author: WHIPPLE, J.

text:
    Godfrey J. & Lydia BERGERON v. ARGONAUT GREAT CENTRAL INSURANCE COMPANY, Frank Billeaudeau & Helen Callen d/b/a Jazz Seafood & Steakhouse & Louisiana Department of Health & Hospitals.
    No. 2010 CA 0842.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2011.

      John O. Charrier Jr., George B. Kuehne, Baton Rouge, LA, for Plaintiff/Appellant, Lydia Bergeron & Michael Bergeron.
    Eric J. Halverson, Jr., Metairie, LA, for Defendant/Appellee, Frank Billeaudeau & Elsa Billeaudeau d/b/a Jazz Seafood & Steakhouse, & Argonaut Great Central Insurance Company.
    Before WHIPPLE, McDONALD, and McClendon, jj.
   WHIPPLE, J.

12This matter is before us on appeal by plaintiffs, Lydia and Michael Bergeron, from a judgment of the trial court, granting summary judgment in favor of the remaining defendants, Frank and Elsa Bil-leaudeau, d/b/a Jazz Seafood & Steakhouse, and their insurer, Argonaut Great Central Insurance Company, (hereinafter referred to collectively as “Jazz”) and dismissing plaintiffs’ remaining claim. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This appeal arises from a suit for damages filed by Godfrey Bergeron seeking recovery for injuries resulting from the consumption of raw oysters at Jazz Seafood & Steakhouse. The facts giving rise to this suit and its procedural history were set forth in detail in this court’s prior published opinion involving the dismissal of the Department of Health and Hospitals (hereinafter referred to as the “DHH”) as a defendant in the instant suit in Bergeron v. Argonaut Great Central Insurance Company, 2006-0813 (La.App. 1st Cir.2/9/07), 958 So.2d 676, writ denied, 2007-0418 (La.3/28/07), 951 So.2d 1109. The basic underlying facts and procedural history are reiterated herein, as follows:

On July 23, 2001, Godfrey Bergeron ate approximately one dozen raw oysters in the oyster bar at the Jazz Seafood & Steakhouse in Kenner, Louisiana. Approximately two to three days later, Mr. Bergeron became very ill and was admitted to the Medical Center of Southwest Louisiana. Mr. Bergeron was diagnosed with a vibrio vulnificus infection, a flesh-eating bacterial infection, which he contracted from ingesting raw oysters that contained the vibrio vulnificus bacteria. As a result of the vibrio vulnificus infection, Mr. Bergeron required an extensive hospital stay, incurred significant medical expenses, and sustained permanent damage to his nerves and skin.
On June 19, 2003, Mr. Bergeron and his wife instituted this action for damages against Jazz and DHH. Specifically with regard to Jazz, the plaintiffs alleged that Jazz was obliged by the Louisiana sanitary code to, but did not, post a warning to susceptible persons of the dangers of eating raw oysters, and alternatively, that any warning which it posted was inadequate and was hidden or so inconspicuous that it was inadequate. With regard to DHH, the plaintiffs alleged that DHH had an affirmative duty to cause restaurants, such as Jazz Seafood & Steakhouse, to post warnings about the dangers of eating raw oysters and that DHH failed to perform [its] duty.
The DHH moved for summary judgment alleging that it could not be held liable to the plaintiffs for any damages suffered as a result of eating raw oysters because it had complied with its obligation to enforce the sanitary code with regard to Jazz Seafood & Steakhouse, and therefore, DHH sought dismissal from these proceedings. Jazz filed an opposition to the motion for summary judgment on the basis that the dismissal of DHH from the plaintiffs’ lawsuit would deprive it of a comparative offset for any fault attributable to DHH with regard to the presence and adequacy of the warnings. On December 22, 2004, the trial court signed a “final judgment” granting DHH’s motion for summary judgment and dismissing the plaintiffs’ claims against it with prejudice, and on March 14, 2005, the trial court signed a judgment denying Jazz’s motion for new trial.

Bergeron v. Argonaut Great Central Insurance Company, 958 So.2d at 677-678.

Jazz appealed the trial court’s dismissal of the DHH and, on de novo review, another panel of this court determined that there was no genuine issue of fact and that dismissal by summary judgment of plaintiffs’ claims against DHH was appropriate as a matter of law. See Bergeron v. Argonaut Great Central Insurance Company, 958 So.2d at 681. In affirming the trial court’s grant of summary judgment in favor of DHH, this court determined as follows:

RBased on our de novo review of the record, we find there was no genuine issue of material fact, and summary judgment was appropriate as a matter of law. At issue in the plaintiffs’ case against the DHH was the existence of the warning signs at the “point of sale,” and thus, whether DHH had breached its duty to enforce the sanitary code, whereas at issue in the plaintiffs’ case against Jazz is allegedly inconspicuous warnings or sign “clutter.” The evidence submitted by DHH established that the oyster warnings were posted or displayed at Jazz Seafood & Steakhouse in the oyster bar where Mr. Bergeron ordered the oysters-the “point of sale”in accordance with the sanitary code and that ... DHH fulfilled its duty to enforce the sanitary code by performing routine inspections of Jazz Seafood to ensure its compliance with the sanitary code. While the evidence submitted by Jazz indicated that Mr. Bergeron and his dinner companions did not see (or take notice of) the warning signs pertaining to oysters, this evidence was insufficient to establish that the signs were not present at the oyster bar or that the inspections by DHH to ensure compliance with the sanitary code were improper or deficient. Rather, such evidence addresses the plaintiffs’ alternative claims against Jazz, i.e., that the signs were inconspicuous or there was sign “clutter” rendering the warnings less noticeable. Accordingly, we find the evidence submitted by Jazz was insufficient to establish that there was a genuine issue of material fact as to whether DHH had breached its duty to enforce the sanitary code.

Bergeron v. Argonaut Great Central Insurance Company, 958 So.2d at 681-682.

Thereafter, on November 6, 2007, Jazz filed a motion for partial summary judgment, seeking: (1) dismissal of plaintiffs’ claim that there were no such warnings posted at the point of sale on the accident date; (2) the barring of any evidence relating to the existence of such warnings; and (8) the restricting of plaintiffs’ case against Jazz, and all evidence set forth therein, solely to its remaining cause of action as to the adequacy and visibility of the DHH warnings as determined existed at the time plaintiff allegedly ingested the raw oysters.

After a hearing, the trial court rendered judgment on December 18, 2007, granting Jazz’s motion for partial summary judgment. Specifically, the trial | ¿court dismissed plaintiffs’ claim that Jazz failed to post a warning of the dangers of eating raw oysters as required by the Louisiana Sanitary Code and limited plaintiffs’ sole remaining cause of action against Jazz to “the allegation that the warnings found to have been posted by Jazz Seafood & Steakhouse on the date of the accident at the point of sale as mandated by the Sanitary Code were allegedly inadequate due to ‘clutter’ and/or interference.”

On November 2, 2009, Jazz filed a motion for “final” summary judgment, seeking dismissal of plaintiffs’ sole remaining claim based on the inadequacy of the posted warnings. In this motion, Jazz contended that no question of material fact remained, as the evidence showed that the warning signs posted at the time of sale were “clear, visible and unambiguous.” Thus, Jazz contended, it was entitled to dismissal of plaintiffs’ claims as a matter of law.

In support of its motion for summary judgment, Jazz submitted and relied upon, inter alia: (1) plaintiffs’ petition for damages; (2) the court’s written reasons for judgment; (3) the December 18, 2007 judgment granting partial summary judgment; (4) maps of the restaurant; (5) excerpts of the deposition of DHH Inspector Clarence Herbert Francis; (6) a warning sign; (7) the affidavit of Jazz employee David Lee Bowman; (8) the affidavit of defense counsel Eric J. Halverson, Jr.; (9) the deposition of plaintiffs’ expert Edward W. Karnes; (10) a photograph; (11) a letter from defense expert Dr. Jane T. Welch to Eric Halverson; (12) another photograph; (13) excerpts of the deposition of Godfrey J. Bergeron; (14) excerpt of the deposition of Dr. Edward Kemp Coreil; (15) the police report; and (16) Jazz’s itemized receipt for plaintiffs’ meal on July 23, 2001.

| nIn response, plaintiffs filed a motion to strike, contending that several of Jazz’s exhibits offered in support of its motion for summary judgment were inauthentic, inadmissible, constituted hearsay, and were otherwise inadmissible as many were “tainted by counsel’s editorializing.” Plaintiffs offered excerpts of Jazz employee Kelly Riepele’s deposition testimony in support of its motion to strike.

