author: PITMAN, J.

text:
    Sharon ANDERSON & Carl Anderson, et al, Plaintiffs/Appellants v. BOSSIER PARISH POLICE JURY, et al, Defendants/Appellees. James Bruce Waggoner & Colleen Waggoner, et al, Plaintiffs/Appellants v. Bossier Parish Police Jury, et al, Defendants/Appellees.
    Nos. 49,471-CA, 49,472-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      The Smith Law Offices, L.L.C. By: Eskridge E. Smith, Jr., Bossier, LA, Linda Lea Smith, for Appellants.
    Dunlap Fiore, L.L.C. By: John B. Dunlap, III, Jennifer A. Fiore, Susan N. Ec-cles, Hunter R. Bertrand, Baton Rouge, LA, for Appellees.
    Before DREW, LOLLEY & PITMAN, JJ.
   PITMAN, J.

| ,In these consolidated cases, Plaintiffs Sharon Anderson and Carl Anderson, et al., and James Waggoner and Colleen Waggoner, et al., appeal the trial court’s granting of an exception of no cause of action filed by Defendants Bossier Parish Police Jury, Office of the Bossier Parish Engineer, Joseph “Butch” Ford, Jr., in his capacity as Bossier Parish Engineer, and Owen & White, Inc. For the following reasons, we affirm.

FACTS

This case previously came before this court on an exception of prescription in Anderson v. Bossier Parish Police Jury, 45,639 (La.App.2d Cir.12/15/10), 56 So.3d 275. In that case, this court set forth the facts of this case and the arguments in Plaintiffs’ petitions as follows:

The plaintiffs in docket number 45,639 [49,471] are residents of Pecan Grove, a manufactured housing subdivision. The plaintiffs in docket number 45,829 [49,-472] are residents of Shadow Ridge Estates, a housing subdivision. Both subdivisions are located in Bossier Parish close to Red Chute Bayou. These cases arise from the enactment by the Bossier Parish Police Jury of an ordinance which became effective on September 3, 2008, adopting recommendations by the Federal Emergency Management Agency (“FEMA”) and placing portions of the plaintiffs’ property in the floodway of Red Chute Bayou rather than in the flood zone as they were previously classified. In a flood zone, the foundations of buildings must be placed a certain distance above the base flood, elevation. However, because the property is now classified as being in the floodway, encroachments are prohibited, including fill, new construction, substantial improvements, and other developments unless the owners obtain a costly “No Rise” certificate from the parish stating that the proposed work on the property will not result in any increase in the flood levels within the community during the occurrence of the base flood discharge. The plaintiffs in both suits filed their claims in the trial court on August 28, 2009, within one year of the passage of the Bossier Parish ordinance, | alleging that they did not receive proper notice of the change in classification affecting their property and that they have suffered damages as a result of the reclassification of their property.
The Pecan Grove plaintiffs’ suit was filed individually and on behalf of a class of similarly situated persons. They alleged that Bossier Parish commissioned a study in 2000 by the engineering firm of Owen & White, Inc. to comply with a FEMA request for redrawing or remapping of flood zones and floodways, in order to meet FEMA regulations regarding the purchase by landowners of flood insurance through the National Flood Insurance Program (“NFIP”). In March 2004, FEMA gave the Flood Insurance Study (“FIS”) and the Flood Insurance Rate Map (“FIRM”) to the Bossier Parish engineer. In May 2004, the parish engineer presented the documents to the Bossier Parish Police Jury....
FEMA placed notices of the proposed changes in the base flood elevation affecting areas including Red Chute Bayou in the Bossier Press Tribune on April 28, 2006, and May 5, 2006. FEMA provided information to the Bossier Parish Police Jury that a 90-day appeal period was in effect after the second publication in which any owner or lessee of property in the community who believed his or her property rights would be adversely affected by the base flood elevation determinations could appeal to the Bossier Parish Police Jury. No appeals were taken.
As required by federal regulations in order to qualify for flood insurance, the Bossier Parish Police Jury enacted ordinance number 4241(A) which became effective on September 3, 2008, adopting the FIS and FIRM submitted by FEMA. The effect of the ordinance was to place the Pecan Grove and Shadow Ridge Estates in the floodway instead of the flood zone. The Pecan Grove plaintiffs filed suit on August 28, 2009, claiming that they were deprived of their due process rights because they were not given proper notice of the FIS or FIRM and were not informed of the 90-day period to appeal the adoption of the FIRM in 2006. They sought damages for the taking of their property without just compensation, diminution in value of the property, increase in the cost of flood insurance, if available, expenses of moving manufactured homes, loss of the value of improvements, loss of mortgage loans, increase in interest rates, loss of insurable value of property, loss of use and/or enjoyment of property and general damages including mental and emotional distress, embarrassment and humiliation.
|sThe Shadow Ridge plaintiffs also filed suit on August 28, 2009, for damages and for certification as a class action, essentially pleading the same facts as the Pecan Grove plaintiffs. Additionally, they alleged that in July 1993, James Bruce Waggoner and Colleen Waggoner bought a lot in Shadow Ridge, built a house, and have lived there since that time. In October 2004, the Waggoners purchased additional lots with the intention of developing the subdivision. Beforehand, in May 2004, Mr. Waggoner inquired of the parish engineer, Mr. Ford, regarding the requirements for developing the lots. He was not given any information about the new FIS report, the proposed FIRM, or the changes that would occur with the adoption of the FIRM. Mr. Waggoner began selling lots in December 2004. Permits were issued and new construction and improvements were made until the adoption of the ordinance which became effective September 3, 2008.
The Shadow Ridge plaintiffs claimed that the FEMA announcement published in the Bossier Press Tribune did not provide notice of the change in the status of the property being placed in the floodway. They alleged that after the passage of the ordinance, it had been shown that some or all of Shadow Ridge is above the base flood elevation for the 100-year flood and should not have been included in the floodway.
The Shadow Ridge plaintiffs also alleged that they were deprived of their due process rights under the United States and Louisiana constitutions in that they did not receive due process and proper notification of the proposed change in the status of the property and they did not have the proper opportunities to appeal the proposed change. Further, they claimed that the defendants negligently failed to determine whether Shadow Ridge and/or any and all parts thereof should actually be placed in the floodway by failing to make a proper investigation by survey, field study, or other means. They sought damages for the taking of their property without just compensation, diminution in value of the property, increase in the cost of flood insurance, if available, loss of mortgage loans, increase in interest rates, loss of insurable value of property, loss of use and/or enjoyment of property and general damages including mental and emotional distress, embarrassment and humiliation.
In both cases, the defendants filed exceptions of prescription and' no cause of action.
The Pecan Grove case was assigned to a judge of the Twenty-Sixth Judicial District Court. The exceptions were submitted on briefs. On February 4, 2010, the trial court issued 14a judgment granting the exception of prescription and dismissing the claims of the Pecan Grove plaintiffs. In written reasons for judgment, the trial court stated that constructive notice was received by the plaintiffs on the date of the second publication by FEMA in the Bossier Press Tribune and that the appeal process began to run after that. The court found that the matter had prescribed; the exception of prescription filed on behalf of the defendants was granted. Because the trial court granted the exception of prescription, it found that there was no need to address the exception of no cause of action.
The Shadow Ridge case was assigned to a different judge of the Twenty-Sixth Judicial District Court. A hearing on the exceptions of prescription and no cause of action was heard in that matter on February 22, 2010.
On March 23, 2010, the trial court in the Shadow Ridge case signed a judgment granting the defendants’ exception of prescription. The trial court’s reasons for judgment are essentially identical to those handed down by the trial court in the Pecan Grove case.

Plaintiffs in both cases appealed. This court granted a motion to consolidate the two cases on appeal.

In Anderson v. Bossier Parish Police Jury, supra, this court reversed the judgments of the trial judges granting the exceptions of prescription and determined that Plaintiffs’ claims had not prescribed. This court remanded the consolidated matter to the trial court for further proceedings.

- On August 16, 2018, Defendants filed an answer and affirmative defenses in response to Plaintiffs’ 2009 petitions. Defendants stated that Plaintiffs failed to state a cause of action against Defendants because Defendants enjoy discretionary function immunity pursuant to La. R.S. 9:2798.1. In the alternative, Defendants denied the allegations within Plaintiffs’ petitions, denied liability and pled all rights and defenses under |5the provisions of La. R.S. 9:2798.1, 38:84, et seq., and 33:1236, et seq. Defendants also asserted that Plaintiffs failed to meet the class certification requirements of La. C.C.P. art. 591.

