text:
    John S. JACOBSEN, Jr. v. ASBESTOS CORPORATION LIMITED, et al.
    No. 12-CA-655.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      David R. Cannella, Mickey P. Landry, Frank J. Swarr, Philip C. Hoffman, Attorneys at Law, New Orleans, LA, for Plain-tiffiAppellant.
    Edward A. Rodrigue, Jr., Attorney at Law, Metairie, LA, for Defendant/Appel-lee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

12John S. Jacobsen Jr., plaintiff, appeals the trial court’s grant of an exception of lack of personal jurisdiction in favor of Norca Corporation, a defendant in this matter. Mr. Jacobsen argues that the trial court erred in granting this exception as the trial court gained personal jurisdiction over Norca because of its brokering sales of asbestos, the product alleged to have caused the damages in this case, and then shipping that asbestos to a plant in Louisiana. For the following reasons we find Mr. Jacobsen’s argument to be without merit and therefore affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Mr. Jacobsen filed his original petition for damages in this litigation on May 26, 2010, against Norca and other defendants.

Norca filed exceptions, including its exception of lack of personal jurisdiction at issue here, and an answer to Mr. Jacob-sen’s petition against it on August 9, 2010. Thereafter, the trial court gave Mr. Jacob-sen leave to file different | ^separate supplemental and amended petitions. On May 2, 2012, Norca moved to set a hearing of its exception of lack of personal jurisdiction, and in the alternative for motion for summary judgment against Mr. Jacobsen.

In response, on May 21, 2012, Mr. Ja-cobsen filed his “Opposition To Exception of Lack of Jurisdiction Over The Person And Motion For Summary Judgment Filed By Defendant Norca Corporation.” The record reflects that Mr. Jacobsen’s “exhibits” were attachments to this filing.

On May 29, 2012, the trial court heard Norca’s exception of lack of personal jurisdiction. The record shows that both Mr. Jacobsen and Norca argued various points of law and referenced the attachments to their filings, but that neither party introduced any evidence into the record. During this hearing, Norca objected to the court’s consideration of the various Jacob-sen attachments. The trial court did not rule on this objection.

At the conclusion of this hearing, the trial court judge stated, “I’m going to grant [the] exception.” After the trial court reached this conclusion, it did not hear Norca’s motion for summary judgment. Although no written judgment was issued that day, and the trial court’s statement on the transcript is not definitive, a minute entry from that day reflects that the trial court granted Norca’s exception of lack of personal jurisdiction.

Thereafter, on June 13, 2012, Mr. Jacob-sen moved for, and was granted, a devolu-tive appeal. In his motion for an appeal, Mr. Jacobsen alleges that the trial court sustained Norca’s exception of lack of personal jurisdiction on May 29, 2012. The trial court granted Mr. Jacobsen’s motion for this appeal the same day. In its order granting Mr. Jacobsen’s appeal, the trial court stated that the appeal |4was “from the Judgment rendered in the above-captioned case on May 29, 2012, dismissing defendant Norca Corporation.”

After the trial court granted Mr. Jacob-sen’s appeal however, it entered a written judgment sustaining Norca’s exception of lack of personal jurisdiction. The trial court signed and mailed this written judgment on June 15, 2012.

DISCUSSION

In this appeal, Mr. Jacobsen argues that the trial court erred in granting Norca’s exception of lack of personal jurisdiction. Mr. Jacobsen contends that Norca did in fact have sufficient minimum contacts with Louisiana for the trial court to constitutionally exert in personam jurisdiction over it. Before we address the merits of Mr. Jacobsen’s assignment however, we must determine the preliminary matters of whether this matter is properly before this Court, and whether the record before us sufficiently allows us to reach the merits of the question.

Preliminary Matters

Before addressing the merits of Mr. Ja-cobsen’s appeal, we must determine whether this appeal is properly before this Court, and whether the trial court erred in its judgment when it heard arguments on the exception, where the parties referenced the attachments to their memoran-da, but where the parties introduced no evidence.

As to the first matter, when a trial judge has failed to produce a written and signed final judgment, no appeal from that judgment may be taken. La. C.C.P. art.1911; State v. Beaudoin, 06-88 (La.App. 5 Cir. 6/29/06), 939 So.2d 428, 428-29. A minute entry and an oral judgment, that has not been reduced to writing and signed by the trial judge, are insufficient to divest the trial court of jurisdiction and grant jurisdiction to the appellate court. Beaudoin, supra, (citing La. C.C.P. art. [ s2088). Furthermore, even a written and signed document will not constitute a final judgment if that document indicates that, in the future, a “[j]udgment will be signed.” Spector v. Union City Transfer, 182 So. 524 (La.App. 1 Cir.1938). However, “an appeal granted before the signing of a final judgment is subject to dismissal [only] until the final judgment is signed.” Overmier v. Traylor, 475 So.2d 1094 (La.1985). “[O]nee the final judgment has been signed, any previously existing defect has been cured, and there is no useful purpose in dismissing the otherwise valid appeal.” Id.

Here, the May 29, 2012 trial court’s oral statement that a judgment would be granted, and the minute entry from that date, failed to constitute a final judgment from which the parties could appeal. Because however the trial court corrected its error by signing a written judgment in this matter on June 15, 2012, we will not dismiss this appeal.

We next turn to whether the trial court erred in rendering its judgment in this matter based upon the documents attached by each party to their memoranda but not introduced into evidence. Further, at hearing on the exception, counsel for Norca objected to the court’s consideration of the documents attached to Mr. Jacob-sen’s opposition, stating:

Very briefly. With regard to the documents that [counsel for plaintiffl referenced, I object to them. They are not identified. But curiously on this one which he talked about, and this, who knows where it came from, but it says that they found out the list of these suppliers by — it was developed using the types of products, and companies that provided the types of fibers. They don’t know that. They are just guessing. They went back and did some research according to this, but we object to all of these because we don’t think they are relevant, including the answers to interrogatories, which are unsigned and we don’t know where they came from.

The record reflects that the trial court never ruled on this objection. The record also reflects that no evidence was admitted at this hearing. When a trial court fails |sto rule on an objection before it, that objection is considered overruled. Hutchison v. Seariver Mar., Inc., 09-410 (La.App. 1 Cir. 9/11/2009), 22 So.3d 989, writ denied, 09-2216 (La.12/18/09), 28 So.3d 946. Therefore, by objecting to the trial court’s consideration of Mr. Jacobsen’s attachments, Norca preserved for appeal this issue of whether the trial court’s consideration of Mr. Jacobsen’s attachments was proper. However, Norca did not answer the appeal or assign as error the efficacy of the evidence relied upon by appellant in its opposition to the exception. Therefore, this issue is not before us. Uniform Rules Courts of Appeal, Rule 1-3.

What is still left to be determined however is the question of whether the argument before the trial court on this exception constituted a “hearing” and whether the affidavit relied upon by Norca, as well as the documents attached to Mr. Jacob-sen’s opposition, are properly before this Court for consideration, when they were not introduced into evidence in the trial court.

In this case, the parties each attached documents to their pleadings on the exception of lack of personal jurisdiction, made oral argument based upon those documents to the court, but did not introduce those documents into evidence during oral argument. At the conclusion of oral argument the trial court granted the exception of lack of personal jurisdiction from the bench without oral or written reasons. In de Reyes v. Marine Management and Consulting, Ltd., et al., 90-2214 (La.9/9/91), 586 So.2d 103, 109, the Louisiana Supreme Court set forth two methods of proof relative to exceptions of lack of personal jurisdiction — either with or without a contradictory hearing. If the trial court holds a contradictory hearing before it decides an exception of lack of personal jurisdiction, the plaintiffs burden is “to prove facts in support of [his] showing that jurisdiction was proper by a preponderance of the evidence.”

Rif on the other hand, a trial court does not hold such a contradictory hearing, the court will decide the matter on a record comprised of “pleadings, mem-oranda, and discovery depositions taken” in the matter. Id. at 109. When a contradictory hearing is not held, the burden of the non-moving party, typically the plaintiff, is “relatively slight” and the “allegations of the complaint and all reasonable inferences from the record are to be drawn in favor of the non-moving party.” Id.

We first address a preliminary question: what constitutes a contradictory hearing on an exception of lack of personal jurisdiction? Under the methods of proof set out in de Reyes and its progeny, it appears that even if oral argument on the exception is held, a contradictory hearing is not considered to have taken place unless live testimony is taken. See for example: Dahmes v. Champagne Elevators, Inc., 03-0807, 03-0983 (La.App. 4 Cir. 3/3/04), 869 So.2d 904, 906, writ denied, 04-0844 (La.6/4/04), 876 So.2d 93; and Ruppert v. George Kellett & Sons, Inc., 08-182 (La.App. 5 Cir. 9/30/08), 996 So.2d 501. This seems to be an anomalous rule because it allows parties to argue in open court and to refer to documents which are attached to the exception pleadings without the need to introduce items into evidence, as long as the parties did not introduce live testimony. On the contrary, where on the same exception the parties present live testimony, the documents attached to the exception pleadings seemingly must be introduced into evidence.