The motions were heard before the trial court on January 4, 2010. On January 5, 2010, the trial court orally granted the motion for summary judgment. A “Final Judgment Dismissing Plaintiffs’ Case With Prejudice” was signed by the trial court on January 14, 2010, wherein the trial court ruled that “plaintiffs failed to present any question of material facts as to the existence of any clutter or visual obscurement of the one or more signs warning of the dangers of consuming raw shellfish — as required by the Louisiana Sanitary Code— within easy view of the plaintiff from the position at the oyster bar [where] plaintiff consumed raw oysters, i.e., the point of sale.”

As noted above, on March 12, 2010, plaintiffs filed a motion seeking to substitute the parties-plaintiff, which the trial court granted on March 16, 2010. Given the trial court’s grant of substitution, the parties submitted, and on March 22, 2010, the trial court signed, a “Stipulation and Amended Judgment” wherein, pursuant to the parties’ agreement, the trial court ordered that: (1) the portion of the January 14, 2010 judgment dismissing the claims of Godfrey Bergeron be vacated as to him and made applicable to the substituted parties for the decedent, Lydia and Michael Bergeron; (2) the claims of Lydia and Michael Bergeron, as substituted parties plaintiff, be dismissed with prejudice for the precise and exact reasons set forth in the original January 14, 2010 judgment, as adopted by reference, reserving to the substituted parties their rights to appeal the January 14, 2010 judgment as it applies to them; and (3) all remaining parts |7of the original judgment rendered on January 14, 2010, including but not limited to the dismissal of the separate claims of plaintiff, Lydia Bergeron, remained unchanged and in full force and effect.

On March 19, 2010, plaintiffs filed a motion for a devolutive appeal from the trial court’s January 14, 2010 judgment “as amended by” the trial court’s “March 19, 2010” judgment, which was granted by the trial court on March 28, 2010. On April 12, 2010, plaintiffs filed a “Motion for Appeal and Motion to Consolidate Appeals” seeking to file a devolutive appeal from the trial court’s amended judgment of March 22, 2010 and to consolidate the two appeals in the case. Therein, plaintiffs explained that when they filed their motion to appeal the January 14, 2010 judgment and the amended judgment on March 19, 2010, they believed that the amended judgment had been signed by the trial court earlier on March 19, 2010, when the amended judgment was not actually signed by the trial court until March 22, 2010. Thus, in order to preserve their rights on appeal, plaintiffs moved to appeal the amended judgment of March 22, 2010, and further consolidate the two appeals as they arose from “the very same subject matters.” On April 15, 2010, the trial court granted plaintiffs’ motion to appeal the March 22, 2010 judgment of the trial court, but denied plaintiffs request to consolidate the appeals.

In their sole assignment of error on appeal, plaintiffs contend that the trial court erred in granting Jazz’s motion for summary judgment where disputed questions of material fact remain.

J^MOTION TO DISMISS SECOND APPEAL

At the outset, we will address a “Motion to Dismiss Second Appeal as Redundant and Invalid” filed with this court by Jazz requesting that the second appeal, granted by the trial court on April 15, 2010, be dismissed. Therein, Jazz contends that the second appeal is invalid and is a duplicate of the original appeal granted on March 23, 2010, which was already perfected. We agree.

Although plaintiffs filed their original motion for appeal of the January 14, 2010 judgment and the amended judgment on March 19, 2010, prior to the trial court’s signing of the amended judgment on March 22, 2010, the trial court subsequently granted the original motion for appeal on March 23, 2010.

Louisiana Code of Civil Procedure article 1911 provides in part:

Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.

Louisiana Code of Civil Procedure article 1911 has been interpreted to provide that an appeal granted before the signing of a final judgment is subject to dismissal until the final judgment is signed. However, once the final judgment has been signed, any previously existing defect has been cured, and there is no useful purpose in dismissing the otherwise valid appeal. Overmier v. Traylor, 475 So.2d 1094-1095 (La.1985) (per curiam).

In the instant case, this appeal was granted by the trial court one day after the judgment was signed. Thus, the original appeal was not premature and was never subject to dismissal. The filing of plaintiffs’ motion for appeal on March 19, 2010, three days prior to the signing of the amended judgment, and their mistaken assumption therein that the amended judgment had been signed by the trial court on March 19, 2010, are of no moment. Further, to the extent such events could be considered “defects,” any defects were cured when the trial court Rsigned the motion for appeal after the amended judgment was actually signed in accordance with LSA-C.C.P. art. 1911.

Thus, because plaintiffs’ original motion for appeal is valid, we grant Jazz’s motion to dismiss the second appeal granted herein.

MOTION TO STRIKE

Turning to the merits, we first note that in response to Jazz’s motion for summary judgment, plaintiffs filed a motion to strike, challenging the admissibility and authenticity of several of Jazz’s exhibits in support of its motion for summary judgment. We note that although the trial court’s oral reasons and both the January 14, 2010 judgment and the amended judgment of March 22, 2010 are silent as to plaintiffs’ motion to strike, where a judgment is silent as to any demand or issue that was litigated, that issue or demand is deemed rejected. Davis v. Benton, 2003-0851 (La.App. 1st Cir.2/28/04), 874 So.2d 185, 188 n. 1. Moreover, although plaintiffs did not specifically assign error to the trial court’s denial of their motion to strike in their appeal, they argue in brief that the trial court erred in relying on these exhibits in granting summary judgment. Thus, we will review the propriety of the trial court’s denial of plaintiffs’ motion to strike.

In general, plaintiffs complain of overreaching by counsel for Jazz and of his “editorializing” of several of the restaurant diagram and photo exhibits by commenting or explaining the marks placed on them by the witnesses. With reference to these complaints, after reviewing the marked exhibits herein, we note that although we find this conduct to be inappropriate, any error therein is, |1flat best, harmless absent a showing that the trial court relied on these remarks in rendering its decision.

Plaintiffs further complain that the report of Jazz’s expert, Jane T. Welch, Ph.D., was inadmissible hearsay under LSA-C.C.P. art. 967, which they contend requires that affidavits supporting motions for summary judgment shall be made on personal knowledge. We disagree.

Louisiana Code of Civil Procedure article 967 addresses the affidavits of experts and provides, in pertinent part:

The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

Moreover, although plaintiffs argue there has been no Daubert hearing to establish Dr. Welch’s credentials, we note that plaintiffs raised no specific challenges to Dr. Welch’s qualifications or to the methodology she used in forming her expert opinion in their motion to strike, memorandum in support thereof, or in their brief on appeal. Moreover, the record is devoid of any showing that plaintiffs attempted to set a hearing or deposition to establish a basis for challenging Dr. Welch’s opinions. Thus, in denying the plaintiffs’ motion to strike, the trial court implicitly ruled that Dr. Welch was qualified to render an opinion in this matter.

On review, and considering the record before us, we find no abuse of the trial court’s discretion in this determination or in the denial of plaintiffs’ motion to strike.

InSUMMARY JUDGMENT LAW

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).

The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art.' 966(C)(2). However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. LSA-C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764, 765 (per curiam). Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of |12the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La.12/8/00), 775 So.2d 1049, 1050 (per curiam).

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. See Barnett v. Watkins, 2006-2442 (La.App. 1st Cir.9/19/07), 970 So.2d 1028, 1033, writ denied, 2007-2066 (La.12/14/07), 970 So.2d 537. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Bezel v. Original Library Joe’s, Inc., 2001-1586 (La.App. 1st Cir.11/08/02), 838 So.2d 796, 800.

LAW AND DISCUSSION

In their petition for damages, plaintiffs asserted a cause of action against Jazz in negligence. In order for liability in negligence to attach under Louisiana’s traditional duty-risk analysis, a plaintiff must prove five separate elements: (1) duty (the defendant had a duty to conform his conduct to a specific standard of care); (2) breach of that duty (the defendant’s conduct failed to conform to the appropriate standard); (3) cause-in-fact (the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries); (4) scope of liability or scope of protection (the defendant’s substandard conduct was a legal cause of plaintiffs injuries); and (5) damages (actual damages). Rando v. Anco Insulations, Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065, 1086. A negative answer to any of the elements of the duty/risk analysis prompts a no-liability determination. Everett v. State Farm, Fire & Casualty Insurance Company, 2009-1699 (La.App. 1st Cir.3/26/10), 37 So.3d 456, 464.

|1sDue to the growing number of cases of vibrio vulnificus infections arising from the consumption of raw oysters, in 1991, the DHH published a rule requiring mandatory oyster warnings. The rule, which requires all restaurants that sell or serve raw oysters to provide clearly visible warnings about vibrio vulnificus at the point of sale, is presently found in Louisiana’s sanitary code, codified as La. Admin. Code 51:XXIII:1109, and provides, in pertinent part, as follows:

A. All establishments that sell or serve raw oysters must display signs, menu notices, table tents, or other clearly visible messages at the point of sale with either of the following wording:
1. “THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED”; or
2. “CONSUMING RAW OR UNDERCOOKED MEATS, POULTRY, SEAFOOD, SHELLFISH OR EGGS MAY INCREASE YOUR RISK OF FOODBORNE ILLNESS, ESPECIALLY IF YOU HAVE CERTAIN MEDICAL CONDITIONS.”

