source: Caselaw Access Project

author: Judge Daniel L. Dysart JENKINS, J.,

license: Public Domain

text:
    ENGLISH TURN PROPERTY OWNERS ASSOCIATION v. Scott TARANTO, Sam Morse, Glenn Orgeron, Lisa Africk & Deidra Edwards
    NO. 2016-CA-0319
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 19, 2017
    Rehearing Denied April 23, 2017

      Val Patrick Exnicios, LISKA EXNIC-IOS & NUNGESSER, 1515 Poydras Street, Suite 1400, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    Richard G. Duplantier, Jr., Scott M. Ra-ney, Sr., GALLOWAY JOHNSON TOMPKINS BURR & SMITH, 701 Poydras Street, Suite 4040, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore)

       Retired Judge Marion F. Edwards served as judge pro tempore on this matter through March 31, 2017, and thereafter, as judge ad hoc by order of the Louisiana Supreme Court dated March 28, 2017.

   Judge Daniel L. Dysart

|, Plaintiffs-appellants, former members of the Board of Directors of the English Turn Property Association, Inc. (“ET-POA”), appeal the trial court’s judgment dismissing their quo warranto petition. Defendant-appellees recently filed a Motion to Dismiss the appeal. For the reasons that follow, we deny the Motion to Dismiss and we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On March 19, 2015, the ETPOA filed a quo warranto petition, on behalf of four of its five directors of its Board of Directors—Val Exnicios, Jack Sutton, Dr. Bart Farris and Sandra Tate (hereafter sometimes collectively referred to as “plaintiffs”)—all of whom are residents of the English Turn Golf & Country Club community (“English Turn”). The ETPOA claimed that the defendants, Scott Taran-to, Sam Morse, Glenn Orgeron, Lisa Africk and Deidra Edwards (hereafter sometimes collectively referred to as “defendants”), also residents of English Turn, were “illegally and improperly attempting to assume positions as Directors of ETPOA without authority and prior to any election results being declared as final.”

In its suit, the ETPOA sought a judicial determination of “the authority, if any [by which] Defendants claim to hold office.” It alleged that, without “an ^accurate count of all eligible property owners appearing in person or valid proxy... the quorum necessary to hold and [sic] Annual Meeting of ETPOA can not [sic] be determined.” According to the ETPOA, there was an annual meeting “attempted to be held” on February 11, 2015. The ETPOA alleged that “until and unless an accurate count of all eligible property owners appearing in person or valid proxy is determined, the quorum requirement necessary to hold and [sic] annual meeting could not be determined.” The effect of “a lack of a quorum is that no valid business, or any election of Directors, can be held.” In that regard, the ETPOA maintained that “many of the proxies [for the February 11, 2015 meeting] secured by one of more of the Defendants herein were invalid, improper and/or improperly obtained, thus rendering them null.” It likewise maintained that a CPA, retained “to supervise the election, count the ballots, and determine the validity of the proxies and render an opinion as to the final election results,” “had not yet vetted the proxies or otherwise rendered his opinion regarding the validity of the election.”

In response to the quo warranto petition, defendants filed a peremptory exception of no right of action and a dilatory exception of lack of procedural capacity, challenging the ETPOA’s right and capacity to bring the suit and seeking to have the individual board members substituted as plaintiffs. After a hearing on the exceptions and by judgment dated July 22,2015, the trial court sustained the exceptions and allowed the ETPOA fifteen days within which to amend its quo warranto petition. The ETPOA filed an application for a writ of supervisory review with this Court, seeking a reversal of the trial court’s grant of defendant’s ^exceptions. This Court denied the writ application on September 30, 2015. English Turn Property Owners Association v. Scott Taranto, et al., 15-0959 (La. App. 4 Cir. 9/30/15)(unpub.). By way of a First Supplemental and Amending Petition filed bn September 3, 2015, the ETPOA was substituted by the plaintiffs.

A hearing on the quo warranto petition was held on'November 4, 2015. By judgment dated November 9, 2015, the trial court found in favor of the defendants and dismissed the quo warranto with prejudice.

The plaintiffs moved for a new trial which was denied by the trial court on November 30, 2015. In the November 30, 2015 judgment, the trial court canceled the previously scheduled hearing on the plaintiffs’ motion for new trial (which was scheduled for January 8, 2016) as moot. The record reflects that, despite the trial court’s having denied the motion for new trial on November 30, 2015, plaintiffs filed a supplemental/reply memorandum in support of their motion for new trial on December 22, 2015. For reasons that are not clear from the record, the trial court then held a hearing on the motion for new trial on January 8, 2016 and, again, denied the motion for new trial by judgment dated January 15, 2016.

Plaintiffs filed a motion to appeal the judgments of November 9, 2015 and January 15, 2016 on February 4, 2016.

J^MOTION TO DISMISS

On March 15, 2017, defendants filed a Motion to Dismiss this appeal on the basis that their terms of office ended when a new board of directors was elected on March 8, 2017, and therefore, the issues under review in this appeal are now moot, citing Hardy v. Albert, 225 So.2d 127 (La. App. 4th Cir. 1969). In Hardy, this Court found “that since the contested terms of the defendants have, expired, and a new election has been held prior to the final determination of the issues raised in the quo warranto proceeding, the question.. .regarding the defendants’ legal right to occupy the offices of directors of the homestead is now moot, and must therefore be dismissed.” Id., 225 So.2d at 128.

In the instant, matter, while a new election may have recently taken place and a new board of directors elected, these facts are not part of the record on appeal. Our jurisprudence is clear that “[t]he appellate briefs and motions of the parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein, or in exhibits attached thereto, if those facts are not in the record on appeal.” Fisher v. Majestic Trucking, Inc., 09-1398, p. 4 (La.App. 4 Cir. 3/17/10), 35 So.3d 384, 387, citing Board of Directors of Industrial Development Board of City of New Orleans v. All Taxpayers, Property Owners, Citizens of City of New Orleans, 03-0826, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 740, 744 (emphasis in original).'

It is unclear in Hardy whether the election of the new directors took place before the judgment denying the quo warranto petition was appealed. It is likewise unclear whether the matter of the new election was part of the record of the Hardy appeal. Given that the trial court judgment in Hardy was rendered on December 17, 1968 and the new directors were elected less than a month later, on January 15, |fi1969, it is likely that the new election took place before the appeal was filed and was thus part of the appellate record.

Here, while the Motion to Dismiss informs this Court that a new election occurred and attaches an affidavit attesting to that fact, with a copy of the election results, neither the affidavit nor the election results are part of the record on appeal. Accordingly, as a court we cannot consider any document or pleading not forming part of the record on appeal and for that reason, we deny the motion to dismiss.

We now turn to the issues on appeal.

DISCUSSION

Peremptory exceptions of no right of action and lack of procedural capacity

As their first assignment of error, plaintiffs argue that the trial court erred in granting defendants’ peremptory exceptions of no right of action and lack of procedural capacity. As previously noted, the ETPOA raised these very issues in an application for a writ of supervisory review which was denied by this Court in September, 2015. However, our jurisprudence reflects that the “denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory jurisdiction, and does not bar reconsideration .of, or a different conclusion on, the same question when an appeal is taken from a final judgment.” Sattar v. Aetna Life Ins. Co., 95-1108, pp. 4-5 (La.App. 4 Cir. 3/20/96), 671 So.2d 550, 552.

“We review de novo a trial court judgment sustaining an exception of no right of action as -a question of law and determine whether the trial court’s ruling was correct or incorrect as a matter of law.” First Bank & Trust v. Duwell, 11-0104, p. 4 (La.App. 4 Cir. 5/18/11), 70 So.3d 15, 18. The de novo standard of preview also applies to our review of the trial court’s ruling on a dilatory exception of lack of procedural capacity. Wells v. Fandal, 13-620, p. 7 (La.App. 5 Cir. 2/12/14), 136 So.3d 83, 87, unit denied, 14-0511 (La. 4/25/14), 138 So.3d 645. After our. careful review of the record, as explained more fully below, we find that the trial court correctly granted the exceptions,

The peremptory exception of no right of action “raises the question of whether the plaintiff has the capacity or legal interest in judicially enforcing the right asserted.” Alden v. Louisiana Citizens Prop. Ins. Co., 16-0044, p. 4 (La.App. 4 Cir. 6/29/16), 197 So.3d 312, 315. Under La. C.C.P. art. 681, too, “[a]n action can be brought only by a person having a real and actual interest which he asserts.” This exception “questions whether the party against whom it is asserted has an interest in judicially enforcing the right alleged against the exceptor.” Touzet v. V.S.M. Seafood Services, Inc., 96-0225, p. 2 (La. App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012. “When considering the exception, the court must ask whether the plaintiff belongs to a particular class for which the law grants a remedy for a particular grievance or whether the plaintiff has an interest in judicially enforcing the right asserted.” Id., pp. 2-3, 672 So.2d at 1012.

“The dilatory exception of lack of procedural capacity raises the issue of want of capacity of the plaintiff to institute and prosecute the. action and stand in judgment, and/or challenges the authority of a plaintiff who appears in a purely representative capacity.” Harvey v. State, 14-0156, p. 12 (La.App. 4 Cir. 12/16/15), 183 So.3d 684, 695, writ denied, 16-0105 (La. 3/4/16), 188 So.3d 1060, quoting Gibbs v. Magnolia Living Center, Inc., 38,184, p. 2 (La.App. 2 Cir. 4/7/04), 870 So.2d 1111, 1113.

|7We discuss the two exceptions together, because the" same reasoning applies to the underlying arguments for both exceptions in -this case. We have found, infra, that the trial court correctly held that defendants have shown their authority to serve as members of the ETPOA Board of Directors. In this regard, we have found the Februaryll, 2015 election to be valid and the defendants to have been legally elected to their positions. While plaintiffs maintain that a February 24, 2015 Resolution of the ETPOA authorized plaintiffs to bring the quo warranto action on behalf of ETPOA, they were no longer members of the Board of Directors, and no longer had power to act on behalf of ETPOA. Accordingly, they could no longer act on behalf of the ETPOA as members of the Board of Directors. For this reason, alone, these issues are moot. We also, note that at least one court has recognized that “[i]n a petition for quo warranto, the only parties ‘necessary' are those claiming or vying for the office at issue.” Smith v. Cannon, 43, 964, p. 3 (La.App. 2 Cir. 1/28/09), 2 So.3d 1227, 1230.

