author: PAUL A. BONIN, Judge.

text:
    Ivory HUNTER, Sr. and Hattie J. Hunter v. R.J. REYNOLDS TOBACCO COMPANY; Brown & Williamson Tobacco Corporation Individually and as Successor by Merger to the American Tobacco Company; Philip Morris, Inc.; Philip Morris Companies, Inc.; Lorillard Tobacco Company; Liggett Group, Inc.; Quaglino Tobacco and Candy Company, Inc.; Imperial Trading Company, Inc.; George W. Groetsch, Inc.; Walgreen Louisiana Company, Inc. d/b/a Walgreen Drug Stores; and, Whitney Foods, Inc. d/b/a Whitney Food Store.
    No. 2011-CA-1433.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.

      Jessica W. Hayes, Murray Law Firm, New Orleans, LA, for Plaintiff/Appellant.
    Phillip A. Wittmann, Carmelite M. Ber-taut, Dorothy H. Wimberly, Stone Pigman Walther Wittmann, L.L.P., Madeleine Fischer, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., Deborah B. Rouen, Martin A. Stern, Jeffrey Edward Richardson, Lara E. White, Adams and Reese, L.L.P., Steven W. Copley, Gordon Arata McCollam Duplantis & Eagan, LLP, New Orleans, LA, Lynda Albano Tafaro, Thomas P. Anzelmo, McCranie Sistrunk Anzelmo Hardy Maxwell & McDaniel, Me-tairie, LA, for Defendants/Appellees.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

liThe trial court dismissed the lawsuit of Hattie J. Hunter, the surviving spouse of Ivory Hunter, Sr., as abandoned due to the failure of any parties in the lawsuit to take any step in its prosecution or defense in the trial court for a period of three years. Mrs. Hunter filed a motion to set aside the dismissal, which motion the trial court denied. Solely arguing that the activity in a different action, a pending class action suit, prevented abandonment in this case, Mrs. Hunter appeals the dismissal of the lawsuit and the denial of her motion.

After a de novo review of the trial court decisions, we conclude that there was no qualifying activity in this action within a three-year period preceding the defendants’ motions to dismiss for abandonment. Accordingly, we affirm the judgment of dismissal without prejudice and the denial of the motion to set aside the judgment. And we decline to express any view on whether the pending class faction would toll the prescriptive period for any lawsuit which Mrs. Hunter may file subsequently.

We explain our reasoning in more detail below.

I

Before addressing Mrs. Hunter’s sole assignment of error, we provide some background facts and discuss this matter’s procedural history. Ivory Hunter, Sr., and Hattie Hunter filed the present lawsuit on December 4, 2002, seeking damages for medical expenses, physical pain and suffering, mental anxiety, and loss of consortium arising out of Mr. Hunter’s lifelong tobacco use. Mr. Hunter died the day after suit was filed. On January 7, 2003, defendants R.J. Reynolds, Brown & Williamson, Philip Morris Incorporated, and Lorillard removed the matter to federal district court. The matter was remanded back to state court pursuant to an order dated September 8, 2003. Following remand, the defendants filed answers to Mrs. Hunter’s petition and the parties conducted limited written discovery. On September 28, 2004, counsel for R.J. Reynolds responded to Mrs. Hunter’s request for production of documents by forwarding copies of certain of Mr. Hunter’s employment records. After this exchange, no other steps in the prosecution or defense of this matter took place until Mrs. Hunter filed a motion for status conference on January 7, 2011.

Citing to La. C.C.P. art. 561, defendants R.J. Reynolds, Brown & Williamson, Philip Morris USA Inc.; Lorillard, Quaglino, Imperial, Groetsch, and Walgreens filed a joint motion for abandonment on February 8, 2011. Defendant |sLiggett filed a similar motion on February 9, 2011. The trial court signed two corresponding orders of dismissal on, respectively, February 10 and 11, 2011.

Mrs. Hunter timely filed her motion to set aside dismissal on March 17, 2011. See La. C.C.P. art. 5612 A(4). Mrs. Hunter did not contend that one of the parties to this action took a step in the three years prior to January 7, 2011, which served to prevent the running of prescription. Mrs. Hunter, instead, argued that the trial court erred when it dismissed her case for abandonment because activity taken in Scott v. American Tobacco Co., Inc., prevented abandonment in the present case. See Scott v. American Tobacco Co., Inc., 04-2095 (La.App. 4 Cir. 2/7/07), 949 So.2d 1266; and Scott v. American Tobacco Co., Inc., 09-0461 (La.App. 4 Cir. 4/23/10), 36 So.3d 1046. The defendants filed opposition memoranda, and the parties argued the merits of the plaintiffs motion on May 5, 2011. The trial court denied Mrs. Hunter’s motion from the bench and signed a judgment to that effect on June 7, 2011. Mrs. Hunter timely filed her petition for appeal on August 8, 2011. See La. C.C.P. art. 5612 A(5).

II

In this Part, we discuss generally the law governing abandonment motions and the appropriate standard governing our review.

Whether an action has been abandoned is a question of law; thus, the standard of review of the appellate court is simply to determine whether the lower court’s interpretive decision is correct. Meyers ex rel. Meyers v. City of New Orleans, 05-1142, p. 2 (La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721. The | procedure governing abandonment motions is set out in La. C.C.P. art. 561, which reads, in pertinent part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years ...
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292 ...
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.

The Louisiana Supreme Court has construed Article 561 as imposing three requirements on a plaintiff to avoid an abatement of her action: 1) a party must take some “step” in the prosecution or defense of the action; 2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit; and 3) the step must be taken -within three years of the last step taken by either party; sufficient action by either plaintiff or defendant will be deemed a step. Louisiana Dept. of Transp. and Development v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La.12/6/11), 79 So.3d 978, 981. See also Meyers ex rel. Meyers v. City of New Orleans, 05-1142, p. 3 (La.App. 4 Cir. 5/17/06), 932 So.2d 719, 721. A “civil action is a demand for the enforcement of a legal right.” La. C.C. art. 421. A civil action “is commenced by the filing of a pleading presenting the demand to a court of competent jurisdiction.” Id. Similarly, a personal action |sis “one brought to enforce an obligation against the obligor, personally and independently of the property which he may own, claim, or possess.” La. C.C.P. art. 422.

A step in the prosecution or defense of an action occurs whenever a party takes a formal action that is intended to hasten the matter to judgment. Whitney Nat. Bank v. Goldsmith, 04-0707 (La.App. 4 Cir. 6/22/05), 913 So.2d 124. As this Court observed, a step in the prosecution must, if it is to prevent abandonment, “be before the court and must appear in the record.” Hargis v. Jefferson Parish, 99-0971, p. 3, (La.App. 4 Cir. 12/8/99), 748 So.2d 606, 607. “Before the court” has been held to mean that the step must appear in the court record. Chevron v. Traigle, 436 So.2d 530, 532 (La.1983).

The jurisprudence has recognized two categories of causes outside the record that are permitted to prevent the running of abandonment: 1) a plaintiff-oriented exception, based on contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and 2) a defense-oriented exception, based on acknowledgment, that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with an intent to treat the case as abandoned. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 7 (La.5/15/01), 785 So.2d 779, 784-785.

The jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Clark, 00-3010, p. 8, 785 So.2d at 785. That is to say, “abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.” Id. at 786. It is further recognized that abandonment is not a punitive measure — it is designed to discourage frivolous lawsuits by preventing plaintiffs | (¿rom letting them linger indefinitely. Benjamin-Jenkins v. Lawson, 00-0958, p. 3 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, 895. The abandonment rule implicates two competing policies: “The prevention of protracted litigation, filed for purposes of harassment or without serious intent to hasten the claim to judgment, is balanced against the maintenance of an action whenever possible so as to afford an aggrieved party his day in court.” Bibeau v. Forest Manor Nursing Home, 05-0181, p. 3 (La.App. 4 Cir. 8/18/05), 917 So.2d 1123, 1125.

Ill

In this part, we first describe our examination of the record of this action, in light of the foregoing authorities, to illuminate why we conclude that the trial court properly signed the order of dismissal and denied Mrs. Hunter’s motion to set aside. We will then discuss Mrs. Hunter’s argument that activity taken in Scott, supra, prevented abandonment in the present case. Having reviewed the memoranda submitted by the parties, we conclude that any presumed activity in Scott does not serve to prevent abandonment of this action of Mrs. Hunter.

A

As far as the record itself reveals, no party to Mrs. Hunter’s lawsuit took a step in the prosecution or defense of this action between September 28, 2004 and January 7, 2011, a period of more than three years. At the hearing on the motion, Mrs. Hunter made no attempt to demonstrate that any formal discovery was exchanged between the parties during the September 28, 2004 and January 7, 2011 time period, which was not included in the record.

|7At the hearing in the trial court, Mrs. Hunter did not seek to establish a claim for her own non-action arising from a contra non valentem impediment. That is, Mrs. Hunter does not contend that her failure to prosecute her action was caused by circumstances beyond her control. Similarly, at the hearing, Mrs. Hunter did not introduce evidence or even argue that the defendants somehow waived their rights to assert abandonment by taking actions inconsistent with an intent to treat this action as abandoned.

Thus, Mrs. Hunter did not supplement the record of this action by showing that during the relevant three-year period discovery had been conducted outside the record, or that she had been somehow prevented from prosecuting her action, or that the moving defendants (or any of them) had somehow waived their rights to assert abandonment. Consequently, we are compelled to conclude that this action was abandoned due to non-action for a three-year period.

B

In this section, we discuss Mrs. Hunter’s contention as set forth in her single assignment of error. As we understand Mrs. Hunter’s argument, she contends that she (or her late husband) is a member of the class certified in Scott, that prosecutorial and defensive activity was ongoing in the Scott action during the three-year period of dormancy in this action, and that consequently a liberal construction of Article 561 would result in finding that she had not shown any intent to abandon this action. Importantly, Mrs. Hunter neither contends nor suggests that the defendants took any action in Scott which prevented her from staking any steps to prosecute this matter or which constitute a waiver to raise in abandonment in this action.