On August 21, 2013, Defendants filed a peremptory exception of no cause of action. In this exception, Defendants repeated their argument that Plaintiffs failed to allege any fact or law that overcomes the discretionary function immunity granted to Defendants in La. R.S. 9:2798.1.

On October 1, 2013, Plaintiffs filed a memorandum in opposition to Defendants’ exception of no cause of action. Plaintiffs stated that the La. R.S. 9:2798.1 immunity asserted by Defendants adopts the discretionary function doctrine and not an absolute immunity or a public duty doctrine. Plaintiffs argued that the limited immunity provision protects Defendants only from suit for certain discretionary policymaking actions and is not applicable to their suit for damages.

On November 4, 2013, Defendants filed a reply to Plaintiffs’ opposition memorandum and asserted that Plaintiffs failed to state a cause of action because Defendants owed no duty to Plaintiffs to provide them with notice of FEMA’s determination, to investigate and report FEMA findings and/or to change permit and inspection procedures prior to enacting an ordinance adopting FEMA’s determination. Defendants further argued that they acted as the law required in passing the ordinance.

On December 11, 2013, Plaintiffs filed a response memorandum in opposition to Defendants’ exception of no cause of action. Plaintiffs stated that Defendants’ arguments that the NFIP placed duties only on the national 1 (¡government and that they reasonably performed their obligations did not meet Defendants’ burden of proving their immunity.

On January 24, 2014, the trial court filed an opinion/order granting Defendants’ peremptory exception of no cause of action.

The trial court found that actions of Defendants fell within the discretionary function exception of La. R.S. 9:2798.1, noting that it was not of the opinion that the flood program, as contemplated by Congress, served to place additional duties on Defendants, as suggested by Plaintiffs. It further determined that Plaintiffs had not alleged any acts or omission not reasonably related to the legitimate governmental objective for which the policymaking or the discretionary power exists or that constitute criminal, fraudulent, malicious, intentional, willful or outrageous conduct.

On February 14, 2014, the trial court filed a judgment dismissing Plaintiffs’ claims with prejudice.

Plaintiffs appeal.

DISCUSSION

No Cause of Action and La. R.S. 9:2798.1 Immunity

In their first assignment of error, Plaintiffs argue that the trial court erred in granting Defendants’ exception of no cause of action and in dismissing their claims with prejudice. Plaintiffs assert that they have stated a cause of action and at trial could show that Defendants did not act for policymaking reasons and did not have discretion to fail to comply with FEMA’s minimum requirements and regulations and with their own ordinance. They contend that, based on the mere allegations of the | ./petitions, it was reversible error for the trial court to conclude that La. R.S. 9:2798.1 provides immunity to Defendants and grant the exception of no cause of action.

Defendants argue that the trial court correctly concluded that Plaintiffs’ allegations do not state a cause of action. Defendants contend that the law does not afford any remedy to Plaintiffs because Plaintiffs are unable to provide any fact or law that overcomes the immunity granted in La. R.S. 9:2798.1.

The peremptory exception of no cause of action tests the legal sufficiency of the petition. La. C.C.P. art. 927; City of New Orleans v. Board. of Comm’rs of Orleans Levee Dist., 98-0690 (La.7/5/94), 640 So.2d 287; McCoy v. City of Monroe, 32,521 (La.App.2d Cir.12/8/99), 747 So.2d 1234, writ denied, 788 So.2d 441 (La.2001). The exception is triable on the face.of the papers, and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans, supra; McCoy, supra. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931.

When an exception of no cause of action is based on an affirmative defense, the exception must be overruled “unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based.” Owens v. Martin, 449 So.2d 448 (La.1984), quoting Haskins v. Clary, 346 So.2d 193 (La.1977).

|sIn reviewing a trial court’s ruling sustaining an exception of no cause of action, the court of appeal should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition. City of New Orleans, supra.

La. R.S. 9:2798.1, the discretionary immunity statute, states:

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policy-making or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

|9In Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So.2d 1, the Louisiana Supreme Court explained the discretionary immunity doctrine as follows:

Generally, “Discretionary Immunity” under La.Rev.Stat. 9:2798.1 applies to specific fact situations which satisfy the rule enunciated in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Under Berlcovitz, the court must first consider whether the government employee had an element of choice and his course of action was not specifically prescribed by the statute, regulation, or policy. Conduct cannot be discretionary unless it involves an element of judgment or choice. Id. at 1958. Thus, discretionary immunity will not apply when a specific course of action is prescribed as the employee has no rightful option but to adhere to the directive. Id. On the other hand, when discretion is involved, the court must then determine whether that discretion is the kind shielded by the exception: one grounded in social, economic, or political activity. Fowler v. Roberts, 556 So.2d 1 (La.1989); Kniepp v. City of Shreveport, 609 So.2d 1163 (La.App. 2 Cir.1992), writ den. 613 So.2d 976 (La.1993); Rick v. State Dep’t of Transp., 93-1776, 93-1784 (La.1/14/94); 630 So.2d 1271. If it is, then the doctrine applies and the employee or agency is insulated from liability; if it is not, the employee or agency is liable for any negligence. Simeon v. Doe, 618 So.2d 848 (La.1993).

Applying the law concerning no cause of action and discretionary function immunity to the facts of the case sub judice, we find that Plaintiffs failed to allege any acts or omissions by Defendants not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists. Plaintiffs alleged that Defendants deprived them of their due process rights because they did not receive proper notification of the proposed change in the status of their property and they did not have the proper opportunities to appeal the proposed change. These allegations concern the actions or omissions by Defendants arising within the course and scope of their lawful powers and duties. Plaintiffs have not alleged that |inany of the actions by Defendants occurred outside their duties connected with their official function. Furthermore, Plaintiffs did not allege any acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless or flagrant misconduct.

Defendants are immune from suit pursuant to La. R.S. 9:2798.1; and, therefore, the trial court did not err in granting Defendants’ exception of no cause of action. Accordingly, this assignment of error is without merit.

Assignments of Error Two Through Four

The remaining assignments of error are all predicated on Plaintiffs’ argument that the trial court erred in granting Defendants’ exception of no cause of action. Considering this court’s foregoing determination that Defendants are immune from suit pursuant to La. R.S. 9:2798.1 and, therefore, that the exception of no cause of action was proper in this case, we preclude discussion of Plaintiffs’ remaining assignments of error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court granting the exception of no cause of action in favor of Defendants Bossier Parish Police Jury, Office of the Bossier Parish Engineer, Joseph “Butch” Ford, Jr., in his capacity as Bossier Parish Engineer, and Owen & White, Inc., and against Plaintiffs Sharon Anderson and Carl Anderson, et al., and James Waggoner and Colleen Waggoner, et al., is affirmed. Costs of appeal are assessed to Plaintiffs.

AFFIRMED.

      . On December 23, 2009, this suit was dismissed as against Owen & White, Inc.

      . We note that, in 2012, the maps were redrawn after a survey was conducted. Plaintiffs' property is no longer located in a flood-way.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Margie B. MORGAN, Plaintiff-Appellant v. James Stuart MORGAN, Defendant-Appellee.
    No. 49,476-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      S. Douglas Busari & Associates by S. Douglas Busari, Tallulah, LA, for Appellant.
    Mulhearn & Smith by LeRoy Smith, Jr., for Appellee.
    Before BROWN, STEWART and CARAWAY, JJ.
   STEWART, J.

liThe plaintiff, Margie B. Morgan (“Margie”), appeals a judgment granting the peremptory exceptions of prescription and no cause of action filed by the defendant, James Stuart Morgan (“James”), in response to her rule to collect alleged past due payments of child support and expenses. For the reasons set forth in this opinion, we find that the trial court erred in sustaining the exception of no cause of action, and we remand for a rehearing of the exception of prescription.

FACTS

On October 18, 2013, Margie filed a rule for contempt in which she alleged that on October 18,1999, the district court ordered James to pay child support in the amount ■of $450 per month beginning that date and further ordered him to pay half of the costs of their children’s extracurricular activities and automobile expenses. Two children were born of the marriage, and both are now adults. Margie alleged that James was in arrears for child support in the amount of $43,620 and for expenses in the amount of $47,574. To satisfy the alleged delinquency, she requested attachment of James’s share of the proceeds from a proposed sale of real estate owned by his family. She attached a copy of the October 18, 1999, divorce judgment to her petition.