Quo warranto proceeding

A “[q]uo warranto is a writ- directing an individual to show by what authority he claims or holds public office, or office in a corporation, or directing a corporation to show by what authority it exercises certain powers. Its purpose is to prevent usurpation of office or of powers.” La. C.C.P. art. 3901. As this Court has recognized, the “proper procedure to try title to office in a private corporation is a writ of quo warranto.” Crutcher v. Tufts, 04-0653, p. 6 (La.App. 4 Cir. 2/16/05), 898 So.2d 529, 533. This Court has also repeatedly recognized the limited nature of the quo warran-to procedure; we recently reiterated, in Camillus Specialty Hosp., 8L.L.C. v. Riccio, 13-1172, p. 6 (La.App. 4 Cir. 1/30/14), 133 So.3d 287, 291, that the “writ of quo warranto is narrow in scope and is to be given only a limited use, which is to prevent usurpation of office or of powers.” See also, Menard v. City of New Orleans Enf't & Hearings Bureau, 12-1161, p. 6 (La.App. 4 Cir. 1/18/13), 108 So.3d 340, 344, writ denied, 13-0278 (La. 8/30/13), 120 So.3d 261; Crutcher, 04-0653, pp. 6-7, 898 So.2d at 533.

The burden of proof in a quo warranto proceeding is on the defendant to prove by what authority he or she claims to hold office. Menard, 12-1161, p. 4, 108 So.3d at 343, citing Crutcher, 04-0653, p. 7, 898 So.2d at 533. In Menard, we noted:

If the court finds that burden is not met, that the defendant is claiming or holding office without authority, it is required to render judgment forbidding him or her from doing so. The court' may also render judgment declaring who is entitled to office and, when necessary, directing an election be held.

Id. As an appellate court, we review the trial court’s factual findings under a manifest error/clearly erroneous standard. Metro City Redevelopment Coal., Inc. v. Brockman, 13-1615, p. 5 (La.App. 1 Cir. 3/21/14), 143 So.3d 495, 498; Hale v. Liljeberg, 04-861, p. 8 (La.App. 5 Cir. 1/25/05), 895 So.2d 28, 32. We do note, as plaintiffs contend, that where “legal errors have tainted the fact finding process, the verdict below is not reviewed under the manifest error standard and, if the record is complete, the appellate court may make a de novo review of the record.” 9Smith v. Johnson, 99-1513, p. 26 (La.App. 4 Cir. 5/23/01), 789 So.2d 672, 687. (Emphasis added). After our thorough review of the record, we do not find any legal errors which “have tainted the fact finding process.”

There can be no dispute that the February 12, 2015 Election Results contained in the record reflect that 377 ballots were cast, and that the five persons receiving the highest number of votes (for election to the Board of Directors) were: Lisa Africk, Diedra Edwards, Sam Morse, Jr., Glen Orgeron, and Scott Taranto. By receiving the highest number of votes and thereby winning the election, defendants have shown the authority for their holding the positions of members of the Board of Directors of ETPOA. Plaintiffs, however, dispute the validity of the election, claiming that the votes were not valid and more specifically, that the proxies for the absentee ballots were not shown to be legitimate. Intertwined with this issue is plaintiffs’ contention that the absentee ballots were not “vetted,” that a quorum was not present for the voting and therefore, the election was invalid.

The ETPOA documents consist of the Declaration of Covenants, Conditions, and Restrictions (the “Covenants”), Articles of Incorporation (the “Articles”) and ByLaws. The Articles state that the ETPOA is a “non-profit corporation” which is “authorized to exercise and enjoy all of the powers, rights and privileges granted to or conferred upon non-profit corporation: by the Louisiana Non-Profit Corporation Law.” (Articles, Art. II and III). The Articles further provide that |1fl“[a]Il of the powers of the [ETPOA] shall be subject to and shall be exercised in accordance with the provisions of the [Covenants].” (Articles, Art. III).

Under the Articles, the “Board of Directors shall consist of not less than three (3) nor more than five (5) members,” as provided in the By-Laws, and each Director serves for a term of two years (Articles, Art. VII and By-Laws, Art. 4, Sec. 4.1). The By-Laws call for an annual meeting in February and for election years, “[p]ersons may be nominated for election to the Board of Directors by a nominating committee appointed by the incumbent Board prior to the annual meeting and by nominations from the floor at the meeting.” (By-Laws, Art. 3, Sec. 3.2). The election of the Board of Directors is “by secret written ballot, unless dispensed by unanimous consent, and at such election members and their proxies may cast, with respect to each vacancy, the votes appurtenant to their respective Lots or Dwellings.” (By-Laws, Art. 4, Sec. 4.7). “[T]he persons receiving the greatest number of votes shall be elected to fill the vacancies on the Board of Directors.” Id.

With respect to a quorum, the By-Laws provide the following:

[By-laws, Art. 3,] Sec. 3.6. Quorum. At all membership meetings, annual or special, a quorum shall be deemed to be present through any meeting until adjourned if Owners entitled to cast a majority of the votes of the Association are present in person or by proxy. For purposes of the By-Laws, “majority” shall mean more than fifty (50%) percent....

Proxies are governed by Article 3, Section 3.8 of the By-Laws, which states that “[t]he vote of any Owner may be cast pursuant to a proxy or proxies executed hiby or on behalf of the Owner delivered to the Secretary of the [ETPOA].” This section further provides that “[n]o such proxy shall be revocable except by written notice delivered to the Secretary of the [ETPOA] by the Owner.” Otherwise, a proxy is void if (a) it is not dated; (b) it purports to be revocable without the notice required; or (c) eleven (11) months have elapsed since it was executed. (By-Laws, Art. 3, Sec. 3.8).

Quorum

Under the By-Laws, a quorum is met when a majority of the Owners entitled to cast a majority of the votes (namely, more than fifty percent (50%)) is present, either in person or by proxy. Plaintiffs contend that “no quorum” was established and in support of that argument, submitted virtually identical affidavits of Jack Sutton and Dr. Bart Farris, in which each affiant, stated that “[n]o quorum was certified or ¡otherwise established.” Plaintiffs further rely on Mr. Sutton’s affidavit in which he states that “no proxies (except those given to me personally to vote) were delivered to [him] either for verification or otherwise prior to the election.” (Emphasis supplied). Plaintiffs maintain that, under Art. 3, Sec. 3.8, only those proxies “duly executed” by or on behalf of an owner and delivered to the Secretary of the ETPOA may be cast as votes for the election.

We note that Mr. Sutton does not state the number of proxies that were given to him and there is nothing in the record which indicates how many of the votes were cast by owners present or by proxy. By virtue of the number of votes cast 112(377), it is clear that a quorum was met. Plaintiffs, however, seem to contend that because the proxies were not verified, they are invalid, cannot be counted and thus, a quorum was 'not met. Even if we were to assume that the proxies were somehow invalid, there is nothing in the record by which we could determine-that the majority votes were not cast by members present als the meeting, or'that the-proxies comprised the majority- of votes, so as to find that no quorum was met.

Moreover, the By-Laws specifically address the situation of the failure to obtain a quorum; Under Art. 3, Sec. 3.7, the ByLaws state that ■ “[a]ny meeting of the membership which cannot be organized because. a quorum had not attended may be adjourned from time to time by the vote of a majority of the Owners present or represented by proxy.” Had plaintiffs believed, prior to the election, that a quorum was not present at the February 11, 2015 meeting, they could have invoked this provision and sought to adjourn the meeting to a later' date, when a quorum could be met. Their failure to do so belies their argument that there was no quorum.

We likewise find no merit in plaintiffs’ contention that challenges regarding the validity, of the proxies were lodged, “prior to the attempted election.” In support of this argument, plaintiffs argue that challenges to proxies “were officially lodged by at least 3 Directors with the ETPOA Secretary prior to the purported election.” They then point to the affidavits of Mr. Sutton and Dr. Farris in support 113of this argument. Those .affidavits, however, merely state that “in my capacity as [Secretary and Parliamentarian, respectively], Val Exnicios, Dr. Bart Farris and Sandra Tate [or, -with respect to Dr. Farris’ affidavit, Val Exnicios, Jack Sutton and Sandra Tate], all Directors along ■with me of the ETPOA, notified me prior to February 11, 2015 that they, challenged any and all proxies sought to be voted on February 11, 2015, and particularly any and all proxies sought to be voted by Scott Taranto.”

While Mr. Sutton and Dr. Farris attested to the fact that they were generally challenging proxies, there is no evidence that any particular proxy was challenged. Nor is there any evidence in- the record that any particular proxy was invalid or obtained under-false pretenses as plaintiffs claim.-Plaintiffs did not submit any affidavit of any member of the ETPOA which corroborates their contention that his or her proxy was fraudulently obtained or, as plaintiffs stated in their pre-trial supporting memorandum, that “one or more candidates were potentially soliciting proxies on false and/or incomplete representations.”

Furthermore, the By-Laws specifically provide for the “self-governance of the [ETPOA] ” and incorporate “the Louisiana Non-Profit Corporation Law,” found at La. R.S. 12:201 et seq. (By-Laws, Art. 1, Sec. 1.3). La. R.S. 12:232, which deals with “voting of members” provides that “[a] proxy regular on its.face, and signed in the name of a member entitled to vote at the meeting, shall be deemed valid unless challenged before it is voted, and the burden of proving invalidity shall be on the challenger.” La.R.S. 12:232 C(4). While there is scant case law interpreting this statute, its plain language contemplates that challenges be made to specific proxies. It further contemplates that the specific proxies are to be challenged prior to their-being voted. Here, plaintiffs did not challenge specific |uproxies prior to the election (or at the election itself), where they would have had the burden of proving their invalidity. Their failure to do so renders the proxies “regular on [their faces]” to be deemed valid. ■

We likewise find no merit to plaintiffs contention that, because all of the proxies were not delivered to Mr. Sutton personally, this violated the By-Laws, rendering the voting invalid. As evidenced by the ETPOA letter-sent to the residents of the subdivision, containing the names of all of the then Board of Directors, several means were established by which residents could issue proxies, including filling out the attached form and faxing it to the office, dropping the form off at the sales center or with one of the guards, or scanning the form and mailing it to Margeaux Fanning, the Administrator for the ETPOA. Because the Board of Directors expressly deviated from the provisions of Art. -3, Sec. 3.8 by allowing proxies to be submitted in manners other than by delivering, them to the Secretary, of the ETPOA, they cannot now complain' of the impropriety of the submission of proxies.

Certification of election results

Plaintiffs next contend that there was “no- ‘certification’ of any purported election results” because “[t]he individuals purporting to ‘certify1 the purported election results were in fact never authorized by the ETPOA Board of Directors to do so.” This contention is negated by the election results themselves which state that the “duly elected inspectors of election after having first determined the 11fivalidity of proxies and ballots certify the ... election results for the [ETPOA] ” and list the five persons receiving “the highest number of votes.” It is signed by four persons: Cynthia Sacks, Richard Faust, Bob How-son and Terry Jacobsen, CPA. Also noted were three observers: Larry Tucker, Dan Dreiling and Gary Braun.