Without citing to it (or to any specific authority), Mrs. Hunter’s argument appears premised upon an application of the prescriptive rule of La. C.C.P. art. 596 to the issue of abandonment. “Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein.” La. C.C.P. art. 596 A. See also Taranto v. Louisiana Citizens Property Ins. Co., 10-105 (La.3/15/11), 62 So.3d 721. Thus, Mrs. Hunter appears to be arguing that we recognize (and announce) an additional jurisprudential exception in order to avoid a finding of abandonment of this action.

The Scott suit was filed on May 24,1996. 04-2095, p. 1, 949 So.2d at 1271. The Scott class was certified on April 16, 1997. Id. Notice of the Scott class was published on February 24, 2000. Mr. Hunter died on December 5, 2002, one day after filing the present suit. At no time were the two lawsuits consolidated. See La. C.C.P. art. 1561.

While liberative prescription and abandonment are closely related concepts, the suspension principle set out in La. C.C.P. art. 596 cannot be used to prevent the running of abandonment because Article 596 addresses the timely institution of lawsuits, while abandonment concerns the timely prosecution of discrete actions. “Abandonment is both historically and theoretically a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim.” Clark, 00-3010, p. 10, 785 So.2d at 787.

|flLiberative prescription is a mode of barring of actions as a result of inaction for a period of time. La. C.C. art. 3447. On the one hand, the type of liberative prescription described in La. C.C.P. art. 596, and by inference La. C.C. arts. 3469 (Suspension of Prescription), 3472 (Effect of Suspension), and 3492 (Delictual Actions) refers generally to the mode of extinguishing a legal claim that has not been filed by an obligor during a time period stipulated by law. LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, 1228. See also La. C.C. art. 3447; and G. Baudier-Laeantinerie & A. Tissier, Traite Theorique et Pratique de Droit Civil, No. 25 (4th ed.1924), reprinted in 5 Civil Law Translations at 15 (La. St. Law Inst. Trans.1972).

On the other hand, the concept of abandonment, as clearly delineated in its governing article and the foregoing authorities, applies solely to discrete actions that have already been instituted. Mrs. Hunter’s action is separate and discrete from the Scott action. Neither Mrs. Hunter, nor the late Mr. Hunter, were named class members in Scott, made an appearance in Scott, or consolidated the present suit with Scott. There can be no question but that Mrs. Hunter’s action and Scott are separate and discrete actions. Thus, the steps taken in the prosecution or defense of Scott cannot serve to prevent the abandonment of Mrs. Hunter’s action.

We cannot and do not infer an intent on Mrs. Hunter’s behalf to prosecute this action from steps taken by the parties in Scott, an action separate from this one. We conclude that even if the pendency of the Scott action may serve to suspend li-berative prescription accruing on Mrs. Hunter’s claims against these or any of these defendants, because the Scott action is a separate and discrete action from | l()this action, the activity in the Scott action cannot be imputed to or imported into this action in order to prevent abandonment of this action.

And, as addressed in the preceding section, because of the extended period of inactivity in this action, the defendants must be relieved of defending this action. See Young v. Laborele, 576 So.2d 551, 552 (La.App. 4th Cir.1991).

CONCLUSION

Finding no reversible error, we affirm the judgments of the trial court that ordered dismissal and denied Mrs. Hunter’s motion to set aside the dismissal. We have examined Mrs. Hunter’s assignment of error and hold that any activity taken in Scott v. American Tobacco Co., Inc. cannot prevent abandonment in the present case.

DECREE

The judgments of the district court that recognized dismissal without prejudice and denied Mrs. Hunter’s motion to set aside dismissal are affirmed. Each party to bear its own costs on appeal. See La. C.C.P. art. 2164.

AFFIRMED

      . The dismissal of a lawsuit as abandoned is "without prejudice.” See La. C.C.P. art. 1673; Tasch, Inc. v. Horizon Group, 08-0635, p. 4 (La.App. 4 Cir. 1/7/09), 3 So.3d 562, 565; and DeSalvo v. Waguespack, 187 So.2d 489, 490-491 (La.App. 4th Cir. 1966).

      . The Hunters named the following entities as defendants: R.J. Reynolds Tobacco Co.; Brown & Williamson Tobacco Corporation, individually and as successor by merger to the American Tobacco Co.; Philip Morris, Inc.; Philip Morris Companies, Inc.; Lorillard Tobacco Co.; Liggett Group, Inc.; Quaglino Tobacco and Candy Co.; Imperial Trading Co., Inc.; George W. Groetsch, Inc.; Walgreen Louisiana Co., Inc., d/b/a Walgreen Drug Stores; and Whitney Foods, Inc., d/b/a Whitney Food Store.

      . The jurisprudence provides that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. Schwegmann Family Trust No. 2 v. White III, LLC, 11-0611, p. 13 (La.App. 4 Cir. 9/30/11), 76 So.3d 1228, 1236.

      . Mrs. Hunter has not amended her petition to add wrongful death or survival claims. See La. C.C. art.’s 2315.1 and 2315.2. Similarly, no other surviving heirs, as identified in identified in the foregoing articles, have intervened to assert wrongful death claims. Likewise, no motion to substitute parties has been filed. See La. C.C.P. art. 801.

      . Likewise, Mrs. Hunter made no effort to show that the parties scheduled any discovery conferences between September 28, 2004 and January 7, 2011, which would not have been in the record. See Louisiana Dept. of Transp. and Development v. Oilfield Heavy Haulers, L.L.C., 11-0912 (La. 12/6/11), 79 So.3d 978.

      . The defendants argue to the contrary that Mrs. Hunter’s claims asserted in this action are not covered in the Scott action, especially in the light of Mr. Hunter’s death. They also argue that not all defendants in this action remained parties throughout the Scott litigation.

      . The defendants point out that this action would constitute an "opt-out” from Scott under the recent three-judge panel decision in Duckworth v. La. Farm Bureau Mut. Ins. Co., 11-0837 (La.App. 4 Cir. 11/23/11), 78 So.3d 835, writ granted, 2011-C-2835 (La.3/30/12), 85 So.3d 99, and thus would lose the tolling benefits of the class action.

      . This is a matter which, as we noted in the introduction, ante, we expressly refuse to reach.


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    Roy RASPANTI v. E. John LITCHFIELD and Berrigan, Litchfield, Schonekas, Mann, Trainor and Thompson, L.L.C.
    No. 2011-CA-0993.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 2012.

      Roy Raspanti, Metairie, LA, for Plaintiff/Appellant.
    G. Frederick Kelly, III, G. Frederick Kelly, III, LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

hThe plaintiff, Roy Raspanti, appeals the judgment of the trial court that granted the Exceptions of No Right of Action and No Cause of Action and the Motion to Rescind Order, Or, Alternatively, to Annul Order filed by the defendant, Berrigan, Litchfield, Schoenakas, Mann, Trainor, and Thompson, L.L.C. The judgment struck plaintiffs Second Supplemental and Amending Petition from the record and annulled the order which granted him leave to file the petition.

Based on our review of the record, we find that the plaintiff has a right of action and that the Second Supplemental and Amending Petition states a cause of action. We also conclude that the defendant failed to cite any grounds to rescind or annul the Order that granted plaintiff leave to file the amending petition and that the trial court abused its discretion in disallowing the amendment. Accordingly, the judgment of the trial court is reversed and the matter is remanded to the trial court for proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The underlying action arises out of an attorney fee dispute between attorneys— the plaintiff, Roy Raspanti, and the defendant, Berrigan, Schonekas, 12Mann, Traína and Thompson, L.L.C. (Berrigan Litch-field). Mr. Raspanti contends that E. John Litchfield of Berrigan Litchfield referred him a case in which he obtained a successful recovery on behalf of the clients, Mr. & Mrs. Byrd. However, the Byrds former attorney filed suit against Mr. Ras-panti seeking attorney’s fees based on quantum meruit, tortious interference with a contract and unjust enrichment. Thereafter, Mr. Raspanti filed a complaint against Berrigan Litchfield and Mr. Litch-field, individually. He alleged that they breached a verbal agreement to reimburse him one-half the costs and the fees he incurred in defending himself against the Byrd lawsuit and that they had failed to return the $292,303.15 advance he gave to the firm in consideration for these obligations and E. John Litchfield’s limited assistance in representing the Byrds.

In 2005, the trial court (Judge Ramsey) dismissed Mr. Raspanti’s individual claims against E. John Litchfield. It also dismissed Mr. Raspanti’s claims against Ber-rigan Litchfield with prejudice because he did not comply with an order to respond to Berrigan Litchfield’s discovery demands. The trial court also decided that Mr. Ras-panti’s motion for summary judgment was moot in light of the dismissal with prejudice.

Upon appeal, this Court found that the trial court properly dismissed the cause of action against E. John Litchfield in his individual capacity. However, we also held that the trial court abused its discretion in dismissing Mr. Raspanti’s case with prejudice and ordered that the trial court consider his motion for summary judgment.

On January 15, 2010, Mr. Raspanti filed the Second Supplemental and Amending Petition which is at issue in the present appeal. It named as |sadditional defendants, Berrigan, Danielson, Litchfield, Olsen, Schonekas, and Mann, a partnership including professional law corporations (the “partnership”), and Joe E. Berrigan, Jr., Allen H. Danielson, Jr., Frederick F. Olsen, Jr., E. John Litchfield, and Arthur S. Mann, who were at all times pertinent, partners in the partnership. Judge James Williams signed the Order granting him leave to file the Second Supplemental and Amending Petition on January 20, 2010.

In response to the Second Supplemental and Amending Petition, the defendant filed Exceptions of No Right of Action and No Cause of Action and later, filed a Motion To Rescind Order, Or, Alternatively, to Annul Order, and for Attorney’s Fees.Judge Paulette Irons granted the defendant’s Exceptions of No Right of Action and No Cause of Action and struck the plaintiffs Second Supplemental and Amending Petition. The trial court also annulled the Order from Judge Williams that had granted plaintiff leave to file the supplemental and amending petition.

This appeal followed.