The divorce judgment did not include a fixed amount for child support. Instead, it provided that “all agreements of the parties as to child support are herewith approved, recognized, and rendered executo-ry.” The divorce judgment ordered James to pay half the costs related to the children’s extracurricular activities “on a month to month basis upon ^presentation of an itemization of such expenses.” Lastly, the divorce judgment ordered James to pay half the purchase price and upkeep of any automobile bought for the children’s use and all of the automobile insurance.

James responded to the rule for contempt by filing exceptions of prescription, no cause of action, and no right of action. He argued that part of the claim for child support arrearages had prescribed under La. C.C. art. 3501.1 and that Margie had not submitted bills for payment of expenses as required by the divorce judgment.

In opposition to the exception, Margie argued that prescription did not begin to run until the last payment made by James pursuant to the judgment. She further argued that prescription was interrupted by his sporadic payments and by -his acknowledgment of the child support and expenses owed. She referred to an exhibit “Ml,” described as a “check list” made by James, as proof of his acknowledgment.

The trial court heard the exceptions on April 10, 2014. Counsel for the .parties presented arguments. No testimony was offered, and no exhibits were introduced into evidence. The trial court determined that Margie’s claims for child support due prior to October 18, 2003, had prescribed. The trial court also found that Margie would be unable to prove the amount of child support due because no amount had been set in the divorce judgment. Referring to an “exhaustive list” kept by Morgan of what he had paid, the trial court found that the list did not constitute an acknowledgment by Morgan of any set amount that he owed for child support. For these | ¡¡reasons, the trial court rendered a judgment on February 19, 2014, granting the exceptions of prescription and no cause of action and dismissing Margie’s rule with prejudice. She appealed.

DISCUSSION

Margie’s appeal focuses on the trial court’s ruling on James’s exception of prescription. She does not assert that the trial court erred in sustaining the exception of no cause of action, but she does implicitly address that issue in her brief. Assignments of error are not necessary in an appeal. La. C.C.P. art. 2129. Appellate courts have the authority to consider issues even in the absence of an assignment of error. Merrill v. Greyhound Lines, Inc., 2010-2827 (La.4/29/11), 60 So.3d 600; Nicholas v. Allstate Ins. Co., 99-2522 (La.8/31/00), 765 So.2d 1017. Thus, we will first consider whether the trial court erred in sustaining the exception of no cause of action.

The peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. White v. St. Elizabeth B.C. Bd. of Directors, 45,-213 (La.App.2d Cir.6/2/10), 37 So.3d 1139. No evidence may be introduced to support or controvert the exception of no cause of action. La. C.C.P. art. 931. The exception is triable on the face of the petition and attached documents. Moore v. Moore, 427 So.2d 1320 (La.App. 2d Cir.1983); Babineaux v. Kemper Ins. Co., 2001-23 (La.App. 3d Cir.6/6/01), 787 So.2d 572. Each well-pled fact must be accepted as true. Century Ready Mix Corp. v. Boyte, 42,634 (La.App.2d Cir.10/24/07), 968 So.2d 893. A ruling sustaining an 14exception of no cause of action is subject to a de novo review because the exception raises a question of law, and the district court’s decision is based only on the sufficiency of the petition. Id.

In her petition, Margie alleged that James had been ordered to pay child support in the amount of $450 per month beginning on October 18, 1999, one-half of all costs related to their children’s extracurricular activities, and one-half of the purchase price and upkeep of any automobile for the children. She then alleged that James had refused to comply with the order and was in arrears in the amount of $43,620 for child support and $47,574 for expenses. Margie attached to her petition the judgment granting her and James a divorce.

The divorce judgment did not order James to pay $450 per month in child support beginning on October 18, 1999, as alleged by Margie in her petition. However, the judgment states that the parties “are in unanimous and mutual agreement on the matters addressed in said petition.” With regard to child support, the judgment provides that “all agreements of the parties as to child support are herewith approved, recognized, and rendered executory.” This language indicates that the trial court approved some agreement between the parties, even though no fixed amount for child | ^support was set forth in the judgment. We find that the petition states a cause of action for past due child support.

Moreover, the divorce judgment ordered James to pay half of the children’s extracurricular activities “on a month to month basis upon presentation of an itemization of such expenses.” The judgment also ordered him to pay half of the purchase price of an automobile for the children as well as half of the expenses for its upkeep. The divorce judgment clearly set forth James’s obligation to pay certain expenses. In her petition, Margie alleged that James failed to pay $47,574 in expenses. Considering the allegation that James failed to pay expenses along with the judgment ordering him to pay certain expenses, we find that Margie’s petition states a cause of a action for unpaid expenses.

Having found that the trial court erred in sustaining James’s exception of no cause of action, we note that Margie will have to produce evidence beyond the minimal allegations of her petition in order to meet her burden of proof on her claim.

Turning now to the exception of prescription, we find that we are unable to review that exception and render a judgment on the record on appeal. The record on appeal is that sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments, and other rulings, unless otherwise designated. Reed v. Peoples State Bank of Many, 36,581 (La.App.2d Cir.3/5/03), 839 So.2d 955. Memo-randa and exhibits not filed into evidence in the trial court are not part of the record on appeal. Id. Appellate briefs and exhibits attached to such | fibriefs are not part of the record on appeal, and the appellate court may not rely on facts in the briefs or exhibits thereto which are not part of the record. Id.

Both briefs include factual statements not supported by evidence in the record. They also include attachments that are not part of the record on appeal. Such statements and attachments cannot be reviewed by this court. The exhibit attached to both briefs, though apparently considered by the trial court in making its ruling, was not offered into evidence. Because the trial court improperly based its ruling on evidence not introduced, we are compelled to vacate the judgment granting the exception of prescription and remand for a rehearing on that exception and for the making of an appropriate record for any future appellate review.

CONCLUSION

For the reasons stated, we reverse that part of the judgment sustaining the exception of no cause of action filed by James Morgan. We vacate that part of the judgment sustaining his exception of prescription, and we remand for a rehearing of that exception. Each party is to bear his own costs on appeal.

REVERSED IN PART, VACATED IN PART, and REMANDED.

      . In the divorce petition, which is part of the record and was filed on October 18, 1999, Margie asked that child support be set in the amount of $400 per month beginning September 1, 1998, and then increasing to $425 per month beginning September 1, 1999, and $450 per month beginning September 1, 2000. In a pro se answer filed the same day as the divorce petition, James admitted all the allegations of the petition. His answer further provided that he “specifically admits and consents to all allegations as to child custody, child support, visitation, and, in general, all provisions of the joint custody implementation plan filed herewith.” The trial court also signed the divorce judgment that same day.


author: GARRETT, J.

text:
    Joel TATUM, Plaintiff-Appellant v. Pankajrai SHROFF, MD and Caldwell Parish Hospital Service District No. 1 d/b/a Citizens Medical Center, Defendants-Appellees.
    No. 49,518-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 19, 2014.

      Capitelli & Wicker by J. Alex Watkins, T. Carey Wicker, III, New Orleans, for Appellant.
    Nelson, Zentner, Sartor & Snellings by F. Williams Sartor, Jr., Monroe, for Appel-lee Pankajrai Shroff, M.D.
    Before WILLIAMS, STEWART and GARRETT, JJ.
   GARRETT, J.

l,The plaintiff in this medical malpractice suit, Joel Tatum, appeals a trial court ruling which granted summary judgment in favor of the defendant, Dr. Pankajrai Shroff. We reverse the trial court judgment and remand for further proceedings.

FACTS

Frank Tatum, the plaintiffs father, became a patient of Dr. Shroff in 2003. Mr. Tatum’s medical history included diabetes, hypertension, osteoarthritis, cervical spinal stenosis, and deep vein thrombosis (DVT). On January 18, 2010, he saw Dr. Shroff, complaining of shortness of breath, intermittent confusion and edema of both legs. The doctor admitted Mr. Tatum to Caldwell Parish Hospital Service District No. 1, d/b/a Citizens Medical Center (CMC), for observation and monitoring. On January 22, 2010, the 79-year-old patient was found to be unresponsive, and a code was called. He was transferred to Rapides Regional Medical Center (RRMC), where he was pronounced dead later that afternoon. No autopsy was performed.