In Gregor v. Argenot Great Central Insurance Company, 2002-1138 (La.5/20/03), 851 So.2d 959, 967, the Louisiana Supreme Court, interpreting the above provision in a similar vibrio vulnificus case, held that the DHH has a mandatory duty to properly enforce this provision of the sanitary code. Herein, the trial court previously determined, and this court affirmed, that the DHH fulfilled its mandatory duty to enforce the sanitary code by performing routine inspections of Jazz Seafood to ensure its compliance with the sanitary code.

The duty of a restaurant, however, under this provision is to warn the public by displaying “clearly visible messages at the point of sale” with either choice of suggested language. In Gregor, the Supreme Court held that the defendant restaurant therein was liable for failing to provide any warnings to patrons who ordered raw oysters in its two dining rooms and for failing to give adequate warning to its oyster bar patrons where it only provided one warning sign that was surrounded by sign “clutter.” Gregor v. Argenot Great Central Insurance Company, 851 So.2d at 969-970.

On appeal, Jazz contends that based on the record herein, summary judgment rejecting plaintiffs’ sole remaining claim against Jazz, i e., “that the warnings found to have been posted by Jazz Seafood & Steakhouse on the date of the accident at the point of sale as mandated by the Sanitary Code were allegedly inadequate due to ‘clutter’ and/or interference” and dismissing plaintiffs’ cause of action, was proper herein. We agree.

In support of its motion for summary judgment, Jazz submitted a diagram attached to Bergeron’s deposition, where Bergeron marked his position at the point of sale at the restaurant bar on a diagram of the restaurant.

Jazz also presented the testimony of DHH Inspector Francis who testified that he routinely inspected Jazz Seafood four times a year from 1995 or 1996 through 2001 and also on July 31, 2001, approximately a week after Godfrey Bergeron purchased and consumed the raw oysters, and that Jazz was never cited with failure to comply with the official notice to post warnings. Inspector Francis further testified that he is familiar with the term “sign pollution” and that during the five years he inspected Jazz Seafood, he did not have any problem noticing the warning signs displayed at the bar at Jazz Seafood. He testified that sign pollution was not a factor in this case and that the bar did not contain numerous signs that would distract one from the warnings posted in accordance with the sanitary code provisions. In connection with his testimony, Inspector Francis likewise marked a diagram to indicate where the warning signs were posted at the bar. Notably, he testified that the signs were posted 11sthere on July 31, 2001, and in the five years preceding his inspection on July 31, 2001, shortly after Bergeron’s consumption of the oysters.

Jazz also presented the affidavit of David Bowman, the general manager of Jazz Seafood on July 23, 2001. Bowman stated that as general manager, he was responsible for posting the warnings cautioning customers of the dangers of consuming raw shellfish as required by the DHH. Bowman stated that he personally prepared the warning signs which appeared on the menus and walls of the restaurant. He further identified and attached to his affidavit one of the signs, which were prepared on 8 ½ by 11 sheets of paper, and stated:

WARNING: THERE MAY BE A RISK ASSOCIATED WITH, CONSUMING RAW SHELLFISH (OYSTERS), IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER OR BLOOD OR IMMMUNE DISORDER. YOU SHOULD EAT THESE PRODUCTS FULLY COOKED!!!
JAZZ SEAFOOD & STEAKHOUSE

Bowman stated that he posted the signs at various points in the restaurant, which he identified in an attached diagram, including, in particular, a sign posted at the front of the bar on the corner post facing where Godfrey Bergeron indicated that he was seated. Bowman further testified regarding his maintaining that the signs remained posted, noting that he was never made aware of any DHH inspections as they were all unannounced and spontaneous.

Jazz also submitted the deposition of Edward W. Karnes, Ph.D., plaintiffs’ expert in this case, who testified that the instant case was quite unlike the Gregor case, where he was also called to offer expert testimony for the plaintiff Dr. Karnes explained that in Gregor, the one sign that was displayed behind the bar was imbedded among a number of other signs and was therefore | ^camouflaged. Dr. Karnes explained that competing signage or information is detrimental to the visual attraction of the sign and that from a human factor standpoint, it would not be unlikely or unreasonable for a person to fail to read a sign when competing information is present. Although Dr. Karnes testified that there were competing signs at the hostess station and at the bar from the view of the hostess station, he conceded that if the signage appeared as shown to him in a photo taken from the location where Bergeron was seated when he purchased and consumed his oysters, there was no “problem with the visual presentation.”

Jazz also submitted the expert opinion of Jane T. Welch, Ph.D., an expert in product information with an emphasis on the communication of safety information. After thoroughly reviewing and evaluating the supporting evidence in this case, Dr. Welch opined that Jazz Seafood’s safety information was adequate and prominently displayed.

Thus, Jazz contends, the evidence established that Bergeron’s position at the oyster bar was two seats away from a very large warning sign that was clearly visible at the point of sale pursuant to the requirements of the sanitary code and the burden shifted to plaintiffs to show that it could prove that there was “sign clutter” or “visual clutter” at the point of sale such that Bergeron would not have noticed the warnings.

In opposition to the motion for summary judgment, plaintiffs offered: (1) excerpts of the deposition testimony of Godfrey Bergeron; (2) excerpts of the deposition testimony of Leon Paul Casadaban; (3) a diagram of Jazz Seafood & Steakhouse; (4) excerpts of the deposition testimony of David Lee Bowman; (5) excerpts of the deposition testimony of Elise Theresa Kirkland; (6) diagrams of Jazz Seafood & Steakhouse; (7) excerpts of the deposition testimony of Lois Beeson Bistes; (8) a diagram of Jazz Seafood & Steakhouse; (9) excerpts of the | deposition testimony of Elsa Mandado Billeaudeau; (10) excerpts of the deposition testimony of Frank Billeaudeau; and (11) excerpts of the deposition testimony of Edward W. Kames.

To the extent that plaintiffs presented evidence in an attempt to show that material issues of fact remained as to whether warning signs were posted, we note that this issue was disposed of when the trial court granted Jazz’s motion for partial summary judgment and dismissed plaintiffs’ claim that Jazz had failed to post the warnings as required by the Louisiana Sanitary Code. Moreover, in the previous opinion, this court specifically held “that the oyster warnings were posted or displayed at Jazz Seafood & Steakhouse in the oyster bar where Mr. Bergeron ordered the oysters — the ‘point of sale’ — in accordance with the sanitary code.” Bergeron v. Argonaut Great Central Insurance Company, 958 So.2d at 681. Thus, the above stated ruling is the law of this case. See Trans Louisiana Gas Company v. Louisiana Insurance Guaranty Association, 96-1477 (La.App. 1st Cir. 5/9/97), 693 So.2d 893, 896.

Furthermore, while plaintiffs presented what they contend is conflicting evidence and testimony as to the number and location of signs posted in the restaurant, plaintiffs failed to show that material issues of fact remain as to the existence of any sign or visual clutter from Bergeron’s seated position at the bar such that the warnings were not “clearly visible messages at the point of sale,” as required by the Louisiana Sanitary Code.

Thus, on review of the evidence set forth by plaintiffs in opposition to summary judgment as to plaintiffs’ remaining cause of action against Jazz, i.e., that the mandated warnings posted on the date of the accident at the point of sale were allegedly inadequate due to visual “clutter,” we find that plaintiffs |18failed to make the required showing that there is a genuine issue remaining for trial. Accordingly, on de novo review, we agree that Jazz was entitled to judgment in its favor dismissing plaintiffs’ sole remaining claim as a matter of law.

CONCLUSION

For the above and foregoing reasons, the March 22, 2010 amended judgment of the trial court, granting summary judgment in favor of defendants Frank and Elsa Billeaudeau, d/b/a Jazz Seafood & Steakhouse, and their insurer, Argonaut Great Central Insurance Company, and dismissing plaintiffs’ remaining claim, is affirmed.

The “Motion to Dismiss Second Appeal as Redundant and Invalid” filed by Jazz is hereby granted.

Costs of this appeal are assessed against the plaintiffs/appellants, Lydia and Michael Bergeron.

AFFIRMED.

      . Godfrey and Lydia Bergeron were the original plaintiffs in this suit. However, after Godfrey Bergeron’s death on August 5, 2009, Lydia Bergeron and her son, Michael Berger-on, Lydia and Godfrey's only child, filed an "Ex Parte Motion to Substitute Parties-Plaintiff" whereby Lydia and Michael Bergeron sought to be substituted as parties-plaintiffs in the place and stead of Godfrey Bergeron on March 12, 2010. The trial court signed an order allowing the substitution on March 16, 2010.

      laFNl. Vibrio vulnificus occurs naturally in salt-water environments. Whenever vibrio vulnificus is present in water where an oyster lives, the oyster will contain the bacteria. Generally, vibrio vulnificus is dangerous only to persons with chronic health problems, gastric disorders, liver diseases, and immune disorders. Proper cooking will kill vibrio vulnificus bacteria present in an oyster. See Gregor v. Argenot Great Central Insurance Company, 2002-1138, pp. 1-2 (La.5/20/03), 851 So.2d 959, 961.

