Eleanor Gremillion v. Bellsouth Telecommunications,inc. D/B/A At&t Louisiana

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1083

ELEANOR GREMILLION

VERSUS

BELLSOUTH TELECOMMUNICATIONS, INC.
D/B/A AT&T LOUISIANA

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2010-6028
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Jerold Edward Knoll
The Knoll Law Firm
P. O. Box 426
Marksville, LA 71351
(318) 253-6200
COUNSEL FOR PLAINTIFF-APPELLEE:
Eleanor Gremillion

James F. Perot Jr.
Attorney at Law
365 Canal St., Room 3060
New Orleans, LA 70130-1102
(504) 528-2054
COUNSEL FOR DEFENDANT-APPELLANT:
Bellsouth Telecommunications, Inc.

PICKETT, Judge.

Bellsouth Communications, Inc., d/b/a AT&T Louisiana (AT&T) appeals

the judgment of the trial court finding AT&T committed willful misconduct in

suspending Eleanor Gremillion’s phone service for one day and awarding Ms.

Gremillion $30,000.00.

STATEMENT OF THE CASE

When Ms. Gremillion, an eighty-seven-year-old resident of Avoyelles Parish

and an active member in the community, received her phone bill from AT&T in

April 2010, she discovered a charge of $74.00 for Dish Network services. As Ms.

Gremillion had neither requested nor received Dish Network satellite television

services, she called AT&T to cancel the charges. She paid the current charges for

telephone services. For the next two months, there were additional monthly

charges for Dish Network. Ms. Gremillion continued to pay the charges for

telephone services but did not pay the amounts attributable to Dish Network. On

July 6, 2010, Ms. Gremillion’s niece, Laura Calaco, initiated a phone call that

resulted in a three-way call with representatives of Dish Network and AT&T.

They were able to discover that Ms. Gremillion was incorrectly being billed by

AT&T, as the billing agent for Dish Network, for services to an actual Dish

Network customer with a similar telephone number. Satisfied that AT&T was now

aware of the mistake, Ms. Gremillion was aggravated to see the Dish Network

charges for three months plus late charges on her next bill. Ms. Calaco called Dish

Network again, in an attempt to have the charges removed. Their efforts were not

successful, as the Dish Network charges appeared on Ms. Gremillion’s AT&T bills

in August, September, and October. Each month, Ms. Gremillion paid the current

charges for her AT&T telephone service but not the outstanding Dish Network

charges ($257.65 for three months plus late charges). In July, Ms. Gremillion

began to get additional monthly notices threatening to discontinue her telephone

service if she failed to pay her balance in full. At some point Ms. Gremillion

contacted a lawyer, who sent a letter to AT&T on September 22, 2010, pledging to

file suit if her service was ever disconnected.

When Ms. Gremillion received her AT&T bill dated October 25, 2010, it

included current charges of $84.05, delinquent charges of $274.20, and a late

payment charge of $2.86. The total amount was due on November 14. On

November 16, AT&T sent a “Service Interruption Notice” to Ms. Gremillion

explaining that a payment of $76.50 had to be received by November 23 to avoid

service interruption. Ms. Gremillion sent a check to AT&T on November 22. Her

attorney sent a letter to AT&T explaining the situation again and threatening suit if

service was terminated. According to the representative of AT&T who testified at

trial, the check was likely received by AT&T at its payment processing center in

Georgia by November 27, but it was not immediately processed. Because the

account was not shown as paid by November 29, Ms. Gremillion’s phone service

was terminated sometime on the morning of November 30. Her payment was

processed on that same date, and her service resumed by 5:30 p.m. on November

30.

This suit was filed the next day, on December 1, 2010. AT&T argued it was

not liable to Ms. Gremillion, but if it were found liable, a General Subscriber

Services Tariff (GSST) governed this dispute and limited its liability. Following a

bench trial, the trial court found that the GSST was not applicable because of

AT&T’s willful misconduct. The trial court awarded $30,000.00 in general

damages for Ms. Gremillion’s emotional distress, including anxiety,

embarrassment, and inconvenience. AT&T now appeals.

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ASSIGNMENTS OF ERROR

AT&T asserts six assignments of error:

1. The trial court erred in finding that AT&T breached a duty owed to
plaintiff.

2. The trial court erred in finding that AT&T had engaged in willful
misconduct.

3. The trial court erred in awarding damages for negligent infliction of
emotional distress.

4. The trial court erred in awarding plaintiff $30,000.00 in general
damages.

5. The trial court erred in its failure to find comparative negligence on
the part of plaintiff.

6. The trail court erred in its failure to allocate any liability to Dish
Network.

DISCUSSION

In Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), the supreme court

explained the appropriate standard of review when a court’s findings of fact are the

subject of an appeal:

It is well settled that a court of appeal may not set aside a trial
court’s or a jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong,” and where there is conflict in the
testimony, reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review, even though
the appellate court may feel that its own evaluations and inferences
are as reasonable.