Un May 2008, the Louisiana Supreme Court in Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84, issued a ruling potentially in conflict with de Reyes. In Denoux, the matter before the court was a peremptory exception of prescription. In that case the plaintiffs’ petition made a claim “solely on Louisiana law” for damages and stated facts that they alleged supported their claim. Id. at 86. In response, a defendant filed its prescription exception. Id. The facts that the plaintiffs’ petition alleged stated claims that were “clearly prescribed” under Louisiana law on the face of their petition. Id. at 88. The plaintiffs however opposed the exception with a legal argument that the facts they alleged made a claim under federal maritime law that was not prescribed. Id. at 87. While the plaintiffs relied on certain depositions in making their argument, the plaintiffs never formally introduced these depositions, or anything else, into evidence. Id. at 88.

The Court found that, because their Louisiana law claims were clearly prescribed on the face of their petition, the plaintiffs bore the burden of defeating the exception of prescription. Id. at 88. The court ruled that:

Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record. Documents attached to memo-randa do not constitute evidence and cannot be considered as such on appeal. Appellate courts are courts of record and may not review evidence that is not in the appellate record, or receive new evidence.
None of the depositions relied on by the Plaintiffs were properly before the trial court at the time of the hearing, nor were they properly part of the record on appeal. Thus, based on the content of the record before us, we must conclude that Plaintiffs failed to meet their burden of proof in this matter.

Id. at 88-89 (internal citations omitted).

The question is whether Denoux applies to the case at bar. While Denoux ruled on the proof required on a peremptory exception of prescription, the case |9before us concerns the proof required on the decli-natory exception of lack of personal jurisdiction. See respectively, La. C.C.P. arts. 927 and 925.

With regard to evidence on trials of these types of exceptions, the Code of Civil Procedure provides similar modes of proof for each. With regard to declinatory exceptions, La. C.C.P. art. 930 states that “[o]n the trial of the declinatory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition, the citation, or return thereon.” With regard to evidence on the trials of peremptory exceptions, such as prescription, La. C.C.P. art. 931 likewise says:

On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.
When the peremptory exception is pleaded in the trial court after the trial of the case, but prior to a submission for a decision, the plaintiff may introduce evidence in opposition thereto, but the defendant may introduce no evidence except to rebut that offered by plaintiff. No evidence may be introduced at any time to support or controvert the objeetion that the petition fails to state a cause of action.

It is clear since Denoux, with regard to peremptory exceptions, the evidence must be introduced in order for the court to consider it. It is unclear from Denoux however whether the Louisiana Supreme Court intended to change its de Reyes jurisprudential statement that did not require the burdened party to introduce evidence if the trial court both did not conduct a contradictory hearing and could not determine the merits of the exception from the face of the petition.

However, since Denoux, this Court and others have continued to apply the method of proof announced in de Reyes to exceptions of lack of personal jurisdiction. See Ruppert v. George Kellett & Sons, Inc., 08-182 (La.App. 5 Cir. 9/30/08), 996 So.2d 501 (affirming a grant of exception of lack of personal jurisdiction after considering an attached affidavit, when no evidence was admitted and no contradictory hearing was held); Marchand v. Asbestos Defendants, 10-0476 (La.App. 4 Cir. 11/10/10), 52 So.3d 196, writ denied, 10-2732 (La.2/11/11), 56 So.3d 1002 (finding no personal jurisdiction after trial court: held hearings on exceptions; considered the parties’ memoranda; considered previous cases and motions in those previous cases that were cited in the parties’ memoranda; and, determined that defendant was not bound in the present case by the language it used in a joint motion to dismiss in a previous case. The opinion states that an “affidavit” which has “been submitted in proceedings involving exceptions of lack of personal jurisdiction” is proper for the trial court to consider and distinguishes this circumstance from that of an exception of prescription); Broussard v. Diamond Air craft Industries, Inc., 10-1611 (La.App. 1 Cir. 5/3/11), 65 So.3d 187 (Defendant filed an exception of lack of personal jurisdiction with a supporting affidavit, oral arguments were held, trial court granted exception); Buquoi v. Avondale Industries, Inc., et al., 12-C-0536 (La.App. 4 Cir. 4/24/2012) (unpublished unit) (considered a filed affidavit when no contradictory or evidentiary hearing was held, and ruled that the plaintiff did not meet his burden of proving minimum contacts). In Buquoi the Fourth Circuit specifically found that the de Reyes method of proof was permissible on the trial of an exception of lack of personal jurisdiction. Furthermore, our research reveals no case that specifically speaks to the potential impact of the Supreme Court’s ruling in Denoux upon its prior ruling in de Reyes.

While the de Reyes method of proving up an exception of lack of personal jurisdiction seems to conflict with Denoux, and potentially with the Code of Civil Procedure, unless and until we receive further guidance from the Louisiana ^Supreme Court, we will continue to follow the de Reyes method of proving up an exception of lack of personal jurisdiction. Therefore, in this case it is of no consequence that the parties did not introduce the exhibits upon which they relied in addressing the exception of lack of personal jurisdiction.

On the Merits

Because we found that the documents attached to the parties’ memoranda were properly considered by the trial court, we now address the merits of Mr. Jacobsen’s assignment.

The Law

When reviewing a trial court’s legal ruling on a declinatory exception of lack of personal jurisdiction, an appellate court applies a de novo standard. Walker v. Super 8 Motels, Inc., 04-2206, p. 4 (La.App. 4 Cir. 12/7/05), 921 So.2d 983, 986; Winston v. Millaud, 05-0338, p. 5 (La.App. 4 Cir. 4/12/06), 930 So.2d 144, 149-50 (noting that “jurisdiction itself is a question of law subject to de novo review.”) “However, the trial court’s factual findings underlying the decision are reviewed under the manifest error standard of review.” Maguire Plastic Surgery Ctr., LLC v. Booker, 47,929, 2013 WL 2218004 (La.App. 2 Cir. 5/22/13), 117 So.3d 239 (2013).

A state court’s authority to exercise jurisdiction over a non-resident defendant is governed by the Louisiana Long-Arm Statute, La. R.S. 13:3201.1. 112The limits of the courts’ authority under the Louisiana Long-Arm statute and under constitutional due process are coextensive. Superior Supply Co. v. Associated Pipe and Supply Co., 515 So.2d 790, 792 (La.1987); La. R.S. 13:3201(B)(allowing for Louisiana courts to exercise personal jurisdiction over nonresident defendants “on any basis consistent with the constitution of this state and the Constitution of the United States.”).

The exercise of personal jurisdiction over a non-resident defendant comports with due process when a two-part test is satisfied: first, the defendant must have had certain “minimum contacts” with the forum state; and second, as a result of those contacts, the maintenance of the suit would not offend traditional notions of fair play and substantial justice. Dahmes v. Champagne Elevators, Inc., 869 So.2d at 908 (citing International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

The initial burden of proving sufficient minimal contacts to establish personal jurisdiction rests with the party asserting jurisdiction is proper. de Reyes, 586 So.2d at 107; Swoboda v. Hero Decks, 09-1303, p. 2 (La.App. 4 Cir. 3/31/10), 36 So.3d 994, 997 (holding that the party seeking to invoke personal jurisdiction bears the burden of establishing such jurisdiction exists). Once sufficient minimum contacts have been established, a presumption of reasonableness of jurisdiction arises, de Reyes, supra. “The burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of 1 ^traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” Id.

As to the first test of “minimum contacts”, “[ojpinions in the wake of the path-marking International Shoe decision have differentiated between general or all-purpose jurisdiction, and specific or case-linked jurisdiction.” Goodyear Dunlop Tires Operations, S.A. v. Brown, - U.S. -, -, 131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, nn. 8-9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Explaining the difference, the Supreme Court stated:

A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so “continuous and systematic” as to render them essentially at home in the forum State. Specific jurisdiction, on the other hand, depends on an “affiliatio[n] between the forum and the underlying controversy,” principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State’s regulation. In contrast to general, all purpose jurisdiction, specific jurisdiction is confined to adjudication of “issues deriving from, or connected with, the very controversy that establishes jurisdiction.”

Goodyear, supra (internal citations omitted). Here, Mr. Jacobsen does not contend that Norca’s contacts with Louisiana subject it to the general jurisdiction of Louisiana courts. Rather, he argues that, under the stream of commerce theory, Norca’s actions, which resulted in his injury, allow the Louisiana courts to exert specific jurisdiction over it.