The plaintiff filed a medical malpractice complaint against CMC and Dr. Shroff, which asserted that they failed to timely diagnose and treat a pulmonary embolism and/or DVT and failed to provide treatment which met the applicable standard of care. The complaint was submitted to a medical review panel (MRP), pursuant to the Louisiana Medical Malpractice Act. On November 10, 2011, the MRP issued an opinion unanimously finding that neither CMC nor Dr. Shroff breached the applicable standard of care. As to Dr. Shroff, the MRP concluded that blood gas, clinical and X-ray ^findings were consistent with his diagnosis of hypoventilation syndrome with right heart failure and that he ordered appropriate treatment. It found that prior to January 21, 2010, there were no clinical findings to suggest acute DVT, and that when symptoms suggestive of it manifested, Dr. Shroff ordered a venous Doppler test. According to the MRP’s opinion, the radiologist’s report indicated positive DVT' in the right leg, and Dr. Shroff ordered appropriate medication. The MRP further concluded that there was a “high likelihood” that the test findings were residual findings from a prior DVT because a D-dimer test performed at RRMC was normal. The MRP found that such a finding “virtually excludes the probability” that Mr. Tatum had an acute pulmonary embolism because “a normal D-dimer study excludes acute PE and acute DVT with 95% sensitivity.”

In January 2012, the plaintiff filed suit against Dr. Shroff and CMC, asserting medical malpractice in their treatment of his late father. More specifically, he alleged that they failed to timely diagnose and treat a pulmonary embolism and/or DVT. Dr. Shroff filed an answer which incorporated a dilatory exception of vagueness and ambiguity and a motion to strike. He admitted that Mr. Tatum presented to his office on January 18, 2010, and that a venous Doppler study was performed on January 21. Dr. Shroff complained that certain paragraphs of the petition were vague and ambiguous, and he requested that they be stricken. Dr. Shroffs exception of vagueness and ambiguity and motion to strike were granted by consent judgment in March 2012.

| sIn September 2012, Dr. Shroff filed a motion for summary judgment. He asserted that the plaintiff had failed to identify any expert witness to refute the findings of the MRP. Relying upon the favorable MRP opinion and the plaintiffs failure to identify an expert witness, Dr. Shroff requested summary judgment dismissing him from the suit.

In opposition, the plaintiff filed a letter affidavit dated December 27, 2012, from Dr. Michael Langan, a physician at Massachusetts General Hospital, who is affiliated with Harvard Medical School and board certified in internal medicine with an added qualification in geriatric medicine. In his affidavit, Dr. Langan recited a review of Mr. Tatum’s medical records from Dr. Shroffs office and from CMC. Among other things, these records showed a 2008 history of DVT in the right leg. The records from Mr. Tatum’s January 2010 hospitalization were discussed in detail, including the discharge summary in which Dr. Shroff stated that the cause of Mr. Tatum’s cardiopulmonary arrest was “either he may have had a massive pulmonary embolism, could have had cardiac ar-rhythmias, or he may have had a myocar- • diac infarction.”

Dr. Langan stated that it appeared obvious that Mr. Tatum’s death was attributable to a pulmonary embolism. He opined that Mr. Tatum’s admission symptoms, laboratory results and echocardiogram were most consistent with a pulmonary embolism. He stated that Dr. Shroff was negligent in Mr. Tatum’s care in the following ways:

|4(1) Failing to timely diagnose cardiac dysfunction as the cause of bilateral lower extremity edema, “[f]rom the beginning of his treatment to Mr. Tatum in 2003 until his death in 2010.” This included failure to refer Mr. Tatum to a cardiologist or order appropriate studies (echocardiogram, stress test, etc.) that, “more likely than not, would have revealed congestive heart failure with increased pulmonary artery pressures (cor pulmonale)”;
(2) Failing to correctly interpret numerous EKGs performed on Mr. Tatum;
(3) Failing to treat congestive heart failure in Mr. Tatum;
(4) Failing to treat Mr. Tatum with anti-coagulation for DVT.

Dr. Langan concluded by stating that “[m]ore likely than not, and with a reasonable degree of medical certainty, Dr. Shroffs failure to timely diagnose and treat Mr. Tatum’s congestive heart failure resulted in his death.”

In February 2018, Dr. Shroff filed a motion to strike most or all of Dr. Lan-gan’s affidavit as being irrelevant or immaterial to the issues in the instant suit. In particular, he argued that, the plaintiff had failed to allege any malpractice prior to Mr. Tatum’s January 2010 admission to CMC and that any such claims of prior malpractice were not submitted to the MRP. The plaintiff opposed the motion to strike.

On October 3, 2018, the trial court issued a rather unusual written ruling which granted the motion to strike, ordering that all references in the affidavit pertaining to any suggested acts of malpractice prior to January 22, 2010, be stricken. It found that there were no allegations in the original petition or the MRP opinion as to any malpractice on any date other than January 22, 2010, and the provisions of La. R.S. 40:1299.47 required that the defendant be notified of the specific dates of malpractice. On October | ¡¡22, 2013, the plaintiff filed a motion for new trial. Pursuant to a consent judgment signed on January 21, 2014, the motion for new trial was granted in part and denied in part. Specifically, the court struck all reference to any suggested acts of malpractice prior to the hospital admission which began January 18, 2010. The affidavit was also stricken insofar as it attempted to raise allegations about that hospital admission not previously asserted to and reviewed by the MRP. The consent judgment did not contain any specific detail as to which portions of Dr. Langan’s affidavit were considered to be stricken or not stricken.

Against this procedural background, Dr. Shroff re-urged the motion for summary judgment. On April 14, 2014, the trial court issued brief written reasons granting the motion for summary judgment. After reviewing the affidavit of Dr. Langan, which was limited by the consent judgment to the period beginning January 18, 2010, the court observed that, in its view, the plaintiff’s expert offered no specific tests or treatment that Dr. Shroff failed to do, other than referring Mr. Tatum to a specialist. It then observed that the MRP specifically found Dr. Shroffs care and treatment to be within the standard of care. The trial court concluded that it was not convinced that the plaintiff could meet his burden of proof or prevail at a trial.

Judgment granting Dr. Shroffs motion for summary judgment and dismissing the plaintiffs claims against him with prejudice was signed on April 24, 2014. The plaintiff appealed;

lfiLAW

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Lewis v. Coleman, 48,173 (La.App.2d Cir.6/26/13), 118 So.3d 492, writ denied, 2013-1993 (La.11/15/13), 125 So.3d 1108.

Summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). 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. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880. Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions, 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)(2).

The 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 mov-ant’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 provide factual support sufficient to establish that he will be able to 17satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C. art. 966(C)(2).

An adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or other appropriate summary judgment evidence, must set forth specific facts showing that there is a genuine issue for trial. La. C.C. art. 967(B); Samaha v. Rau, supra; Lewis v. Coleman, supra.

This provision initially places the burden of producing evidence-at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion. Samaha v. Rau, supra; Foster v. Patwardhan, 48,575 (La.App.2d Cir.1/22/14), 132 So.3d 495, writ denied, 2014-0614 (La.4/25/14), 138 So.3d 1233.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Stated another way, a “material fact” is one in which “its existence |8or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Samaha v. Rau, supra.

A genuine issue exists where reasonable persons, after considering the evidence, could disagree. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Toston v. St. Francis Med. Ctr., Inc. ex rel. Bd. of Supr’s of La. State Univ. & Agr. & Mech. Coll., 47,529 (La.App.2d Cir.12/17/12), 108 So.3d 197.

Even though summary judgment is now favored, it is not a substitute for trial on the merits, and it is inappropriate for- judicial determination of subjective facts, such as motive, intent, good faith or knowledge that call for credibility evaluations and the weighing of the testimony. Tillman v. Eldridge, 44,460 (La.App.2d Cir.7/15/09), 17 So.3d 69. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Tillman v. Eldridge, supra.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. La. R.S. 9:2794. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau, supra; Foster v. Patwardhan, supra.

J^ARGUMENTS ■

The plaintiff argues that the trial court erred in granting the motion for summary judgment, maintaining that Dr. Langan’s affidavit created a genuine issue of material fact as to whether Dr. Shroff breached the standard of care during the hospitalization of Mr. Tatum beginning on January 18, 2010. Although he asserts that Dr. Langan cited several deficiencies in Dr. Shroffs actions, the plaintiff contends that just the failure to refer his father to a cardiologist during the hospitalization alone would be an alleged breach of care and sufficient to defeat summary judgment. He also criticizes the trial court for giving “extraordinary weight” to the MRP opinion, essentially finding it more persuasive than Dr. Langan. According to the plaintiff, the opinions expressed in his expert’s affidavit, taken together with the MRP opinion, illustrate the existence of numerous contested material facts. The plaintiff further contends that Dr. Shroff interpreted the consent judgment too narrowly. Since some of Dr. Langan’s opinion addressed violations occurring “until [Mr. Tatum’s] death in 2010,” the plaintiff argues that they encompass the January 2010 hospitalization and give rise to genuine issues of material fact defeating summary judgment.