      . The plaintiffs did not oppose DHH’s motion for summary judgment.

      . The Supreme Court denied Jazz's application for writs of certiorari and review of this court’s opinion. See Bergeron v. Argonaut Great Central Insurance Company, 2007-0418 (La.3/23/07), 951 So.2d 1109.

      . No appeal or application for writs was filed regarding this judgment.

      . Although plaintiffs' motion for appeal states that the date of the amended judgment is March 19, 2010, the Stipulated and Amended Judgment filed on March 17, 2010, was actually signed by the trial court on March 22, 2010.

      . Plaintiffs attached to their motion to strike excerpts of the deposition testimony of Jazz employee Kelly Riepele taken on. February 12, 2003, in the restaurant, at which time counsel for Jazz posted warning signs in an attempt to reconstruct the signage as posted on the date of the accident, as an illustration of and support for plaintiffs' allegation that defense counsel was acting more as a witness than an advocate and that the evidence was inauthentic.

      . See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . In Independent Fire Insurance Company v. Sunbeam Corporation, 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 235, the Supreme Court held that it is impractical for a party to be required to depose his or her own expert in order for that expert’s opinion to be admissible at the summary judgment stage.

      . Plaintiffs filed a motion to supplement the appellate record with their opposition to Jazz’s motion for summary judgment, which was subsequently lodged with the record on appeal.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    SUCCESSIONS OF Adrian Frayle POWELL, Wife of/and Robert Glen Powell.
    No. 10-CA-480.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Rehearing Denied April 14, 2011.
    Writ Denied June 24, 2011.

      Adrienne L. Black, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Raymond B. Landry, Attorney at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| ¡Appellant, Eulalie Anna Mott (“Mrs. Mott”), appeals various judgments rendered by the trial court in the Succession of Adrian Frayle Powell and Robert Glen Powell, of which Mrs. Mott was executrix. In particular, Mrs. Mott appeals judgments rendered by the trial court in the succession proceeding that: 1) ordered her to return the value of certain assets that she had transferred out of a certain trust that she administered as trustee back to the trust; 2) established the amount of attorneys’ fees chargeable to the trust that she incurred for legal matters involving the trust; and 8) set her fee as trustee of the trust. For the reasons that follow, we affirm the judgments of the trial court.

FACTS AND PROCEDURAL HISTORY

Adrian and Robert Powell (“the Pow-ells”), husband and wife for more than twenty years, entered into a revocable living trust (“the Powell Living Trust” or “the Living Trust”) on May 29, 1996 and funded it exclusively with community property assets. They both executed their last wills and testaments on that same date. Upon Mrs. Powell’s death on January 22, 1997, the assets contained in the |sLiving Trust were divided into three sub-trusts pursuant to the terms of the Living Trust. Mr. Powell’s half of the community property (approximately $925,000 in value) went into the Robert Powell Survivor Trust (referred to in the Living Trust as “Survivor’s Share One” and sometimes referred to herein as “Mr. Powell’s Trust”). The other half of the community property was divided into the Adrian Powell Family Trust (referred to in the Living Trust as “Family Trust” and “Family Share”) and the Adrian Powell Survivor Trust (referred to in the Living Trust as “Survivor’s Share Two”) (sometimes collectively referred to herein as “Mrs. Powell’s Trusts”). The Adrian Powell Family Trust initially contained $600,000 in value. The Adrian Powell Survivor Trust initially contained approximately $325,000 in value.

Mr. Powell was the surviving trustor, trustee and income beneficiary of all three trusts. The trust instrument specifically provided that Mr. Powell was individually entitled to receive discretionary payments of principal from all three trusts, as more fully described below. Mrs. Mott and Diane Adrienne Vedrenne, Mrs. Powell’s daughters by a previous marriage, were the principal beneficiaries of Mrs. Powell’s Trusts. Mark and James Mowrey (“the Mowreys”) were the principal beneficiaries of Mr. Powell’s Trust.

Upon Mrs. Powell’s death, Mr. Powell, as the sole trustee of all three trusts, administered all three trusts until his death in January of 2008, whereupon he was succeeded as trustee of all three trusts by Mrs. Mott as per the trust instrument. On February 12, 2008, Mrs. Mott opened a succession proceeding on Mr. and Mrs. Powell and applied for letters testamentary, which she received on February 13, 2008. In the course of her duties as trustee of Mr. Powell’s Trust and as executor |4of Mr. Powell’s estate, disputes arose between Mrs. Mott and the Mowreys regarding actions taken by her as trustee of Mr. Powell’s Trust.

On May 28, 2008, the Mowreys filed a Motion for Expedited Hearing in the succession proceeding, asserting that shortly after Mr. Powell’s death, Mrs. Mott wrongfully withdrew from Mr. Powell’s Trust a trustee fee of $125,255.15, being approximately 5% of the corpus of Mr. Powell’s Trust. The Mowreys later also objected to Mrs. Mott’s transferring shares of Johnson & Johnson stock from Mr. Powell’s Trust directly to Mrs. Powell’s Trusts, of which she was a beneficiary, in violation of the trust documents and her fiduciary duty owed to the Mowreys as trustee. Additionally, among other things, the Mowreys also objected to the nature and amount of various attorneys’ fees that Mrs. Mott charged to and paid from Mr. Powell’s Trust.

After a contradictory hearing, by judgment dated November 18, 2008, the trial court ordered Mrs. Mott to return to Mr. Powell’s Trust the sum of $276,376.23 related to the shares of Johnson & Johnson stock that Mrs. Mott had transferred from Mr. Powell’s Trust to Mrs. Powell’s Trusts while serving as successor trustee of Mr. Powell’s Trust. That judgment also determined that Mrs. Mott’s trustee fee would be set at 1% of the first million dollars, .80 percent of the second million dollars, and .65 per cent of the third million dollars, of the final and total amount of the corpus of Mr. Powell’s Trust. By judgment dated July 31, 2009, the trial court also determined that $35,621.25 in attorneys’ fees that Mrs. Mott incurred would be chargeable to Mr. Powell’s Trust. Mrs. Mott has devolutively appealed these judgments.

On appeal, in her three assignments of error, Mrs. Mott argues that: 1) Mr. Powell exceeded his authority as trustee when, while trustee of both his own trust and his wife’s trusts, he transferred principal (shares of Johnson & Johnson stock | sand other cash) from Mrs. Powell’s Trusts to his own trust; 2) the attorneys’ fees the court allowed her to charge to Mr. Powell’s Trust were inadequate and contrary to law; and 3) the trustee fee awarded to her by the trial court was also inadequate and not supported by law.

The Mowreys filed an Answer to Mrs. Mott’s appeal, alleging that the Judgment of Possession rendered in the succession proceeding on March 3, 2010 reflected that Mrs. Mott accepted a reimbursement for a tax deduction previously disallowed to her by a judgment of the trial court dated December 3, 2009 as a compromise towards final conclusion of the trust and succession proceeding without any further hearings. Because Mrs. Mott filed this appeal, thus dragging out the litigation (in their opinion), the Mowreys seek an order modifying the Judgment of Possession compelling Mrs. Mott to return the sum of $19,117.05 attributable to the tax deduction previously disallowed by the district court.

APPLICABILITY OF LAW OF THE CASE DOCTRINE

Initially, we note that the Mowreys have objected to appellate review of Mrs. Mott’s first and third assignments of error, arguing that the “law of the case” doctrine is applicable herein. Following the adverse rulings by the trial court on these issues, Mrs. Mott sought a writ of review of these issues with this court in writ number 08-C-1277 (La. 5 Cir. 2/4/09) (unpublished writ disposition). The Mowreys argue that the law of the case doctrine precludes a second review, on appeal, of the trial court’s rulings on these issues.

It is true that generally, when an appellate court considers arguments made in supervisory writ applications, the court’s disposition on the issue considered becomes the “law of the case,” foreclosing re-litigation of that issue either at the district court on remand or in the appellate court on a later appeal. However, the | ^denial of a writ application creates a different situation. A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration of, or a different conclusion on, the same question when an appeal is taken from a final judgment. Cotton v. Gaylord Container, 96-1958, 96-2029, and 96-2049 (La.App. 1st Cir.3/27/97), 691 So.2d 760, 763, writ denied, 97-0800 (La.4/8/97), 693 So.2d 147.