The Fourth Circuit explained in Broussard v. Diamond Aircraft Industries, Inc., supra:

The minimum contacts prong of the two-part due process test is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 5 (La. 6/29/01), 791 So.2d 1266, 1271, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001) (citations omitted). However, this purposeful availment must be such that the defendant “should reasonably anticipate being haled into court in the forum state.” Id. The rationale behind the “purposeful availment” requirement is to ensure that the nonresident defendant will not be haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person. Id. Put another way, the requirement of minimum contacts can be seen to perform two related, but distinguishable, functions: “[it] protects the defendant against the burdens of litigating in a distant or inconvenient forum. And it acts to ensure that the States, through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (U.S.1980).

The Supreme Court has determined that the stream of commerce theory is a specific jurisdiction concept. Specifically, the Supreme Court stated that the “[f]low of a manufacturer’s products into the forum ... may bolster an affiliation germane to specific jurisdiction.” Id. The U.S. Supreme Court originally articulated the stream of commerce theory of specific jurisdiction in World-Wide Volkswagen, supra. “In essence, the “stream of commerce” theory holds that a defendant’s placing of its product into the stream of commerce with the knowledge that the product will be used in the forum state is enough to constitute minimum contacts.” Hunt v. Schult Homes Corp., 94-1592 (La.App. 3 Cir. 5/3/95), 657 So.2d 124, 126. Since its inception, the stream of commerce theory has been divided into what has been coined as the “stream of commerce” and the “stream of commerce plus” theory.

In Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the U.S. Supreme Court issued a plurality opinion in which the concurring justices did not subscribe to the portion of the opinion which sought to require more purposeful activity directed at the forum state than the mere placing of a product into the stream of commerce. This [^established the “stream of commerce plus” theory; it requires additional conduct by the defendant which is purposefully directed toward the forum state. Since Asahi, several Louisiana courts, in defective product cases, have adopted the “stream of commerce plus” theory. For example, see: Langley v. Oxford Chemicals, Inc., 25,596 (La.App. 2 Cir.1994), 634 So.2d 950; Cadawas v. Skibsaksjeselskapet Storli, Bergen, 630 So.2d 289 (La.App. 5 Cir.1993); J. Wilton Jones Co. v. Touche Ross & Co., 556 So.2d 67 (La.App. 4 Cir.1989).

In J. McIntyre Machinery, Ltd. v. Nicastro, - U.S. -, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011), the U.S. Supreme Court revisited the law of personal jurisdiction and the stream of commerce theory. In McIntyre, the plaintiff injured his hand in New Jersey while using a machine manufactured by the defendant. The machine had been manufactured in England, where the defendant was incorporated and operated. The machine was then sold to a U.S. distributor, which in turn sold and shipped the machine to New Jersey. The defendant did not market, sell, or ship machines to New Jersey, and the U.S. distributor had only sold one of the defendant’s machines in New Jersey— the machine that injured the plaintiff. The plaintiff sued the defendant, and the New Jersey Supreme Court held personal jurisdiction was proper.

The U.S. Supreme Court thereafter reversed the decision of the New Jersey Supreme Court, but it did not produce a majority opinion. Justice Kennedy authored a plurality opinion, joined by Chief Justice Roberts, Justice Scalia, and Justice Thomas. Under the plurality’s approach to personal jurisdiction, “[t]he defendant’s transmission of goods permits the exercise of jurisdiction only where the defendant can be said to have targeted the forum; as a general rule, it is not enough that the defendant might have predicted that its goods will reach the forum State.” McIntyre, 131 S.Ct. at 2788.

|1fiWhere, as in McIntyre, the reasoning of a Supreme Court opinion that does not command a majority vote, the opinion is not binding precedent. CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 81, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987). Instead, “[w]hen a fragmented Court decides a ease and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ)). In McIntyre, Justice Breyer’s concurring opinion, joined by Justice Alito, furnished the narrowest grounds for the decision and controls here.

Justice Breyer made clear that his view that “resolving [the] case require[d] no more than adhering to [the Supreme Court’s] precedents” and that his decision was “based on the facts,” which involved only a single sale in New Jersey. McIntyre, 131 S.Ct. at 2791-92 (Breyer, J., concurring). He explained that under any of the Court’s precedents “a single isolated sale” is not an adequate basis for personal jurisdiction. Id. at 2792. The crux of Justice Breyer’s concurrence was that the Supreme Court’s framework applying the stream-of-commerce theory — including the conflicting articulations of that theory in Asahi — had not changed, and that the defendant’s activities in McIntyre failed to establish personal jurisdiction under any articulation of that theory. Id.; See AFTG-TG, LLC v. Nuvoton Tech. Corp., 689 F.3d 1358, 1363 (Fed.Cir.2012). Therefore, the narrowest holding is that which can be distilled from Justice Breyer’s concurrence is that the law remains the same after McIntyre.

Recently, in Ainsworth v. Moffett Eng’g, Ltd., 12-60155, 2013 WL 1920729 (5th Cir. May 9, 2013), the U.S. Fifth Circuit agreed that McIntyre did not change |17to law and distinguished it from the circumstance before it. The court acknowledged that its use of the “stream-of-commerce” theory did not require that the defendant target the forum and it was therefore in tension with McIntyre’s plurality opinion. The Court however reasoned that, since only the narrowest holding from McIntyre controlled, it was free to continue to continue its use of the “stream-of-commerce” theory.

At this point, it is not clear whether the Louisiana Supreme Court, in determining whether a defendant had minimum contacts with our state, would use the “stream of commerce” or “stream of commerce plus” theory analysis. However, given that the legislature intended to provide the broadest possible grounds for jurisdiction in its enactment of La. R.S. 13:3201(B), we will apply the “stream of commerce” analysis.

The Facts

Turning to the facts of this matter, we find that Norca attached to its Memorandum in Support of Exception and Motion for Summary Judgment, the affidavit of Norca president, Russell Stern. In that affidavit Mr, Stern stated:

• He is the son of Harry Stern, Norca vice president from 1951 to 1964 and its president from 1964 to 1983.
• Norca is a New York corporation with its principal place of business in the state of New York as it has been since its inception in 1946.
• Norca’s principal business has been as a broker of industrial commodities.
• During the 1950’s Norca’s principal business was as a sales agent for American companies involved in importing and exporting steel and machinery equipment.
11S* As a sales agent, Norca’s role was to locate potential buyers for commodities.
• Norca has never maintained any office, telephone listing, post office box, mailing address, or bank account in the State of Louisiana.
• Norca has never owned, leased, nor possessed any interest whatsoever in any assets in Louisiana, including real property.
• At no time for at least the last twenty years has Norca ever employed anyone or had agents based or residing in Louisiana.
• At no time for at least the last twenty years was Norca a party to a contract in Louisiana, or entered into a contract, the terms of which required performance in whole or in part in Louisiana or the application of Louisiana law.
• For at least the last twenty years Nor-ca was not involved with the sale of any products in or transported to Louisiana, nor did it derive any revenue from the sale of goods or services or any other activity in Louisiana.
• At no time for at least the last twenty years was Norca engaged in any advertising directed to or otherwise calculated to reach Louisiana.
• Norca’s business has never involved the mining, manufacturing, or processing of asbestos or asbestos containing products.
• Norca’s business has never designed, tested, evaluated, packaged asbestos or asbestos containing products.
• From 1954 to 1958, Norca acted as a disclosed commissioned agent in the transaction of raw asbestos mined in Africa.
• In its sole capacity as a disclosed commissioned agent, Norca never took title to, or possession of any asbestos and asbestos was never delivered to, stored, located or otherwise transmitted to Norca’s New York premises.
• In 1954, John Beith (S.A.) Pty. Ltd., a South African corporation in Durban, South Africa contacted Harry Stern, Imthen vice president of Norca, requesting that Norca locate companies in the United States interested in buying Beith asbestos. Beith was a distributor and exporter of raw material, which represented African producers of such materials and represented owners of several asbestos mines in Africa.
• Norca contacted Johns-Manville Corporation, which stated that it would purchase Beith asbestos.
• Johns-Manville took title to and possession of asbestos directly from Beith either in Mozambique or South Africa.
• All transactions of asbestos from Beith to Johns-Manville occurred during the period from 1954 to 1958 and Norca was paid as a disclosed commission agent for these transactions. In 1958, that relationship was terminated and Norca no longer served as a disclosed agent for the sale of asbestos material to Johns-Manville.
• Beith directly passed title to, and possession of, all asbestos it sold to Johns-Manville in either Mozambique or South Africa. Norca Corporation never assumed any risk of loss for the asbestos in question;
• None of the asbestos material purchased by Johns-Manville from Beith contained any label or packaging with Norca’s name on it or any other company markings that would have suggested that Norca held the asbestos material in question out as its own product.
• Norca Corporation never shipped, marketed, or otherwise distributed any asbestos materials to the State of Louisiana.
• Norca did not exercise any right of control over the marketing, distribution, or shipping of the asbestos material purchased by Johns-Manville.
• During the 1950’s, Norca had no knowledge that Johns-Manville owned or operated any Louisiana plants that used asbestos.
• Norca had reason to believe that any such asbestos purchased by Johns-Manville was shipped directly to the East coast of the | ^United States.
• Since it is normally more economical to ship commodities from overseas locations by sea directly to the port nearest their final destinations, rather than to ship them by sea to distant ports, then by rail/truck to their final destinations, Norca had no reason to believe that Johns-Manville would ever send any of the asbestos obtained from Beith to Louisiana.