EXCEPTIONS OF NO RIGHT OF ACTION AND NO CAUSE OF ACTION

The plaintiff, Mr. Raspanti, argues in his first assignment of error that the trial court erred in granting the defendant’s Exceptions of No Right of Action and No Cause of Action. Both the exception of no cause of action and the exception of no right of action present questions of law subject to de novo review. Waggoner v. America First Ins., 42,863, p. 3 (La.App. 2 Cir. 1/16/08), 975 So.2d 110, 112-13.

|4The function of the exception of no cause of action is to question whether the law extends a remedy to anyone under the allegations of the petition. Industrial Companies v. Durbin, 02-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213. The court reviews the petition and accepts well-pleaded allegations of facts as true, in the absence of evidence to the contrary. City of New Orleans v. Bd. of Dirs. of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748. The issue at the hearing on the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Everything On Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).

Conversely, the exception of no right of action ' determines whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. It asks whether the particular plaintiff has a real and actual interest in the subject matter of the litigation. , Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015, p. 5 (La.11/30/94), 646 So.2d 885, 888, citing Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

In the instant case, the defendant made no argument that the plaintiff does not have a right of action or that the amending complaint failed to state a cause of action. The trial court also did not find that the plaintiff lacked a cause of action or right of action. The trial court granted these exceptions based on its assessment that the amending petition was prohibited by a February 3, 2005 Case Management Order that stated that all supplemental and amended petitions had been filed. However, as referenced herein, compliance with a case management order is, not among the matters that require review in deciding whether a plaintiff has a cause of action or a right of action.

| ¿Plaintiffs Second Supplemental and Amending Petition seeks relief against the added defendants in their capacity as a partnership and as individual partners within the partnership. Our examination of the petition supports that the plaintiff has a legal right to sue for the damages claimed and the facts of the petition, if taken as true, allow him to recover if he can prove his allegations. Therefore, the trial court erred in granting the defendant’s exceptions of no cause of action and no right of action.

MOTION TO RESCIND ORDER, OR, ALTERNATIVELY, TO ANNUL ORDER

Mr. Raspanti’s second assignment of error alleges that the trial court erred in granting the defendant’s Motion to Rescind Order, Or, Alternatively, Annul Order. He contends that he filed the amended petition to get the proper defendants before the court — the partners and the partnership — so that he could proceed with his motion for summary judgment and to obtain another trial date. The defendant counters that the trial court properly struck the amending petition because it did not receive notice of the filing and was not afforded a contradictory hearing before Judge Williams signed the Order granting the plaintiff leave to file. The defendant also alleges that amended petition was filed for the plaintiff to re-obtain a jury trial and to harass Berrigan Litch-field’s former and retired partners.

The parties acknowledge that La. C.C.P. art. 1151 provides in part that a plaintiff may amend his petition after an answer has been filed only by leave of court or by written consent of the adverse party. In this matter, the plaintiff filed the amended complaint on January 10, 2011, and Judge Williams signed the Order granting leave on January 15, 2011. Based on these facts, La. C.C.P. art. 1151 Rimposed no duty on the plaintiff that required him to give notice to the defendant prior to filing the amended complaint or that mandated a contradictory hearing.

La. C.C.P. art. 2004(A) allows a final judgment obtained by fraud or ill practices to be annulled. Contrary to the defendant’s assertions, our review of the record reveals nothing “unlawful,” “surreptitious,” or any other bad act surrounding the manner in which the plaintiff obtained leave of court that would entitle the defendant to have the order granting leave annulled or rescinded. The plaintiff properly received leave of court' in accordance with La. C.C.P. art. 1151.

Although the current trial judge disallowed the amended petition that had been allowed by the previous trial judge, the decision to disallow amendment of a petition is within the discretion of the trial judge and that decision should not be disturbed on appeal unless there has been abuse of the broad discretion vested in the trial court. Glover v. Shiflett Transp. Servs., Inc., 97-2787 (La.App. 4 Cir. 5/6/98), 718 So.2d 436. Generally, the amendment of pleadings should be liberally allowed, providing the movant is acting in good faith; the amendment is not sought as a delaying tactic; the opponent will not be unduly prejudicial and trial of the issues will not be unduly delayed. Giron v. Hous. Auth. of City of Opelousas, 393 So.2d 1267 (La.1981).

The trial court judge struck plaintiffs amended petition from the record and annulled the previous order from Judge Williams allowing the amendment for the same reason upon which she granted the defendant’s exceptions of no right of action and no cause of action. She reiterated that the amended petition was filed subsequent to the February 3, 2005 Case Management Order that had represented that all supplemental and amended petitions had been filed. However, the trial court judge did not find that Mr. Raspanti acted in bad faith; that the amendment |7served as a delaying tactic; that the amendment would unduly prejudice the defendant; or that trial would be unduly delayed by the amendment when it granted the defendant’s request to rescind or annul the previous trial court order that had allowed the amendment.

The trial court based its judgment on a 2005 Case Management Order that is essentially inoperative. Given that Louisiana law favors the allowance of amended pleadings, the fact that the amended pleading was allowed by the previous trial court judge, and because the present trial court judge made no finding that the amended pleading was filed for an improper reason, we hold that the trial court abused its discretion in granting the defendant’s Motion to Rescind Order, Or, Alternatively, to Annul Order.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED

      . Raspanti v. Litchfield, 05-1512, 06-0331 (La.App. 4 Cir. 11/21/06), 946 So.2d 234.

      . Judge Williams was appointed ad hoc in Division J of Civil District Court, Parish of Orleans due to the retirement of Judge Ramsey.

      . Judge Irons replaced Judge Williams as the trial court judge. .


text:
    SUCCESSION OF Edward A. HORRELL, Sr.
    No. 2011-CA-1577.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.
    Rehearing Denied May 23, 2012.
    See also, 680 So.2d 725, 709 . So.2d 1069, 993 So .2d 354, 977 So.2d 62, and 79 So.3d 1162.
    Jack M. Alltmont, Eric M. Schorr, Brandon H. Robb, Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Ap-pellees, Gaye H. Coffer, Michael J. Hor-rell, Edward Horrell, Jr., & Marie Elise Lecour.
    Kathleen D. Lambert, Stephenson Cha-varri & Lambert, L.L.C., New Orleans, LA, for Appellee, Lisa C. Matthews.
    Walter J. Horrell, Covington, LA, pro se.

      (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   TERRI F. LOVE, Judge.

|; This appeal arises from protracted litigation surrounding a succession. The plaintiff filed a motion to fix compensation and expenses, which the trial court granted and awarded the plaintiff $10,000. The plaintiff alleges that the trial court is biased against him and should have awarded him more money. We find that the trial court did not err in awarding $10,000 and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Walter Horrell, his siblings, and Lisa Matthews, the current provisional adminis-tratrix, have been involved in protracted litigation regarding Edward Horrell, Sr.’s succession (“Succession”) since 1993. See In re Succession of Horrell, 11-0194; 11-0195 (La.App. 4 Cir. 11/30/11), 79 So.3d 1162; In re Succession of Horrell, 07-1533 (La.App. 4 Cir. 10/1/08), 993 So.2d 354; Matthews v. Horrell, 06-1973 (La.App. 1 Cir. 11/7/07), 977 So.2d 62; Succession of Horrell, 97-2115 (La.App. 4 Cir. 3/25/98), 709 So.2d 1069; and Succession of Horrell, 95-1598; 95-1599 (La.App. 4 Cir. 9/11/96), 680 So.2d 725.

The appeal sub judice only pertains to Mr. Horrell’s motion to fix compensation and expenses for the time and money he expended as the executor of the Succession from July 17, 1993, to January 1997. Mr. Horrell sought $20,055 |2for compensation and $50,217.96 for expenses. The trial court granted Mr. Horrell’s motion, awarding him $10,000. Mr. Horrell’s motion for a devolutive appeal followed.

STANDARD OF REVIEW

“ ‘[T]he appellate court should not disturb’ ” factual findings “ ‘In [sic] the absence of manifest error.’ ” Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978), quoting Canter v. Koehring, 283 So.2d 716, 724 (La.1973). “Therefore, the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong (manifestly erroneous).” Arceneaux, 365 So.2d at 1333.

COMPENSATION AND EXPENSES

Mr. Horrell contends that the trial court was biased and ignored his evidence; thereby erring by only awarding him $10,000.

An executor shall be allowed as compensation for his services such reasonable amount as is provided in the testament in which he is appointed. An administrator for his services in administering a succession shall be allowed such reasonable amount as is provided by the agreement between the administrator and the surviving spouse, and all competent heirs or legatees of the deceased.
In the absence of a provision in the testament or an agreement between the parties, the administrator or executor shall be allowed a sum equal to two and one-half percent of the amount of the inventory as compensation for his services in administering the succession. The court may increase the compensation upon a proper showing that the usual commission is inadequate.
|aA provisional administrator or an administrator of a vacant succession shall be allowed fair and reasonable compensation by the court for his services.
The compensation of a succession representative shall be due upon the homolo-gation of his final account. The court may allow an administrator or executor an advance upon his compensation at any time during the administration.

La. C.C.P. art. 3351. However, Comment (h) of the official revision comments provides that “[t]here is no statutory provision dealing with forfeiture of compensation where the administrator has been guilty of maladministration.” Comment (h) further states that “[s]ince the jurisprudence covers the question adequately, no specific article providing for forfeiture under such circumstances is necessary.” See Succession of Touzanne, 36 La.Ann. 420 (1884) and Succession of Liles, 24 La.Ann. 490 (1872). Penalizing an executor/administrator for the improper handling of an estate, maladministration, or wrongdoing is within the discretion of the court. Succession of Gandolfo, 173 La. 190, 136 So. 561 (1931).

Regarding Mr. Horrell’s duties as the executor for less than four years and his subsequent actions, the trial court stated in its reasons for judgment:

At issue is whether Walter should be compensated as a testamentary executor for his efforts to see that the testament was faithfully executed. The facts in this case present a unique situation in which the Court finds that Walter is not entitled to be compensated for his efforts. This Court must note Walter’s role in having his deceased father execute a will which was later determined to be confected without testamentary capacity. This Court believes that Walter was aware that his father lacked testamentary capacity prior to executing the will, but nevertheless submitted the document to him. To reward Walter’s efforts simply flies in the face of sound legal principles. It would reward him for doing exactly what he should not have done.
Walter is, however, entitled to expenses and legal fees incurred in the administration of the estate. It is next to impossible to calculate those fees and expenses with absolute accuracy as what has been submitted is | intertwined with the efforts to defend the purported will. This Court estimates those fees and expenses at $10,000 which is twice what the administratrix offered him in 1999.