The affidavits of Mr. Sutton and Dr. Farris, both indicate that:

The protocol agreed to on the night of the attempted election to provisionally verify ballots .case in person or by proxy... was that retained CPA Terry Jacobsen would maintain exclusive control of the ballots casts [sic] in person or by proxy and that an initial evaluation of said ballots would be conducted jointly by Mr. Jacobsen... [Ms.] Sacks, Bobby Harges, Esq., [Mr.] Faust and [Mr. Howson] at a mutually agreeable time and place when all were available; that contrary to the agreed upon protocol, a meeting of all 5 individuals was not conducted but rather a meeting was called by [Mr.] Faust and [Mr.] Howson (who were the choices of the other candidates) with Terry Jacobsen and Cynthia Sacks.

Plaintiffs maintain that Mr. Harges was not notified of any meeting and therefore did not participate in the meeting. Notably, plaintiffs did not offer an affidavit of Mr. Jacobsen or Mr. Harges and can point to no irregularities in the manner in which the votes were counted. The election results were confirmed by four persons, two of whom plaintiffs concede they selected (Mr. Jacobsen and Ms. Sacks) and we therefore find no basis to set aside the election results or order that a new election take place. Nor have plaintiffs demonstrated that the election results were improperly comprised of invalid proxies.

Likewise, nothing in the By-Laws requires that proxies be “vetted” so as to ensure their accuracy or validity. Again, plaintiffs offered no evidence, by way of affidavits of members voting by proxy, to suggest that their proxies were improperly procured and therefore, invalid. Nor have plaintiffs offered any evidence to suggest that the votes were improperly tabulated or that, the | ^certification by the four persons who signed the election results was otherwise tainted. Nor did plaintiffs offer an affidavit of Mr. Jacobsen to corroborate that he was retained to “vet” the proxies after the election. The affidavit of Sam Morse, both a former and current member of the Board of Directors, states that, at the February 11, 2015 annual meeting, “neither the Board of Directors nor the members of the association agreed that proxies would need to be vetted or validated after such proxy vote was cast in order for it to be considered valid.”

Based on the actual certification of the election results, and the affidavit of Ms. Fanning, which attests to the fact that she verified that the ballots were either submitted by members present or by proxies submitted by members in good standing, we find the certification to be conclusive evidence of the election results. We further find that these election results demonstrate the authority by which defendants hold positions on the ETPOA Board of Directors.

Meeting protocol and other alleged improprieties

The By-Laws provide in Art. 8, Sec. 3.5 for a certain order of business “at all annual membership meetings.” Plaintiffs maintain that this protocol-was not followed on February 11, 2015. In support of this argument, plaintiffs point to the affidavits of Mr. Sutton and Dr. Farris who attested to the fact that this section of the “By-Laws was Inadvertently not followed.” The affidavits further state that “the inadvertent failure to adhere to the election requirements mandated by the By-Laws was not intentional by me or, to the best of my knowledge, information and li7belief, by any other. Director... but rather was a result of constant interruptions in the proceedings by certain ETPOA property owners... that caused great tension and discord during the attempted proceedings such that fatal errors were made.”

Plaintiffs cite no case law in support of their contention the election was invalid based on the failure to follow the order of annual meetings prescribed by Sec. 3.5. Nor do we find the election to be invalid based on the assertion that Sec. 3.5 was not rigidly followed.

While plaintiffs maintain that the minutes of the February 11, 2015 meeting, submitted by defendants with their pre-hearing memorandum, should be disregarded because they were authored by Deidra Edwards (because she was not sérving as Secretary of the ETPOA on February 11, 2015), Mr. Sutton, who was the Secretary at the time, prepared no countervailing minutes of the meeting. In his affidavit, though, he states that the “official Minutes of the February 11, 2015 attempted election and meeting kept by me as Secretary of ETPOA reflect that no quorum was established....” Notably, Mr. Sutton did not attach a copy of what he considers to be the “official Minutes” of that meeting.

The By-Laws expressly provide that “each Director elected by the members shall serve until the annual meeting at which his term expires and until his successor has been duly chosen and qualified.” (By-Laws, Art. 4, Sec. 4.6). Thus, Mr. Sutton’s term • expired on February 11, 2015, and, as we have found herein, a new Board of Directors came into power at the time that the election was certified. We cannot say, therefore, that the minutes of the meeting are to be disregarded | ^altogether. Those minutes indicate that the meeting on February 11, 2015 was presided over by Val Exnicios, as President of the ETPOA, and that certain formalities were disregarded. Indeed, after an objection was lodged “on the grounds that Section 3.5 of the Association’s ByLaws” was not being followed', insofar as “three prior agenda items... had not yet. occurred” before the presentation of certain reports, Mr. Exnicios noted the objection and then carried on with the meeting. Thereafter, Dr. Farris “made' a motion to follow the agenda for the meeting and election which was customarily employed in past meetings, even if not following the precise order of business in Section 3.5. This Motion was seconded and passed.”

Because the order of business was conducted as the then Board of Directors saw fit (and pursuant to Dr. Farris’ motion), plaintiffs cannot now claim that the meeting was invalid based on this alléged irregularity. See, e.g. Cox v. Dep’t of Highways, 252 La. 22, 209 So.2d 9, 11 (1968)(“one should not be able to take advantage of his own wrongful act.”).

Finally, without any real discussion (plaintiff merely list this as one of the statements in the affidavits óf Mr. Sutton and Dr. Farris), plaintiffs also suggest that the nominating procedures were not followed, citing Art. 4, Sec. 4.7 of the ByLaws. That section provides that “[pier-sons may be nominated for election to the Board of Directors by a- nominating committee appointed by the incumbent Board of Directors prior to the annual meeting and by nominations made from the floor at the meeting.” The record is void of any evidence as to how any person came to be nominated for office and came to be listed on the ballot. In that regard, there is no information about .how plaintiffs, who sought re-election, were nominated for the election either and plaintiffs seemingly do not contest that they were properly 119nominated. We also find nothing in the record which suggests that an objection was lodged with respect any nominations. Accordingly, we cannot find any impropriety with respect to the nomination of any person to the position of member of the Board of Directors.

Evidence at hearing

Val Exnicios, counsel for plaintiffs, maintains that the trial court erred in refusing to allow him to testify at the quo warranto hearing. We find no error in the trial court’s ruling.

First, quo warranto may be tried as a summary proceeding. La. C.C.P. art. 3781. As the Louisiana Supreme Court explained, summary proceedings [like quo warranto hearings] “are those which are conducted with rapidity within the delays allowed by the court, and without citation and the observance of all formalities required in ordinary proceedings.” Clay v. Clay, 389 So.2d 31, 34-35 (La. 1979), citing La. C.C.P. art. 2591.

In this case, defendants moved to set a return date for the submission of all evidence and requested a hearing date. The trial court then scheduled a hearing and ordered plaintiffs to produce “all evidence in support of the Quo Warranto Petition” along with a supporting memorandum. Defendants were also ordered to produce “all evidence relied upon in Response to the Writ of Quo Warranto,” along with an opposing memorandum.

It was well within a trial court’s authority to decide what evidence will be allowed at a hearing on a quo warranto petition. Our jurisprudence indicates that a “trial court has great discretion in the admissibility of evidence and its decision to admit or exclude evidence may not be reversed on appeal absent a dear abuse of that discretion.” Ratliff v. LSU Bd. of Supervisors, 09-0012, p. 12 (La.App. 4 Cir. 205/7/10), 38 So.3d 1068, 1077. The Ratliff court acknowledged that an appellate court is to “consider whether the complained-of ruling was erroneous [as to the admission of evidence] and, if so, whether the error affected a substantial right of the complaining party.” Id, Here, it is clear that the trial court contemplated that all evidence in support of, and in opposition to, the writ of quo warranto be submitted prior to the hearing date. And, as we have found herein, the evidence clearly supported the trial court’s finding that defendants showed their authority to be members of the Board of Directors. We And no reversible error or abuse of discretion in the trial court’s denial of Mr. Exnicios’ request to testify at the hearing.

CONCLUSION

Based on the foregoing, we And no error in the trial court’s ruling that “the defendants have shown by what authority 'they claim to be directors of English Turn Property Owners Association.” We likewise find no error in the trial court’s denial of the Petition for Quo Warranto. Accordingly, the judgment of the trial court dismissing plaintiffs petition for a writ of quo warranto is affirmed.

AFFIRMED

JENKINS, J.,

DISSENTS WITH' REASONS

hi respectfully dissent. I find that the judgment on appeal is not a final, appeal-able judgment and, therefore, this court lacks jurisdiction to consider the merits of the appeal.

Before considering any appeal on the merits, the appellate, courts may address the issue of subject matter jurisdiction sua sponte, even when the issue is not raised by the parties. Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 03/16/16), 190 So.3d 422, 425; West Jefferson Medical Center Staff ex rel. Boraski v. State, 09-1365, p. 2 (La. 2/26/10), 28 So.3d 257, 258. This Court cannot reach the merits of an appeal unless our appellate jurisdiction is, properly invoked by a valid final judgment. See Bd. of Supervisors of La. State Univ. and Agric. and Mech. College v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La.App. 4 Cir. 10/15/14), 151 So.3d 908, 910; Tomlinson v. Landmark American Ins. Co., 15-0276, p. 2 (La.App. 4 Cir. 3/23/16), 192 So.3d 153, 156.

“A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief .that is granted or denied.” Moon, 15-1092, p. 6 (La. App. 4 Cir., 03/16/16), 190 So.3d 422, 425, quoting Mid City Holdings, L.L.C., 14-0506, p. 2, 151 So.3d at 910. “The result decreed must be spelled out in | Jucid, unmistakable language. The quality of definiteness is essential to a proper judgment.” Input/Output Marine Systems, Inc. v. Wilson Greatbatch, Technologies, Inc., 10-477, p. 13 (La.App. 5 Cir. 10/29/10), 52 So.3d 909, 916. The specific relief granted or denied should be determinable from the face of the judgment without reference to extrinsic sources such as pleadings or reasons for judgment. Id. Additionally, when there are multiple parties, the judgment must specifically identify the names of the parties to which the judgment applies. See id.; see also Oregan v. Cashio, 15-612, p. 5 (La.App. 5 Cir. 01/27/16), 185 So.3d 885, 887.