This Court’s disposition of said writ number 08-C-1277 is as follows:

After review of the writ application and the attachments thereto, including the supplementing transcript, we find no error in the judgment complained of. We thus decline to exercise our supervisory jurisdiction. (Emphasis added.)

Since the reviewing panel of this Court expressly declined to exercise this Court’s supervisory jurisdiction in its review of said writ application, we shall not apply the law of the case doctrine in this instance.

ASSIGNMENT OF ERROR NO. ONE-AUTHORITY OF THE TRUSTEE

In her first assignment of error, Mrs. Mott argues that the trial court erred in finding that Mr. Powell had complete discretion to withdraw principal from Mrs. Powell’s Trusts.

Pertinently, the court in In re Succession of Wilkerson, 44,213 (La.App. 2 Cir. 4/8/09), 9 So.3d 1058, recently stated the following concerning interpretation of trust instruments and appellate review thereof:

In construing a trust, the settlor’s intention controls and is to be ascertained and given effect, unless opposed to law or public policy. Thomas v. Kneipp, 43,228 (La.App.2d Cir.05/28/08), 986 So.2d 175. Intent is an inherently factual finding. Klebanoff v. Haberle, 43,102 (La.App.2d Cir.03/19/08), 978 So.2d 598. A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Thomas, supra. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Wood v. Spillers, 37,087 (La.App.2d Cir.04/09/03), 843 So.2d 555. Where there are two 17permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Furthermore, LSA-R.S. 9:2061 provides as follows concerning the duties and powers of the trustee: “The nature and extent of the duties and powers of a trustee are determined from the provisions of the trust instrument, except as otherwise expressly provided in this Code, and, in the absence of any provisions of the trust instrument, by the provisions of this Part and by law.”

In its judgment of November 18, 2008, the trial court held:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Eula-lie Anna Mott shall immediately return to the benefit of the Robert Powell Survivor’s Trust, the sum of $267,376.23 related to the Johnson & Johnson stock, providing the Mowreys with evidence confirming the transfer causing the return of these sums.

In ordering Mrs. Mott to return the principal she transferred from Mr. Powell’s Trust to Mrs. Powell’s Trusts, the trial court implicitly found that Mr. Powell’s transfers of principal to his trust from Mrs. Powell’s Trusts during the years of his administration as trustee of Mrs. Powell’s Trusts were permissible under the trust instrument creating Mrs. Powell’s Trusts. On appeal, Mrs. Mott objects to this ruling, arguing that the language of the trust instrument gave Mr. Powell discretion to withdraw principal from Mrs. Powell’s Survivor Trust only for needs associated with his “health, maintenance, support and education.” She argues that the trial court’s interpretation of this language renders meaningless the fact that each of Mrs. Powell’s trusts employed a different discretionary standard to describe when Mr. Powell (the surviving trustee) could invade the principal of Mrs. Powell’s Trusts.

The substance of this issue involves an interpretation of the trust instrument (the Powell Living Trust) signed by Mr. and Mrs. Powell, as trustors, trustees and beneficiaries. The trust instrument language at issue is as follows:

Robert Powell Survivor Trust (Article 8, Section 2):

b. Discretionary Payment of Principal
At any time or times during the trust term our Trustee shall pay to or apply for the benefit of the surviving Trustor so much of the principal of the Survivor’s Share One as our Trustee deems proper for the surviving Trustor’s comfort, welfare and happiness. In exercising discretion our trustee shall give the consideration that our Trustee deems proper to all other income and resources then readily available to the surviving Trustor for use for these purposes and that are then known to our Trustee.

Adrian Powell Survivor Trust (Article 8, Section 3):

c. Discretionary Payment of Principal At any time or times during the trust term our Trustee shall pay to or apply for the benefit of the surviving Trustor so much of the principal of the Survivor’s Share Two as our Trustee deems proper for the surviving Trustor’s health, maintenance, support and education. In exercising discretion, our Trustee shall give the consideration that our Trustee deems proper to all other income and resources then readily available to the surviving Trustor for use for these purposes and that are then known to our Trustee.
d.Limitation on Discretionary Payment of Principal by Trustee
Notwithstanding the provisions of the preceding subsection, we recommend but it is not mandatory that our Trustee shall first exhaust the principal from Survivor’s Share One before making discretionary payment of principal from Survivor’s Share Two.

Adrian Powell Family Trust (Article 9, Section 1):

b. Discretionary Payment of Principal At any time or times during the trust term our Trustee shall pay to or apply for the benefit of the surviving Trustor so much of the principal of the Family Trust as our Trustee in its discretion deems proper for the surviving Trustor’s health, maintenance, support and education.
c. Guidelines for Trustees Discretion No amount paid or applied need thereafter be repaid to our Trustee or restored to our trust. In exercising discretion, our trustee shall give the consideration that our Trustee deems proper to all other income and resources that are known to our | ¡/Trustee and that are readily available to the surviving Trustor for use for these purposes. Our Trustor shall accumulate and add to principal any net income not distributed,
d. Limitation on Discretionary Payment of Principal by Trustee
We recommend, but it is not mandatory, that our Trustee shall first exhaust the principal from the Survivor’s Trust before making discretionary payments of principal to the surviving Trustor from the Family Trust.

(Emphasis added.)

The trust instrument further expressly provides that if any question arose concerning the powers of the trustees, Mr. and Mrs. Powell had the “power to do all acts that might legally be done by an individual in absolute ownership.”

During his tenure as trustee, Mr. Powell made the following transfers of cash and stock from Mrs. Powell’s Survivor Trust to his own trust: $21,117 on December 24, 1997; $11,794 on April 13, 1999; 1,100 shares of Johnson & Johnson stock on January 15, 2004; 1,886 shares of Johnson & Johnson stock on July 28, 2004; and 295 shares of Johnson & Johnson stock on April 5, 2005. Mr. Powell also made the following transfers of cash from Mrs. Powell’s Family Trust to his own trust: $18,624 on December 28, 1997; and $74,731 on August 22, 2007.

Mrs. Mott contends that Mr. Powell’s various “principal” transfers of the Johnson & Johnson stock and other cash transfers from Mrs. Powell’s Trusts to Mr. Powell’s Trust were in violation of above-quoted trust language, and therefore her transfer in 2008 of the value of such transfers from Mr. Powell’s Trust to Mrs. Powell’s Trusts was to return the principal to Mrs. Powell’s Trusts, i.e., to “correct” Mr. Powell’s unauthorized transfers of principal from Mrs. Powell’s | inTrusts to his own trust. Mrs. Mott based the fact and the amount of the transfer on her interpretation of the trust instrument and an accounting report generated by the LaPorte Sehrt accounting firm, which proceeded on the assumption that Mr. Powell’s principal transfers were unauthorized.

At the hearing on this issue on November 12, 2008, counsel for the Mowreys presented the testimony of attorney Max Nathan, who qualified as an expert in the Louisiana law of trust and estate planning. Mr. Nathan stated that he performs much legal work for trust departments of various banks in the New Orleans area, but was not general counsel for any particular bank. He testified that in preparation for his testimony, he reviewed the trust instrument in question (the Powell Living Trust), an inventory prepared by Mr. Powell at Mrs. Powell’s death, Mr. and Mrs. Powell’s probated wills, the descriptive lists, the attorneys’ bills from two law firms submitted by Mrs. Mott, the docket sheets, the proposed estate tax return for Mr. Powell, and the estate tax return filed for Mrs. Powell’s estate in 1997.

Mr. Nathan testified that in his experience, he had seen and used similar language in his practice of setting up trusts. He opined that based on his experience, the particular language used in Mrs. Powell’s Trusts was meant to give Mr. Powell complete access to the principal of Mrs. Powell’s Trusts and that by using such language, Mr. Powell was not accountable to anyone else if and whether he invaded the principal of Mrs. Powell’s Trusts. Mr. Nathan testified that the trust language “as our Trustee deems proper” gave Mr. Powell “absolute discretion” to invade the principal of Mrs. Powell’s Trusts. Mr. Nathan also testified that the language “for the surviving Trustor’s health, maintenance, support, and education,” was meant to be broad and expansive, allowing Mr. Powell “unfettered” access to the principal in Mrs. Powell’s Trusts, just as that | nsame language would have allowed Mrs. Powell the same unfettered access to the principal in Mr. Powell’s Trust had she been the surviving trustor/trustee/benefi-ciary instead of Mr. Powell. Mr. Nathan, however, could not explain why Mr. Powell’s Trust employed different language from Mrs. Powell’s Trusts, although, in his opinion, he didn’t see much difference between the terms (“comfort, welfare and happiness” v. “health, maintenance, support and education”).