We agree with the trial court judge’s characterization of Mr. Horrell’s listing of fees and expenses. Mr. Horrell’s listing includes time and expenses spent defending the version of his father’s will he sought to probate. The will was later invalidated by this Court, which prevented Mr. Horrell from receiving great monetary gain. Succession of Horrell, 95-1598; 95-1599 (La. App. 4 Cir. 9/11/96), 680 So.2d 725. Additionally, this case presents a unique situation wherein the trial court judge has been handling this matter for almost twenty years. The trial court judge understands every nuance presented in the facts and circumstances of this case. Therefore, after reviewing the record, we do not find that the trial court’s factual findings regarding the amount owed to Mr. Horrell was manifestly erroneous. Accordingly, we affirm.

DECREE

For the above mentioned reasons, we do not find that the trial court erred in awarding Mr. Horrell $10,000.

AFFIRMED

      . The transcript of the trial court proceedings referred to by Mr. Horrell in his briefs is not contained in the record of the case sub judice.


text:
    CRESCENT CITY PROPERTY REDEVELOPMENT ASSOCIATION, LLC, William W. Alden, M.D., and Ashley S. Alden v. Ford T. HARDY, Jr. and XYZ Insurance Company.
    No. 2011-CA-1292.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 2012.
    Rehearing Denied May 23, 2012.

      Jack H. Tobias, Law Offices of Jack H. Tobias, P.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    E. Phelps Gay, Mary Beth Meyer, Christovich & Kearney, LLP, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge DANIEL L. DYSART.
   TERRI F. LOVE, Judge.

hDr. and Mrs. Wesley Alden and Crescent City Property Redevelopment Association, LLC, a limited liability company owned by Dr. Alden (collectively, “the Al-dens”), filed a legal malpractice suit in the Civil District Court of Orleans Parish against Attorney Ford T. Hardy, Jr., (“Attorney Hardy”), alleging his negligent legal representation caused a federal jury in the United States District Court for the Eastern District of Louisiana to render judgment in favor of USAA. The jury’s judgment was subsequently affirmed by the United States Fifth Circuit Court of Appeals.

Attorney Hardy filed a motion for summary judgment, alleging that after significant time for discovery had lapsed, no discovery had been conducted by Plaintiffs and that no witness or evidence had been presented to carry Plaintiffs’ burden of establishing that he breached any duty owed to them. After finding no genuine issue of material fact, the trial court granted the motion for summary judgment.

The Aldens subsequently filed a motion for rehearing on one issue regarding Attorney Hardy’s motion for summary judgment, which was denied by the trial court.

laAfter conducting a de novo review of the record in light of the applicable law and arguments, we conclude the trial court did not commit error in granting summary judgment in favor of Attorney Hardy.

FACTS AND PROCEDURAL HISTORY

Appellee Hardy was retained by the Al-dens for Katrina-related claims against them property insurer, USAA Casualty Insurance Company. Upon the request of the Aldens, Attorney Hardy engaged Attorney Jack M. Alltmont to serve as co-counsel. Mr. Alltmont is an experienced attorney admitted to practice since 1970, and he has been the managing partner of his law firm for twenty (20) years. After a four-day trial in the United States District Court for the Eastern District of Louisiana, the jury rendered judgment in favor of USAA and dismissed the Aldens’ case. The judgment was subsequently affirmed by the United States Fifth Circuit Court of Appeals. This Court notes the record is void of any transcripts or any other documents related to the federal court trial.

On October 7, 2009, the Aldens filed a legal malpractice lawsuit against Attorney Hardy, alleging that his negligent representation resulted in the unfavorable judgment and the dismissal of their case. Attorney Hardy filed an exception of vagueness to the petition, which was denied. He later filed a motion for summary judgment, asserting the Aldens did not support any of their negligence claims. He also contended the Aldens failed to produce an expert to establish the applicable standard of care and to establish that Attorney Hardy’s conduct fell below the applicable standard of care. The trial court granted the motion for summary judgment. The Aldens filed a motion for a rehearing on one summary judgment issue, which the trial court denied.

[sThe Aldens now appeal the trial court’s granting of Attorney Hardy’s motion for summary judgment. They are not, however, appealing the trial court’s denial of the rehearing motion.

ASSIGNMENTS OF ERROR

1. The Aldens assert the trial court erred by granting Appellee Hardy’s motion for summary judgment, dismissing their case, after finding that they failed to engage a legal malpractice expert on the issue of alleged malpractice committed by Attorney Hardy by engaging a public adjusting expert who allegedly developed a large financial interest in the litigation;
2. The Aldens assert the trial court erred by granting Appellee Hardy’s motion for summary judgment, dismissing their case, after finding that they did not engage a legal malpractice expert on the issue of Attorney Hardy’s purported failure to object to allegedly inadmissible and unauthenticated photographs used for the impeachment of Dr. Alden.

LAW AND DISCUSSION

Standard of Review

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230-281, the Louisiana Supreme Court discussed the standard of review of a summary judgment as follows:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary-judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was | ¿amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows:
“The burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

See also Austin v. Abney Mills, Inc., 2001-1598 (La.9/04/02), 824 So.2d 1137; Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App. 4 Cir. 5/22/02), 819 So.2d 1129; Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409, 2000-2410 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, writ denied, 2002-0509 (La.4/26/02), 814 So.2d 558.

A moving party who does not bear the burden of proof at trial must point out an absence of factual support for one or more elements essential to the adverse party’s claim. La.Code Civ. Proc. art. 966(C)(2). If the non-moving party fails to produce contrary factual support sufficient to establish it will be able to satisfy the eviden-tiary burden of proof at trial, there is no genuine issue of material fact. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137.

Establishing Legal Malpractice Claim

In order to establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence.

IfiThe plaintiff has the burden of proving the defendant failed to “exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality.” Typically, a plaintiff will retain an expert witness both to establish the standard of care for prudent attorneys in the relevant locality and to show the defendant’s actions fell below the standard of care. MB Industries, LLC v. CNA Ins. Co., 2011-0303, p. 15 (La.10/25/11), 74 So.3d 1173, 1184 (Citations omitted).

Once a prima facie case of malpractice has been made by plaintiff, the burden of proof shifts to defendant and the attorney bears the burden of proving that the litigation would have been unsuccessful. Drury v. Fawer, 527 So.2d 423, 424 (La.App. 4th Cir.1988), citing Jenkins v. St. Paul Fire & Marine Insurance Company, 422 So.2d 1109 (La.1982); Cabot, Cabot & Forbes Co. v. Brian, Simon, Peragine, Smith & Redfearn, 568 F.Supp. 371 (E.D.La.1983).

The Louisiana Supreme Court recently opined that expert testimony is not necessary when the alleged legal malpractice is “obvious” or the defendant attorney committed “gross error.” MB Industries, supra, p. 16, 74 So.3d at 1184-1185. The Court acknowledged that the obviousness of an attorney’s malpractice could be the subject of judicial notice. Id.

In the case at bar, it is undisputed that an attorney-client relationship existed between Attorney Hardy and the Aldens. The establishment of a legal malpractice claim requires not only an attorney-client representation, but also a showing of negligent representation by the attorney. The Aldens did not introduce any competent expert witness testimony or affidavits; therefore, summary judgment for Attorney Hardy is proper unless the undisputed facts establish malpractice which |fiwas so obvious that a lay person would recognize it as falling below the necessary standard of care.

Alleged Negligent Engagement of the Public Adjuster

The Aldens argue that Attorney Hardy impaired their case by engaging Cynthia Montgomery as the Plaintiffs’ public adjusting expert. They specifically assert that it was the impeachment of Ms. Montgomery’s testimony regarding her fees that resulted in the loss of their case.

The Aldens have provided only eoncluso-ry statements to make their allegation that Attorney Hardy’s engagement of Ms. Montgomery resulted in the loss of them case. The record is void of any evidence or expert testimony which supports their contention. Such conclusory statements are not sufficient to establish the requisite prima facie ease because they do not contain facts which establish negligence on Attorney Hardy’s part. These statements are merely the opinions of a non-prevailing party at the conclusion of litigation.

We do not find the trial court erred by not relying upon the lay opinions of the Aldens to form its legal opinion after hearing oral arguments and reviewing the limited record on the motion for summary judgment.

Alleged Failure to Discredit Photographs and the Testimong of Van Fisher

The Aldens also contend that Attorney Hardy failed to attack the credibility of the photographs introduced as impeachment evidence by USAA, and that he failed to challenge the credibility of Van Fisher, USAA’s expert witness who provided the photographs.

|7The deposition testimony of Attorney Jack Alltmont, Attorney Hardy’s co-counsel, acknowledged that Fisher did a good job testifying for USAA. Attorney Allt-mont called Fisher “an excellent witness” for USAA. Contrary to the Aldens’ allegations, Attorney Alltmont unequivocally stated that he had no reason to believe there was any failure on Attorney Hardy’s part to do discovery which resulted in the loss of the Aldens’ case.

The record is void of any testimony or evidence that shows the trial court erred by granting Attorney Hardy’s motion for summary judgment.

Non-obvious Negligence

’ The assignments of error presented by the Aldens involve trial strategy and the performance of Attorney Hardy. To determine the standard of care and possible deviations from the standard, an evaluation of Attorney Hardy’s trial tactics should be done by legal experts — not by laymen or judges. We conclude the alleged legal malpractice was not obvious, and as such, it was necessary to present expert testimony to oppose the testimony of Attorney Jack Alltmont.