In the instant case, the. November 9, 2015 judgment from which the plaintiffs appeal lacks definitive decretal language necessary for the exercise of our appellate jurisdiction. The decretal language fails to specifically identify the plaintiffs against whom judgment was rendered, the defendants in favor of whom judgment was rendered, or the specific relief granted or denied. In the absence of definitive decre-tal language rendering judgment on the quo warranto .petition, the November 9, 2015 judgment cannot be considered a final, appealable judgment.

Furthermore', I find that this Court cannot exercise its discretion to convert the .appeal into an application for supervisory writs because- the motion for appeal was not filed within thirty days of the November 9, 2015 judgment. See Zeigler v. Housing Authority of New Orleans, 15-0626, p. 3 (La.App. 4 Cir. 3/23/16), 192 So.3d 175, 178; Uniform Rules—Courts of Appeal, Rule 4-3. Accordingly, I would dismiss the appeal.

      . The ETPOA filed a motion for new trial, which was denied on September 1, 2015, although the ETPOA was granted fifteen days from that date to amend its petition.

      . The record reflects that the defendants then filed a second exception of no right of action on October 8, 2015, challenging the .capacity of Val Exnicios to bring suit on the basis that he is not a member of the ETPOA and does not own a lot or dwelling in the English Turn subdivision. While this exception was scheduled for hearing on December 4, 2015, there is nothing in the record regarding the outcome of that hearing.

      .We note that the trial court denied the plaintiffs’ motion for new trial on November 30, 2015 and the Order reflects a request for service of the denial on counsel for plaintiffs. The motion for appeal, filed on February 4, 2016, would therefore be untimely. However, there is nothing in the record indicating that this November 30, 2015 order was actually served and no notice of the signing of this judgment. We therefore consider the denial of the plaintiffs’ motion for new trial dated January 15, 2016 as the date on which the appellate delays began; notice of that judgment was sent on the same day that judgment was rendered. See La. C.C.P. arts. 1913, 1974, 2087 and 2123.

      . Because we have found that plaintiffs were no longer members-of the Board of Directors when the Resolution was passed, we need not ' address whether the Resolution was valid and complied with the By-Laws of the ETPOA.

      . Under La. C.C.P. art. 3781, a quo warranto proceeding may be tried summarily. See also, Yee v. World, 08-814, p. 6 (La.App. 5 Cir. 3/24/09), 10 So.3d 791, 793. In accordance with this rule, the trial court ordered the parties to submit memoranda prior to the hearing setting forth their respective positions.

      . The record does not contain documentation reflecting the number of owners eligible to vote. Throughout the record, however, defendants assert that there were 564 lot owners who were eligible to vote and thus, the 377 votes cast (either in person or by proxy) met the quorum requirement. Quorum, as discussed below, is more than fifty percent; 377 votes clearly exceeds the number required for a quorum.

      . We note that the Februaiy 11, 2015 Election Results do not state how many of the votes were by members voting in person or the number of absentee votes which were made by proxy. Nor is there any evidence in the record as to the breakdown of these votes.

      . The By-Laws contemplated that, after the initial Board of Directors’ term expired, the number of members of the Board of Directors would increase to five. (By-Laws, Sec. 4.6).

      . The By-Laws provide, in Art. 2, Sec. 2.2, that "[t]he Owners shall be entitled to one vote for each Lot or Dwelling.”

      . They differ only with respect to their individual capacities; Jack Sutton is the former Secretary of the ETPOA; while Dr. Baft Farris served as its Parliamentarian.

      . We note that our jurisprudence indicates that, in a quo warranto proceeding seeking to "oust directors of a corporation, the court may investigate whether or not the votes were legally cast.” Thornton v. Carthon, 47,948, p. 9 (La.App. 2 Cir. 5/15/13), 114 So.3d 554, 560.

      . As evidenced by the affidavit of Ms. Fanning, who is not a party to this lawsuit, she "had the responsibility to receive and review proxies from the ETPOA members.” She fin-ther attested that, of the 377 votes counted in connection with the election, all of the'votes were either filled out by members present at the meeting or made by proxy through members in good standing.

      .In their affidavits, both Mr. Sutton and Dr. Farris attested to the fact that “in violation of Section 3.8, no certification or other verification of proxies to determine if they were duly executed was conducted prior to the attempted election.” (Emphasis supplied). A review of Art. 3, Sec. 3.8 of the By-Laws reflects that there is no procedure set forth by which proxies are to be certified or verified or to determine that they are "duly executed.”

      . The letter was attached to defendants’ PreTrial Memorandum in this summary proceeding. Plaintiffs have not contested the authenticity of this document and did not file a motion to strike the document at any time prior to the hearing.

      . Again, there is nothing in the record which demonstrates how many of the proxies were submitted by means other than through the Secretary of the ETPOA.

      . The order of business is as follows: a. Roll call and certification of proxies; b. Proof of notice of meeting of waiver of notice; c. Reading of minutes of preceding meeting; d. Reports of officers, if any; e. Reports of committees, if any; f. Election of appointment of inspectors of election; g. Election of trustees; h. Unfinished business; i. New Business.

      . The minutes of the meeting do not identify the author and contain a typographical.error (listing the date as February 1, 2015). The body of the minutes clearly reflect that the meeting was held on February 11, 2015.

      . Cf. Crutcher v. Tufts, 04-0653, p. 7 (La.App. 4 Cir. 2/16/05), 898 So.2d 529, 533 ("In a quo warranto action, the defendant has the burden of showing by what authority he or she claims to hold office. If the court finds that burden is not met [.,.], it is required to render judgment forbidding, him or her from doing so. The court may also render judgment declaring who is entitled to office and, when necessary, directing an election be held.)(citations omitted).


author: Judge Edwin A. Lombard LOVE, J., LEDET, J.,

text:
    Ecetra N. AMES v. John B. OHLE, III, J.P. Morgan Chase & Co. f/k/a Bank One Corporation, Douglas Steger and Kenneth A. Brown
    NO. 2016-CA-0612
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 26, 2017

      Gladstone N. Jones, III, Lynn E. Swanson, H. S. Bartlett, III, Catherine E. La-sky, Lindsay Reeves, JONES, SWANSON, HUDDELL & GARRISON, LLC, 601 Poydras Street, Suite 2655, New Orleans, LA ' 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    John W. Hite, III, SALLEY HITE MERCER & RESOR, LLC, One' Canal Place, 365 Canal Street, Suite 1710, New Orleans, LA 70130—AND—J. Gregory Deis, Stephen J. Kane, MAYER BROWN, LLP, 71 S. Wacker Drive, Chicago, IL 60606, Cesar R. Burgos, Robert J. Daigre, Corina E. Salazar, Gabriel O. Mondino, George McGregor, BURGOS & ASSOCIATES, LLC, 3535 Canal Street, New Orleans, LA 70119-6135, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)
   Judge Edwin A. Lombard

hThe Appellant, Hugh Uhalt, seeks review of three district court judgments in the instant appeal: a January 26, 2016 judgment dismissing respondeat superior claims against Appellee, J.P. Morgan Chase & Co. f/k/a Bank One Corporation (“Bank One”); a February 4, 2016 judgment dismissing his remaining claims against Bank One; and a March 23, 2016 judgment granting an exception of res ju-dicata of Appellee John Ohle, III (“Ohle”). Finding that the judgment of the district court granting Ohle’s exception of res judi-cata is neither manifestly erroneous nor legally incorrect, we affirm. Moreover, pursuant to our de novo review, we find that there are no genuine issues of material of fact precluding the granting of Bank One’s respective motions for summary judgment. Lastly, Bank One’s Answer to Appeal is denied as moot.

FACTS AND PROCEDURAL HISTORY

The facts of this matter were previously set forth in Ames v. Ohle, 11-1540 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, as follows:

lain 1998, plaintiff, Ecetra N. Ames, hired defendant, John B. Ohle, III, to provide tax and financial planning services. Ohle was employed by defendant, Bank One, from 1999 through 2002 in the bank’s Innovative Strategies Group. In December 1999, Ames executed an instrument establishing a Charitable Remainder Unitrust (“Trust”), which designated Ohle as trustee. Ames asserts that she initially funded the trust with almost $5 million, followed by contributions in almost $3 million over the next two years. Ames alleges that in 2001, Mr. Ohle approached her about investing in a hedge fund called Carpe Diem Dynamic Fund Linked Warrants (“Carpe Diem Warrants”). Ames agreed to invest $5 million in Carpe Diem Warrants. After the $5 million transfer was made, Ames alleges that Ohle instructed the Carpe Diem fund to withhold $250,000 as a fee for the purchase of the warrants. Ames asserts that, she was not informed that there would be any fees for the purchase of the Carpe Diem Warrants. ' Ames asserts that at the same time Ohle purchased $4.75 million worth of Carpe Diem Warrants on Ames’s account, he transferred $2 million of the Trust’s funds to purchase additional Carpe Diem Warrants. This transfer involved a fee of $100,000, which Ames asserts was not disclosed to her.
Ames also asserts that defendant, Douglas Steger, at the direction of Ohle, directed the Carpe Diem fund to send $300,000 of the $350,000 of fees collected by Ohle to the bank account of Invested Interest, a company based in San Francisco, . California and wholly owned by Individual “A.” Ames’s petition states that Individual “A” is an unnamed, non-defendant co-conspirator, who is an investment advisor and friend of Ohle. Ames asserts that ■ on November 27, 2001, Ohle directed $347,834 to be transferred from the Trust to Carpe Diem. Subsequently, Ohle directed Carpe Diem to send the $347,834 in funds to Invested Trust. Ames alleges that Individual “A”, at the direction of Ohle, through several transactions sent a total of $375,000 of her money to a bank account owned by Kenneth Brown and his. then wife at Gulf Coast Bank. Ames further alleges that another $267,634 of her money was transferred to a bank account owned by Ohle at l.gHibernia Bank. Ames asserts that she had no knowledge of these transactions.
Ames alleges that Ohle and Brown used the funds improperly deducted from Ames’s Carpe Diem investment to fund Brown’s position as a third-party investor in the “Hedge Option Monetization of Economic Remainder” (“HOMER”), which is a tax strategy sold by Ohle and Bank One to high net-worth individuals. Ames further alleges that Ohle, Brown, and Bank One received significant income from their roles with regard to the HOMER tax strategy. Specifically, Ames asserts that Bank One received over $5,000,000 in fees for referring its clients to the HOMER strategy.
In March 2003, Ames requested that Ohle provide her with an accounting for the Trust. Ames asserts that Ohle falsely told her that $350,000 in fees was paid entirely to Steger. After learning, in August 2003, of Ohle’s mishandling of the Trust, Ames and Ohle executed a settlement agreement. However, Ames asserts that the accounting did not apprise her of the following: money taken from the Trust that was funneled through Carpe Diem; the withdraws by Ohle from the Trust; or the use of Carpe Diem fees and Trust funds to fund the HOMER tax strategy.
In 2008, Ohle was indicted by a grand jury in the Southern District of New York for various fraud and tax offenses. Ames asserts that it was within the course of Ohle’s criminal trial that she discovered for the first time that Ohle benefited from the $350,000 of fees she and the Trust were charged for the purchases of Carpe Diem Warrants. In addition, Ames also asserts that it was at this time that she first learned of Ohle’s $347,834 transfer from the Trust to Carpe Diem to fund the HOMER tax strategy. In June 2010, Ohle was found guilty as charged.
After further details of Ohle’s mishandling of Ames’s Trust were disclosed throughout Ohle’s criminal trial, in October 2009, Ames filed suit against the same defendants in the instant case ha federal court alleging claims under RICO as well as several state law claims. Ames v. Ohle, 2010 WL 5055893, p. *2 (E.D.La.2010). The federal court dismissed Ames’s RICO claims as untimely based on the “injury discovery” rule, which [¿determines when a RICO claim accrues. Id. at *2, *4..., Further, the federal court declined to exercise jurisdiction over Ames’s remaining state law claims since the only federal law claims were dismissed at an early stage of the litigation. Id.
On January 14, 2011, Ames filed her petition in this suit. Bank One filed multiple exceptions, including exceptions of preemption, prescription and no cause of action, which were adopted by the other defendants, Brown and Steger. The district court sustained Bank One’s exception of prescription by oral ruling on May 27, 2011.

