafayette and explaining where the children were going to be attending school that she was going to send via certified mail, but she intercepted the letter and decided not to mail it. She explained that she did not think she had to send the letter because the move was not in excess of 75 miles and thus his consent was not required.

      Louisiana Revised Statute 9:355.19 provides for sanctions for unwarranted or frivolous proposal to relocate a child or objection to such relocation.

      Louisiana Revised Statute 9:355.6, entitled, "Failure to give notice of relocation," provides that:
      The court may consider a failure to provide notice of a proposed relocation of a child as:
      (1) A factor in making its determination regarding the relocation of a child.
      (2) A basis for ordering the return of the child if the relocation has taken place without notice or court authorization.
      (3) Sufficient cause to order the person proposing relocation to pay reasonable expenses incurred by the person objecting to the relocation.

      Louisiana Civil Code article 134 was subsequently amended by La. Acts 2018, No. 412, § 1, eff. May 23, 2018.

      In his brief on appeal, Ja'mal requests that Ashley be sanctioned for frivolous appeal where she failed to raise a serious legal issue or cite support for her argument on appeal. See LSA-C.C.P. art. 2164 ; Uniform Rules - Courts of Appeal, Rule 2-19. However, where Ja'mal neither appealed nor filed an answer to Ashley's appeal, such an award is precluded in this case. See LSA-C.C.P. art. 2133 ; State ex rel. Division of Administration, Office of Community Development v. Tujague, 2015-1457 (La. App. 1st Cir. 4/15/16), 193 So.3d 223, 228 n.6.