“An attorney is obligated to exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality. He is not required to exercise perfect judgment in every instance. However, the attorney’s license to practice and his contract for employment hold out to the client that he possesses certain minimal skills, knowledge, and abilities.” Ramp v. St. Paul Fire and Marine Ins. Co., 263 La. 774, 269 So.2d 239, 244 (1972). The Ramp court, in dicta, indicated that it would find legal malpractice in the absence of expert testimony when an attorney ignores an “obvious” legal problem. Id., 269 So.2d at 244.

|sIn the case at bar, the record is devoid of any testimony that would indicate that the actions of Attorney Hardy were below the standard of professional conduct or that there was an obvious legal problem. The Aldens make only conclusory statements in their response to Attorney Hardy’s motion for summary judgment. According to the uncontradieted testimony of Attorney Alltmont, Attorney Hardy’s conduct did not fall below the standard of care and Attorney Hardy was not the cause of the unfavorable judgment rendered by the jury. The jury merely exercised its right to render a judgment in favor of USAA, with said judgment being upheld by the United States Fifth Circuit Court of Appeals. See Crescent City Redevelopment Assoc. v. USAA Cas. Ins. Co., 409 Fed. Appx. 723 (5th Cir.2010).

The Aldens have failed to prove how their allegations of negligence resulted in the outcome of their case. The claims levied by the Aldens are the types of allegations that require expert testimony to establish whether Attorney Hardy’s actions were within the standard of care for a reasonably competent attorney in the New Orleans area.

This Court has held that attorneys are “obligated to perform with all reasonable diligence, but they cannot be faulted for not being perfect. Legal representation in the handling of litigation and a trial cannot be perfect. It is a series of challenges and problems requiring judgment calls at every juncture along the way. In this kind of activity mistakes are inevitable and perfection is impossible.” Drury v. Fawer, 527 So.2d 423, 425-426 (La.App. 4th Cir. 1988).

InDECREE

After conducting a de novo review of the record in light of the applicable law and arguments, we conclude the trial court did not commit error in granting summary judgment in favor of Attorney Ford T. Hardy, Jr.

AFFIRMED

      . We reiterate the record is void of any testimonial or documentary evidence from the original trial in the United States District Court for the Eastern District of Louisiana.


author: MAX N. TOBIAS, JR., Judge.

text:
    SUCCESSION OF Bernard F. SAMUEL, Sr. Barbara S. Bretz v. Barry N. Samuel.
    Nos. 2011-CA-1511, 2011-CA-1512.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 2, 2012.
    Rehearing Denied June 21, 2012.

      Jack M. Alltmont, Peter S. Title, Sessions Fishman Nathan <& Israel, L.L.P., New Orleans, LA, for Appellant, Barbara Samuel Bretz.
    Bruce Anthony Miller, Metairie, LA, for Appellee, Barry N. Samuel.
    Lila Molaison Samuel, Gretna, LA, for Appellee, Gary Samuel, Christopher Samuel, Stephen Samuel.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   MAX N. TOBIAS, JR., Judge.

| T Barb ara Gail Samuel Bretz (“Barbara”) appeals the trial court’s judgment holding that a 30 July 1998 act of sale validly transferred a 50% ownership interest in commercial real estate in New Orleans located at 939 South Jefferson Davis Parkway (“the Property”) from Bernard F. Samuel, Sr. (“Bernard, Sr.”) to the appel-lee, Barry N. Samuel (“Barry”). For the reasons that follow, we affirm.

This case involves the current ownership of the Property, which was originally acquired by Bernard, Sr. and his first wife, Bertha Samuel (“Bertha”), in 1963 as community property. Of Bernard, Sr.’s first marriage to Bertha, three children were born: Bernard, Jr., Barry, and Barbara.

Pursuant to an act of sale dated 30 July 1998, Bernard, Sr. sold the Property to Barry for $250,000.00, payable $200,000.00 in cash (for which the previous payments of rent for the Property was acknowledged at the time of sale as full payment thereof) and the balance of $50,000.00 payable in twenty equal monthly installments of $2,500.00, without interest, commencing at the act of sale. The | ^record on appeal establishes that the 1998 act of sale in authentic form was registered and recorded, respectively, in conveyance and mortgage records of Orleans Parish on 6 August 1998. A 24 December 1995 general power of attorney naming Dorothy Jones Samuel (“Dorothy”), Bernard, Sr.’s second wife, as Bernard, Sr.’s attorney-in-fact was also registered and recorded in the conveyance and mortgage records on that date with the act of sale.

Barry’s sister, Barbara, contends the sale of the Property was invalid for lack of consideration and because the general power of attorney used in the transaction was executed at a time when Bernard, Sr. was mentally incompetent. Barbara further contends that while the act of sale purported to transfer a 100% interest in the Property to Barry, at the time of the sale, Bernard, Sr. only owned a 50% undivided interest in the Property. The remaining 50% interest was co-owned in indivisión by Barry, Barbara, and the surviving children of Bernard, Jr.

In April 2001, Bernard, Sr. died testate, leaving a 1994 statutory will naming Barbara and Barry as co-trustees and Barry as executor. Bernard, Sr.’s statutory will provided for one-third of his estate to go to Barry, and the balance to be placed in trust for Barbara and the children of Bernard, Jr. Bernard, Sr. also left an olo-graphic 1995 will favoring his second wife, Dorothy (“Dorothy”).. In a 29 May 2008' judgment, the olographic will was declared null on the ground that, though | sBernard, Sr. had significant and sustained periods of lucidity, he lacked testamentary capacity. Thereafter, the 1994 statutory will was probated.

On 26 April 2010, Barry and Barbara jointly filed a petition for possession, to which was attached a verified affidavit signed by them, recognizing that the only asset remaining in Bernard, Sr.’s succession was the Upstream Shopping Center, another parcel of real estate. The petition further recognized that all of the assets that existed at the time of Bertha’s death were liquidated with the exception of the remaining interest in the Uptown Shopping Center. Thus, Barbara acknowledged under oath the previous transfer of the Property by Bernard, Sr.

On 30 April 2010, Barbara filed a petition to annul the judgment of possession on the basis that Barry failed to file a final accounting. Thereafter, a final accounting was prepared and filed. No objection to the final accounting is contained in the record on appeal.

On 14 June 2010, Barbara filed a motion to traverse the sworn descriptive list and to supplement and amend the judgment of possession alleging that both documents failed to include Bernard, Sr.’s 50% interest in the Property and that the Property, therefore, remained an unpartitioned asset of Bernard, Sr.’s estate. Barbara also filed a notice of lis pendens.

|Jn a separate action, Barbara by petition sought to rescind the 1998 act of sale of the Property by Bernard, Sr. to Barry on the grounds the purported sale was invalid and, thus, the Property legally belonged to the successors of Bertha and Bernard, Sr. in accordance with their respective wills. Thereafter, Barry filed a motion for summary judgment seeking to dismiss Barbara’s petition to rescind the sale of the Property, an exception of acquisitive prescription, and an exception of no right of action as to Michael Bretz, Barbara’s son, who joined his mother in her motion to traverse. Barbara then moved for summary judgment seeking to have the 1998 act of sale declared invalid.

The trial court granted Barry’s motion for summary judgment, in part, holding that Barry, Barbara, and the three children of Bernard, Jr., were the co-owners of Bertha’s 50% interest in the Property, and that Barry was the owner of the remaining 50%, having validly purchased Bernard, Sr.’s 50% in the Property prior to his death. In holding that the sale of the Property was valid, the trial court determined that because the act of sale was properly recorded at the time of purchase, just title to Bernard, Sr.’s 50% interest in the Property transferred to Barry. Further, because Barry held just title and maintained uninterrupted possession of the Property in good faith for ten years, the court held that acquisitive prescription applied and Barbara’s claim to rescind the 1998 sale was | ¿untimely. Regarding the power of attorney, the court, in oral reasons for judgment, stated:

I don’t think [the power of attorney] is relevant because Barry Samuel isn’t here claiming a prescription as a good-faith possessor. But even if he were, there’s nothing in the record to show that Mr. Samuel was not in good faith, even if Dorothy Samuel had obtained that power of attorney by duress or Bernard Samuel was somehow incapacitated when he executed it. I don’t think there’s any evidence to show that Mr. Samuel was in bad faith. He clearly bought the property in good faith. I don’t think it’s relevant... ,

Barbara suspensively appealed the judgment. Barry neither appealed nor answered Barbara’s appeal.

Barbara assigns six errors allegedly committed by the trial court; however, the parties agree that the central issue on appeal is whether the purported 30 July 1998 act of sale validly transferred title of the Property to Barry. Specifically, Barry claims that the act transferred Bernard, Sr.’s 50% ownership interest in the Property to him. Contrariwise, Barbara contends that the act was invalid and transferred no title whatsoever. Because we conclude that the 1998 act of sale was a valid sale and legally transferred Bernard, Sr.’s 50% interest in the Property to Barry prior to Bernard, Sr.’s death, with the remaining 50% interest being co-owned one-third of one-half each by Barry, Barbara, and Bernard, Jr.’s three |fichildren, for the reasons that follow, we affirm the trial court’s granting of summary judgment and pretermit discussion of the remaining issues raised by Barbara relative to ten-year acquisitive prescription and donation in disguise.

An appellate court reviews the trial court’s grant or denial of a motion for summary judgment de novo using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. La. C.C.P. art. 966; Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Based upon our de novo review of the record in this case, we find the evidence supports a finding in favor of Barry as the legal owner of Bernard, Sr.’s 50% interest in the Property and, thus, affirm the trial court’s granting of summary judgment, in part, but on different grounds.