Ames v. Ohle, 11-1540, pp. 1-5 (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 389-90, decision clarified on reh’g (July 11, 2012), writ denied, 12-1832 (La. 11/9/12), 100 So.3d 837.

In the above-referenced appeal, Mrs. Ames sought review of the district court’s grant of Bank One’s exception of prescription. We reversed in part the portion of the district court’s judgment “sustaining Bank One’s exception of prescription as to her [Mrs. Ames’s] claim for fraud” and remanded for further proceedings. In all other respects, the grant of the exception of prescription was affirmed. On rehearing, we clarified that Mrs". Ames’s fraud claim “is personal in nature” and is subject to a ten-year prescriptive period. Id.

Subsequently, Ohle filed exceptions of prescription and res judicata. The district court granted the exception of res judicata dismissing Mrs. Ames’s claims against Ohle, with prejudice. Bank One also filed a motion asserting that it was entitled to summary judgment on the following issues: not being a proper party defendant, respondeat superior, fraud, and civil conspiracy. The district court ultimately granted Bank One’s motion for summary judgment in full.

Mr. Uhalt timely filed the instant appeal. He raises four assignments of error:

[1. The district court erred in granting Ohle’s exception of res judicata on the basis of a prior settlement agreement that'was reached through his fraudulent concealment of the information that forms the basis of Mr. Uhalt’s claims in this'matter.
2. The district court erred in granting summary judgment to Bank One on the issue of Ohle’s employment status, finding as a matter of law that he was employed by ors Corporation (“BOIA”) rather than Bank One, where voluminous evidence shows a genuine dispute of material fact as to Bank One’s employment of Ohle.
3. The district court erred in granting summary judgment to Bank One on Mr. Uhalt’s respondeat superior ■ "claims, on the basis of a lack of benefit to Bank One from Ohle’s conduct, -where the evidence shows a genuine issue of material fact regarding the benefit received by Bank One.
4.The district court erred in granting summary judgment to Bank One on Mr. Uhalt’s direct fraud claims against Bank One, where there is evidence in the record showing a genuine dispute of material fact regarding Mrs. Ames’s reliance on Bank One’s role as an investment advisor and regarding what actions Mrs. Ames would have taken had Bank One warned her of Ohle’s wrongful actions.

Exception of Res Judicata

In his first assignment of error, Mr. Uhalt argues that his claims of fraud against Ohle are not barred by the exception of res judicata and the terms of the 2003 Settlement Agreement. He avers that the Settlement Agreement was only applicable to “all matters disclosed;” however, the claims at issue were unknown to Mrs^ Ames at the time she executed the Settlement Agreement. Ohle, according to Mr. Uhalt, failed to meet his burden of showing that the Settlement Agreement barred the instant claims. He further asserts that it is undisputed that Ohle “concealed the information” underlying Mrs. Ames’s petition from both her and her attorney, John Wogan, when the Settlement Agreement was created. Her petition raises claims that she learned of after entering into the Settlement | (¡Agreement, during the course, of Ohle’s indictment and federal criminal proceedings, according to Mr. Uhalt. Mr. Uhalt further argues that in addition to its fraud claims against Ohle, Mrs. Ames did not learn of Bank One’s misconduct until after the Settlement Agreement was executed.

Moreover, Mr. Uhalt asserts that even if the Settlement Agreement is determined to be applicable to .the issues raised in Mrs. Ames’s Petition, she was fraudulently induced by Ohle into signing the Settlement Agreement. Thus, the contract may be vitiated by fraud, , he contends. Tate v. Woman’s Hosp. Found., 10-425, p. 5 (La. 1/19/11), 56 So.3d 194, 198; La. Civ. Code art. 1948. He also argues that Bank One is precluded from relying on the Settlement Agreement because neither Bank One nor any of its affiliated entities were released.

Appellate courts review of a peremptory exception of res judicata “to determine if the trial court’s decision is legally correct or incorrect.” BBCL Enterprises, LLC v. Am. Alternative Ins. Corp., 15-0469, p. 3 (La.App. 4 Cir. 2/3/16), 187 So.3d 65, 67 (quoting Myers v. Nat’l Union Fire Ins. Co. of Louisiana, 09-1517, p. 5 (La.App. 4 Cir. 5/19/10) 43 So.3d 207, 210. Additionally, “[w]e review factual issues relating to an exception of res judicata on a manifest error/clearly wrong basis.” Id. (quoting Countrywide Home Loans Servicing, LP v. Thomas, 12-1304, p. 3 (La.App. 4 Cir. 3/20/13), 113 So.3d 355, 357).

We note that at the time the parties entered into the Settlement Agreement, Ohle was still the trustee of the Trust. He resigned from that position as a condition of the Settlement Agreement. In addition to the Settlement Agreement, a consent judgment was later issued by the district court. Furthermore, Mrs. Ames was repre-' sented by counsel and acting under the advice of her counsel when she signed the Settlement Agreement. Ohle asserts that despite still being the trustee, |7he did not retain a position of influence or trust over Mrs. Ames as the parties were adversaries at that juncture. The Settlement Agreement, he argues, is all inclusive covering all of his actions up to, the date that the Settlement Agreement was executed.

The district court explained during the January 15, 2016 hearings that it was granting the-exception because the parties entered into a global release and that the Settlement Agreement resulted from the parties “no longer having a relationship of trust.”

We further note that at said hearing, counsel for Mr. Uhalt admitted that the Settlement Agreement was indeed a global release. The Settlement Agreement states that Mr. and Mrs. Ames agreed to:

Hereby discharge and forever release John B. Ohle, III, his heirs, successors, agents, employees, attorneys and assigns of and from any and all liability and all claims and demands or any nature or kind, whether in law or in equity, whether or not now known, whether growing out of tort, contract or otherwise, including without limitation all obligations and liability resulting in any manner from (i) the administration of the Écetra N. and Anthony M. Ames 1999 Charitable Remainder Unitrust by John B. Ohle, III as trustee and fully release, discharge and acquit John Ohle of any further responsibility in connection with the Ecetra N. and Anthony M. Ames 1999 Charitable Remainder Uni-trust subject to his delivery to the duly appointed successor trustee of all cash and every item of property held by John B. Ohle, III, as trustee of the Ecetra N. and Anthony M. Ames 1999 Charitable Remainder Unitrust and to which the Trust is entitled, and (ii) professional and/or personal services of John B. Ohle, III, rendered to'Ecetra Nippert Ames and Anthony M. Ames, or either one of them, at any time up to and including the date of this Agreement. [Emphasis added.]

Moreover, the 2004 Consent Judgment states in pertinent part that:

IJT IS HEREBY ORDERED, ADJUDGED AND DECREED, that the accounting of the entire administration of the Anthony M. and Ecetra N. Ames 1999 Charitable Remainder Unitrust by its Trustee, John Brewster Ohle, III, more fully set forth in Exhibit “B” to the Petition filed in the record of this, proceeding is hereby approved in accordance with LSA R.S. 9:2088, and such accounting shall be conclusive against a beneficiary of the trust with respect to all matters disclosed in suck accounting, with all costs of these proceedings to be borne by Petitioner. [Emphasis added].

“A compromise precludes ■ the parties from bringing a subsequent action based upon the matter that was compromised.” La. Civ. Code art. 3080. Our Court has previously explained the binding nature of a compromise on those who were parties to it:

A compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised. La. C.C. art. 3080. This preclusive effect of a compromise can be raised in a peremptory exception, under Louisiana Code of Civil Procedure Article 927. See La. C.C. art. 3080, part (a)'of Revision Comments—2007. A valid compromise may form the basis of a plea of res judicata. Rein v. Edwards, 921 So.2d at 1160, citing Rivett v. State Farm Fire Cas. Co., 508 So.2d 1356, 1359 (La.1987) ; see also Brown v. Drillers, Inc., 93-1019 (La. 1/14/94), 630 So.2d 741. A release executed in exchange for consider-ration is a compromise. Brown v. Drillers, Inc., 630 So.2d at 741.

Contogouris v. Ocean Therapy Sols., LLC, 15-0472, p. 7 (La.App. 4 Cir. 1/27/16), 187 So.3d 18, 22, writ denied, 16-0367 (La. 4/15/16), 191 So.3d 591.

Based upon our review of the Settlement Agreement, which we read in pari materia with the Consent Judgment, we find that the district court did,not err in granting Ohle’s exception of res judicata. The wording of the Settlement Agreement lucidly states that Ohle is released’ of liability for claims regardless of |flwhether they were known of when the settlement was executed. This wording precludes Mr. Uhalt’s argument that Mrs. Ames- later learned of additional misconduct committed by Ohle.

Regarding Mr/ Uhalt’s argument involving the accounting provision-in the Consent Judgment, the record reveals that Mrs. Ames and her counsel, Mr. Wogan, were aware of questionable transactions that appeared in the provided accounting, but chose not to inquire about them prior to entering into the Settlement Agreement .