Dr. Shroff argues that much of Dr. Lan-gan’s affidavit is excluded from consideration because the plaintiff’s MRP complaint only asserted negligence during Mr. Tatum’s January 2010 hospital admission and specified that the alleged negligence was failing to timely diagnose and treat a pulmonary embolism and/or DVT and failing to provide treatment which 11ftmet the applicable standard of care. Accordingly, the consent judgment limited the opinions in Dr. Langan’s affidavit to any alleged malpractice that arose from Mr. Tatum’s hospitalization between January 18, 2010, to January 22, 2010, and was submitted to the MRP. Dr. Shroff contends that the remaining portions are insufficient to create genuine issues of material fact which would preclude summary judgment.

DISCUSSION

Although the consent judgment limited Dr. Langan’s affidavit to only the events surrounding Mr. Tatum’s January 2010 hospitalization and the issues presented to the MRP, our de novo review demonstrates that, even with these restrictions, there are still genuine issues of material fact precluding summary judgment. Dr. Langan opined that Dr. Shroff was negligent in his treatment of Mr. Tatum in several respects, including his failure to treat his patient with an anticoagulant for DVT and to refer him to a cardiologist. These alleged acts of negligence are asserted to have continued up until his death, which occurred during the January 2010 hospitalization. These assertions of malpractice stand in stark contrast to the MRP opinion. These opposing views cannot be reconciled without making credibility determinations. Such credibility calls are prohibited in ruling on a motion for summary judgment. A fair reading of the written ruling by the trial court in this case indicates that the trial court made some improper credibility calls which are more appropriately made by the trier of fact during trial.

In Based on the foregoing, we find that summary judgment was not appropriate. Accordingly, we reverse the trial court ruling granting summary judgment in favor of Dr. Shroff and dismissing the plaintiffs claims.

CONCLUSION

The ruling granting summary judgment in favor of Dr. Shroff is reversed. The matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Dr. Shroff.

REVERSED AND REMANDED.

      . CMC also filed a motion for summary judgment, which was granted by a consent judgment in January 2013. All of the plaintiff’s claims against CMC were dismissed with prejudice at the plaintiff's costs, while all of his rights against Dr. Shroff were reservéd.


author: SANDRA CABRINA JENKINS, Judge.

text:
    SUCCESSION OF Manuel DUSKIN Emanuel Duskin aka Emanuel Durskin and Edison Lazard Bishop Frank E. Lott v. The Mahalia Jackson Residual Family Corporation XYZ Shareholders and XYZ Directors, individually Bishop Frank E. Lottjohnson v. The Notary Shoppe et al Inc., Corporation Individually Kathleen D. Bondio, and Ora L. Davis Individually and as a Notary Public.
    No. 2014-CA-0236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 19, 2014.
    Rehearing Denied Dec. 17, 2014.

      Bishop Frank E. Lott>-Johnson, State-boro, GA, Plaintiff/Appellant/In Proper Person.
    Edgar D. Gankendorff, Christophe Sza-pary, Keelie M. Broom, Provosty & Gank-endorff, LLC, New Orleans, LA, Wanda Anderson Davis, Leefe, Gibbs, Sullivan, Dupre and Aldous, L.L.C., Metairie, LA, for Defendants/Appellees.
    (Court composed of Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

_JjThis appeal arises from prolonged litigation pertaining to the succession of Manuel Duskin. Appellant appeals the trial court’s judgment granting appellees’ motion to annul a previously signed order, sustaining appellees’ exceptions, and overruling appellant’s exceptions. For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Manuel Duskin (“Mr. Duskin”) died testate on March 19, 2004. On June 23, 2004, his daughters, Lawanda Otis and Rose Duskin Champagne (“daughters”), filed a petition to probate their father’s March 12, 2004 testament and place them into possession of his estate. At the time of his death, Mr. Duskin owned twenty percent (equal to one hundred shares) of the Ma-halia Jackson Family Corporation (“the Corporation”). Mr. Duskin’s March 12, 2004 testament granted his ownership interest in the Corporation to his daughters. A judgment of possession was signed on June 24, 2004, and amended for a typographical error on September 27, 2004, awarding each daughter ten percent interest in the Corporation.

On May 9, 2007 appellant, Bishop Frank E. Lott, initiated a new action involving Mr. Duskin’s succession by filing a petition to probate, which was later denied for failure to “follow form required by law.” Appellant filed numerous other petitions over the next several months which were likewise denied for failure |ato follow form. On August 7, 2007, appellant filed an amended petition to probate a document from 1994 (“the 1994 Document”) allegedly executed by Mr. Duskin. An order granting this petition was signed and entered into the record on September 7, 2007. Appellant then filed a petition for nullification on September 13, 2007 seeking to invalidate the last will and testament the daughters probated. The petition for nullification was denied for its nonconformity with the mandates of La. C.C.P. art. 2931. Appellant filed an additional pleading attempting to remedy the deficiency along with a written request asking the court to view a videotape which he contends automatically validates the 1994 Document because the video shows Mr. Duskin signing the instrument. The court did not act on this request.

The court consolidated the two actions on its own motion on July 14, 2009. A contradictory hearing on appellant’s motion to nullify the testament was scheduled for July 17, 2009, but was continued without date at the appellant’s request. Appellant filed another petition to nullify the testament on May 3, 2011, to which appel-lees filed an exception of prescription. The exception was initially sustained, but the court granted a new trial on its own motion and ultimately overruled appellees’ exception.

On February 14, 2012, appellant instituted a new action by filing a petition for damages against appellees, alleging that the testament offered for probate by the daughters was forged and that he is a rightful legatee under the 1994 Document. In response to this petition, appellees filed exceptions of prescription, |ano right of action, and no cause of action. Appellees also filed a Motion to Vacate or in the Alternative, Annul an Order Previously Signed (“motion to annul”), in reference to the September 7, 2007 order probating the 1994 Document. Appellant filed exceptions to appellees’ motion to annul on the grounds of no cause of action, no right of action, and prescription.

Appellant’s exceptions and appellees’ exceptions and motion were heard on September 6, 2013. On September 10, 2013, the trial court rendered judgment: (1) overruling appellant’s exceptions of prescription, no right of action, and no cause of action; (2) granting appellees’ motion to annul; (3) sustaining appellees’ exception of no right of action; and (4) sustaining appellees’ exception of no cause of action concerning the contractual action. Appellant timely filed a motion for new trial, which was subsequently denied, and this appeal followed.

DISCUSSION

Appellant asserts ten assignments of error on appeal, the majority of which are less than clear and essentially challenge the law itself on a futile basis rather than contesting the trial court’s application of the applicable law. Rule 1-3 of the Uniform Rules of the Courts of Appeal, “Scope of Review,” dictates that a court of appeal may only review issues “which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” See KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11-0598, p. 6 (La.App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211. To preserve appellate review for an alleged error in the trial court, a party must raise an objection, and state the grounds, contemporaneously with the occurrence of the alleged error. La. C.Cr.P. art. 841(A); see also State v. Green, 10-0454, p. 22 (La.App. 4 Cir. 3/16/11), 62 So.3d 229, 242 (citing State v. Jackson, 450 So.2d 621, 634 (La.1984)). Accordingly, we will not entertain the issues raised for the first time in appellant’s brief and will only address the specific assignments that ascend from the judgment that is being appealed—sustaining appellees’ exceptions of no right of action and no cause of action, and granting appel-lees’ motion to annul the September 7, 2007 order.

Exceptions of no right of action and no cause of action present questions of law and are reviewed by this Court under a de novo standard of review. St. Pierre v. Northrop Grumman Shipbuilding, Inc., 12-0545, p. 7 (La.App. 4 Cir. 10/24/12), 102 So.3d 1003, 1009 (citing Alderdice v. Bd. of Sup’rs of Louisiana State Univ. & Agr. & Mech. Coll., 12-0148, p. 4 (La.App. 4 Cir. 7/25/12), 107 So.3d 7, 10; Hornot v. Cardenas, 06-1341, p. 12 (La.App. 4 Cir. 10/3/07), 968 So.2d 789, 798). Thus, our review entails deciding whether the trial court’s ruling sustaining the exceptions was legally correct;. Id. (citing Peneguy v. Porteous, 01-1503, p. 6 (La.App. 4 Cir. 5/15/02), 823 So.2d 380, 384).