Specifically, we find that La. R.S. 9:5647 is dispositive as to the validity of the 1998 act of sale in this case. It provides:

A. Any action to set aside a document or instrument on the ground that the party executing the document or instrument under authority of a power of attorney was without authority to do so, or that the power of attorney was not valid, is prescribed by five years, beginning from the date on which the document or instrument is recorded in the conveyance records, or the mortgage records if appropriate. Nothing contained in this Section shall be construed to limit or prescribe any action or proceeding which may arise between a principal and the person acting under authority of a power of attorney.
B. The prescriptive period established by Subsection A of this Section shall be retroactive and shall apply to all such documents whether recorded prior to or after August 15, 2008; however, as to any documents recorded prior to August 15, 2008, as to which prescription has not already run and become final, the prescriptive period established by Subsection A of this Section shall become final and complete ten years from the date the document was recorded or August 15, 2013, whichever occurs first.

| 7In the case at bar, Barbara seeks to set aside the 1998 act of sale on the ground that the power of attorney used by Dorothy to convey the Property to Barry was invalid because Bernard, Sr. was mentally incompetent when he signed the procuration and, therefore, lacked capacity in 1995 to execute it. Specifically, Barbara contends that, as the court found in the 2002 succession proceedings when it declared Bernard, Sr.’s olographic will invalid based upon his lack of mental capacity, the evidence suggests that Bernard, Sr.’s mental condition increasingly declined during 1995 such that by December 1995, when Bernard, Sr. granted Dorothy the general power of attorney, Bernard, Sr.’s mental capacity was worse than it had been in February 1995 when the olographic will was executed. Barbara urges that Barry knew his father lacked mental capacity in December 1995 when he executed the general power of attorney as evidenced by the pleadings Barry filed in the prior succession proceedings asserting his father’s mentally incapacity to execute the olo-graphic will and also attacking Dorothy’s use of this same power of attorney to divert other assets to herself contrary to his father’s interests. Further, Barbara contends that Barry knowingly took title to the Property in bad faith because he knew Dorothy was acting contrary to Bernard, Sr.’s intentions when she sold him the Property using the power of attorney. Accordingly, Barbara claims that because the power of attorney used to effectuate the sale was invalid due to Bernard, Sr.’s lack of mental capacity to execute the document, then the act of sale was likewise defective to transfer valid title to the Property to Barry. We disagree.

lsThe record evidence establishes the 1998 act of sale was in authentic form and was properly registered and recorded, respectively, in the conveyance and mortgage records of Orleans Parish in August 1998, along with the power of attorney. Barbara did not file any action to rescind or otherwise set aside the sale until 2010. By the express provisions of La. R.S. 9:5647, Barbara’s claim to set aside the sale on the ground that the power of attorney was invalid was prescribed in August 2008, five years from the date the act of sale was recorded and/or registered. Accordingly, we find the 1998 act of sale validly transferred title to Bernard, Sr.’s 50% interest in the Property to Barry.

Barbara additional contention that the act of sale should be set aside because, despite a stated consideration of $250,000.00 in the act, no money ever changed hands between Barry and Dorothy as Bernard, Sr.’s agent. We disagree.

Consideration is an essential element in the sale of immovable property. La. C.C. art. 2464 provides:

The price must be fixed by the parties in a sum either certain or determinable through a method agreed by them. There is no sale unless the parties intended that a price be paid.
The price must not be out of all proportion with the value of the thing sold. Thus, the sale of a plantation for a dollar is not a sale, though it may be a donation in disguise.

In the instant case, the parties agreed upon a fixed price of $250,000.00 for the Property. The act of sale provides in pertinent part:

| .This sale is made and accepted for and in consideration of the price and sum of TWO HUNDRED FIFTY THOUSAND AND NO/100 ($250,000.00) DOLLARS, in part payment and deduction whereof the said Purchaser has well and truly paid, in ready and current money the sum of TWO HUNDRED THOUSAND AND NO/100 ($200,000.00) DOLLARS to the said Vendor who hereby acknowledges the receipt thereof, and grants full acquittance and discharge thereof. And for the balance of said purchase price to wit: the sum of FIFTY THOUSAND AND NO/100 ($50,000.00) DOLLARS, that amount shall be payable in twenty (20) equal monthly installments in the amount of TWO THOUSAND FIVE HUNDRED AND NO/100 ($2,500.00) DOLLARS each per month until said amount is paid in full.

After the parties agree upon the price, a separate and distinct issue arises: the discharge of the buyer’s obligation to pay the price. La. C.C. art. 2549. The price may be paid on the day of the transfer or at some later date. La. C.C. art. 2550. Interest on the unpaid price may or may not be stipulated according to the will of the parties. La. C.C. art. 2553. The term of payment given by the seller to the buyer and the provisions for interest or lack thereof do not make the purchase price uncertain. To hold otherwise would contradict the plain terms of La. C.C. art. 2464. See generally, Guerin v. Guerin, 449 So.2d 1053 (LaApp. 1st Cir.1984).

In the instant case, Barbara disputes the stated consideration in the act as actual consideration sufficient to transfer title because the transaction did not provide any benefit to Bernard, Sr. or to his succession. The act acknowledges $200,000.00 of the $250,000.00 purchase price as paid. Specifically, Dorothy gave Barry credit for $200,000.00 in rental payments that Barry previously paid to Bernard, Sr. under an oral lease of the Property. The remaining $50,000.00 to be paid in twenty equal monthly installments, according to Barbara, consisted of an obligation that Barry already owed to Bernard, Sr. pursuant to the terms of the oral h please of the Property to pay the monthly rent. Accordingly, because no new benefit was conferred upon Bernard, Sr. in the act of sale of the Property, Barbara contends that the sale was invalid. We disagree.

In Louisiana, our law recognizes that previously paid rent (e.g., rent-to-own) is appropriate consideration for an act of sale of immovable property. See Zeller v. Webre, 09-45 (LaApp. 5 Cir. 5/26/09), 17 So.3d 55; see also Bennett v. Porter, 10-1088 (LaApp. 3 Cir. 3/9/11), 58 So.3d 663. Further, even if we were to assume, for the sake of argument, that the $200,000.00 credit given for past rents paid did not constitute valid consideration, it is undisputed that Barry paid the remaining $50,000.00 credit portion of the sale to Bernard, Sr. as contemplated by the act of sale. We find this was sufficient consideration for the purchase of Bernard, Sr.’s 50% interest in the Property that he conveyed to Barry.

Accordingly, our de novo review of the appellate record supports the trial court’s granting of summary judgment in favor of Barry finding him to be the valid owner of his father’s 50% interest in the Property. Accordingly, we affirm the trial court’s ruling.

AFFIRMED.

      . Bernard, Jr. died in April 1977, predeceasing both of his parents, and was survived by three minor children: Gary R. Samuel, Christopher N. Samuel, and Steven D. Samuel.

      . Barry had been leasing the Property for $2,500.00 per month from Bernard, Sr. since the 1970s.

      . Bertha died testate in February 1990, leaving her community share, including her undivided 50% interest in the Property, in trust to Barry and Barbara and to the children of her deceased son, Bernard, Jr. Barry and Barbara each owned one-third, and Bernard, Jr.’s children owned the remaining one-third. That trust was subsequently terminated.

      . Ultimately, a Settlement and Release Agreement was executed between Dorothy and the family whereby Dorothy surrendered any interest in Bernard, Sr.’s succession in return for an annuity.

      . The record reflects that the Uptown Shopping Center was purchased by Bernard, Sr. and Bertha in 1972. According to Barry, his parents used their retained earnings in the amount of $240,000.00 from a family-owned company; B. Samuel Co., Inc., as a down paymént for the purchase price of the shopping center. Further, Barry claims, and Barbara does not dispute, that both Barbara and Bernard, Jr. had previously received their respective shares of the buyout of B. Samuel Co., Inc., while Barry received no monies or cash equivalents for his portion, his share having been used by his parents to purchase the shopping center.

      .In the judgment of possession dated 26 February 2010, as the independent testamentary executor and co-trustee of the Bernard, Sr. testamentary trust, Barry was "discharged and relieved from the obligation of making accountings, including the final accounting, to the legatees.”

      . This action was filed on 30 December 2010, in proceedings captioned: "Barbara S. Bretz v. Barry N. Samuel,” number 2010-13143 on the docket of the Civil District Court. Barry filed a motion to consolidate and transfer the proceeding with the instant proceeding, which was done.

      . Barry also filed a rule to show cause why the notice of lis pendens previously filed by Barbara should not be dismissed and why Barbara should not be removed as co-trustee of the testamentary trust established by Bernard, Sr. in his will.

      . Barry asserted full ownership of the Property by virtue of the 1998 act of sale, but the trial court determined that Bernard, Sr. only owned a 50% interest in the Property and therefore, this was all that Bernard, Sr. was capable of conveying in the 1998 act of sale.

      . See footnote 3 above.

      . In doing so, the court granted, in part, Barbara’s petition to rescind the sale of the Property, insofar as the judgment recognized Barbara, Barry, and the children of Bernard, Jr. as owners of Bertha’s 50% interest in the Property.

      . The trial court also denied Barbara’s motion for summary judgment, in addition to denying her motion to traverse the sworn descriptive list and to supplement and amend the judgment of possession. Further, the court dismissed Barbara's notice of lis pen-dens with prejudice and granted Barry's exception of no right of action with respect to the claims of Michael Bretz. Barry's motion to remove Barbara as testamentary co-trustee of the trust established by Bernard, Sr.’s will was continued without date.

      . While Barry originally claimed that the 1998 act of sale transferred full ownership of the Property to him, on appeal, he concedes that "the decisions of the trial court (i.e., finding him to be the owner of his father's 50% interest and an equal co-owner of his mother’s 50% interest) are correct and should be sustained on appeal.”

      . According to Barbara, Bernard, Sr.’s intention relative to the sale of the Property— which intention she claims were known to Barry — was that Barry could purchase the Property after Bernard, Sr.’s death at fair market value.

      . It is apparent that La. R.S. 9:5647 was enacted to give further security and finality to titles to real estate transferred by a procuration executed by the seller. See McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909).

      .Consideration is an inducement given to enter into a contract that is sufficient to render the promise enforceable in the courts. For consideration to be valid, the things exchanged must be of some legal value. In a contract for the sale of immovable property, the money paid is the • consideration for the seller, and the property sold is the consideration for the purchaser.

      . Not only did the sale transfer title of the Property to Barry, but simultaneously ended the obligations of Bernard, Sr. to pay taxes, insurance, et cetera, as well as the risks associated with ownership of real estate.


author: COOKS, Judge. AMY, J.,

text:
    ULTRA PURE WATER TECHNOLOGIES, INC. v. STANDEX INTERNATIONAL CORP. d/b/a Master-Bilt, et al.
    No. 11-1531.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 2012.
    Rehearing Denied June 20, 2012.