Mr. Wogan testified that a CPA firm reviewed the final accounting of the Trust. He further testified that he had reservations about the documentation that Ohle provided prior to executing the Settlement Agreement, and that he advised Mrs. Ames of this. He further relayed being suspicious of Ohle fabricating statements, and being dissatisfied with the sufficiency of documentation he had received in order to properly advise Mrs. Ames on the Settlement Agreement and the Consent Judgment. He testified that he advised Mrs. Ames of his reservations and her options. It was their joint decision to enter into both the Settlement Agreement and the Consent Judgment and to not pursue further investigation, according to Mr. Wog-an.

As Mr. Uhalt maintains, consent may be vitiated by fraud, which is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Tate, 10-0425, p. 5, 56 So.3d at 198 (citations omitted). However, despite ImOhle’s failure to be forthcoming, we do not find that his omissions resulted in an unjust advantage for himself or caused a loss or inconvenience to Mrs. Ames, as he was responsible for the mismanagement of the funds from the Trust evident in the accounting, regardless of whether he bene-fitted from unexplained transactions. Thus, we find that the district court properly determined that the Settlement Agreement and Consent Judgment formed a valid compromise precluding Mr. Uhalt from pursuing additional claims against Ohle. This assignment of error is without merit.

Remaining Issues Raised on Summary Judgment and Standard of Review

Mr. Uhalt’s remaining assignments of error involve the district court’s grant of summary judgment on whether: Ohle was an employee of Bank One; respondeat superior applies; and Bank One committed direct fraud. .

Pursuant to La. Code Civ. Proc. art. 966(A)(2), a motion for summary judgment is designed to secure the just, speedy, and inexpensive determination of an action. A motion for summary judgment shall be granted when there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. Code Civ. Proc. art. 966(A)(3). Although the burden of proof rests with the mover, if the mover does not bear the burden of proof at trial on the issue before the court, the mover need only point out an absence of factual support for one or more elements of the adverse party’s claim, action, or defense. La. Code Civ. Proc. art. 966 (D)(1), The burden then shifts to the adverse party “to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” La. Code Civ. Proc. art. 966 (D)(1). If the adverse party fails to establish that a genuine issue of material fact exists, the mover is entitled to summary judgment as a matter of law. |n/d. Appellate courts review summary judgments de novo using the same standard that the district court applies: determining whether a genuine issue of material fact exists. Encalade v. A.H.G. Sols., LLC, 16-0357, p. 9 (La.App. 4 Cir. 11/16/16), 204 So.3d 661, 666 (citations omitted). In the instant matter, Bank One, the defendant in the matter, did not carry the burden of proof at trial on these claims; thus, it need only to point out an absence of factual support for one or more elements of the adverse party’s claim, action, or defense.

Ohle’s Employment and the Respon-deat Superior Claim

We will combine our discussion of Mr. Uhalt’s second and third assignments of error as both involve whether an employment relationship existed between Ohle and Bank One.

Mr. Uhalt avers that Ohle was an employee of Bank One, and it is a proper defendant in the instant matter. Thus, he argues the district court erred in granting Bank One’s motion for summary judgment on the issue of it being a proper party in this matter.

He further argues that the district court erred in granting Bank One’s motion for summary judgment finding that Bank One was not vicariously liable for Ohle’s fraud. He maintains that there is a genuine issue of material fact as to whether Bank One benefitted from Ohle’s misconduct. He argues that the district court erroneously held that Bank One did not benefit from Ohle’s misconduct because Bank One bene-fitted by having Ohle, and other employees, target high-asset clients—like Mrs. Ames—to propose wealth management strategies in order for it to have assets to manage. Mr. Uhalt relies on the testimony of Mike Reed, a corporate representative of Bank One, who testified that Ohle’s compensation was |12based upon a measurement of the total assets he secured for any of Bank One’s entities. Mr. Uhalt specifies ways that Bank One benefited from Ohle’s actions:

1. It received millions of dollars in referral fees and fees related to its role in consummating the HOMER transactions resulting from Ohle’s diversion of funds from the Trust; and,
2. It monitored and exercised control over Trust-related matters and deferred to Ohle in administering the assets of the Ames family.

Ohle, Mr. Uhalt argues, was supported by Bank One in his endeavors as it allowed him to host meetings for the Ames family at Bank One; did not bill Mrs. Ames for work done by Bank One; allowed Ohle to administer the Trust from Bank One; and used its letterhead and other materials while working on projects for the Ames family.

Although Mr. Uhalt emphasizes that the district court reasoned that Bank One did not benefit from Ohle’s actions, our focus is on the Judgment itself. Thus, the issues presented for our de novo review are whether there is a genuine issue of material fact as to whether Ohle was a Bank One employee and whether Bank One is liable under the respondeat superi- or doctrine for his fraudulent actions.

Bank One’s motion for summary judgment was supported by a substantial amount of testimony that Ohle was never an employee of Bank One, but of BOIA. His direct supervisor at BOIA, Harry Dye, III, testified to this fact, as well as Peter Atwater, the CEO of BOIA. Additionally, Joni McCabe, a compliance manager at Bank One, also testified that BOIA is a subsidiary of Bank One. There is also | ^documentation in the record reflecting BOIA is a separate corporation, such as a form from the Ohio Secretary of State showing BOIA amended its Articles of Incorporation. Moreover, although the November 23, 1999 offer letter to Ohle is on Bank One stationery, and references Bank One, the letter specifies BOIA as the entity for which Ohle would work: “John, we look forward to you playing an important role within Banc One Investment Advis-ors.” Lastly and most conclusive, BOIA’s name appears on Ohle’s W-2s. In light of the aforementioned evidence, we conclude that BOIA was Ohle’s employer. Therefore, there is no genuine issue of material fact as to whether Bank One was a proper party defendant.

Furthermore, regarding Mr. Uhalt’s respondeat superior claim, we recognize that it is the employer’s right to control an employee’s actions that is the linchpin of determining vicarious liability for. an employee’s tortious acts. Recently, in Knoten v. Westbrook, 14-0892, pp. 13-14 (La.App. 4 Cir. 5/18/16), 193 So.3d 380, reh’g denied (05/31/16), writ denied, 16-1260 (La. 10/28/16), 208 So.3d 890 we explained:

Generally, employers are vicariously liable for the. torts of their employees.” Gumpert v. Pittman Const. Co., 98-2269, p. 6 (La.App. 4 Cir. 6/9/99), 736 So.2d 1026, 1031. “The premise of vicarious liability is codified in La. Civ. Code art. 2320, which provides an employer is há-ble for the tortious acts of its ‘servants and overseers in the exercise of the functions in which they are employed.’ ” Richard v. Hall, 2003-1488, p. 5 (La. 4/23/04), 874 So.2d 131, 137.
The essence of the employer-employee relationship is the right to control. Id. at p. 8, 4 So.3d at 920. The primary factors evidencing the right to control are: (1) selection and engagement, (2) payment of wages, (3) power of dismissal, and (4) power of control. Id., citing Hillman v. Comm-Care, Inc., 2001-1140, p. 8 (La.1 15/02), 805 So.2d 1157, 1162. “[T]he courts have reasoned that none of the factors is controlling, that the totality of the | ^circumstances must be considered, and that the burden of proof is on the party seeking to establish an employer-employee relationship.” Hillman, 2001-1140 at p. 9, 805 So.2d at 1163.

As discussed above, however, we do not find that Bank One was Ohle’s employer. Furthermore, as the district court correctly noted, pursuant to Louisiana law a parent company, such as Bank One, is not liable for the acts of its subsid-iaries. There is an exception when there is proof that “the parent company knew of and approved those actions.” Andry v. Murphy Oil, U.S.A., Inc., 05-0126, p. 15 (La.App. 4 Cir. 6/14/06), 935 So.2d 239, 249-250 [subsequent procedural history and citations omitted]. In order to establish the liability of the parent company, a plaintiff must demonstrate that the parent company controlled the operations of the subsidiary:

The parent corporation may be liable for the obligations of its subsidiary when it controls the operations of the subsidiary. Oracle 1031 Exchange, LLC v. Bourque, 85 So.3d 736 (La. Ct. App. 3d Cir. 2012) (subsidiary and parent considered single business enterprise); Amoco Production Co. v. Texaco, Inc., 838 So.2d 821 (La. Ct. App. 3d Cir. 2003). But a court will not lightly assume that a parent has accepted that obligation absent proof of an affirmative undertaking by the parent corporation. Bujol v. Entergy Services, Inc., 922 So.2d 1113 (La. 2004).

James S. Holliday, Jr., Rick J. Norman, and Dale R. Baringer, 1 La. Prac. Corp. § 9:180 (2016-2017 ed.)(fn. added).

|1fiWe find no evidence in the record of Bank One controlling BOIA, nor of the two entities acting as a single business enterprise. Moreover, there is ■ no evidence, of BOIA knowing of Ohle’s involvement in the Trust or his wrongdoing, until just prior to his suspension. Indeed, Mr. and Mrs. Ames retained Ohle’s services outside of his employment with both KPMG, initially, and BOIA.

The majority of the work Ohle performed for Mrs. Ames involved the Trust, but Ohle’s BOIA employment was not trust-related. Indeed, Anthony Ames, Mrs. Ames’s husband, testified as to how he and his wife paid Ohle directly by check for his investment advising services even while he was employed by KPMG because the services Ohle provided were outside the scope of his KPMG employment. Similarly, as Mr. Ames further testified, when Ohle transitioned to BOIA, he received annual payments directly from the Trust pursuant to its terms. The only manner in which BOIA became entangled in Ohle’s deception of Mrs. Ames is as a result of his embezzlement of funds from the Trust to invest in BOIA’s HOMER tax-strategy.

, Violating both his fiduciary duties as a trustee and BOIA’s Code of Conduct, Ohle siphoned-off money from the Trust while simultaneously plotting to deprive Bank One of some of its fees from the sale. Ohle did establish an irrevocable trust for Mrs. Ames at another Bank One entity, but said trust had a Separate advisor and none of the claims in the instant matter involve that trust.

Mr. Dye testified that as a BOIA employee, he managed four different groups: ISG, financial planning services, insurance, and business development. He explained that'ISG’s purpose was to assist clients with financial planning services and estate planning. Trust services were not provided by ISG.

lifiDavid Kundert, a BOIA executive, testified that he interviewed Ohle for his ISG position, and Ohle did not divulge his position as trustee of the Trust. Ohle also did not disclose his trustee position on the documentation he submitted to BOIA as a new employee, which asked for all conflicts of interest to be listed.