No Right of Action

This Court recently discussed the concept of a peremptory exception of no right of action and stated that this exception assumes that the petition offers a valid cause of action and considers whether the instant plaintiff is a member of the class that has a legal interest in the underlying case. Weber v. Metro. Cmty. Hospice Found., Inc., 13-0182, p. 4 (La.App. 4 Cir. 12/18/13), 131 So.3d 371, 374 (citing Indus. Companies, Inc. v. Durbin, 02-0665, p. 12 (La.1/28/03), 837 So.2d 1207, 1216). La. C.C.P. art. 681 states “[ejxcept as otherwise provided by law, an action can be brought only by a person having a real and actual interest which he asserts.” Thus, one must have a justiciable interest in the succession proceeding in order to have standing to maintain an action to annul the testator’s testament. In re Succession of Vickers, 04-0887, p. 12 (La.App. 4 Cir. 12/22/04), 891 So.2d 98, 106 (Love, J., concurring).

Here, appellant is not an heir or related to the decedent in any way. Appellant’s only avenue of establishing an interest in Mr. Duskin’s succession is through the 1994 Document. Appellant contends the 1994 Document is either a valid testament or, in the alternative and at the very least, an enforceable contract. Accordingly, in relation to the exception of no right of action, our consideration begins with determining whether the 1994 Document meets the requirements of a testament, and if not, turns to whether it can stand as a contract.

Before we determine whether the 1994 Document is a testament or perhaps a contract, a depiction of the document is warranted. The 1994 Document is a two-page, handwritten document titled “Irrevocable and Last Will and Testament.” The “testators” to the 1994 Document are Mr. Duskin and Mr. Edison Lazard, president and vice-president, respectively, of the Ma-halia Jackson Family Resial [sic] Corporation. The 1994 Document attempts to bequeath appellant the rights relative to the Mahalia Jackson name, proceeds, and book belonging to Mr. Duskin and Mr. Lazard. The 1994 Document is not dated, but is notarized, and also signed by Mr. Duskin, Mr. Lazard, and one witness.

A. Testament

There are two forms of testaments in Louisiana, olographic and notarial. La. C.C. art. 1574. A valid testament can only be executed by one testator, regardless Rof whether it is olographic or notarial. La. C.C. art. 1571 (“Nor may more than one person execute a testament in the same instrument.”). Thus, the fact that the 1994 Document grants Mr. Duskin and Mr. Lazard’s property together is fatal to it prevailing as a valid testament. Nevertheless, in the interest of completeness for appellant’s sake, we will examine the formality requirements of an olographic and notarial testament.

1. Olographic Testament

An olographic testament must be entirely written, dated, and signed in the handwriting of the testator. La. C.C. art. 1575. If an olographic testament is probated, at least two credible witnesses must testify that the handwriting on the instrument is that of the testator. La. C.C.P. art. 2883. ,

Although the 1994 Document is handwritten and bears the testators’ signatures, the only date present is from the notary stamp. This precise issue has been addressed by the Louisiana Supreme Court which reversed a ruling that upheld an olographic testament written entirely in the hand of the testator, but the only date appearing on the document was filled in by the notary. See In re Succession of Aycock, 02-0701 (La.05/24/02), 819 So.2d 290. Finding that the testament was invalid as to form, the Court went on to state that while extrinsic evidence Can be admitted to clarify an ambiguous date, “when the testament contains no date at all in the handwriting of the testator, a date cannot be inferred.” Id. (citing Succession of Boyd, 306 So.2d 687, 692 (La.1975)) (“An absent date cannot be supplied, for it must come from the hand of the testator.”). For this 17reason, we find the 1994 Document fails to satisfy the formality requirements of an olographic testament.

2. Notarial Testament

A notarial testament must be in writing, dated, and if the testator knows how to and is physically able to sign his name and read, the testator must declare or signify in the presence of a notary and two witnesses that the instrument is his last will and testament. La. C.C. art. 1577. Additionally, the testator must sign his name at the end of the testament and on each separate page and the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that these formalities have been followed. Id. While a material deviation from the manner of execution prescribed by La. C.C. art. 1577 will be fatal to the validity of the testament, the form of the attestation clause is not absolute. In re Succession of Holbrook, 13-1181, p. 9 (La.1/28/14), 144 So.3d 845, 851 (quoting Succession of Morgan, 257 La. 380, 242 So.2d 551, 552 (1970)). Thus, as long as the testament contains a clause signed by the witnesses and the notary that encompasses the requisites mentioned in La. C.C. art. 1577, the attestation clause will be sufficient. Id. (quoting Succession of Morgan, 242 So.2d at 552-53).

The 1994 Document was only signed by one witness and, as previously acknowledged, is not dated. Appellant argues that despite the 1994 Document only bearing one witness’s signature, two witnesses actually observed Mr. Duskin sign the document and the two affidavits he submitted from these witnesses remedies any potential defect. Although the record contains the affidavits, this does not cure the deficiency because it remains that the witnesses never signed the declaration in the presence of each other, the notary, and the testator. Accordingly, we find that the 1994 Document falls short of complying with the formalities prescribed for a | snotarial testament. See In re Succession of Carlton, 09-1339, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 1015, 1018 (holding that an invalid notarial testament could not be cured by submitting affidavits by -witnesses and the notary). Having determined that the 1994 Document is not a valid testament, we now turn our attention to appellant’s argument that the 1994 Document stands as a contract.

B. Contract

In Louisiana, the four elements that are required for formation of a contract are: the capacity to contract, mutual consent, a certain object, and a lawful cause. In re Succession of Flanigan, 06-1402, p. 6 (La.App. 4 Cir. 6/13/07), 961 So.2d 541, 544 (citing Fairbanks v. Tulane University, 98-1228, p. 4 (La.App. 4 Cir. 3/31/99), 731 So.2d 983, 986; La. C.C. arts. 1918, 1927,1966, and 1971). Contracts are either unilateral or bilateral and onerous or gratuitous. A contract is unilateral when the accepting party does not assume a reciprocal obligation, and bilateral when the parties obligate themselves reciprocally. La. C.C. arts. 1907-08. Likewise, a contract is onerous when both parties obtain an advantage in return for their obligation, and gratuitous when only one party obligates himself for the benefit of the other without obtaining any advantage. La. C.C. arts. 1909-10.

Considering these principles, we first find the 1994 Document is unilateral in that the accepting party (appellant) did not assume any reciprocal obligation; and second find it is gratuitous as the decedent obligated himself for appellant’s benefit without obtaining an advantage in return. When, as here, a contract is gratuitous, property can only be acquired or disposed of by donations inter vivos or mortis causa. La. C.C. art. 1467. A donation mortis causa can only be made in the form of an olographic or notarial testament. See La. C.C. arts. 1570 and 1574. |sThus, the 1994 Document does not purport to be a donation mortis causa as it fails to meet the formality requirements for both forms of testaments.

Because we find the 1994 Document is gratuitous and not a donation mor-tis causa, the document must satisfy the requirements of a donation inter vivos in order for it to prevail as a contract. A donation inter vivos is a “contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it.” La. C.C. art. 1468. Pursuant to La. C.C. art., 1541, “[a] donation inter vivos shall be made by authentic act under the penalty of absolute nullity.” The requirements for an authentic act are specified in La. C.C. art. 1833, which states in pertinent part:

A. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.
B. To be an authentic act, the writing need not be executed at one time or place, or before the same notary public or in the presence of the same witnesses, provided that each party who executes it does so before a notary public or other officer authorized to perform that function, and in the presence of two witnesses and each party, each witness, and each notary public signs it. The failure to' include the typed or hand-printed name of each person signing the act shall not affect the validity or authenticity of the act.

Despite the foregoing rules, appellant contends an authentic act is not necessary because only “an express and unconditional acceptance” is required. While appellant is correct in that not all donations inter vivos must be executed by | inauthentic act, the rights that are attempting to be donated in the 1994 Document are incorporeal in nature, which are not susceptible to the manual delivery exception. See La. C.C. art. 1543. Thus, contrary to appellant’s suggestion, the 1994 Document must be executed by authentic act.