      Bob F. Wright, Thomas R. Edwards, Domengeaux, Wright, Roy & Edwards, Lafayette, LA, Walter C. Thompson, Jr., Thomas E. Schwab, Mark P. Seyler, Barkley & Thompson, L.C., New Orleans, LA, for Plaintiff/Appellant, Ultra Pure Water Technologies, Inc.
    Richard B. Eason, II, Joseph W. Looney, Raymond P. Ward, Adams & Reese LLP, New Orleans, LA, for Defendant/Ap-pellee, Standex International Corporation d/b/a Master-Bilt.
    Court composed of SYLVIA R. COOKS, MARC T. AMY and PHYLLIS M. KEATY, Judges.
   COOKS, Judge.

hln this appeal, Plaintiff contends the trial court erred in granting Defendant’s motion for summary judgment dismissing its entire case-in-chief. Finding summary judgment was not appropriate at this stage in the proceedings, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff in this matter is Ultra Pure Water Technologies, Inc. (hereafter Ultra Pure), a company based in Lafayette. Ultra Pure developed, marketed and sold a product called the “ICEX Ice Island,” a system that makes, bags, stores, and vends ice on site for sale at retail locations. The “ICEX Ice Island” consists of three components: (1) an ice-making machine on top, which drops the newly-made ice into, (2) a bagging machine, which bags the ice and drops the bagged ice into a (3) “merchandiser” or freezer, from which the public can then purchase the bagged ice.

Ultra Pure’s business model is “to lease the ICEX Ice Island systems to retail grocery stores and convenience store chains, either directly or through a leasing company under a favorable lease financing arrangement.” Ultra Pure explained leasing enables it to share in the retailer’s revenue stream from the bags of ice sold, without any significant capital outlay by the retailer. The retailer either directly pays Ultra Pure a fee on a cents-per-bag formula, or, when lease financing is involved, the retailer pays the leasing company, which then accounts to the lender and Ultra Pure for its share.

The cuber or ice making component was made by a Japanese company, Hoshizaki, which is not involved in this litigation. Ultra Pure hired a contract manufacturer, Courtesy Manufacturing Company and its subsidiary, CMC Refrigeration, Inc. (hereafter CMC) to make the baggers and merchandisers. CMC |2made the baggers, but subcontracted the design and manufacture of the freezers to Standex International Corporation, through its Master-Bilt Division (hereafter Master-Bilt).

Between 2005 and 2007, Ultra Pure purchased from CMC approximately 140 of the Master-Bilt freezers. They were installed in various ICEX Ice Island retail locations throughout the country. Apparently, some operational problems arose but they were addressed by Master-Bilt sufficiently to accommodate operation of the machines.

In January of 2007, Food Lion, who operates supermarkets in various states, agreed to lease ICEX Ice Island systems for ten of its North Carolina supermarkets. In late 2007, the Arizona division of Safeway, which operates supermarkets in various states, agreed to install ICEX Ice Island systems in over 100 supermarkets in Arizona. To fulfill these new contracts, Ultra Pure ordered more than 200 Master-Bilt freezers from CMC. The purchase of the machines in both the Food Lion and Safeway leases was financed through limited liability companies (allegedly a banking necessity to avoid negative ratings assigned Ultra Pure for a poor financial history.)

For the Safeway contract, ICEX Management, L.L.C., was created to purchase and lease the equipment. The lender who financed the equipment, Zions Credit Corporation, loaned to ICEX Management the exact amount of the invoice for the requested equipment. ICEX Management then gave Zions a security interest in the equipment, then leased the equipment to Safeway. Master-Bilt contended Ultra Pure was not a party to the Safeway lease and did not receive any rent payments from Safeway. Rent payments were received by ICEX Management.

|sA similar arrangement was made in regard to the freezers purchased for the Food Lion lease. In that lease, Noreast Capital Corporation loaned the money for the equipment to ICEX Financial Services, L.L.C., which was created to own the machines leased to Food Lion. Ultra Pure acknowledged it sold the equipment leased to Food Lion to ICEX Financial Services.

These freezers are at issue in the present litigation, as Ultra Pure asserts the freezers repeatedly failed in operation and needed constant repair and replacement of parts. Eventually, Safeway terminated the arrangement with Ultra Pure because melting ice was leaking onto the floors and creating hazardous conditions for customers. According to Ultra Pure, it repeatedly requested that Master-Bilt repair the problems, but it was unwilling to do so.

On August 12, 2008, Ultra Pure, in its capacity as buyer of the allegedly defective freezers, filed a. suit in redhibition against Master-Bilt, as manufacturer of the freezers. The petition also asserted, in the alternative, a claim in quanti minoris and a claim for breach of implied warranty of fitness for the intended or ordinary use. The freezers were tendered by Ultra Pure, who prayed for the return of the purchase price, or alternatively, a reduction in price, and in either event, expenses of the sale and damages, including lost profits, plus reasonable attorney fees. Master-Bilt answered the petition and disputed Ultra Pure’s allegations, contending the cause of the problems was defective design of the overall system, for which Ultra Pure was responsible. Master-Bilt also brought a third-party demand against CMC.

On June 3, 2011, Master-Bilt filed a motion for summary judgment, raising several grounds for dismissal of Ultra Pure’s claims in their entirety, and several alternative grounds for dismissing Ultra Pure’s claims for lost profits. At the August 1, 2011 hearing on the motion, Master-Bilt argued Ultra Pure was not the | ¿proper party to bring this claim because it did not own the equipment alleged to have been defective. Ultra Pure countered that it did own the equipment and was the proper party to sue for redhibition. At the close of the hearing, the trial court asked the parties to address the issue of Ultra Pure’s right of action in the next scheduled hearing.

At the next hearing on August 1, 2011, the trial court was informed that several relevant depositions still had not been taken. The trial court noted that there were issues of fact which precluded summary judgment on Master-Bilt’s motion for summary judgment on the liability grounds asserted. The trial court also denied “the Motion for Summary Judgment as it pertains to Safeway of Arizona and any damages arising out of that contract.” The trial court then ordered another hearing on the remaining issues. There was no ruling on the issue of whether Ultra Pure was the real party in interest.

At the next hearing, on August 22, 2011, Master-Bilt filed into evidence discovery documents and deposition excerpts which Master-Bilt contended showed Ultra Pure had sold the equipment in question before any claim for redhibition arose. Ultra Pure objected to the documents as untimely in violation of the requirement for fifteen days’ notice under La.Code Civ.P. art. 966(B). Master-Bilt countered that Ultra Pure should have been familiar with the documents and that its counsel was present at the depositions from which the excerpts were taken. Ultra Pure argued that most of the materials had neither been provided with the summary judgment motion nor timely identified and served as supplemental support for the motion, thus, the fifteen day notice requirement of La. Code Civ.P. art. 966(B) should have been enforced. The trial court did not agree and gave Ultra Pure only a short recess to familiarize itself with the documents and deposition excerpts in question.

|sAt the hearing, Ultra Pure conceded that the machines leased to Food Lion were purchased by ICEX Financial Services. Thus, the trial court granted summary judgment with- respect to the machines leased by ICEX Financial Services with regard to the Food Lion stores. Master-Bilt also contended there were no genuine issues of fact that Ultra Pure had sold the machines leased to Safeway to ICEX Management. The trial court agreed stating the machines “[were not] Ultra Pure’s ice machines anymore, unless you can show me somewhere that it was. I mean, all the documents say that it wasn’t.” Therefore, the trial court granted summary judgment with respect to the machines leased by ICEX Management in the Safeway stores.

Ultra Pure appeals the trial court’s judgment, asserting the trial court made multiple errors of fact and of law in granting Master-Bilt’s motion for summary judgment.

ANALYSIS

On appeal, we are mindful that our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06) ], 960 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07) ], 951 So.2d 1058[ ]; King v. Parish National Bank, [04-337 (La.10/19/04) ], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04) ], 870 So.2d 1002[.]
Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
|fiThe burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Kerry v. Pearson, 10-103, pp. 4-5 (La.App. 3 Cir. 6/2/10), 40 So.3d 463, 466.

The trial court’s grant of summary judgment is based on its acceptance of Master-Bilt’s argument that by selling or retitling the freezers to the lease financing companies (ICEX Management and ICEX Financial Services), Ultra Pure lost its rights to sue Master-Bilt. Master-Bilt contends when Ultra Pure sold the freezers to ICEX Management and ICEX Financial Services, those entities became subrogated to any warranty rights Ultra Pure once had against Master-Bilt pursuant to La. Civ.Code art. 2548. This subrogation of rights, according to Master-Bilt, means that Ultra Pure, the subrogor, no longer has those warranty rights. Essentially, Master-Bilt argues Ultra Pure can no longer return the thing sold and transferred to the purchaser any right to enforce any seller’s warranty against any upstream sellers.

Ultra Pure argues the jurisprudence of this state has consistently held in the absence of a “conventional” assignment of all claims and remedies, a sale with subrogation to rights in warranty does not deprive a seller of his right to bring a warranty action for his own damages against any other person in the chain of title, including any other seller and the manufacturer. We pretermit definitively ruling on this issue today.

17Even accepting as true Master-Bilt’s legal argument that the buyer of a defective thing who resells it to another automatically loses his right of action for his own damages against all prior sellers, including the manufacturer, summary judgment was only appropriate if there were no genuine issues of fact as to whether ownership of all the freezers was actually transferred to the lease financing companies. We find there was conflicting evidence on this issue, which was inappropriately weighed by the trial court at the summary judgment stage.

Initially, we note the record established that Ultra Pure, in its attempt to facilitate lease financing, would use an affiliated leasing company or an unrelated leasing company created by the lender, to act as the nominal lessor. The lender would then advance the funds used to purchase the equipment. Ultra Pure would then share in the revenue stream from the bags of ice sold by way of a cents per bag royalty.

The trial court accepted Master-Bilt’s contention that Ultra Pure had resold all of the defective and unfit freezers to leasing companies. Ultra Pure consistently maintained there was no record evidence on summary judgment that Ultra Pure had ever executed an act translative of title to any leasing company or any other third party. Danny LeBlanc, Ultra Pure’s president, attested in his affidavit that “Ultra Pure never actually transferred title to the equipment” to ICEX Management, the accommodation lessor used to perfect Zions Credits security interest in the leases to Safeway. Master-Bilt does not specifically dispute this testimony by LeBlanc, but argues LeBlanc’s testimony was parol evidence and inadmissible in a summary judgment proceeding. Ultra Pure points out that Master-Bilt, who was not a party to the lease financing contract, is not entitled to contend that LeBlanc’s affidavit was parol evidence. The law is clear that “the parol evidence rule applies only to actions between the parties to the contract and | stheir privies, not to actions between parties and third persons.” Hobbs v. Central Equip. Rentals, Inc., 382 So.2d 238, 243 (La.App. 3 Cir.), writ denied, 385 So.2d 785 (La.1980). Thus, LeBlanc’s affidavit testimony is competent summary judgment evidence, and presents genuine issues of fact as to ownership of the freezers.