In its first assignment of error, AT&T argues that the GSST, by which the

Louisiana Public Service Commission regulates AT&T’s activities in the state,

authorized AT&T to cut off Ms. Gremillion’s phone service. In its second

assignment of error, AT&T argues the trial court erred in finding that AT&T

engaged in willful misconduct. Because these assignments are interrelated, we will

discuss them together.

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Ms. Gremillion’s October AT&T bill was dated October 25, 2010. The

amount due was considered delinquent if not paid within twenty days of the date of

the bill, in this case November 14, 2010. According to the GSST, the provider was

allowed to suspend or terminate service without notice for “[n]onpayment of any

delinquent sum due for exchange, long distance, or other services.” Ms.

Gremillion did not send payment to AT&T until at least November 16, 2010 (the

date on the check). The payment was received by AT&T, according to its

representative who testified at the trial, by November 27, 2010. However, the

automated system did not process payment until November 30, 2010, by which

time Ms. Gremillion’s service had already been suspended.

The trial court found that the terms of the GSST were not applicable because

Ms. Gremillion proved that AT&T had engaged in willful misconduct. Under the

terms of the GSST, any limits of liability in the GSST are inapplicable upon a

finding of willful misconduct by AT&T.

Essentially, the evidence showed that Ms. Gremillion’s service would not

have been interrupted in November if the Dish Network charges had properly been

removed from her bill. The only reason her service was interrupted was because

AT&T, despite knowing that Ms. Gremillion did not owe Dish Network any

money in July, continued to bill her for those services. They continued to bill her

for those services after receiving a letter from Ms. Gremillion’s attorney in

September. While we acknowledge that AT&T is a large company with

complicated billing procedures, it does not excuse them from harassing customers

who owe them no money after having been made aware that the billing is incorrect.

We find the trial court did not commit manifest error in its finding that AT&T

owed a duty to Ms. Gremillion and that AT&T engaged in willful misconduct.

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Likewise, we find no error in the trial court’s ruling that AT&T’s conduct is

so egregious as to support a cause of action for negligent infliction of emotional

distress. Ms. Gremillion testified that AT&T’s harassing letters and ultimately the

suspension of her phone service caused her anxiety, embarrassment, humiliation,

and inconvenience. The uncontradicted evidence was that Ms. Gremillion never

paid her bills late, and the dun letters she received even after AT&T knew she did

not owe for Dish Network services were a source of anxiety. On the day AT&T

cut off her phone service, at least two people she saw told her that her phone

service had been interrupted, causing embarrassment and humiliation. She also

missed time-sensitive calls from an organization in which she has an important

leadership role.

The supreme court has explained that in order to recover for mental anguish,

without a showing of physical harm or injury, caused by another party’s

negligence, a plaintiff must show “the especial likelihood of genuine and serious

mental distress, arising from the special circumstances, which serves as a guarantee

that the claim is not spurious.” Moresi v. State, through the Dep’t of Wildlife and

Fisheries, 567 So.2d 1081, 1096 (La.1990). Taking into account Ms. Gremillion’s

advanced age, that her telephone was her only means of communication, and that

AT&T persisted in billing her for seven months after it knew she did not owe the

bill for Dish Network services, we find the trial court did not err in finding the

conduct of AT&T so extreme and outrageous that it rose to the level necessary to

support an award of negligent infliction of emotional distress.

In its fourth assignment of error, AT&T argues that the award of $30,000.00

was an abuse of discretion. We accord great weight to the trial court’s findings

when reviewing a general damage award, and we will not disturb those findings

absent a showing of clear abuse of discretion. Andrus v. State Farm Mut. Auto.
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Ins. Co., 95-0801 (La. 3/22/96), 670 So.2d 1206. We must determine whether the

trial court’s award “is, in either direction, beyond that which a reasonable trier of

fact could assess for the effects of the particular injury to the particular plaintiff

under the particular circumstances” before we may adjust the award. Id. at 1210.

We find no abuse of discretion in the amount awarded by the trial court and it will

not be disturbed.

We find no merit in AT&T’s contention that Ms. Gremillion’s damages

should be reduced because of her comparative fault. The evidence supports the

finding that Ms. Gremillion did nothing but inform AT&T of the problem with the

billing immediately and continue to pay the actual amount due timely.

Furthermore, the fact that she paid one bill late is not what caused her service to be

suspended. Rather, the incorrect charges from Dish Network caused her slight

delay in payment to result in interruption of her phone service.

Finally, we reject the contention that Dish Network should be apportioned

some fault. The evidence shows that AT&T was made aware of the billing

problem in July when Ms. Calaco talked to representatives of Dish Network and

AT&T. AT&T nevertheless continued to bill Ms. Gremillion for services she did

not receive.

CONCLUSION

The judgment of the trial court is affirmed in all respects. All costs of this

appeal are assessed to the defendant, Bellsouth Telecommunications, Inc., d/b/a

AT&T Louisiana.

AFFIRMED.

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