Nevertheless, appellant further asserts that if an authentic act is necessary, the 1994 Document satisfies the requirements because of the two affidavits he submitted. An authentic act is valid, even if signed at different times, as long as all parties sign the document. Meltzer v. Meltzer, 95-0551, p. 5 (La.App. 4 Cir. 9/28/95), 662 So.2d 58, 61 (holding that an authentic act will be valid provided that the “notary and witnesses themselves also sign the act, although not necessarily at the time that any party signs it.”) (quoting Rittiner v. Sinclair, 374 So.2d 680, 685 (La.App. 4 Cir.1978)). The instant case does not comport with the rule expressed in Meltzer because here, neither of the alleged “witnesses” actually signed the 1994 Document and instead only signed affidavits. For that reason, the 1994 Document is not a properly executed authentic act and thus cannot serve as a donation inter vivos.

Therefore, having found the 1994 Document does not meet the formality requirements of a contract or testament, it follows that appellant does not belong to “the class of persons that has a legal interest in the subject matter of the litigation.” J-W Power Co. v. State ex rel. Dep’t of Revenue & Taxation, 10-1598, pp. 7-8 (La.3/15/11), 59 So.3d 1234, 1239 (citing Reese v. State, Dept. of Public Safety & Corrections, 03-1615, p. 3 (La.2/20/04), 866 So.2d 244, 246). Accordingly, ^sustaining appellees’ exception of no right of action was not error as appellant has no interest in the succession proceeding.

No Cause of Action

A peremptory exception of no cause of action tests the legal sufficiency of a petition by determining whether the law affords the plaintiff a remedy based upon the facts alleged in the pleading. Meckstroth v. Louisiana Dep’t of Transp. & Dev., 07-0236, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 490, 492 (citing La. C.C.P. art. 927; Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127, 131). The trial court sustained appellees’ exception of no cause of action as it relates to plaintiffs contractual action only. Thus, our review of this exception is limited to determining whether the 1994 Document can stand as a contract.

Having determined the 1994 Document fails to meet the formality requirements of a contract pretermits any discussion of appellant’s claim that the trial court erroneously sustained appellees’ exception of no cause of action. Accordingly, this assignment is without merit.

Motion to Vacate and/or Annul Order

The final ruling appellant is challenging is the trial court’s ruling granting appellees’ motion to annul the September 7, 2007 order probating the 1994 Document. When reviewing the trial court’s finding on an action in nullity, the appellate court should determine whether the trial court’s finding was reasonable, not whether the finding is right or wrong. West v. Melancon, 05-1183, p. 3 (La.App. 4 Cir. 4/26/06), 929 So.2d 809, 811 (citing Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149, p. 6 (La.10/16/01), 800 So.2d 762, 766).

| ^Appellant argues granting the motion to annul was error because it runs afoul to Mr. Duskin’s intent as evidenced in the 1994 Document. This contention is misguided as it is well established that a testator’s intent is not reached unless the testament is in proper form. See La. C.C. art. 1573; In re Succession of Dunaway, 11-1747, pp. 4-5 (La.App. 1 Cir. 5/2/12), 92 So.3d 555, 557 (citing Succession of Hendricks, 08-1914, p. 5 (La.App. 1 Cir. 9/23/09), 28 So.3d 1057, 1060). Having determined that the 1994 Document is absolutely null for failure to satisfy the form requirements for either testament, Mr. Duskin’s intent is of no moment.

Appellant also asserts that not admitting the videotape which portrays Mr. Duskin signing the 1994 Document was error. It is important to note that La. C.C.P. art. 2904, the article relating to the admissibility of videotapes to prove the validity of a testament, was not enacted until 2005. The document that appellant is attempting to probate was executed in 1994, at which time no means existed to prove a testament through a videotape. Therefore, this article is inconsequential to the instant document and, despite appellant’s argument otherwise, the trial court’s failure to admit the videotape was not error.

After reviewing the record before, us, we find the trial court’s judgment granting appellees’ motion to annul the September 7, 2007 order probating the 1994 Document was reasonable as an order cannot give legal effect to a testament that is absolutely null. This final assignment of error is without merit.

DECREE

For the foregoing reasons, we find the trial court did not err in overruling appellant’s exceptions, granting appellees’ motion to annul, and sustaining appellees’ exceptions. The trial court judgment is affirmed.

AFFIRMED.

      . La. C.C.P. art. 2931 provides: "A probated testament may be annulled only by a direct action brought in the succession proceeding against the legatees, the residuary heir, if any, and the executor, if he has not been discharged. The action shall be tried as a summary proceeding.”

      . This action was consolidated with the earlier consolidated action.

      . It should be noted that although the 1994 Document bestows certain property rights of Mr. Duskin and Mr. Lazard, from our review of the record it appears that appellant only takes issue with Mr. Duskin’s succession and has not challenged anything relating to Mr. Lazard's estate.

      . The validity of a testament is determined under the laws in effect when written. See La. C.C. art. 1574 cmt. (c); see also former La. R.S. 9:2445. At the time the 1994 Document was executed, only statutory and olo-graphic testaments existed. See La. C.C. art. 1574 cmt. (a); see also former La. R.S. 9:2442. Notarial testaments replaced statutory testaments in 1997, and for all intents and purposes, the terms are interchangeable. See La. C.C. art. 1577 cmt. (a) ("This article reproduces the substance of R.S. 9:2442. It does not change the law.”). Despite the fact that notarial testaments were not recognized at the time the 1994 Document was created, this opinion refers to the testament form as notarial, considering there is no substantive difference between the two.

      . La. C.C. art. 1541 cmt. (b) states: "Donations of both immovable and movable property must be made by notarial act unless a particular exception applies. There are numerous exceptions to this Article including Article 1543 (manual gift) and Article 1550 (stock certificates and negotiable instruments)."

      . La. C.C. art. 1543 provides: "The donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality.” (emphasis added).


author: GENOVESE, Judge.

text:
    Mark SHARBENO, et al. v. ALLSTATE INSURANCE COMPANY, et al.
    No. 14-670.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2014.
    Holli K. Yandle, The Dill Firm, APLC, Lafayette, LA, for Defendant/Appellant, Safeway Insurance Company of Louisiana.

      Barry M. Barnett, Lacroix, Levy and Barnett, Alexandria, LA, for PlaintifRAp-pellee, Brandy Sharbeno.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Bln this personal injury case involving an underinsured motorist (UM) claim, Defendant, Safeway Insurance Company of Louisiana (Safeway), appeals the judgment of the trial court in favor of Plaintiff, Brandy Sharbeno. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The instant litigation arises out of a single-vehicle accident which occurred in the early morning hours of January 19, 2008, in Vernon Parish, Louisiana. Occupants in the vehicle at the time of the crash were Joseph W. Brittain, nineteen years of age, and Brandy Sharbeno, fourteen years of age. There is considerable dispute concerning the basic facts of the accident, particularly who was operating the vehicle. What is known is that Ms. Sharbeno and Mr. Brittain were occupants in a 1999 Chevrolet Camaro owned by Mr. Brittain when it crashed. Ms. Sharbeno was injured in the accident, and Mr. Brit-tain was killed.

Asserting that Mr. Brittain’s negligence was the cause of the accident and his minor daughter’s resulting injuries, Mark Sharbeno, individually, and on behalf of his minor daughter, Brandy, filed suit against Allstate Insurance Company, Mr. Brit-tain’s automobile liability insurance carrier; Safeway, his UM insurance carrier; Misty Brittain; and John Thomas Brittain, as administrator of the estate of his minor child, Kimberly Brittain. In its answer, Safeway alleged that RMs. Sharbeno was the driver of the Camaro at the time of the accident and was not entitled to recover under Safeway’s UM policy.

After a bench trial and taking the matter under advisement, the trial court issued Written Reasons for Judgment rejecting Safeway’s allegations and ruled in favor of Ms. Sharbeno. The trial court labeled Safeway’s evidence “circumstantial” and “suspect”; whereas, it found Ms. Sharbeno’s “testimony that she was a guest passenger in the vehicle at the time of the accident to be credible.” After the signing of a formal judgment in favor of Ms. Sharbeno, Safeway perfected a sus-pensive appeal.

ASSIGNMENTS OF ERROR

On appeal, Safeway presents the following assignments of error:

1. The trial court committed manifest error when it failed to accept the uncontradicted testimony of an expert in accident reconstruction where there was no sound reason for rejecting the testimony and when the testimony was corroborated by other, objective evidence.
2. The trial court committed manifest error when it accepted as credible the testimony of [Ms. Sharbeno] when her testimony was directly contradicted by other, objective evidence.