In regard to the Food Lion lease, it was acknowledged that ICEX Financial services did take title to the equipment, but Ultra Pure retained a reversionary interest to get the machines back at the end of the lease term for one dollar. Thus, Ultra Pure argues, when it filed suit, it either owned or controlled all of the freezers which it attempted to tender back to Master-Bilt.

Ultra Pure also argued, under the lease arrangement, it, at all times, retained an interest in the profits in the form of a cents per bag royalty for every bag sold. Ultra Pure contends, even if it did not formally retain ownership of the equipment, this created an ongoing interest in the recurring revenue stream created by the equipment.

The conflicting evidence on this issue is apparent when the following colloquy between counsel and the trial court is examined:

MR. EDWARDS (Counsel for Ultra-Pure): Well judge, you’re not ruling that Ultra Pure is not the real party in interest; you haven’t said that?
THE COURT: No, no; I haven’t said that. I’m just thinking that, you know — I haven’t seen any evidence. That one thing you pointed to doesn’t necessarily show a sharing of profits or—
MR. EDWARDS: It actually does, Judge. If you look at the schedule in the back, all that ICEX Management got was a Two Cents ($.02) a bag management fee for doing the administration. The rest of the money flowed to Ultra Pure. And it still—
THE COURT: But you see I’ve seen some contrary evidence, too, because like in this other contract they had to be owners of the machines. And then counsel argued that they didn’t own or lease the machines.

|9(Emphasis added.)

As the courts have uniformly noted, the trial court cannot “determine or even inquire into the merits of issues raised or ... weigh conflicting evidence on the existence of material facts.” Benniefiel v. Zurich Am. Ins. Co., 08-1416, p. 5 (La.App. 3 Cir. 5/6/09), 10 So.3d 381, 385 (quoting Brittain v. Family Care Servs., Inc., 34,-787, p. 4 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460). The weighing of conflicting evidence has no place in summary judgment procedure. LaGrange v. Dynamic Industries, Inc., 04-100 (La.App. 3 Cir. 6/9/04), 875 So.2d 1059; Smith v. Lynn, 32,093 (La.App. 2 Cir. 08/18/99), 749 So.2d 692. Therefore, finding the trial court weighed the conflicting evidence regarding ownership of the freezers, we reverse the grant of summary judgment and remand back to the trial court for fimther proceedings consistent with this opinion.

We also note the trial court erred in allowing the introduction of evidence in support of Master-Bilt’s motion without abiding by the mandatory service provision of La.Code Civ.P. art. 966 and Louisiana District Court Rule 9.9. Master-Bilt argued below that Ultra Pure should have been familiar with the documents and that its counsel was present at the depositions from which the excerpts were taken. Ultra Pure countered that even if the documents were previously in its possession, the voluminous discovery conducted in this case made knowledge of specific documents unlikely, if not impossible, without time to review the specific documents. Rather than abide by the fifteen-day period provided in La.Code Civ.P. art. 966(B), the trial court gave Ultra Pure only a short recess to review the submissions. We find the short recess provided by the trial court was not only in violation of La.Code Civ.P. art. 966(B), but in no way | ^provided any meaningful opportunity for Ultra-Pure to defend itself against the submissions.

Louisiana Code of Civil Procedure Article 966(B) provides:

The motion for summary judgment, memorandum in support thereof, and supporting affidavits shall be served within the time limits provided in District Court Rule 9.9. For good cause, the court shall give the adverse party additional time to file a response, including opposing affidavits or depositions. The adverse party may serve opposing affidavits, and if such opposing affidavits are served, the opposing affidavits and any memorandum in support thereof shall be served pursuant to Article ISIS within the time limits provided in District Court Rule 9.9. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

Louisiana District Court Rule 9.9 states, in pertinent part:

(a) When a party files an exception or motion, that party shall concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum shall be served on all other parties so that it is received by the other parties at least fifteen calendar days before the hearing, unless the court sets a shorter time.

(Emphasis added.)

The Louisiana Supreme Court in Buggage v. Volks Constructors, 06-0175 (La.5/5/06), 928 So.2d 536, noted that the time limitation established by La.Code Civ.P. art. 966(B) was mandatory. Nevertheless, the Buggage court did also indicate a trial court has some discretion in this matter. Rather than holding that untimely affidavits must be excluded by the trial court, the supreme court specifically stated that such affidavits “can” be excluded by the trial court, and noted that the trial court “acted within its discretion” in excluding the opposition. Buggage, 928 So.2d at 586. Other courts of this state have also indicated that district courts have discretion, absent prejudice, in application of this otherwise mandatory time period. See Phillips v. Lafayette Parish Sch. Bd., 10-373 (La.App. [n3 Cir. 12/8/10), 54 - So.3d 739; James Constr. Group, L.L.C. v. State ex rel. Dep’t. of Transp. and Dev., 07-225 (La.App. 1 Cir. 11/2/07), 977 So.2d 989; Savoie v. Savoie, 03-893 (La.App. 5 Cir. 12/30/03), 864 So.2d 742.

This case is complex, and consisted of coast-to-coast discovery, which is evidenced by the lengthy record before us on appeal. We find Ultra Pure was prejudiced by the trial court’s refusal to follow the procedural rule that allows them advance notice of the filings and arguments against them. The late introduction by Master-Bilt of the evidence in question prevented Ultra Pure from meeting this evidence with their own arguments and submissions in opposition. Thus, we find the trial court abused its discretion in ruling on the motion for summary judgment at the point this evidence was offered for introduction. This error also warrants a reversal of the trial court’s grant of summary judgment.

DECREE

For the foregoing reasons, the trial court’s judgment granting Master-Bilt’s motion for summary judgment is reversed. The matter is remanded back to the trial court for further proceedings consistent with this opinion. All costs of this appeal are assessed to defendant-appellee, Master-Bilt.

REVERSED AND REMANDED.

AMY, J., concurs in the result and assigns reasons.

AMY, J.,

concurring in the result.

hi agree with the majority that a reversal is required here. However, I write separately insofar as I limit my analysis to the untimely introduction of evidence in support of the motion for summary judgment. In my opinion, this preliminary and foundational matter should be the sole focus of the court’s attention.

As the majority references, Master-Bilt sought to introduce evidence in support of its motion for summary judgment at a second hearing conducted on that motion. Ultra Pure objected to the supplemental submission and noted that it was not given prior notice of the filing. Master-Bilt contended that Ultra Pure was not disadvantaged by the lack of prior notice as the summary judgment proceedings were a continuation of the earlier hearing and the issue under consideration was a pre-exist-ing one. Master-Bilt also noted that Ultra Pure had participated in the depositions which were excerpted in the exhibits.

Ultimately, the trial court permitted the filing of the new evidence, finding that it did not reveal “anything new.” Although it allowed a brief recess for Ultra Pure to review the documents submitted on the day of the hearing, it denied counsel’s request for additional time to file its own evidence in rebuttal.

Louisiana Code of Civil Procedure Article 966(B) provides that the memorandum in support of a motion for summary judgment and supporting affidavits “shall be served within the time limits provided in District Court Rule |29.9.” (Emphasis added.) Reference to Rule 9.9 demonstrates that the memorandum “shall be served on all other parties so that it is received by the other parties at least fifteen calendar days before the hearing, unless the court sets a shorter time.” (Emphasis added.) Additionally, Rule 9.10 contains a series of elements which shall be contained in that memorandum, including references to legal documents relating to each material fact at issue and designation of the pertinent part containing proof of that fact. In sum, the distinct time limitations regarding such a filing, as well as those related to subsequent filings in opposition and in reply to that opposition, provide notice to all concerned about the matter on which the hearing is to be conducted.

Not only does Article 966(B) employ “shall” in setting forth the period for advance notice, but, as recognized by the majority, the supreme court has recognized that the time limitation is “mandatory.” Buggage v. Volks Constructors, 06-0175 (La.5/5/06), 928 So.2d 536. Like the majority, I too recognize that Buggage and related jurisprudence indicate that the trial court is afforded some degree of discretion in application of this time period. See, e.g., Sims v. Hawkins-Sheppard, 11-0678 (La.7/1/11), 65 So.3d 154; Newsome v. Homer Memorial Med. Ctr., 10-0564 (La.4/9/10), 32 So.3d 800.

Here, however, the trial court chose to accept an untimely submission filed in support of a motion for summary judgment and without any prior notice as to the extent and contours of the submission afforded to the party in opposition. Further, over objection and in a multi-faceted case, the trial court then ruled on that related motion for summary judgment without a measured opportunity for the opposing party to rebut the untimely, unnoticed evidence.

Once the trial court made the determination to accept the late evidence, whether appropriately or not, it was not the role of the trial court nor the moving party to suggest that the opposing counsel would be unable to offer anything in | ^rebuttal to change the course of the hearing. Also, given the extent of the evidence generated by this litigation and the seemingly moving nature of the claim(s) and defense(s) asserted, I find that the brief recess permitted for review of the new evidence offered no real relief to the party in opposition given its inability to introduce rebuttal evidence. I believe that all of this must be viewed in the context of the mandatory notice strictures of Article 966(B), which required, at a minimum, prior notice to the opposing party.

Finally, I do not find that the follow-up nature of this hearing relieved the parties of the requirement of advance notice. It is true that the motion for summary judgment was initially heard in early August 2011 and the hearing now at issue was conducted three weeks later as a continuation of that matter. However, I find no provision permitting a moving party to bootstrap new evidence into its originally-filed submission without adequate notice. In short, the non-moving party arrived at the hearing with no notice of the evidence and, upon acceptance of that evidence, was afforded no prospective opportunity to rebut the offering. In my opinion, this type of failure in process must certainly constitute an abuse of discretion.

For these reasons, I join the majority in reversing the summary judgment and in remanding the matter for further proceedings.