Mr. Jacobsen attached to his opposition to the exception of lack of personal jurisdiction various documents from the Asbestos Claims Research Facility, a document and records repository which contains, among other things, Johns-Manville business records relevant to asbestos cases, Mr. Jacobsen attached the following:

• Johns-Manville discovery responses in an unrelated case in which Johns-Manville stated that it used asbestos fiber from a number of sources, including crocidolite and amosite fibers imported into this country from South Africa and that the suppliers included Norca Corporation.
• Foreign Asbestos Fibre Shipments reports attached to those discovery responses which indicate that in 1956 Norca Corporation shipped Blue NC-300 asbestos fibers to Johns-Manville. The shipping point was Lorenco Marques and 2402.69 tons of fiber was shipped. In 1957 Norca Corporation shipped 1523 tons of Blue NC-300 to Johns-Manville. The shipping point was Lourenco Marque. In 1958 Norca Corporation made two shipments to Johns-Manville. The shipments totaled 1981 tons and were shipped F.O.B. shipping point. In 1959 Norca shipped 402 tons of NC-20 Blue to Johns-Manville F.O.B. shipping point.
• An Asbestos Fiber Vendors exhibit listed both Beith, John (S.A.) Pty. Ltd., Durban, So. Africa and Norca Corporation, Great Neck, New York as vendors.
• A May 9,1956 letter from M.O. Miche-lowski, Division Headquarters regarding “Control Laboratory Asbestos Reports” directed to a number of people including A. Jaeobs-Manville, E. Bo-net-Manville, A. Docco-Manville, I.I. Prauth-Marrero. The letter listed
12i A. vendors
3. NC-300 Blue Fibre-Norca Corporation”
B. General Purchase Department Orders — 1956
3. NC-300 Blue Fibre-GPD 19077

The letter further advised,

We will continue to advise on each fibre shipment the following:
1. Type of fibre
2. Quantity
3. Vessel on which shipment made. We will, also, indicate the approxi-mant arrival date of vessel in the port.

Mr. Jacobsen also attached a January 27, 1981 “Memo to File” from “L. Berry” which states,

Pat Fennel prepared the attached lists of companies that provided asbestos fiber to the Marrero, La. plant during the '40’s, '50’s & '60’s. The information was developed by using the types of products produced, the type of asbestos fiber contained in the products, and the companies that provided those types of fiber to J-M.

Attached to the memo regarding “Marrero Plant 1940’s & 1950’s” which lists,

Blue: John Beith (S.A.) Pty., Ltd
British Metal Corporation
Colonial Sugar Refining Co.
Antony Gibbs & col, Ltd
Norca Corporation

Mr. Jacobsen also attached two depositions, of Harry and Russell Stern. In his July 11, 1994 deposition in an unrelated case Harry Stern stated that he began working for Norca in 1946. Eventually he became the sole stockholder of the company, its president, then chairman of the board and continued as emeritus chairman. The company was originally located in New York, New York, in the |22Empire State Building, later moving to Great Neck, New York. The company was always a New York Corporation with its’ principal place of business in New York. In the early 1950’s he worked as a broker, selling, finding commodity sources, suppliers and customers. In 1958 he became vice president and, in 1964, president. In 1994 he became chairman of the board. From about 1954 to 1958 Norca represented John Beith Co., South African asbestos sellers, in the sale of asbestos fiber to U.S. companies, including Johns-Manville. Harry Stern made the contact with a representative of Beith in South Africa. Beith asked him to contact Johns-Manville as it was a pipe manufacturer and Beith could supply Transvaal Blue asbestos for use in the manufacture of pipe. Transvaal Blue was the only type of asbestos fiber Harry Stern brokered to U.S. companies. He met with the Johns-Manville people in New York and supplied them with fiber samples to test. Under his handshake agreement with Beith they paid him a commission of five percent of each sale. He never discussed with Johns-Manville where they manufactured the pipe. He also never discussed with Beith or Johns-Manville the transport of the fiber from South Africa to the U.S. Johns-Manville called him when they needed a shipment and Beith called him when they had product to ship. When Beith contacted him he called Johns-Manville with the offer of product. Johns-Manville would thereafter issue a purchase order issuing the shipping instructions which were F.O.B. shipping point with shipment to the port of New York. Beith delivered the product to the dock at Mozambique or Durban where it was shipped to New York. Johns-Man-ville took ownership at the South African port. Norca never took ownership of product. Norca did not hire the shipping line and Johns-Manville always used Lykes shipping and shipped from South Africa to New York. Beith sent cables to Norca to advise the customer that a shipment had been made and the estimated time of arrival. He never recalls a Johns-Manville [ ^shipment being delivered anywhere but the port of New York. He never spoke to anyone at Johns-Manville about where they used the South African fiber. The asbestos sales generated approximately two percent of Norca’s gross income for the involved years. Johns-Manville paid Beith for the shipments with a letter of credit going to Beith. Norca was paid by Beith or by Beith’s bank via Beith’s instructions. Norca never purchased fiber in South Africa and resold it in the U.S. Norca was at all times a broker between the seller and the buyer.

Mr. Jacobsen’s second attached deposition was of Russell Stern. This deposition was taken in May, 2009, in an unrelated case. In it, Russell Stern stated, he had joined Norca in 1971 and was, at the time of his May 9, 2009 deposition, the president of the corporation. He knew that the company acquired asbestos from South Africa in the mid 1950’s and provided it to Johns-Manville. There are no documents available regarding these transactions as they occurred over fifty years ago. The company provided asbestos to Johns-Man-ville but was only the broker. He understood that Beith was an amalgamation of small independent miners that did not have a direct relationship with Johns-Man-ville. Johns-Manville took ownership of the asbestos in Africa, and he has no idea where they shipped it. John Beith paid Norca a commission for its work. As to the name “NC-300,” he knows nothing about that. He knows nothing about Nor-ca branding asbestos products. He acknowledged his answer to interrogatories in which he stated,

The Norca Corporation did not manufacture, distribute, sell or supply or use asbestos containing products. The Nor-ca Corporation for a brief period of time in the 1950’s, approximately 1954 through 1958, acted as a disclosed commission agent in the transaction of small amounts of asbestos in Africa. The Norco Corporation never took title to or possession of asbestos. No asbestos was ever distributed, held or sold in Norco’s premises in New York. With respect to any exposure | ^site that is the subject matter of this litigation, the response is the same. Norca Corporation has no documents nor information regarding the exposure site.

Analysis

At the outset, we find that the evidence does not establish that the trial court had jurisdiction over Norca because of consent or under a theory of general jurisdiction. Rather, the issue here is whether the facts establish that Norca has sufficient minimum contacts with Louisiana to make the exercise of specific in personam jurisdiction over it proper. Applying the law to these facts, we find that Norca did not have such sufficient minimum contacts with Louisiana under either the “stream of commerce” or “stream of commerce plus” theory of specific personal jurisdiction.

First, we find that the evidence does not establish that Norca participated in the transfer of the asbestos in question into the State of Louisiana. Ownership of the asbestos transferred from Beith to Johns-Manville at the African port. There is no evidence that Norca ever owned the asbestos fiber. Further, Norca did not direct the asbestos to any particular geographic location, or state of the United States. Although Norca brokered the transfer of asbestos from Beith to Johns-Manville, Norca never determined or even influenced where Johns-Manville would take that asbestos. That decision was made by Johns-Manville directly.

Norca’s asbestos related transactions here were with Johns-Manville in New York. While Norca may have obtained the benefits and protections of New York law when making these transactions, there is no evidence that Norca obtained or sought such a benefit from Louisiana. Norca had no property or office in Louisiana, nor did it advertise in, or send any employees to the State. Norca’s only relevant contact with Louisiana was that the asbestos it brokered or supplied ended up here. There is no evidence that Norca knew that the asbestos might be shipped |2sto Louisiana after Johns-Manville received it from Africa. On these facts, we find that the evidence does not establish that Norca ever purposefully availed itself of the benefits and protections of Louisiana’s law.