Both parties cite the case of Norton Family Trust First Nat. Bank of Commerce v. Schmitt, 94-1035 (La.App. 5 Cir. 4/25/95), 655 So.2d 398. Therein, the surviving settlor and co-trustee sought to invade the trust’s principal in order to pay her medical bills (for inoperable lung cancer) but was refused by the co-trustee, her husband’s son from his first marriage (and a principal beneficiary of the trust). She filed suit, which ultimately concluded after her death. The trial court ruled in her favor, finding that the trust instrument allowed her to invade the principal for the purpose stated. In affirming the trial court, this Court considered the context in which the trust was made:

First, the Settlors of the trust were husband and wife for twenty years, who took a large portion of their liquid assets, which were community property, and placed them in the trust that they thereby created. They named themselves as Trustees and income beneficiaries. Under the provisions of the trust, they gave themselves, as Trustees, the discretion to distribute income and, under certain circumstances, principal. They gave themselves all powers conferred by existing law and any powers expanded by future changes in the law. It was expressly provided that if any question arose concerning the powers of the Trustees, the trust instrument was to be “liberally construed as granting such power.”
Upon review, it is clear, as stated in the original petition filed by Eileen Jackson Norton, and not contradicted, that the settlors intended that these funds, income and principal, would be available to them during their lifetime to care for their needs regarding “health, education, maintenance or support.” They placed their liquid assets in trust, to avoid probate, and granted themselves the broadest powers to distribute the funds in their discretion. (Emphasis added.)

112This Court further found that the trust instrument did not require Mrs. Norton to first deplete her own assets before invading the principal of the trust established for her benefit. The trust instrument before this court contains similar and explicit language to that effect, as noted above.

While the trust language at issue in Norton is not identical to the trust language at issue here, there are similarities between Norton and the instant case in that the Powells also used trust language, as noted above, that showed their intent to grant themselves, as trustees, the broadest powers to distribute funds in their discretion, according to Mr. Nathan.

Other aspects of the Norton case, upon which Mrs. Mott relies, are less instructive for the case before this court. In the Norton case, it was clear that Mrs. Norton desired to invade the trust’s principal in order to pay outstanding medical bills, which clearly fell into the trust’s language regarding “health, education, maintenance or support.” In this case, however, the records show that Mr. Powell did not spend the principal that he withdrew from Mrs. Powell’s Trusts, but retained it in his own, where it stayed until his death. Accordingly, Mrs. Mott argues, Mr. Powell clearly abused his discretion in invading the principal of Mrs. Powell’s Trusts because he clearly had no needs relative to his “health, maintenance, support and education.”

This argument, however, ignores the “unfettered” discretion that the trustors granted to themselves, as noted above. Further, the trial court implicitly found, based upon the expert testimony of Mr. Nathan, that the terms “health, maintenance, support and education” were meant to be very broad and expansive. The records show that Mr. Powell transferred the stock from Mrs. Powell’s Trusts to his own trust in various transactions in 2004 and 2005. The fact that the principal, once transferred, remained untouched in his trust is not indicative that |1sMr. Powell abused his broad discretion as trustee. There is simply no evidence in this record to show what led Mr. Powell, at those times, to make those transfers, and therefore there is no evidence that he abused his discretion. Mr. Nathan testified that he was not aware of any use of funds that could not be considered as being used for Mr. Powell’s “maintenance or support,” but, above all, it was in Mr. Powell’s sole discretion as to whether he needed funds for his maintenance and support. If discretion is conferred upon a trustee with respect to the exercise of a power, its exercise shall not be subject to control by the court, except to prevent an abuse of discretion by a trustee. LSA-R.S. 9:2115.

The trial court clearly found that Mrs. Mott as trustee had abused her discretion when making the transfer from Mr. Powell’s Trust to Mrs. Powell’s Trusts. As a successor trustee, because she was not a surviving trustor and trustee, her rights and powers were different than those enjoyed under the trust instrument by Mr. Powell, both a surviving trustor and trustee.

The trial court, while it did not give reasons for its ruling, clearly credited the testimony of Mr. Nathan regarding the meaning of the trust language. Given no evidence to the contrary, we find no manifest error or abuse of discretion in the trial court’s ruling. Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NO. TWO-ATTORNEYS’ FEES

Mrs. Mott next argues that the trial court erred in capping the attorneys’ fees she incurred chargeable to Mr. Powell’s Trust at $85,621.25. She argues that there is no legal basis to cap the award. In brief, she asserts that she has already incurred legal fees in excess of $150,000.00, not including the additional fees for this appeal, for which she also seeks reimbursement. In brief, she describes all the legal work performed to administer the trusts and Mr. Powell’s succession, a great 114deal of which she argues was necessitated by the Mowreys’ demands to remove her as trustee, executrix, and for premature disbursements of trust principal.

Mrs. Mott argues in brief that the Living Trust gives the trustee authority to employ agents, including attorneys, to assist with the administration of the trust. It further gives the trustee authority to “prosecute or defend actions, suits, claims, or proceedings for the protection or benefit of the trust and our Trustee in the performance of our Trustee’s duties.” She further argues that Louisiana law bolsters this language and provides that a trustee may incur necessary expenses and is entitled to indemnity from the trust estate for those expenses. La. R.S. §§ 9:2117 and 2191.

Mrs. Mott agrees that the fees she requests are “substantial,” but that this succession has been made lengthy and contentious by the Mowreys instituting numerous court proceedings challenging her various actions as trustee and executrix, including but not limited to an action to remove her as trustee, an action to compel an accounting, and an action to compel the return of the amount associated with the Johnson & Johnson stock.

At the hearing, the Mowreys asked the trial court to limit the attorneys’ fees for which they were responsible to $15,000, citing the testimony of Mr. Nathan, who described what his law firm might charge for a succession the size of Mr. Powell’s. They argued that the amount of hours billed was excessive, and that much of the legal work was incurred as a result of Mrs. Mott’s “self-dealing.” After a full eviden-tiary hearing and a review of all submitted bills, the trial court assessed the attorneys’ fees chargeable to Mr. Powell’s Trust at $85,621.25.

11sThis court notes that the Mowreys were successful in their demands that Mrs. Mott return the trustee fee and the value of the stock to Mr. Powell’s Trust, though they were unsuccessful in removing Mrs. Mott as trustee. Likewise, as set forth below, Mrs. Mott is unsuccessful here in arguing that she is entitled to a trustee fee greater than that awarded by the trial court. In awarding significantly lower attorneys’ fees than those requested by Mrs. Mott, the trial court clearly felt that the attorneys’ fees claimed by Mrs. Mott for litigating these issues were not contemplated or authorized by the trust instrument language upon which Mrs. Mott relies.

All things considered, we find no error in the trial court’s ruling setting forth the amount of Mrs. Mott’s attorneys’ fees chargeable to Mr. Powell’s Trust. The record shows that the lengthy and contentious nature of this proceeding was due in large part to the above-described actions by Mrs. Mott, as trustee and executrix, that were successfully challenged by the Mowreys because these actions either violated her fiduciary duty to them as beneficiaries or were not authorized by the trust instrument. Therefore, we find no error in the trial court’s conclusion on the amount of attorneys’ fees incurred by Mrs. Mott that are chargeable to Mr. Powell’s Trust.

ASSIGNMENT OF ERROR NO. THREE — TRUSTEE’S FEE

Mrs. Mott also argues that the trial court erred in establishing her trustee fee based on a percentage of the trust corpus following a sliding scale used by local banks’ trust departments, instead of allowing her a flat fee of 2.5% of the trust corpus. She argues that the trust instrument did not tie the trustee fee to a corporate fiduciary’s published fee schedule. She argues that the court should base | ujher fee on what the law has determined is reasonable for executors in succession proceedings, which is 2.5% of the corpus.

The trial court’s judgment on this issue ordered that Mrs. Mott’s trustee fee would be based on the final and total amount of the corpus of Mr. Powell’s Trust and would be set at 1% of the first million dollars, .80 percent of the second million dollars, and .65 per cent of the third million dollars. According to the record, using this scale, Mrs. Mott’s trustee fee came out to $22,491.00.

Mr. Powell’s Trust expressly provides that any trustee fee should equal “compensation customarily charge[d] for similar services in the same geographic area for the same time period.” Submitted as evidence by the Mowreys at the evidentiary hearing was a survey of the fees charged by several local financial institutions that the Mowreys could identify that have trust departments that provide “similar services” to the trustee services provided by Mrs. Mott. All local financial institutions surveyed used a sliding scale for their fees; that is, a certain percentage is charged for the first million dollars of corpus value, another percentage is charged for the second million dollars, and so on. As illustrated through the exhibits in the record, the average amounts charged were as follows: on the first million, 1.018%; on the second million, .806%; on the third million, .65%. Expert witness Mr. Nathan testified that these figures were consistent with his professional experience representing trusts and institutions that handle trusts. Mrs. Mott, on the other hand, submitted no contradictory evidence.