LAW AND DISCUSSION

Whether Ms. Sharbeno was the driver of the Camaro at the time of the accident is a factual determination requiring the application of the manifest error standard of review. In Purvis v. Grant Parish School Board, 13-1424, p. 4 (La.2/14/14), 144 So.3d 922, 926, our supreme court set forth the applicable appellate standard of review as follows:

In Stobart v. State, through DOTD, 617 So.2d 880 (La.1993), this court set forth a two-part test for the reversal of the fact-finder’s determinations:
|31) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This test dictates that a reviewing court must do more than simply review the record for some evidence that may controvert the trial court ruling. Rather, it requires a review of the entire record to determine whether manifest error has occurred. Thus, the issue before the court of appeal is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. London Towne Condominium Homeowner’s Association v. London Towne Company, 06-401 (La.10/17/06), 939 So.2d 1227. Where the fact-finder’s determination is based on its decision to credit the testimony of one or more witnesses, that finding can 'virtually never be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the instant case, the trial court was faced with staunchly conflicting testimony in its effort to determine who was driving the vehicle when the accident occurred. The testimony of the sole survivor, whose personal injury claim is at issue, was juxtaposed against the evidence presented by Safeway in its denial of recovery under its UM policy.

Safeway argues that the trial court manifestly erred “when it rejected the uncon-tradicted, objectively-supported testimony of an expert in accident reconstruction and accepted the objectively contradicted testimony of [Ms. Sharbeno].” Countering, Ms. Sharbeno argues that the trial court was correct in “finding that the [sensing diagnostic module (SDM) ] data was suspect, and in rejecting Trooper [Clay] Cedar’s opinion based on that data”; thus, a reasonable factual basis exists for its judgment in her favor.

The vehicle which crashed was a 1999 Chevrolet Camaro with a manual shift transmission'. At the time of the accident, Ms. Sharbeno was fourteen years of age and did not possess a driver’s license. Ms. Sharbeno testified that she had |4driven a vehicle before — a few times with her father in his truck and once, briefly, with Mr. Brittain in his truck. Ms. Sharbeno denied that she ever drove Mr. Brittain’s Camaro. She claimed that at that time, she did not even know how to drive a vehicle with a manual shift transmission.

In recounting the details of the accident, Ms. Sharbeno stated that she was seated in the passenger’s seat and that neither she nor Mr. Brittain were wearing a seat-belt. She remembered the weather being cold with a misting rain. Mr. Brittain drove through a curve then shifted the vehicle into a lower gear in an attempt to make the car sway, or fishtail. However, she described that Mr. Brittain lost control when the ear “kept coming back and forth and then we went off the road[.]” Ms. Sharbeno testified that the vehicle flipped and came to rest upside down. She crawled out of the vehicle and found that Mr. Brittain had been ejected and was pinned beneath the vehicle. She was transported to the hospital via ambulance with injuries to her head, hip, and thigh. Mr. Brittain succumbed to his injuries at the scene of the accident. Ms. Sharbeno’s written statement, dated January 28, 2008, also reported that Mr. Brittain was driving and that neither was wearing a seatbelt.

Safeway offered the testimony of Trooper Clay Cedars of the Louisiana State Police Crash Reconstruction Unit as an expert in accident reconstruction to refute Ms. Sharbeno’s testimony. Trooper Cedars was the lead reconstructionist assigned to investigate this accident. He did not go to the accident scene the night that it actually occurred; however, he did review the responding officer’s synopsis |5of what occurred prior to his investigation. Trooper Cedars testified that initially, he had no suspicion that Mr. Brittain was not driving.

He described that his investigation included visiting the crash site, inspecting the Camaro, reviewing the data from the vehicle’s SDM, also known as the black box, and interviewing Ms. Sharbeno. He physically inspected the Camaro twice. According to Trooper Cedars, the Camaro had a glass T-Top roof. During his inspection, he noted that the passenger’s side T-Top roof was missing and that the passenger’s side window was broken. The Camaro’s passenger side bore the brunt of the impact and resultant damages. Trooper Cedars testified that he and Mr. Brit-tain were approximately the same height. According to Trooper Cedars, the driver’s seat of the Camaro was in a position that “did not fit the leg length or stature of the reported driver.” He claimed that he spoke with the tow truck operator and verified that no one had manipulated the position of the Camaro’s seats. Trooper Cedars testified that the data from the SDM indicated that the driver’s seatbelt was buckled when the accident occurred. Trooper Cedars concluded that the physical evidence and the SDM’s data made him suspicious that Mr. Brittain was not driving but was, instead, an unrestrained passenger before he sustained fatal injuries in the accident.

On January 28, 2008, Trooper Cedars interviewed Ms. Sharbeno. He revealed his suspicion that Mr. Brittain was not driving when the accident occurred. Ms. Sharbeno, however, maintained that she was the passenger and that Mr. Brittain was driving.

Safeway asserts that Trooper Cedar’s investigation evinces that Ms. Sharbeno’s testimony is unreliable. Safeway argues that it was manifest error |fifor the trial court to accept Ms. Sharbeno’s testimony over the testimony and investigative findings of Trooper Cedars.

Ms. Sharbeno did not offer any expert testimony in support of her position. However, Trooper Cedars was cross-examined extensively relative to a disclaimer on the SDM report stating: “Driver’s Belt Switch Circuit Status indicates the status of the driver’s seat belt switch circuit. If the vehicle’s electrical system is compromised during a crash, the state of the Driver’s Belt Switch Circuit may be reported other than the actual state.” Trooper Cedars opined that the Camaro’s electrical system was not compromised during the crash; however, he also admitted that he had to supply power to the vehicle in order to retrieve the data from the SDM. Ms. Sharbeno clearly elicited some reasonable doubt as to the accuracy of the SDM’s data.

We are mindful that our supreme court has emphasized the importance of deferring to the trial court’s ruling based on its capacity to better evaluate live witnesses, especially when its factual findings are based in large measure on credibility determinations.

In such cases, this court has emphasized the importance of deferring to the trier of fact’s finding, “as the trier of fact is not disadvantaged by the review of a cold record,” and “is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” Adkins v. Huckabay, 99-3605 at p. 16 (La.2/25/00), 755 So.2d 206, 215. See also Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973) (explaining the appellate court should defer to the trial court’s factual findings based on the “trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record)

Purvis, 144 So.3d at 927.

Safeway’s reliance on Trooper Cedars’ findings is certainly reasonable and justified; however, that does not negate the rule of law relative to two permissible 17views of the evidence. This court has stated, “Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong.” Duplechain v. Town of Church Point, 12 — 475, 12—476, p. 5 (La.App. 3 Cir. 12/19/12), 107 So.3d 800, 802 (citing Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993)). After carefully reviewing the record, we find the trial court’s conclusion that Ms. Sharbeno was not driving the vehicle at the time of the accident was reasonable. At the very least, this conclusion was based on a permissible view of the evidence. While Trooper Cedars’ testimony casts doubt on Ms. Sharbeno’s testimony, his evidence does not conclusively prove that Mr. Brittain was not driving when this accident occurred. We find that a reasonable factual basis exists in the evidence before the trial court and that although one may view these facts differently, the trial court was not clearly wrong. Therefore, according to Purvis, 144 So.3d 922, we- must not substitute our view of the evidence over that of the fact-finder and must affirm its ruling.

DECREE

For the foregoing reasons, the judgment of the trial court.is affirmed. Costs are assessed to Defendant/Appellant, Safeway Insurance Company of Louisiana.

AFFIRMED.

      .When, this lawsuit was filed, Ms. Sharbeno was a minor; therefore, her father, Mark Sharbeno, filed suit on her behalf. Ms. Shar-beno has reached the age of majority and, thus, the trial court lists Ms. Sharbeno as Plaintiff in whose favor it granted judgment.

      . Misty and Kimberly Brittain were heirs to the estate of their brother, Joseph W. Brittain.

      . Prior to trial, Ms. Sharbeno settled her claims against all defendants except Safeway.

      . Ms. Sharbeno explained that Mr. Brittain owned both a car, a Chevrolet Camaro, and a pickup track, a Toyota Tacoma.

      . Ms. Sharbeno stipulated to Safeway's offering of Trooper Cedars as an expert witness in accident reconstruction.

      . Mr. Brittain's driver’s license listed his height as 5 ’9" and his weight as 145 pounds.