Second, even if Norca was a supplier of this asbestos who placed it into the stream of commerce, there is no evidence that Norca could ever reasonably anticipate that its products would find their way to Louisiana. The evidence on this issue in fact indicates that Norca had reason to believe that the asbestos would be shipped to New York, or other sea ports on the East coast of the United States. Additionally, in World-Wide Volkswagen, Asahi, and McIntyre, the defendant seeking to avoid the court’s jurisdiction at one point owned the product and thereafter sold it into the stream of commerce. That is not the case here. While it may be true that but-for Norca, the particular asbestos fibers which are alleged to have caused Mr. Jacobsen’s injury may never have reach Louisiana, this is an insufficient basis by which to allow Louisiana courts to exert in personam jurisdiction over Norca.

CONCLUSION

For the foregoing reasons, we hereby affirm the trial court’s grant of Norca’s exception of lack of personal jurisdiction.

AFFIRMED

      . Norca filed a memorandum in support of this motion which contained legal argument and reference to facts contained in Russell Stern's affidavit attached to the memorandum. At no point did Norca seek to introduce the affidavit into the record.

      . Mr. Jacobsen did not seek to introduce these attachments into the record.

      . The Federal Rules of Civil Procedure provide a similar method of proof for a plaintiff seeking to establish a defendant has minimum contacts. MCR Mktg., L.L.C. v. Regency Worldwide Servs., L.L.C., CIV. 08-1137, 2009 WL 728523 (W.D.La. Mar. 18, 2009) (“Under Rule 12(b)(2), the ‘plaintiff bears the burden of establishing a district court’s jurisdiction over a non-resident, but it need only make a prima facie case if the district court rules without an evidentiary hearing.’ Johnston v. Multidata Sys. Intern. Corp., 523 F.3d 602, 609 (5th Cir.2008). '[Ujncontroverted allegations in the plaintiff’s complaint must be taken as true, and conflicts between the facts contained in the parties’ affidavits must be resolved in the plaintiff's favor for purposes of determining whether a prima facie case for personal jurisdiction exists.' Id.”)

      . Further, in de Reyes, the Court stated that when a contradictory hearing is not held on an exception of lack of personal jurisdiction, the matter will be decided on, "pleadings, memoranda, and discovery depositions taken.” If a party attaches an item that does not fall into one of those categories, an ambiguity exists as to whether the court can consider that item if it is not introduced. Further, does reliance upon such an attachment in oral argument mean that a contradictory hearing has taken place, and that evidence was required to be introduced?

      . Compare Dupre Logistics LLC v. Bridges, 10-1071, 2010 WL 5479723 (La.App. 1 Cir. 12/22/10), finding the trial court erred when it granted an exception of lack of subject matter jurisdiction with no evidence introduced on the record.

      . The Louisiana Long-Arm Statute, La. R.S. 13:3201, provides:
      A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
      (1) Transacting any business in this state.
      (2) Contracting to supply services or things in this state.
      (3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
      (4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
      (5) Having an interest in, using or possessing a real right on immovable property in this state.
      (6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
      (7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
      (8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
      B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

      . However, in this case, the result would remain the same under either of the applicable "stream of commerce” or "stream of commerce plus” theories.


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge. CHAISSON, J.,

license: Public Domain

text:
    Aaron ARCHANGEL v. Matthew MAYEAUX, Louisiana Machinery Company, L.L.C. and Marsh USA, Inc. d/b/a Marsh USA Risk Services.
    No. 12-CA-696.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      Darleen M. Jacobs, Al A. Sarrat, Rene D. Lovelace, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee.
    Thomas J. Eppling, Lance E. Harwell, Sara P. Scurlock, Attorneys at Law, Me-tairie, LA, for Defendants/Appellants.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and ROBERTA. CHAISSON.
   MARC E. JOHNSON, Judge.

| yDefendants/Appellees, Matthew May-eaux, Louisiana Machinery Company L.L.C., (hereinafter referred to as “Louisiana Machinery”), and Travelers Property Casualty Company of America (hereinafter referred to as “Travelers”), appeal the exclusion of testimony and the damages awarded in a jury trial held in the 40th Judicial District Court, Division “A”. For the following reasons, we vacate, in part, and affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

On July 22, 2008, Mr. Archangel was stopped at a stop sign on Alliet Road in St. Martin Parish in his 2003 Toyota Camry when a 2007 Peterbilt tractor backed into his vehicle. The tractor was owned by Louisiana Machinery and operated by its employee, Mr. Mayeaux. Mr. Archangel sustained bodily injuries and damages to his vehicle.

Mr. Archangel originally filed his petition in the Civil District Court of Orleans Parish; however, through a joint motion of the parties, the matter was | transferred to the 40th Judicial District Court. The petition listed Mr. Mayeaux, Louisiana Machinery and Marsh USA, Inc. d/b/a Marsh USA Risk Services as the defendants. Through two supplemental and amending petitions, Mr. Archangel substituted Travelers as the proper liability insurer for Louisiana Machinery and added Lindsey Viator Archangel, his wife, as a plaintiff to the suit. Defendants answered the petitions, and the parties proceeded to a jury trial. Mr. Archangel filed two Motions In Limine to exclude: 1) any evidence of, references to, and records and testimony concerning his June 4, 2001 arrest for possession of crack cocaine and his November 20, 2001 guilty plea to possession of cocaine; and 2) any and all references to questions and answers in depositions regarding cocaine, any suggestion of narcotic abuse by him and any correlated questions involving his prior history with illicit drugs, and his use of narcotic pain medication following the accident.

The trial was held on August 8-9, 2011. Prior to the commencement of the trial, the trial court held a hearing on the Motions In Limine. The trial court found that any reference to Mr. Archangel’s possession of cocaine conviction would be highly inflammatory and the prejudicial nature of it far outweighed the probative value. Additionally, the trial court found the alleged usage or presence of cocaine in Mr. Archangel’s system was admissible as a part of his treatment. Later during the trial, the trial court amended its ruling to exclude any questions as to whether Mr. Archangel had a drug problem and any mention of a correlation between the presence of cocaine in his urinalysis and an addictive disorder from the physicians’ depositions.

At trial, the parties stipulated to liability, particularly that Mr. Mayeaux was in the course and scope of his employment, and Travelers was the liability insurer |4for Louisiana Machinery on the date of the accident. After reviewing the evidence presented regarding damages, the jury found that Mr. Archangel sustained injuries in the July 22, 2008 accident and that Mrs. Archangel sustained a loss of consortium as a result of Mr. Archangel’s injury. The jury awarded the following damages to Mr. Archangel:

Past medical expenses $ 35,000.00
Past lost wages $ 60,000.00
Loss of earning capacity $ 5,000.00
Loss of enjoyment of life 5,000.00
Lindsey of Consortium $ 10,000.00
Total $115,000.00

The trial court adopted the jury verdicts and rendered a judgment on August 25, 2011.

Mr. Archangel filed a Motion for Addi-tur averring the jury erred as a matter of law in failing to award an amount for pain and suffering. Subsequently, Defendants filed a Motion for Judgment Notwithstanding the Verdict asserting the jury award of $5,000.00 for loss of earning capacity was not supported by the evidence adduced at trial. The motions were heard on October 11, '2011. The trial court recommended an additur of $85,000.00 for pain and suffering damages to Mr. Archangel. In addition, the trial court denied the JNOV. Defendants accepted the additur under protest and reserved their rights to appeal the judgment as reformed. The judgment was reformed by additur on November 18, 2011 to reflect the following awards:

$ 10,000.00 Lindsey Archangel-Loss of Consortium
$ 85,000.00 Aaron Archangel-Pain and Suffering
$ 35,000.00 Past Medical Expenses
$ 60,000.00 Past Lost Wages
$ 5,000.00 Loss of Earning Capacity
$ 5,000.00 Loss of Enjoyment of Life
$200,000.00 Total

The instant appeal filed by Defendants followed the reformed judgment.

ASSIGNMENTS OF ERROR

On appeal, Defendants raise the following assignments of error: 1) the trial court erred in finding Mr. Archangel was entitled to an award for loss of earning capacity; 2) the trial court erred in its recommendation of an additur of $85,000.00 in general damages for pain and suffering; 3) the trial court erred in excluding testimony and evidence of Mr. Archangel’s 2001 guilty plea and conviction for possession of cocaine; and 4) the trial court erred in excluding any testimony from the physicians’ depositions regarding narcotic medication concerns, cocaine, drug history, and addictive and drug seeking behavior.

LAW AND ANALYSIS

Loss of earning capacity

Defendants allege the trial court erred in awarding Mr. Archangel $5,000.00 for loss of earning capacity. Defendants aver none of the physicians provided any medical evidence that Mr. Archangel suffers a residual disability causally related to the accident. Defendants contend no economic or vocational testimony as to lost wages, loss of earning capacity, or earning ability was offered by Mr. Archangel at trial. As a result, Defendants further aver the proof offered by Mr. Archangel contained absolutely no evidence that he sustained any physical impairment in the accident which would inhibit his future ability to earn.

Conversely, Mr. Archangel asserts the jury was well within its broad discretion to award him the “meager” sum of $5,000.00 for loss of earning [ ^capacity. Mr. Archangel argues that Dr. Cobb’s testimony, in conjunction with his and Mrs. Archangel’s testimonies, provided the jury with an adequate basis for the award.

When considering an award for loss of earning capacity, the burden is on the plaintiff to prove that because of his injuries, he has suffered a loss of income. LeBlanc v. Allstate Ins. Co., 00-1128 (La.App. 5 Cir. 11/28/00); 772 So.2d 400, 405, writ denied, 00-3522 (La.2/9/01); 785 So.2d 831. A plaintiff who seeks to recover for loss of earning capacity must prove the extent of his injuries resulting from the accident and also has the burden of proving that the injuries he sustained have incapacitated him from doing work of reasonable character in the future, that is, work for which he was fitted by training and experience, of same or similar kind in which he was engaged at the time of the accident. Richard v. Walmart Stores, Inc., 29,926 (La.App. 2 Cir. 10/31/97); 702 So.2d 79, 89.

In the instant matter, Dr. John Cobb, an orthopedic surgeon, testified through video deposition that Mr. Archangel could not return to work as a shop hand (Mr. Archangel’s occupation at the time of the accident) as long as he reported that he was experiencing pain. When asked by Mr. Archangel’s counsel if Mr. Archangel was ever fit or found to be a person who should go back to work as a shop hand, Dr. Cobb simply replied, “He’s repeatedly indicated to me that he had been unable to return to work because of his complaints.” When Dr. Cobb was asked if there was any physiological reason why Mr. Archangel could not return to work other than his complaints of pain, Dr. Cobb responded, “No.” Dr. Cobb did not testify that Mr. Archangel would not be able to return to work in the future.

In addition to Dr. Cobb’s testimony, Dr. John Cazale, an orthopedic surgeon, testified through video deposition that there was no reason Mr. Archangel could not return to work. None of the other physicians in this matter testified that Mr. 17Archangel was unable to return to work or would be unable to work as a shop hand in the future.

After review, we find Mr. Archangel failed to meet his burden of proving his injuries caused him to be incapacitated from performing work as a shop hand in the future. Other than the self-serving testimonies provided by him and his wife, Mr. Archangel failed to produce evidence of his future incapacity to work. Therefore, we find the jury was manifestly erroneous in awarding Mr. Archangel $5,000.00 for loss of earning capacity and vacate the award.

Additur award

Defendants allege the trial court erred in recommending an additur award of $85,000.00 for pain and suffering. Defendants aver the failure of the jury to award Mr. Archangel any amount for pain and suffering was not an abuse of discretion in light of the fact that the jury acted within its vast discretion and determined that, based on the medical testimony, there was no evidence of objective injury. Defendants contend the jury acted within its vast discretion and determined that, based on the facts and evidence presented, an award of medical expenses was warranted but no pain and suffering resulted.

In opposition, Mr. Archangel argues the trial court was proper in recommending the additur because the jury committed a legal error in awarding him special damages and failing to award anything for pain and suffering. Mr. Archangel asserts that he endured pain for more than three years as a result of the accident and should have been compensated for his pain and suffering.

When a judgment is reformed by an additur, or remittitur is challenged on appeal, the appellate review is limited to the reformed judgment. Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95); 656 So.2d 700, 712. “In reviewing a judgment preformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.” La. C.C.P. art. 2083(B).

During the trial, Mr. Archangel testified that he had experienced pain in his neck and back and severe headaches as a result of the accident. Mr. Archangel stated that he had a cervical discogram, a radio frequency procedure, physical therapy, and various medications for his injuries, and he had little to no relief from those methods of treatment for an approximate period of three years. He further testified that he was “trying to get back into” his hobbies of fishing, bowling, and playing tennis, which were activities he was involved in with his son prior to the accident. Mr. Archangel also testified that he had sexual problems resulting from the accident. Mrs. Archangel’s testimony corroborated Mr. Archangel’s account of the effects of the accident.

Dr. Cobb testified that Mr. Archangel reported persistent neck and back pain and severe headaches at his visits. Mr. Archangel sought treatment from Dr. Cobb from August 6, 2008 through September 15, 2010. Dr. Cobb diagnosed Mr. Archangel with post-traumatic cervical and lumbar pain syndrome, posterior column mediated pain, and a cervical facet joint injury.

Dr. Cobb referred Mr. Archangel to Dr. Matthew Mitchell, a board certified anesthesiologist and pain management specialist, for invasive medical treatments. Mr. Archangel treated with Dr. Mitchell from February 4, 2009 to September 30, 2009. Dr. Mitchell performed a facet injection and a radio frequency procedure on Mr. Archangel to relieve his pain; yet, Mr. Archangel reported increased pain in an extension of his neck and tenderness around the C-7, T-l area. Dr. Cobb opined that much of the pain Mr. Archangel was experiencing was due to muscle spasms.

Dr. Brandon Brooks, a board certified anesthesiologist and pain management specialist, testified through video deposition that Mr. Archangel complained of 19neck pain during each of his visits. Mr. Archangel visited Dr. Brooks from November 4, 2009 through June 30, 2010. Dr. Brooks was able to palpate spasms in Mr. Archangel’s neck during physical examinations. Dr. Brooks diagnosed Mr. Archangel with cervical spondylosis, myofacial pain syndrome, and possible cervical radi-culopathy. Dr. Brooks related Mr. Archangel’s conditions to the accident.

After the close of evidence, the jury was presented with two interrogatories that concerned Mr. Archangel’s damages resulting from the accident. The first interrogatory asked, “Did Mr. Archangel sustain any injury in the accident on July 22, 2008?” The jury checked the line next to “Yes” on the form. The second interrogatory posed to the jury asked for amounts to be listed that would fairly and adequately compensate Mr. Archangel for the injuries he had sustained. The jury listed the following amounts as responses:

Past, present and future physical pain and suffering $0.00
and future mental sh $0.00
Past medical expenses $35,000.00
Future medical expenses $0.00
Past lost wages $60,000.00
Future lost wages $0.00
Loss of earning capacity $5,000.00
Permanent residual disability $0.00
Loss of enjoyment of life $5,000.00

In general, it is legal error for a jury to award special damages for medical expenses, while at the same time denying general damages. Willis v. Noble Drilling (US), Inc., 11-598 (La.App. 5 Cir. 11/13/12); 105 So.3d 828, 840. When the jury has awarded special damages but has declined to award general damages, | inthe reviewing court must determine whether the jury’s finding “is so inconsistent as to constitute an abuse of discretion.” Id.

After review, we find the jury abused its discretion in failing to award pain and suffering damages to Mr. Archangel for his three years of treatment. The jury’s substantial special damages awards for past lost wages and past medical expenses are inconsistent with the finding that Mr. Archangel did not suffer any compensable pain and suffering associated with the accident. From the evidence presented, it is apparent that Mr. Archangel did experience injuries and pain as a result of the July 22, 2008 accident. Thus, we find the underlying jury verdict that failed to award any damages for Mr. Archangel’s pain and suffering to be unreasonable. Therefore, we do not find the trial court erred in recommending an additur to the jury awards and reforming the judgment.

Exclusion of testimony regarding prior criminal history

Defendants allege the trial coui't erred in excluding Mr. Archangel’s guilty plea and conviction for possession of cocaine to impeach his testimony. Defendants aver the trial court was erroneous in allowing Mr. Archangel to deny cocaine usage and testify as to the result of the urinalysis, which tested positive for cocaine, and preclude them from introducing any evidence or solicit testimony regarding Mr. Archangel’s prior felony conviction to rebut false testimony. Defendants contend the jury was never given the benefit of making a credibility determination of Mr. Archangel’s testimony, in spite of a clear misstatement of fact. Defendants further allege the trial court erred in ruling evidence and testimony regarding cocaine use was more prejudicial than probative.

Mr. Archangel argues that, based upon the facts at issue and the Louisiana Code of Evidence, the trial court properly excluded any evidence of, references to, and records and testimony concerning his arrest and guilty plea. Mr. Archangel It ravers that, pursuant to La. C.C. art. 609(F), his arrest from nearly 11 years prior to the trial was not admissible to attack his credibility. Mr. Archangel also avers the any alleged prejudicial effect of admitting any evidence of his arrest or guilty plea substantially outweighed the probative value. Fui'thermore, he asserts the admission of the cocaine references themselves are also precluded by the Code of Evidence’s articles concerning relevant evidence.

In Tatum v. United Parcel Service, Inc., 10-1053 (La.App. 5 Cir. 11/15/11); 79 So.3d 1094, 1105, this Court held,

Interlocutory rulings on motions in limine, and other evidentiary rulings are reviewable on appeal subject to the provisions of La. C.C.P. art. 1636. In order for this Court to review evidence excluded by the trial court either in trial or in a motion in limine, the party must comply with La. C.C.P. art. 1636 to preserve the evidence. It is well settled that error may not be predicated upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the court by counsel. In those instances, it is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion was erroneous.

[Citations omitted].

After reviewing the record, we find that Defendants failed to proffer evidence of Mr. Archangel’s conviction to the trial court. As a result, Defendants did not preserve the evidence pursuant to La. C.C.P. art. 1636. Therefore, Defendants are precluded from contending the exclusion was erroneous.

Exclusion of 'physicians’ testimonies regarding medication concerns

Defendants allege the trial court erred in excluding any medical testimony or opinions related to cocaine through the redaction of Mr. Archangel’s drug history and positive drug screen from the video testimony of the physicians and the transcripts of those videos. Defendants aver that no one other than Mr. Archangel was given an opportunity to discuss the consequences of the positive urine screen or his prior criminal conviction, and no doctor was given the opportunity to [ ^express an opinion as to the effect of cocaine usage on the motivation of a plaintiff, which would include addictive and drug seeking behaviors. Defendants contend they were deprived of the ability to defend against Mr. Archangel’s case.

Conversely, Mr. Archangel argues the trial court properly excluded the evidence in the physicians’ depositions referencing his alleged drug use. Moreover, Mr. Archangel contends that the tremendous prejudicial effect of the admission of the scant evidence concerning his alleged cocaine use substantially outweighed the minuscule probative value of that evidence.

As previously mentioned, in order for a party to preserve the evidence pursuant to La. C.C.P. art. 1636, the improperly excluded evidence must be proffered. Tatum, supra. Although we are able to view the video depositions of Dr. Cazale, Dr. Brooks and Dr. Cobbs in their entirety, portions of the depositions were excised when played before the jury. Additionally, the sections of Dr. Cazale, Dr. Brooks, Dr. Cobbs, and Dr. Mitchell’s written depositions complained of cannot be viewed in the record before us because those sections are literally redacted on the paper. Defendants failed to proffer the portions of the medical testimonies they contend were improperly excluded. Thus, the evidence was not preserved. Therefore, Defendants are precluded from contending the exclusion was erroneous.

DECREE

For the foregoing reasons, we vacate the portion of the judgment that awarded Mr. Archangel loss of earning capacity. In all other respects, we affirm the reformed judgment. Thus, we amend and affirm the awards as follows:

Lindsey Arehangel-Loss of Consortium $ 10,000.00
Aaron Archangel-Pain and Suffering $ 85,000.00
Past Medical Expenses $ 35,000.00
Past Lost Wages $ 60,000.00
Loss of Enjoyment of Life $ 5,000.00
Total $195,000.00

Matthew Mayeaux, Louisiana Machinery Company L.L.C., and Travelers Property Casualty Company of America are assessed the costs for this appeal.

VACATED IN PART; AFFIRMED AS AMENDED

CHAISSON, J., concurs with reasons.

CHAISSON, J.,

concurs with reasons.

|TI agree with the majority opinion in this matter except insofar as the finding that defendants failed to preserve the excluded evidence and thereby waived appellate review of the trial court’s rulings. La. C.C.P. art. 1636(A) provides: ‘When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence (emphasis added).” Thus, in order to properly proffer the excluded evidence, the aggrieved party must make known to the court the substance and/or nature of the evidence. I am of the opinion that the record is clear that defendants made known to the trial court that the evidence sought to be introduced is evidence of plaintiffs prior drug conviction and his narcotic medication concerns and drug seeking behavior. Defendants therefore properly reserved for appellate review the trial court’s rulings excluding this evidence.

After reviewing these issues, I am of the further opinion that the trial court did not abuse her discretion in excluding this evidence as being more prejudicial than probative. Therefore, I would affirm her rulings on the exclusion of this evidence.

      . Marsh USA, Inc. was dismissed from this matter as a defendant.


author: HANS J. LILJEBERG, Judge. JOHNSON, J.,

text:
    Valerie GRIFFITT and John Griffitt v. Dr. A. Jay BINDER.
    No. 12-CA-744.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2013.

      Sera H. Russell, III, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants.
    Guy C. Curry, Lucie E. Thornton, Meredith M. Miceli, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12PIaintiffs appeal the trial court judgment granting defendant’s motion for partial summary judgment. For the following reasons, we affirm.

Facts

In February 2002, plaintiffs, Valerie Griffitt and her husband, John Griffitt, initiated a medical malpractice panel proceeding against A. Jay Binder, M.D., pursuant to the Medical Malpractice Act and La. R.S. 40:1299.41, et seq. Plaintiffs alleged that Dr. Binder, an orthopedist, breached the standard of care in the treatment of her left knee and failed to obtain her informed consent. Plaintiffs alleged that Valerie Griffitt consented to a procedure called a closed wedge high tibial os-teotomy (“HTO”); but Dr. Binder performed an opening wedge HTO.

A medical review panel issued a decision that Dr. Binder’s treatment of Valerie Griffitt did not fall below the applicable standard of care and further issued a finding that “the consent form authorized a high tibial osteotomy, which includes either open or closed.” Thereafter, plaintiffs filed a Petition for Damages thereby instituting the instant action against Dr. Binder and his insurer. Dr. Binder and his |3insurer settled the claims for less than policy limits. Therefore, plaintiffs sought court approval of the settlement and authority to proceed against the Louisiana Patient’s Compensation Fund (“PCF”) for excess damages. The PCF filed a motion for partial summary judgment as to Valerie Griffitt’s informed consent claim. The trial court ruled in favor of the PCF. This appeal followed.

Law & Analysis

At the time of the hearing, La. C.C.P. art. 966 provided for summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, showed that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C)(2); Schultz v. Guoth, 10-343, pp. 3-4 (La.1/19/11), 57 So.3d 1002.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a |4matter of law. Matthews v. Banner, 08-339, p. 3 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir.1988).

The law regarding informed consent in medical malpractice claims is well-settled in Louisiana. It is both statutory and jurisprudential. Tipton v. Campbell, 08-139, 08-140 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, writ denied, 08-2564 (La.1/9/09), 998 So.2d 720. In Maybrier v. Louisiana Medical Mutual Insurance Company, 08-1508, p. 8, (La.App. 3 Cir. 6/10/09), 12 So.3d 1115, 1121, writ denied, 09-1558 (La.10/9/09), 18 So.3d 1287, the doctrine of informed consent was explained:

The informed consent doctrine is based on the principle that every adult of sound mind has the right to determine what will be done to his or her own body. LaCaze v. Collier, 434 So.2d 1039 (La.1983). Where circumstances permit, a patient should be told the nature of the pertinent ailment or condition, the general nature of the proposed treatment or procedure, the risks involved, the prospects of success, the risks of failing to undergo the treatment or procedure, and the risks of any alternative methods of treatment. Hondroulis v. Shuhmacher, 553 So.2d 398 (La.1988).

Maybrier, 12 So.3d at 1121.

There is no dispute that on March 12, 2001, Ms. Griffitt signed a consent form for the HTO procedure. However, Ms. Griffitt asserts that she consented only to a closed wedge HTO rather than the opening wedge HTO procedure that Dr. Binder ultimately performed. Therefore, Ms. Griffitt’s claim is one of complete lack of consent for the procedure performed.

IfiAt the time of signing, La. R.S. 40:1299.40 of Louisiana’s Uniform Consent Law provided in pertinent part:

A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means the voluntary permission of a patient, through signature, marking, or affirmative action through electronic means ..., to any medical or surgical procedure or course of procedures which sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is evidenced by a signature, marking, or affirmative action through electronic means, by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.

The consent form signed by Ms. Griffitt was introduced at the hearing. The form as required by La. R.S. 40:1299.40 generally provides for a left knee arthroscopy and anterior cruciate ligament reconstruction using a cadaver allo-graft and a high tibial osteotomy. Ms. Grif-fitt signed the form acknowledging that she was informed of the risks associated with the proposed procedures, that all questions had been answered to her satisfaction, and that she gave consent for the procedures therein identified. Statutorily, the consent form is presumed valid and effective in the absence of proof that execution of the consent was induced by misrepresentation of material facts. We do not find that plaintiffs rebutted the presumption of validity with any such proof.