While the trust’s language on this issue specifically references “corporate fiduciaries,” it does relate the trustee’s fee to those charged for “similar services” in the geographical area. Given that many banks in the geographical area have trust departments that perform “similar services,” it was reasonable for the trial Incourt to look to those rates in determining the appropriate amount of Mrs. Mott’s fee as trustee of Mr. Powell’s Trust, as they are easily ascertainable. Moreover, we find nothing in the trust instrument itself that argues against making such an application. Accordingly, we find no manifest error or abuse of discretion in the trial court’s ruling setting the trustee fee based upon the average of the local banks’ fee schedule as introduced at the evidentiary hearing. This assignment of error is without merit.

ANSWER TO THE APPEAL

The Mowreys filed an Answer to this appeal. They argue that the district court’s judgment of March 3, 2010 recognizing Mr. Powell’s Trust’s entitlement to $247,364.12 reflected a concession made by the Mowreys by way of compromise toward entry of a Judgment of Possession and final conclusion of this succession proceeding. Specifically, they note that the trial court expressly ruled on December 3, 2009 that Mrs. Mott “is not entitled to reimbursement for a tax deduction attributed to the Mowreys and the Robert Powell Survivor’s Trust.” They contend that the “tax deduction” at issue was an amount equal to $19,117.05, and now request this Court to amend the Judgment of Possession to additionally order return of this sum to them.

Other than the Mowreys’ representations regarding the alleged amount of the tax deduction and alleged compromise between the parties, this Court cannot determine on the record before it the amount of said tax deduction (the judgment is silent regarding the amount) or that the Judgment of Possession reflects a compromise between the parties. We have no basis upon which to disturb the trial court’s rulings contained in the Judgment of Possession in this regard, rendered on 11sMarch 8, 2010, and accordingly, it is affirmed. The relief requested by the Mowreys in their Answer to this appeal is therefore denied.

CONCLUSION

For the reasons assigned above, we affirm the judgments appealed by Mrs. Mott. We further affirm the Judgment of Possession rendered on March 3, 2010 and deny the relief requested by the Mowreys in their Answer to this appeal.

AFFIRMED

      . The trust instrument refers to the Powells as “Trustors.” It appears that the Powells intended this term to be synonymous with "set-tlor” as defined in LSA-R.S. 9:1761.

      . This language conforms with LSA-R.S. 9:2068, which states that the trust instrument may direct or permit a trustee to pay principal to an income beneficiary for support, maintenance, education, or medical expenses, or, pursuant to an objective standard, for any other purpose.

      . It appears that the trial court attributed some of the cash transfers from Mrs. Powell's Trusts to Mr. Powell’s Trust as a result of his being the income beneficiary of Mrs. Powell’s Trusts, which income Mr. Powell was entitled to collect on a yearly basis. The documents in the record show that Mr. Powell received the income from Mrs. Powell’s Trusts less often than scheduled by the trust instrument. In 2008 when Mrs. Mott "returned” the stock to Mrs. Powell's Trusts from Mr. Powell’s Trust, she also transferred to Mr. Powell’s Trust from Mrs. Powell's Trusts $57,077.31 in undistributed income to which he was entitled but had not taken prior to his death.

      . Mr. Nathan described Mr. Powell’s succession as relatively small, with only four assets. He also made specific comments on particular items in the attorneys’ fees, describing certain charges and the hours billed to certain items as clearly excessive.

      . The record reflects that Mrs. Mott has waived any fee she would otherwise be end-tled to as the executrix of the Powells' succession proceeding.


author: SUSAN M. CHEHARDY, Judge.

text:
    Gloria NEEB v. Rene LASTRAPES, Wife of/and John Lastrapes.
    No. 10-CA-763.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 29, 2011.
    Rehearing Denied April 27, 2011.

      Donald C. Massey, Attorney at Law, New Orleans, LA, for Appellee, Gloria Anne L. Neeb.
    Daniel A. Ranson, Gregory G. Gremil-lion, Michael D. Peytavin, Attorneys at Law, Gretna, LA, for Appellants, Rene and John Lastrapes.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

|20n appeal, defendants/appellants challenge the trial court’s ruling that an oral contract of sale occurred. For the reasons that follow, we vacate the March 5, 2010 judgment, reinstate the January 15, 2010 judgment, and reverse.

On or about September 13, 2005, in the aftermath of Hurricane Katrina’s devastation of the Gulf Coast, John Lastrapes contacted Anne Neeb through email to discuss purchasing Neeb’s house on Smith Drive in Metairie, Louisiana. In an email to Lastrapes dated September 15, 2005, Mrs. Neeb, who was listed as the sole owner of the property, stated that she “planned to list” the property for $415,000.00.

On or about September 30, 2005, Mr. Lastrapes transmitted, via electronic means, a $10,000.00 check payable to David and Anne Neeb for “Deposit on Smith Dr.” This check was posted to Mrs. Neeb’s account on October 7, 2005.

On October 9, 2005, Mr. Neeb transmitted via facsimile an “agreement to sell real estate,” which he had signed as proxy for his wife. That document listed the purchase price as $415,000.00 to be paid by a deposit of $10,000.00 with the ^remainder to be paid at closing. The closing date was not listed in this contract. Further, neither the Lastrapes nor Mrs. Neeb’s signatures appear on that document.

On or about October 16, 2005, the Neebs removed some, but not all, of their possessions from the premises. That same day, the Lastrapes took physical possession of 901 Smith Drive. In the next few days, the Lastrapes had the locks on every exterior door to the house rekeyed and contacted a fence company to repair and/or erect a fence around the home’s swimming pool. Further, at the Lastrapes’ instruction, laborers removed all of the existing exterior landscape plants, except the grass, from the front, side, and rear yards of 901 Smith Drive.

On or about November 17, 2005, Mr. Lastrapes telephoned Mrs. Neeb to state that he would not purchase the property at 901 Smith Drive. Thereafter, the Las-trapes quit their occupancy of 901 Smith Drive. Mrs. Neeb further testified that, on Thanksgiving Day, which was November 25, 2005, her family had their holiday meal at 901 Smith Drive. It is undisputed that the Neebs regained full possession of the property in December 2005.

Moreover, the record further reveals that, from 2005 to 2008, Mrs. Neeb claimed the homestead exemption and paid the property taxes for 901 Smith Drive. At trial, Mrs. Neeb testified that she was the record owner of 901 Smith Drive; she admitted that she considered herself to be the owner of the property in August, September, October and November of 2005.

On April 27, 2006, Mrs. Neeb filed a petition in the 24th Judicial District Court, naming John and Rene Lastrapes as defendants, seeking damages incurred |4for her reliance on Mr. Lastrapes’ promise to purchase the Smith Drive property. On June 1, 2009, Mrs. Neeb filed her First Amended Petition to assert a claim “under article 1839 of Louisiana Civil Code.”

On December 15, 2009, a bench trial was held. On January 15, 2010, the trial judge rendered judgment in favor of Mrs. Neeb, finding that the parties entered into an oral transfer of the property pursuant to La. C.C. art. 1839. The judgment ordered the Lastrapes to pay damages totaling $405,000.00. Notice of this judgment was mailed on January 26, 2010.

On February 3, 2010, the Lastrapes filed a Motion for New Trial. On March 5, 2010, the trial judge denied the Lastrapes’ Motion for New Trial and issued a separate “Amended Judgment” decreeing that Rene and John Lastrapes were “named as owners of the property located at 901 Smith Drive, Metairie, Louisiana.” On March 25, 2010, the Lastrapes filed a Motion for Suspensive Appeal of the denial of their Motion for New Trial and both Judgments.

Jurisdictional Note:

We briefly digress to discuss which Judgment is properly before this Court. On March 5, 2010, the trial judge denied the Lastrapes’ Motion for New Trial. That same day, the trial judge also rendered an “Amended Judgment.” It is well-settled that a judgment, which has been substantively amended without the granting of a new trial, is invalid and not within the purview of [La. C.C.P.] Article 195. Internal Revenue Federal Credit Union v. Johnson, 612 So.2d 746, 748-749 (La.App. 4 Cir.1992) (citation omitted). Here, the trial judge denied the motion for new trial then amended the judgment, which makes the judgment a nullity. Accordingly, we vacate the trial court’s judgment of March 5, 2010 and reinstate the original judgment of January 15, 2010.