Bank One has demonstrated that Ohle was not its employee and that it did not exercise control- over - Ohle. Additionally, Mr. Uhalt does not present law supporting how a parent company, such as Bank One, can be vicariously liable for the actions of its subsidiary’s employee. Considering that a parent company is not liable for the acts of. its subsidiaries, we further find no precedent .for holding that a parent , company can be vicariously liable for the actions of an employee of its subsidiary. In light of the foregoing, we find that there is no genuine issue of material fact as to whether Bank One is a proper party defendant in this matter, nor is it responsible for Ohle’s actions under the doctrine of re-spondeat superior.

Fraud

In his final assignment of error, Mr. Uhalt avers that Bank One engaged in fraudulent concealment to prevent Bank One customers, such as Mrs. Ames, from discovering its alleged self-dealing actions. Mr. Uhalt contends that the fraudulent concealment here is based on a special fiduciary duty. Bank One owes to Mrs. Ames, ie., a relationship between a client and an advisor providing investment advice. Greene v. Gulf Coast Bank, 593 So.2d 630, 632 (La. 1992).

Mr. Uhalt further argues that a duty exists based on the testimony of his compliance expert, Vivian Velazquez, that section 206 of the Investment Advisers |17Act of 1940, the anti-fraud provision, was violated. Under the Act, he argues that advis-ors have a duty to their clients, including acting in the best interest of their clients and an obligation of using reasonable dare to avoid misleading clients. He also argues that ample evidence shows that Bank One knew of Ohle’s promotion of Carpe Diem to Mrs. Ames by January 2002, at least. He asserts that Ohle and Bank One entered into a settlement agreement wherein both parties were precluded from informing Mrs. Ames or any other Bank One clients of Ohle’s wrongdoing.

Mr. Uhalt argues that Bank One failed to contact aggrieved investors to alert them of Ohle’s actions. He maintains that the following genuine issues of material fact exist such as: whether a warning by Bank One to Mrs. Ames shortly after she invested in Carpe Diem could have prevented the losses incurred by Bank One’s failure to act; and whether Bank One’s actions also led Mrs. Ames to incur losses that continued after Ohle was no longer employed with Bank One for which Bank One is liable.

Fraud is defined as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other” and can result from silence or inaction. La. Civ. Code. art. 1953. Fraud need only be proven by a preponderance of the evidence and may be established by circumstantial evidence. La. Civ. Code art. 1957.

Two elements must be proven to establish fraud: an intent to defraud and resulting damage. Lomont v. Bennett, 14-2483, p. 11-12 (La. 6/30/15), 172 So.3d 620, 629, cert. denied sub nom. Myer-Bennett v. Lomont, — U.S. -, 136 S.Ct. 1167, 194 L.Ed.2d18 178 (2016) [citations omitted]. Furthermore, while “fraud may be found from silence, there must be a duty to speak,” Id. quoting Greene v. Gulf Coast Bank, 593 So.2d 630, 632 (La. 1992). “Louisiana law recognizes that the refusal to speak, in the face of an obligation to do so, is not merely unfair but is fraudulent.” Id., quoting Bunge Corporation v. GATX Corporation, 557 So.2d 1376, 1383 (La.1990).

Mr. Uhalt relies upon the Supreme Court’s holding in Greene to support his position that Bank One and Mrs. Ames had a fiduciary relationship that warranted it to warn her of Ohle’s fraudulent actions. In Greene, the Supreme Court explained that while a “bank and depositor have a debtor-creditor relationship with no independent duty of care imposed on the bank,” “certain special circumstances, such as a fiduciary relationship between the bank and depositor, will give rise to a duty. Greene, 593 So.2d at 632. Thus, Mr. Uhalt maintains that a fiduciary relationship existed between Bank One and Mrs. Ames, which was that of an advisor providing investment advice to a client.

The facts of this matter do not reflect that a special fiduciary relationship existed between the parties. Ohle began and continued providing Mrs. Ames investment advice in a personal capacity, never as an employee of BOIA. Ohle was hired to prepare financial statements and wealth-transfer plans for high-net worth clients. His job did not encompass providing investment advice to clients; and the division within which he worked at ISG was not the advisory arm of Bank One, as testified to by Mr. Dye and Mr. Atwater. They further testified that BOIA has non-ISG employees that provided investment advice and further that Bank One has a separate entity that provided trust services. Therefore, Bank One would not be | pliable for investment services that Ohle provided to the Ames outside of his BOIA employment.

Mr. Dye testified that he learned óf Ohle’s promotion of Carpe Diem to another client in January 2002, which was a violation of one of Mr. Dye’s directives to him. Ohle was suspended as a result of the internal investigation, which led to an inquiry of Ohle’s relationship with the Ames family. Nevertheless, Ohle refused to comply with the investigation, so neither BOIA nor Bank One learned the details of what transpired between Ohle and Mrs. Ames.

Lastly, as the district court noted, Mrs. Ames was unable to be deposed due to her interdiction; thus, there is no testimony as to what her relationship with Bank One was, nor what representations or omissions were made to her by Bank One and/or its employees upon which she relied. Finding no evidence of a fiduciary relationship, or an intent to defraud, we conclude that there is no genuine issue of material fact as to whether Bank One fraudulently concealed Ohle’s actions from Mrs. Ames. This assignment of error is without merit.

Answer to the Appeal

Bank One avers that its answer to the appeal was filed out of an abundance of caution, although it “does not seek modification, revision, or reversal” of the judgment below, and raises arguments that are all “supported by the record.” La. Code Civ. Proc. art. 2133(B); e.g. Slaughter v. La. State Employees’ Ret. Sys., 15-324 (La. 10/14/15), 180 So.3d 279, 281-82; Johno v. Doe, 15-737 (La. App. 4 Cir. 3/9/16), 187 So.3d 581, 584. It avers that in addition to the district court’s Reasons for Judgment, the district court’s February 4, 2016 judgment should be affirmed for additional reasons. However, having affirmed the judgments of the district court, the Answer to Appeal is moot as it seeks no further relief.

laiDECREE

For the foregoing reasons, the district court judgments of January 26, 2016, February 4, 2016, and March 23, 2016, in favor of J.P. Morgan Chase & Co. f/k/a Bank One Corporation, and John B. Ohle, III, respectively, are affirmed. The Answer to Appeal is denied as moot.

AFFIRMED; ANSWER TO APPEAL DENIED AS MOOT

LOVE, J., CONCURS IN PART AND DISSENTS IN PART

LEDET, J., DISSENTING IN PART WITH REASONS

LOVE, J.,

CONCURS IN PART AND DISSENTS IN PART

hi concur with the majority’s finding that the trial court did not err by granting Mr. Ohle’s exception of res judicata. However, I respectfully dissent for the reasons assigned by Judge Ledet.

LEDET, J.,

DISSENTING IN PART WITH REASONS

[ ^though I agree with the majority that the trial court did not err in granting Mr. Ohle’s exception of res judicata, I disagree with the majority’s findings on the other two issues—respondeat superior and fraud.

RESPONDEAT SUPERIOR

The trial court’s ruling on the responde-at superior issue has three parts: (i) whether Bank One was Mr. Ohle’s employer; (ii) whether Bank One and Banc One Investment Advisors Corporation (“BOIA”) were a “single business enterprise;” and (iii) whether, for purposes of imposing vicarious liability for the intentional torts at issue of fraud and conspiracy to defraud, Mr. Ohle’s acts benefited Bank One and thus were within the scope of his employment. As explained below, I would find the trial court erred in granting summary judgment on any of these three issues.

Bank One’s employer status

The majority characterizes the evidence supporting a finding that Mr. Ohle was not Bank One’s employee as- “substantial.” Nonetheless, as Mr. Uhalt points out, “the record also contains ample evidence showing the opposite, that Bank One was the entity that hired Ohle, the entity that issued Employee Requisition forms for Ohle’s position, the entity that investigated Ohle and contemporaneously laid Inexplicit claim to his allegiance as an employee, and the entity that ultimately settled employment disputes with and terminated Ohle.”

Weighing factual evidence is inappropriate on summary judgment. The question of employment status is a factual one. Given the evidence presented, I would find there are material factual issues whether Bank One was Mr. Ohle’s employer. Regardless, Mr. Ohle could have had dual employment. • ■

Single business enterprise issue

Even assuming, arguendo, that BOIA— not Bank One—was Mr. Ohle’s employer, it must be determined-whether, as Mr. Uhalt contends, Bank One and BOIA are a single business enterprise and thus both subject to liability. Mr. Uhalt contends that the record is replete “with documents and testimony showing a potential alter ego relationship between Bank One and BOIA that would render any distinction between the two meaningless.” Rejecting his contention, the majority states that “[w]e find no evidence in the record ... of the two entities acting as a single business enterprise.” I disagree. The question of whether- two or more entities constitute a single business enterprise generally is a factual one for the trier of fact to resolve.

lain this case, the record contains sufficient evidence on this issue to present a genuine issue of material fact, precluding summary judgment.

Benefit to Bank One from Mr. Ohle’s Misconduct

Before rendering a final judgment dismissing Bank One, the trial court granted a partial summary judgment in Bank One’s favor on Mr. Uhalt’s respondeat superior claim. The trial court’s reason for doing so was that Bank One did not benefit from Mr. Ohle’s misconduct and thus could not be- liable for his intentional torts. Whether-Bank One benefited from Mr. Ohle’s misconduct is a factual issue. As majority acknowledges, Bank One had a trust department. Was not Bank One motivated to hire Ohle because he was trustee of the Ames’ Trust? I would find there is a genuine issue of material fact on this issue of whether Bank One benefitted from Mr. Ohle’s misconduct, precluding summary judgment.

FRAUD

In addressing this issue, the majority concludes that “there is no genuine issue of material fact as to whether Bank One fraudulently concealed Ohle’s actions from Mrs. Ames.” Both the majority and the trial court cite the absence of testimony from Mrs. Ames as a basis for finding that summary judgment on the fraud issue was appropriate. The trial court, in its reasons for judgment, noted that “[t]he ■ original plaintiff, Mrs. Ames has been interdicted and has never been deposed. She is the only person who would have been able to testify as to what she was told and what she relied upon in making financial decisions.” The lack of direct evidence of fraud, however, is not dispositive. Fraud may be proven through circumstantial evidence. Lomont v. Bennett, 14-2483, p. 12 (La. 6/30/15), 172 So.3d 620, 629. “Circumstantial evidence, including highly suspicious facts and circumstances, may be considered in determining whether fraud has been committed.” Id.

|4The trial court further reasoned that it could not find that Bank One had “a duty to notify an investor such as Mrs. Ames of potential problems with investment vehicles that did not come' through the bank.” As this reasoning implies, the trial court’s finding on the fraud issue was intertwined with its finding that Bank One had no respondeat superior liability for Mr. Ohle’s actions. Because I would • find summary judgment inappropriate on the respondeat superior liability issue, I likewise would find it inappropriate on the fraud issue.