The procedure performed on Valerie Griffitt was an opening wedge HTO. Not only does the plain language of the identified procedure include the procedure actually performed, but all expert testimony presented, including the plaintiffs’ | (¡expert, stated that the procedure identified in the signed consent form includes either a closed or opening wedge HTO. A high tibial osteotomy may be performed either way, and Ms. Griffitt did not specify in the consent form that she consented to one manner and not the other. Although it appears that both methods may have been discussed between the parties, Ms. Griffitt ultimately consented to the HTO, which Dr. Binder performed.

Accordingly, because all expert testimony stated that the procedure specified in the consent form was indeed the procedure performed, we cannot find that a genuine issue of material fact exists as to whether Ms. Griffitt’s consent to the HTO procedure performed was informed. See, Larche v. Rodriguez, 00-881 (La.App. 4 Cir. 5/17/00), 765 So.2d 388, writ denied, 00-1817 (La.9/22/00), 768 So.2d 1290.

Decree

Considering the foregoing, the judgment of the trial court is affirmed.

AFFIRMED

JOHNSON, J., dissents with reasons.

JOHNSON, J.,

dissents with reasons.

hi, respectfully, dissent from the majority opinion in this matter. Although the opinion recites the general law regarding informed consent, it fails to acknowledge the more specific standard of reviewing informed consent cases and the applicable facts of this matter.

According to Suarez v. Mando, 10-853 (La.App. 5 Cir. 3/29/10); 62 So.3d 131, 135, writ denied, 11-0885 (La.6/17/11); 63 So.3d 1036, the plaintiff in an informed consent case bears the burden of proving: 1) the existence of a material risk which the physician must disclose; 2) the failure of the physician to inform the patient of a material risk; 3) the realization of the material risk; and 4) a causal connection between the failure to inform the patient of the risk and the realization of the risk. A risk is material “when a reasonable person in what the doctor knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risk in deciding whether or not to forego the proposed therapy.” Id.

Determining the materiality of a risk is a two-step process. First, the existence and nature of the risk and the likelihood of its occurrence must be defined. This requires some expert testimony because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. Second, the trier of fact must decide whether the probability of that type of harm is a risk which a reasonable patient would consider in deciding on Istreatment. The second step in determining materiality does not require expert testimony. Id.

According to Dr. Frank L. Barnes’s report, Mrs. Griffitt always thought her left leg was longer than her right. Mrs. Grif-fitt had a medial opening wedge osteotomy and ACL graft performed on her left knee. Dr. Barnes opined the medial opening wedge osteotomy was the opposite of which Mrs. Griffitt consented because that procedure makes the leg longer. Dr. Barnes also reported, “[t]he operation was improper because it increased her leg length inequality instead of decreasing it, this also violated the standard of care.”

In my opinion, the information provided by Dr. Barnes is sufficient to defeat the presumption that the consent form is valid. Plaintiffs in this matter have met the burden of proving that there is still an issue of genuine material fact as to whether the risks of a medial opening wedge osteotomy is material through Dr. Barnes’ report and deposition. There is still an issue of genuine material fact as to whether Mrs. Grif-fitt should have attached significance to the risks of the medial opening wedge osteotomy, which lengthens the leg instead of shortening it. For summary judgment purposes, because the experts are disagreeing in this matter, it is clear that reasonable persons can disagree on the issue of informed consent.

For the foregoing reasons, I would reverse the partial summary judgment and remand to the matter to the trial court for further proceedings.

      . Acts 2012, No. 257, § 1 removed the words "on file" from Section B, subsection 2 of Article 966 effective August 15, 2012. The instant motion for summary judgment was heard on May 25, 2012. Notwithstanding, all exhibits were admitted into evidence at the hearing.

      . La. R.S. 40:1299.40 was repealed by Acts 2012, No. 759, § 3 effective June 12, 2012 and is now contained in La. R.S. 40:1299.39.5.


author: EDWIN A. LOMBARD, Judge.

text:
    Stephen VALENTINO v. Daniel JENKINS, 21st Century Insurance and Financial Services and Allstate Insurance Company.
    No. 2012-CA-1672.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 5, 2013.

      Earl G. Perry, Jr., Gauthier, Houghtal-ing & Williams, LLP, Metairie, LA, for Plaintiff/Appellant.
    Thomas H. Barnett, Sheryl M. Howard, John William Norwood, IV, Richard D. Roniger, II, Barnett & Roniger, New Orleans, LA, Ronald L. Faia, Metairie, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

hThis appeal is not properly before the court.

Relevant Facts and Procedural History

This matter arises out of an accident that occurred on December 9, 2009, when the vehicle driven by the plaintiff, Stephen Valentine, struck the back of another vehicle in the right-hand lane of an elevated section of Interstate 10. In addition to filing suit against the owner of the other vehicle and his insurer (Daniel Jenkins and 21st Century National Insurance Company), the plaintiff filed suit against Allstate Insurance Company (Allstate) as his uninsured motorist insurer. However, because the plaintiffs policy had lapsed for nonpayment on November 3, 2009, Allstate moved for summary judgment. Finding in favor of Allstate, the trial court granted summary judgment on April 2, 2012, and dismissed Allstate from the litigation. The plaintiffs counsel filed a notice of intent to file an application for supervisory review on May 2, 2012, but although an order was signed by the trial court on June 1, 2012, allowing the writ application to be filed 12“within the time delays allowed by law,” no writ application was filed in this court.

Meanwhile, on May 18, 2012, the remaining defendants (Daniel Jenkins and 21st Century) filed a motion to set the matter for a status conference to set the matter for trial. A pretrial scheduling order was entered and, on July 11, 2012, the defendants (Jenkins and 21st Century) moved for summary judgment, asserting that because the plaintiff did not have automobile insurance at the time of his accident, he was statutorily barred from receiving the first $10,000.00 on his property and bodily injury claims.

Accordingly, on August 23, 2012, the plaintiff filed a motion to make the summary judgment granted in favor of Allstate a final judgment for purposes of appeal. On September 21, 2012, the trial court signed a judgment granting that motion. On October 3, 2012, the trial court signed an order granting the plaintiffs motion for a devolutive appeal from the March 16, 2012, summary judgment.

Applicable Law

Summary judgment may be rendered dispositive of a particular defense in favor of one of the parties even though the granting of summary judgment does not dispose of the entire case. La.Code Civ. Proc. art. 966(E). Although the denial of a motion for summary judgment is not ap-pealable, the granting of summary judgment is a final judgment “with the same effect as if a trial had been had upon evidence regularly adduced.” La Code Civ. Proc. art. 968; see also La.Code Civ. Proc. art. 1915(A)(1) (final judgment may be rendered and signed by the court lswhen it “[djismisses the suit as to less than all of the ... defendants....”); La. Code Civ. Proc. art. 1915(A)(3) (final judgment may be rendered when the court grants a motion for summary judgment); La.Code Civ. Proc. art. 2083 (“A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing by default, or by reformation under Article 1814”). A de-volutive appeal from a final judgment may be taken within sixty days of the expiration of the delay for applying for a new trial if no application has been timely filed. La. Code Civ. Proc. art. 2087. The delay for filing for a new trial is seven days, exclusive of legal holidays. La.Code Civ. Proc. art. 1974.

Discussion

Summary judgment was rendered, dismissing Allstate on April 2, 2012. Although the plaintiff inappropriately filed a notice of intent to seek supervisory review, he did not seek a new trial or reconsideration of the judgment in the trial court and, in fact, did not follow through on seeking supervisory review by this court. Thus, the time period for seeking a devolutive appeal from the summary judgment of April 2, 2012, lapsed long before the plaintiff filed the motion in August to designate the judgment of April 2, 2012, final and appealable. Because the time period had already elapsed, the trial court judgment granting the devolutive appeal is a nullity. Moreover, the plaintiff failed to respond to the order issued by this court on April 25, 2013, to show cause why this appeal should not be dismissed for lack of jurisdiction.

| ¿Conclusion

This appeal is dismissed.

DISMISSED

      . Notably, although a denial of summary judgment is properly reviewed in this court by application for supervisory review, a granting of summary judgment is not reviewed on application for supervisory writ. See La.Code Civ. Proc. art. 968.

      . On September 14, 2012, the trial court signed an order continuing the hearing on the defendants' (Jenkins and 21st Century) motion for summary judgment "to a date to be determined upon outcome of the Appeal currently pending in connection with this matter.”