On appeal, the Lastrapes sought review of that ruling as well so we will address their assigned errors with regard to the ruling of January 15, 2010. Specifically, the Lastrapes raise seven assignments of error:

(1) the trial court erred in finding that the parties reached an agreement and entered into an oral contract of sale of immovable property; (2) the trial court erred in holding that the evidence satisfied the exception to the legal requirement that a contract of sale of immovable property be in the form of a written agreement; (3) the trial court erred in granting specific performance for the payment of the alleged purchase price without the condition that good, valid and merchantable title and possession of the subject property be delivered by transferor to transferee, free and clear of all alienations and encumbrances; (4) the judgment failed to provide the legal description of the immovable property at issue as mandated by La. C.C.P. art. 1919; (5) the trial court erred in failing to find that John Lastrapes was entitled to return of the earnest money deposit; (6) the trial court erred in rendering judgment against Rene Lastrapes; and (7) the trial court erred in failing to rule on the admissibility of the inspection reports that were reviewed by John Lastrapes in deciding not to enter into a contract to sell.

Appellee, Mrs. Neeb, answers the appeal, seeking legal interest on the damages awarded.

In essence, the Lastrapes’ argue that the trial court erred in finding that “the parties entered into and met all of the requisites of Louisiana Civil Code Article 1839 to satisfy the oral transfer of the property located at 901 Smith Drive, | fiMetairie, Louisiana.” Upon review, we agree that the trial court erred in its finding.

La. C.C. art. 1914 defines nominate contracts as those given a special designation, such as a sale. La. C.C. art. 1916 provides that nominate contracts are subject to special rules of the respective titles when those rules modify, complement, or depart from the rules of conventional obligations or contracts.

La. C.C. art. 2440 states that, “A sale or promise of sale of an immovable must be made by authentic act or by act under private signature, except as provided in Article 1839.” According to La. C.C. art. 1839, “a transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.”

Here, via email on or about September 15, 2005, Mrs. Neeb wrote that she “planned to list” her house for $415,000.00. On September 80, 2005, Mr. Lastrapes wired a “deposit” of $10,000.00 to Mrs. Neeb.

Thereafter, on October 5, 2005, Mr. Neeb signed the agreement to purchase as the agent of the vendor, Mrs. Neeb. However, both Mr. and Mrs. Neeb admitted that she did not execute a valid power of attorney authorizing Mr. Neeb to sign the purchase agreement for her. Further, the Lastrapes did not sign the purchase agreement. There was clearly no written agreement between these parties.

Consequently, the trial judge relied on the last sentence of La. C.C. art. 1889, which reads, “Nevertheless, an oral transfer is valid between the parties 17when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.”

The term “actual delivery” means that the immovable, which is the object of the verbal sale has, in fact, been transferred or placed into the possession of the buyer. A determination of whether “actual delivery” of an immovable has been made depends on the circumstances of each individual case. Martin v. Brister, 37,011 (La.App. 2 Cir. 7/23/03), 850 So.2d 1106, 1110 (citing Duhon v. Dugas, 407 So.2d 1334 (La.App. 3rd Cir.1981)).

Here, even if we found that Mrs. Neeb had made “actual delivery” of 901 Smith Drive to the Lastrapes on October 16, 2005, the circumstances of this case reflect that there was no actual transfer of possession. At trial, both parties agreed that the Lastrapes quit the Smith Drive house before Thanksgiving of that same year and the Neebs regained full possession of the house in December 2005. Furthermore, at trial, Mrs. Neeb admitted that she was currently the record owner of the property and had paid the property taxes as owner in 2005, 2006, 2007, and 2008.

Thus, at trial of her claim, Mrs. Neeb did not prove a condition precedent to her right to enforce the “oral transfer” of property because she admitted that she was the record owner at all times relevant to this litigation and that she possessed the property at the time of trial and all times relevant to this matter except for one month in 2005. Based on the foregoing, we find that the trial judge erred in finding that an “oral transfer” of this property occurred. See Boyett v. Wingfield, 317 So.2d 235, 238 (La.App. 2d Cir.1975).

Furthermore, a valid contract of sale requires three things: (1) the thing, (2) the price, and (3) the consent of the parties. La. C.C. art. 2439. In the case at bar, there was no evidence that the parties agreed upon, or consented to, a sale. Thus, | seven if we were to find that the parties had agreed upon a price for the Smith property, there was insufficient evidence as to consent, which is an essential element of a contract of sale. La. C.C. art. 2439. For these reasons, we find merit in this assignment of error and reverse the trial court’s ruling.

Because we are reversing the trial judge’s judgment of an oral transfer, we pretermit discussion of the Lastrapes’ re-maining arguments regarding the transfer, i.e., second, third, fourth, and sixth assignments of error. In their fifth assignment of error, the Lastrapes argue that the trial judge erred in failing to find that Mr. Lastrapes was entitled to the return of his earnest money deposit. We disagree.

Although Mr. Lastrapes alleges in his brief that “the proceedings in First Parish Court were transferred to the 24th Judicial District Court and tried with this matter,” the record before this Court does not support that statement. Although this Court granted Mr. Lastrapes’ motion to supplement the appellate record with the record of the First Parish Court proceeding, neither the record from the 24th Judicial District Court nor the record from First Parish Court contain documentation of the actual transfer of Mr. Lastrapes’ suit to the 24th Judicial District Court.

Thus, we do not agree that Mr. Las-trapes’ suit was “tried” with the matter at hand and, as such, there is no ruling on that matter before this Court. Because this Court reviews “issues submitted to the trial court,” U.R.C.A. Rule 1-3, and this issue is apparently still pending in the lower court and not properly before this Court, La. Const. Art. V, § 10(B), we cannot address this assignment of error.

In their final assignment of error, the Lastrapes argue that the trial judge failed to rule on the admissibility of the inspection reports of the plumbing and the house. Upon review, we note that the record does not reflect that the Lastrapes’ 19attorney proffered the two aforementioned documents once the trial judge disallowed their introduction into evidence at trial.

An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164; Black v. Anderson, 06-891, p. 6 (La.App. 5 Cir. 3/13/07), 956 So.2d 20, 23, writ denied, 07-0794 (La.6/1/07), 957 So.2d 180 (Citation omitted). An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. White Haute, LLC v. Mayo, 09-955 (La.App. 5 Cir. 3/23/10), 38 So.3d 944, 950. Because there is no evidence to review, we cannot address this assignment of error.

In conclusion, we vacate the “Amended Judgment” of March 5, 2010 and reinstate the judgment of January 15, 2010. Further, we find that the trial judge erred in finding an “oral transfer” of the Smith property from Mrs. Neeb to the Lastrapes and, therefore, reverse the January 15, 2010 judgment in favor of Mrs. Neeb. Furthermore, we decline to address the Las-trapes’ claim for return of their earnest money, which is not before this Court. Finally, because we have reversed the trial court judgment, we deny Mrs. Neeb’s claim for legal interest on the underlying award. Each party of this appeal is to bear its own costs.

AMENDED JUDGMENT VACATED; ORIGINAL JUDGMENT REINSTATED AND REVERSED.

      . The record reflects that Mrs. Neeb is the younger sister of Mr. Lastrapes’ former wife and, thus, his children’s aunt. Reportedly, Mr. Lastrapes’ son alerted him to the possible availability of the property.

      .On January 23, 2006, John Lastrapes filed a lawsuit in First Parish Court for Jefferson Parish seeking the return of his $10,000 deposit on 901 Smith Drive. Although Mr. Las-trapes alleges in his brief that "the proceedings in First Parish Court were transferred to the 24th Judicial District Court and tried with this matter,” the record before this Court does not support that statement. Although this Court granted Mr. Lastrapes’ motion to supplement the appellate record with the record of the First Parish Court proceeding, neither the record from the 24th Judicial District Court nor the record from First Parish Court contain documentation of the actual transfer of Mr. Lastrapes’ suit to the 24th Judicial District Court. Thus, we cannot conclude that Mr. Lastrapes' suit was "tried” with the matter at hand and, as such, that claim is not before this Court. See discussion of Assignment of Error Five, infra.

      . The Amended Judgment rendered on March 5, 2010 contained the following additional language:
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendants, Rene Lastrapes and John Lastrapes be and are hereby named as owners of the property located at 901 Smith Drive, Metairie, Louisiana.

      . La. C.C.P. art. 1951, regarding amendment of judgments, provides: "A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.”

      . The record reflects that the Jefferson Parish Clerk of Court mailed notice of the trial judge’s denial of the Lastrapes’ motion for new trial on March 8, 2010. The Lastrapes filed a suspensive appeal on March 25, 2010. Under La. C.C.P. art. 2123, their suspensive appeal was timely because it was filed within thirty days of “the date of the mailing of notice of the court’s refusal to grant a timely application for a new trial.”

      . "When the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” La. C.C. art. 2993. More specifically, the authority to alienate, acquire, encumber or lease immovable property must be given expressly. La. C.C. art. 2996. "A promise to sell immovable property must be vested with the same formalities as prescribed for sales of immovable property.” Bradstreet v. Kinchen, 08-0126 (La.App. 4 Cir. 4/1/09), 10 So.3d 331, 337 (quoting Alley v. New Homes Promotion, Inc., 247 So.2d 218 (La.App. 4th Cir.1971)).