In its answer to the appeal, Bank One argues that Mr.. Uhalt’s claims are prescribed. In our earlier opinion in this case, we rejected, on rehearing,. Bank One’s, argument, that allowing Ms. Ames’ fraud claims to go forward would circumvent La. R.S. 6:1124, which provides a one-year prescriptive period for a bank’s breach of fiduciary duties. Ames v. Ohle, 11-1540, p. 18, (La.App. 4 Cir. 5/23/12), 97 So.3d 386, 397. In so doing, we reasoned as follows:

Ames alleges that Bank One’? conduct was more than a passive failure to properly supervise Ohle but were affirmative actions to conceal their self-dealing transactions. The alleged intentional and deliberate acts are independent of the fiduciary duty owed . by Bank One. Therefore, Ames’s fraud action is personal in nature as defined by La. C.C.P. art. 422 and subject to a ten-year prescriptive period.

Id. Thus, we have already determined that Mrs. Ames’ (now Mr. Uhalt’s) claims for fraud and conspiracy to commit fraud are personal claims subject to a ten-year prescriptive period.

For the above reasons, I dissent in part.

      . Mr. Uhalt replaced his mother, Ectera N. Ames ("Mrs. Ames”), as the plaintiff in this matter after her interdiction.

      . Ohle, was working as an accountant for KPMG. L.L.P., when Mrs. Ames hired him in an individual capacity.

      . The Innovative Strategies Group was a division within Banc One Investment Advisors Corporation ("BOIA”), a Bank One subsidiary.

      . The Trust was held in a Charles Schwab account.

      . Ohle also established the Ecetra Nippert Ames Irrevocable Trust at American National Bank & Trust Co., another Bank One entity.

      . Rein v. Edwards, 05-754 (La.App. 3 Cir. 2/1/06), 921 So.2d 1158.

      . Both this Court and the United States Eastern District Court of Louisiana addressed that the Trust accounting provided to Mrs. Ames reflected the questionable transactions at issue; and her failure to inquire into the transactions present therein. Ames, 11-1540, p. 13-14, 97 So.3d at 394-95; and Ames v. Ohle, 2010 WL 5055893 (E.D. La. Dec. 1, 2010) (unpub.). We do not-have the benefit of Mrs. Ames testimony because: she was interdicted before she could be deposed.

      . "A judgment and reasons for judgment are two separate and distinct documents. La. C.C.P. art.1918. Appeals áre taken from the judgment, not the written reasons for judgment.” Greater New Orleans Expressway Comm’n v. Olivier, 02-2795, p. 3 (La. 11/18/03), 860 So.2d 22, 24.

      . “The 'single business enterprise' doctrine is a theory for imposing liability where two or more business entities act as one. Generally, under the doctrine, when corporations integrate their resources in operations to achieve a common business purpose, each business may be held liable for wrongful acts done in pursuit of that purpose.” Brown v. ANA Ins. Grp., 07-2116, p. 2, n. 2 (La. 10/14/08), 994 So.2d 1265, 1266 (citing Green v. Champion Insurance Company, 577 So.2d 249 (La.App. 1st Cir.1991); Brown v. Automotive Casualty Ins. Co., 644 So.2d 723 (La.App. 1st Cir. 1994)).

      . Bank One admits that Ohle disclosed the trusteeship to BOIA’s compliance department; however, it. maintains that such disclosures were required for employees to disclose trusteeships that were outside of an employee’s job,

      . This settlement agreement was related to the suspension of Ohle's employment by BOIA and his threatening to sue BOIA, which did not terminate his employment.

      . See Fiveash v. Pat O'Brien's Bar, Inc., 15-1230, p. 9 (La.App. 4 Cir. 9/14/16), 201 So.3d 912, 918 (holding that “the weighing of evidence and the evaluation of sworn testimony for its truthfulness is outside the scope of a court's authority on summary judgment.”); Cannon v. Insured Lloyds, 499 So.2d 978, 983 (La. App. 3d Cir. 1986) (holding that "[t]he weighing of evidence and determinations of credibility in reaching a final conclusion of fact are proper at a trial on the merits but not at a hearing on a motion for summary judgment.”).

      . Cannon, supra.

      . See Knoten v. Westbrook, 14-0892, p. 11 (La. App. 4 Cir. 5/18/16), 193 So.3d 380, 388-89, writ denied, 16-1260 (La. 10/28/16), 208 So.3d 890 (quoting Doe v. Parauka, 97-2434, p. 5, n. 4 (La. 7/8/98), 714 So.2d 701, 704) (stating that "an ‘individual may simultaneously be the employee of more than one employer for the purposes bf vicarious liability under La. Civ. Code art. 2320.' ”).

        . See Boes Iron Works, Inc. v. Gee Cee Group., Inc., 16-0207 at p. 11 (La. App. 4 Cir. 11/16/16), 206 So.3d 938, 948 (holding that "[g]enerally, the determination of whether the [single business enterprise] SBE doctrine applies is a question of fact for the trial court to decide.”); see also Lee v. Clinical Research Ctr. of Florida, L.C., 04-0428, p. 7 (La.App. 4 Cir. 11/17/04), 889 So.2d 317, 323 (holding that "[w]hether or not a group of entities comprises a single business enterprise is a factual inquiry.”).


author: Judge Daniel L. Dysart

text:
    Patricia VARNADO, Individually and on Behalf Tommie R. Varnado, Sr. v. CITY OF NEW ORLEANS and Leonard D’Arensbourg
    NO. 2016-CA-1081
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 26, 2017

      Jeremy Pichón, Roderick “Rieo”Alven-dia, Jeanne K. Demarest, Amy C. Fonte-not, ALVENDIA, KELLY & DEMAR-EST, 909 Poydras Street, Suite 1625, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE
    Donna U. Grodner, GRODNER LAW FIRM, 2223 Quail Run, B-l, Baton Rouge, LA 70808, ATTORNEY FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins)
   Judge Daniel L. Dysart

h Kenneth Gaunichaux appeals a judgment of the trial court whereby Melvin Owens, Jr., was determined to be the proper party to be substituted as plaintiff in the captioned lawsuit. For the reasons that follow, we affirm the judgment.

BACKGROUND:

Tommie Varnado was killed in an accident on the Crescent City Connection in New Orleans in 2004. His widow, Patricia Varnado, filed a wrongful death and survival action lawsuit against various parties, including the Louisiana Department of Transportation and Development (“DOTD”). Mr. Varnado’s adult children from a prior relationship also filed suit. The two lawsuits were consolidated; however, the adult children settled with defendants, leaving only Mrs. Varnado’s claims. In December of 2012, Mrs. Varnado agreed to settle with DOTD, but prior to the trial court signing a consent judgment memorializing the settlement, Mrs. Varna-do died on March 10, 2013. The trial court signed a Consent Judgment on March 20, 2013.

[2In November 2013, Kenneth John Gaunichaux, filed a motion to substitute himself as the proper party plaintiff in place of Mrs. Varnado. He alleged that he and Mrs. Varnado were married in 2006, and attached a copy of a marriage certificate to his motion. He argued that he was entitled to recover the settlement proceeds pursuant to La. Civ. Code art. 2315.1. On November 13, 2013, the trial court signed an order allowing Mr. Gaunichaux to be substituted as party plaintiff. However, prior to distributing the settlement funds to Mr. Gaunichaux, the DOTD questioned the validity of the consent judgment, as it was signed after Mrs. Varnado’s death.

On February 9, 2015, Melvin J. Owens, Jr., filed a Motion to Vacate and Set Aside the Motion and Order to Substitute Party Plaintiff, Patricia Varnado with Kenneth John Gaunichaux and Motion and Order to Substitute Party Plaintiff, Patricia Varna-do with Melvin J. Owens, Jr. The motions set fqrth that Patricia Varnado died intestate on March 10, 2013. Fúrther, the motions state that all damages awarded to her as the widow of Tommie Varnado are her separate property, as the damages are the result of an accidént that occurred prior to her marriage to Mr. Gaunichaux. Melvin J. Owens asserts that as the sole heir of Patricia Varnado, he is the proper party to represent her in the underlying lawsuit and the proper party to receive the damage award. In further support for vacating the motion substituting Mr. Gauni-chaux as party plaintiff, Mr. Owens argues that the motion filed by Mr. G&unichaux was defective in that it was not supported by a death certificate and an affidavit of the moving party.

| a A hearing was held on December 4, 2015 on the various outstanding motions filed by the parties. After hearing argument from counsel, the trial court ruled that Melvin J. Owens, Jr., was the property party to receive the settlement proceeds of the underlying lawsuit. A judgment was prepared and signed January 4,2016. .

Prior" to signing the judgment, Mr. Gaunichaux filed a Motion for Reconsideration, which was heard on January 15, 2016. The trial court noted that the code of procedure does not recognize a “motion for reconsideration,” but that it would consider it as a motion for new trial. The trial court signed a judgment denying the motion on June 21, 2016. This appeal was filed timely.

DISCUSSION:

Mr. Gaunichaux claims that La. Civ. Code art. 2315.1 controls who should receive the damage award for the. death of Patricia Varnado’s late husband. Article 2315.1 provides in part:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive, for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

Clearly, Patricia Varnado’s death is not the type of death contemplated by Art. 2315.1. Her death was not the result of an offense or quasi offense.

When Tommie Varnado died as the result of an accident, Mrs. Varnado’s right to recover the damages for his death accrued. That right accrued prior to her | ^marriage to Mr. Gaunichaux, and as such the damages recovered are her separate property. See La. Civ. Code art. 2341 (“The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; ... ”)

When Mrs. Varnado died intestate on March 10, 2013, the damages award became a part of her estate, and must devolve according to the laws of intestacy.

Louisiana Civil Code Articles 880 and 888 are applicable to the facts of this case. Article 880 provides that when a person dies intestate, “the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him, in the order provided in and according to the following articles.” Article 888 provides in part that “[djescen-dants succeed to the property of their ascendants.” Applying these articles,, the damage award was Mrs. Varnado’s separate property, and thus devolved by operation of law to her only descendant, Melvin J. Owens, Jr. Also see, Horrell v. Horrell, 99-1093, p. 7 (La.App. 1 Cir. 10/6/00), 808 So.2d 363, 369.

Based on the above, we find that the trial court was correct in ruling that Melvin J. Owens, Jr., Mrs. Varnado’s only child, is the proper party to be substituted as plaintiff in the underlying lawsuit, and is the proper party to receive the proceeds of the settlement for disbursement in accordance with Mrs. Varnado’s succession.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED