author: DAVID S. GORBATY, Judge.

text:
    Gregory Michael LARKINS, Sr. and Rosalind Larkins v. DAVID WILKERSON CONSTRUCTION, Fleming Construction Company, St. Paul Mercury Insurance Company and ABC Insurance Company.
    No. 2008-CA-0576.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 2008.

      Ike Spears, Tammy M. Stewart, Spears & Spears, New Orleans, LA, for Plaintiffs/Appellants, Gregory Michael Larkins, Sr. and Rosalind Larkins.
    Donna M. Young, Baldwin Haspel Burke & Mayer, New Orleans, LA, for Defendants/Appellees, Kathleen Winningham Wilkerson and James Michael Wilkerson.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   DAVID S. GORBATY, Judge.

| plaintiffs, Gregory Larkins, Sr., and Rosalind Larkins, appeal a summary judgment granted in favor Kathleen and James Wilkerson. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

In June of 2002, David Wilkerson, while driving a truck for his employer, Fleming Construction Company, rear-ended a car being driven by Gregory Larkins. Mr. Larkins’ car in turn struck the vehicle in front of him, and that vehicle struck the vehicle in front of it. Mr. Larkins’ allegedly suffered severe and debilitating injuries as a result of the accident.

In January of 2003, Mr. Larkins and his wife, Rosalind, filed suit against David Wilkerson, Fleming Construction Company, St. Paul Mercury Insurance Company and ABC Insurance Company. Mr. Lar-kins alleged that he suffered permanent physical, mental and emotional injuries, and his wife, Rosalind alleged a loss of consortium as a result of her husband’s injuries.

|2At some point between the filing of the original petition and May of 2004, plaintiffs learned that David Wilkerson was a minor at the time of the accident, and subsequently amended their original petition to name his parents, Kathleen and James Wilkerson, and their automobile insurance company, Southern Heritage Insurance Company, as additional defendants.

On November 19, 2004, Gregory and Rosalind Larkins signed a receipt and release for the sole consideration of $850,000.00. This sum was paid on behalf of David Wilkerson, Fleming Construction Company, St. Paul Mercury Insurance Company, and St. Paul Fire and Marine Insurance Company, releasing them from any and all claims related to the subject automobile accident. The receipt and release further stated:

It is further stipulated and agreed to by the undersigned that this RELEASE expresses a full and complete COMPROMISE AND SETTLEMENT of all claims asserted against DAVID WILKERSON, FLEMING CONSTRUCTION COMPANY, INC., ST. PAUL MERCURY INSURANCE COMPANY and ST. PAUL FIRE AND MARINE INSURANCE COMPANY, in the litigation entitled “GREGORY MICHAEL LARKINS, SR., and ROSALIND LAR-KINS versus DAVID WILKERSON CONSTRUCTION, FLEMING CONSTRUCTION COMPANY, ST. PAUL MERCURY INSURANCE COMPANY, AND ABC INSURANCE COMPANY, Number 2003-1308 on the docket of Division “H” of the Civil District Court for the Parish of Orleans, State of Louisiana, regardless of the adequacy of the aforesaid payments made and the undersigned DIRECT AND AUTHORIZE THEIR COUNSEL TO DISMISS SAID SUIT WITH PREJUDICE, and that this payment and the acceptance of this release shall not operate as an admission of liability on the part of anyone, nor as an estoppel, waiver or bar with respect to any claim the parties released may have against the undersigned or third-parties.

| ^Following the signing of the above, plaintiffs and the defendants named in the receipt and release filed a Joint Limited Motion and Order of Dismissal in the trial court. The pleading requested an order dismissing the original and all supplemental and amending- petitions. However, the same pleading also sought to reserve any rights and claims plaintiffs may have had against Kathleen and James Wilkerson and them insurance company. The order was signed February 2, 2004.

Shortly thereafter, Southern Heritage Insurance Company moved for summary judgment arguing that because David Wilkerson was in the course and scope of his employment at the time of the accident, the policy issued to Kathleen and James Wilkerson excluded coverage for the accident because the vehicle being driven by them son David was not covered under the policy. Southern Heritage also argued that if it should be decided that David was covered under his parents’ policy, the business use exclusion would apply.

Private defense counsel for Kathleen and James Wilkerson also moved for summary judgment arguing that they could not be held liable for their son’s negligence because he was in the course and scope of his employment at the time of the accident. The parents’ also argued in a post-hearing memorandum allowed by the trial court that because plaintiffs had settled their claim against David, the tortfeasor, plaintiffs no longer had a right to proceed against them.

The trial court granted Southern Heritage’s summary judgment in December of 2004, but reserved judgment on the Wilk-ersons’ motion. In February of 2005, |4the trial court granted summary judgment in favor of the Wilkersons. This action by the trial court effectively dismissed all claims against all defendants.

Plaintiffs timely filed a writ application with this Court seeking reversal of the Wilkersons’ summary judgment. However, this Court refused to consider the application because the subject judgment was a final, appealable judgment. This Court converted the writ application to a devolutive appeal and remanded the case to the trial court in accordance with La. Code Civ. Proc. art. 2225, et seq.

Plaintiffs filed a motion and order for appeal in the trial court which was signed on August 5, 2005. Rather than designating a return date, the trial court simply provided that the return be made in accordance with the law. The order never reached this Court prior to Hurricane Katrina on August 29, 2005. On March 12, 2008, plaintiffs filed a motion to have a return date set. The appeal was lodged in this Court on May 8, 2008.

STANDARD OF REVIEW:

Louisiana Code of Civil Procedure art. 966 B provides that summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Subpart C(2) provides that:

[t]he burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his |r,evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ. Proc. art. 966 C(2).

A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, 06-1181, p. 17 (La.3/9/07), 951 So.2d 1058, 1070.

LAW AND ANALYSIS:

In their sole assignment of error, plaintiffs argue that the trial court erred in granting the summary judgment in favor of the Wilkersons.

Plaintiffs argue that there is an issue of material fact as to whether the Wilkersons are liable for the damage caused by them minor son David. They cite to La. Civ. Code art. 237 which provides: “Fathers and mothers are answerable for the offense and quasi-offenses committed by their children, in the cases prescribed under the title: Of Quasi-Contracts, and of Offenses and Quasi-Offenses.” They also cite to La. Civ.Code art. 2318 which provides: “The father and the mother ... are responsible for the damage occasioned by their minor ... children.... ” Plaintiffs also cite to numerous cases that uphold the above principles.

Defendants counter that the Wilkersons cannot remain liable for their son’s negligence because plaintiffs’ released David Wilkerson from the lawsuit, dismissing all claims of negligence against him. Defendants point to the First Supplemental and Amending Petition for Damages wherein plaintiffs alleged that Kathleen Wilkerson is “legally responsible for his [David Wilkerson’s] acts of | f,negligence.” The exact same language is used to name James Wilkerson as a defendant. No independent acts of negligence are alleged against the parents. Thus, there remain no legal bases for the plaintiffs to allege any personal liability against Kathleen and James Wilkerson.

Plaintiffs argue that their settlement with David Wilkerson (via the receipt and release referred to herein), does not bar recovery against his parents. They cite to Sumrall v. Bickham, 03-1252 (La.App. 1 Cir. 9/8/04), 887 So.2d 73, in support. After reviewing Sumrall, we find it inappo-site to the issues herein. In that case, the issue was whether the insurer remained potentially liable after the release of the tortfeasor, i.e., the minor’s father. The First Circuit decided that the case against the insurance company remained viable based on the direct action statute. That is not the issue presented here.

In this case, the Wilkersons’ insurance company has already been dismissed via summary judgment. That judgment was not appealed and is final. The only potential liability of the Wilkersons arises from their son David’s negligence. David has been released from any liability vis-a-vis the receipt and release; therefore, there is no negligence remaining for which the Wilkersons can be held vicariously liable.

CONCLUSION:

For the above reasons, we affirm the judgment of the trial court dismissing the claims against Kathleen and James Wilkerson, with prejudice.

AFFIRMED.

LOVE, J., dissents and assigns reasons.

LOVE, J.,

dissents and assigns reasons.

|,I respectfully dissent with the majority’s affirmation of the trial court’s grant of the motion for summary judgment.

The receipt and release (“release”) contains a statement that the sums paid in conjunction with the agreement on behalf of David Wilkerson, Fleming Construction Company, St. Paul Mercury Insurance Company, and St. Paul Fire and Marine Insurance Company, released those parties from any and all claims related to the instant automobile accident. However, a Joint Limited Motion and Order of Dismissal was filed in the trial court on February 2, 2005, after the signing of the release. The Joint Limited Motion and Order of Dismissal provided that “Plaintiffs, Gregory and Rosalind Larkins, reserve any and all rights and claims they may have against James Micheál Wilkerson, Kathleen Wilkerson, Southern Insurance Company of Virginia and any other party not specifically dismissed herein.”

The intent of the parties as to what liability would be reserved after the signing of the release is evidenced in the subsequently filed Joint Limited Motion and Order of Dismissal. Therefore, I find that summary judgment was not appropriate, as a genuine issue of material fact remains as to the liability of the parties.

      . The Wilkersons did not learn of the receipt and release until after their motion for summary judgment was filed. At the hearing, the trial court allowed supplemental memoranda to address the receipt and release.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge.

license: Public Domain

text:
    SQUARE DEAL SIDING COMPANY, INC. v. Stephanie THALLER.
    No. 2008-CA-0757.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2008.

      Mark C. Landry, Newman Mathis Brady & Spedale, APLC, Metairie, LA, for Brian C. Schmalz d/b/a Square Deal Siding Company, Inc.
    Dean J. Favret, Anthony J. Russo, Fav-ret Demarest Russo & Lutkewitte New Orleans, LA, for Stephanie Thaller and Matthew Thaller.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
   DENNIS R. BAGNERIS, SR., Judge.

I,This appeal arises out of a dispute over a siding installment contract. Brian C. Schmalz d/b/a Square Deal Siding Company (“Mr. Schmalz”) is the plaintiff and defendant in reconvention in the litigation. Mrs. Stephanie Thaller (“Mrs. Thaller”) is the defendant. Mr. Matthew Thaller (“Mr. Thaller”) and Mrs. Thaller, husband and wife, are the plaintiffs in reconvention. After a one day bench trial, the trial court found in favor of defendant, Mrs. Thaller, and dismissed Mr. Schmalz’s suit to enforce lien. The trial court also found in favor of plaintiffs in reconvention, Mr. and Mrs. Thaller, releasing all liens filed by Mr. Schmalz and ordered Mr. Schmalz to pay twenty-five thousand dollars ($25,-000.00) to Mr. and Mrs. Thaller. Mr. Schmalz appeals this final judgment. Mr. and Mrs. Thaller [¿answered the appeal alleging that the trial court failed to award attorney’s fees after finding that Mr. Schmalz filed an improper lien.

Mr. Schmalz raised the exception of no right of action for the first time on appeal. This exception challenges Mr. Thaller’s right to sue on the contract, or for its breach, due to the fact that the property is the separate property of his wife, the contract is a separate obligation, and damages for the breach of the contract, or for damages to the immovable, would thus be the separate property of Mrs. Thaller. Thereafter, Mr. and Mrs. Thaller filed a motion to strike the two documents (the donation inter vivos and act of sale) attached to the exception of no right of action arguing that the documents are not part of the trial court record and should be stricken from this Court record. The case was argued and submitted to this Court on both the exception of no right of action and the merits. For the following reasons, we grant the motion to strike, we deny the exception of no right of action, and in all other respects the judgment of the trial court is affirmed.

FACTS

On September 29, 2003, Mrs. Thaller (signing her maiden name, Stephanie San-tistevan) and Mr. Schmalz signed a contract to replace the siding and gutters on the property located at 3221-23 Grand Route St. John in New Orleans, Louisiana, for a contract price of $12,040.00. Mr. Schmalz and Mrs. Thaller agreed that payment for the entire contract price was not due until completion of the entire project. The siding installation began shortly thereafter. Prior to the completion of the job, Mr. Thaller prepared a punch list of the items needing correction. On November 20, 2003, Fran Schmalz, the father and employee of Mr. Schmalz, contacted Mrs. Thaller advising that Mr. Schmalz was having financial difficulty and requested partial payment of the contract price prior | .¡to completion. Mrs. Thaller, on November 20, 2003, issued a $10,000.00 check to Square Deal Siding in partial payment, and both Mrs. Thaller and Fran Schmalz signed an agreement that, “This job is not finished-Square Deal promises to complete the job this week. I will pay balance of $2,040.00 when punch list is complete.” Mr. Schmalz deposited Mrs. Thaller’s $10,000.00 check on November 21, 2003, and on that same date, issued a ten-day lien letter threatening to file a lien on Mrs. Thaller’s property unless the unpaid balance of $2,040.00 was paid within ten days. According to Mrs. Thaller, Mr. Schmalz never returned to complete the job.

Mr. Schmalz recorded the lien affidavit in the Mortgage Office on January 21, 2004. On December 30, 2004, Mr. Schmalz filed suit against Mrs. Thaller to enforce the lien. According to Mrs. Thaller, she first discovered that a lien was placed against the property when she and Mr. Thaller sought to refinance the property in 2005.

On April 19, 2007, Mrs. Thaller filed an answer to the petition. Thereafter, Mr. and Mrs. Thaller filed a reconventional demand asserting a claim that the siding was improperly installed, causing damage, and requiring removal and replacement of the siding and gutters, asserting damages for wrongfully placing the lien on the property and asserting a claim for attorney’s fees for maliciously and recklessly abusing the lien privilege.

Following a hearing on March 10, 2008, the trial court rendered judgment on the main demand in favor of Mrs. Thaller, dismissing the suit to enforce lien filed by Mr. Schmalz. The trial court also rendered judgment in favor of Mr. and Mrs. 14ThaIler on the reconventional demand, releasing the lien filed by Mr. Schmalz and ordering Mr. Schmalz to cancel the lien and cancel the inscription of lis pendens within ten days from judgment. The trial court also rendered judgment in favor of Mr. and Mrs. Thaller and against Mr. Schmalz in the amount of $25,000.00.

Mr. Schmalz filed an appeal from this judgment. Mr. and Mrs. Thaller filed an answer to the appeal alleging that the trial court judgment be modified to award additional damages and attorney’s fees due to Mr. Schmalz’s actions in improperly placing a lien on the property. Mr. Schmalz also filed, for the first time, an exception of no right of action. Attached to the exception of no right of action, Mr. Schmalz filed, for the first time, a copy of the donation inter vivos and the act of sale to reflect that although the subject property was acquired during Mr. and Mrs. Thal-ler’s marriage, Mr. Thaller donated his interest in the property to Mrs. Thaller in September of 2003.

Thereafter, Mr. and Mrs. Thaller filed a motion to strike the two documents (the donation inter vivos and act of sale) attached to the exception of no right of action arguing that the documents are not part of the trial court record and should be stricken from the this Court record. We hereby grant the motion to strike as the documents attached to the exception of no right of action were not introduced in the trial court and are not in the trial court record.

ON THE EXCEPTION

The peremptory exception of no right of action derives from La. C.C.P. art. 927. The essential function of the peremptory exception of no right of action is to test whether the plaintiff has a real and actual interest in the suit. La. C.C.P. art. 927(A)(5). “Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes |Bthat the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation.” Wirthman-Tag Const. Co., L.L.C. v. Hotard, 00-2298, 00-2299, pp. 2-3 (La. App. 4 Cir. 12/19/01), 804 So.2d 856, 859 (emphasis omitted) (citing Louisiana Pad-dlewhells v. Louisiana Riverboat Gaming Com’n, 94-2015, pp. 5-6 (La.11/30/94), 646 So.2d 885, 888). A defendant may plead the exception of no right of action in any court prior to the submission of the case for decision if proof of the ground for the exception appears in the record. La. C.C.P. arts. 927 and 2163 (emphasis added).

Whether a plaintiff has a right of action is a question of law. Since this is an appeal from a bench trial, we have before us the record from the trial court. We will review the question of law de novo considering the record before us and the substantive law regarding Mr. Thaller’s right to bring this action. City of Neiv Orleans v. Board of Directors of Louisiana State Museum, 98-1170, pp. 9-10 (La.3/2/99), 739 So.2d 748, 756.

In support of the exception of no right of action, Mr. Schmalz argues that Mr. Thaller has no right to sue on the contract, or for its breach, since he donated his interest in the property to Mrs. Thaller in September of 2003, prior to the execution of the contract, the performance of the work, or the recordation of the lien. In opposition to the exception of no right of action, Mr. and Mrs. Thaller argue that even if Mr. Thaller quitclaimed his interest in the property to Mrs. Thaller, he never assigned his rights to any claims arising from the subject lawsuit.

An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation. La. C.C. art. 2360. During the marriage, | r,either spouse acting alone may incur a community obligation. Sciortino v. Bank of Louisiana, 97-1420, p. 6 (La.App. 4 Cir.1/28/98), 705 So.2d 813, 816. Except for separate obligations specified under La. C.C. art. 2363, “all obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations.” La. C.C. art. 2361. La. C.C. art. 2345 provides that “[a] separate or community obligation may be satisfied during the community property regime from community property and from the separate property of the spouse who incurred the obligation.” Further, La. C.C. art. 2364 provides that “[i]f community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.”

In this case, the record is unclear as to whether community funds were used to pay Mr. Schmalz the $10,000.00 for the work done on the contract. Further, it is unclear whether the obligation to improve the property, signed by Mrs. Thaller, was for the benefit of the community, the family, or Mr. Thaller. When a defendant pleads the exception of no right of action in the appellate court for the first time, proof of the ground for the exception must be in the record. In this case, we do not find proof in the record to support Mr. Schmalz’s exception of no right of action. Accordingly, we hereby deny the exception of no right of action.

ON THE MERITS

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, reasonable inferences of fact should not be disturbed upon |7review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Further, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. (our emphasis). Thus, disagreements with the findings of the trial court, alone, are not grounds for substituting the appellate court’s judgment for that of the trier of fact.

Issue One: Whether the trial court erred when it denied Mr. Schmalz’s continuance.

On appeal, Mr. Schmalz contends that the trial court erred when it denied his motion for continuance because he [Mr. Schmalz] had insufficient time to prepare for his testimony and because discovery was incomplete. Mr. and Mrs. Thaller’s counter argument is that Mr. Schmalz never urged on the record the need for a continuance based on incomplete discovery; rather, the reason for the request for the continuance at trial was solely Mr. Schmalz’s inability to testify, which became moot once Mr. Schmalz appeared at trial and gave his testimony.

A trial court has “wide discretion” in deciding whether to grant or deny a motion for continuance. Hebert v. C.F. Bean Corp., 00-1029, p. 2 (La.App. 4 Cir. 04/25/01), 785 So.2d 1029, 1030. A review of the record reveals that the motion for the continuance was based on Mr. Schmalz’s inability to testify at trial. However, shortly after beginning the trial, Mr. Schmalz did appear and was able to give his testimony. Under these circumstances, we do not find that the trial court abused its “wide discretion” in denying the motion for continuance.

Issue Two: Whether the trial judge eired when she failed to qualify the witnesses as an expert, even if so tendered and qualified.

On appeal, Mr. Schmalz argues that the trial judge erred in handling the expert testimony. Although he cites no legal authority for this proposition, Mr. | sSchmalz argues the trial judge erred when she refused to consider any expert, either plaintiff or defendant, when tendered, which presented an insurmountable obstacle to the proper questioning of the experts.

Mr. and Mrs. Thaller’s counter argument is that the trial judge was aware of the witnesses’ expertise and that the trial judge listened to the expert testimony of each witness and afforded the testimony the weight it deserved. Mr. and Mrs. Thaller cite to Mercer v. Fruehauf Corp., 492 So.2d 588 (La.App. 3 Cir. 7/23/86) for the proposition that even though a trial judge refused to qualify an expert witness, it was harmless error because the witness was permitted to take the stand and testify. Specifically, the Third Circuit Court of Appeal held as follows:

We note that Mr. Eicher ultimately took the stand on behalf of the appellant and testified concerning the design and manufacture of Fruehaufs tank trailers. Mr. Eicher was asked for and gave his opinion several times during his direct examination. Therefore, we find that even if the trial judge had committed manifest error in refusing to qualify Mr. Eicher as an expert witness, the error would not have been prejudicial to the appellant and, hence, not reversible.

Mercer, 492 So.2d at 541.

There is no requirement that a party formally tender an expert witness or that a court formally declare that a witness is accepted as an expert. See Darbonne v. Wal Mart Stores, Inc., 00-551, p. 9 (La. App. 3 Cir. 11/2/00), 774 So.2d 1022, 1028. In this case, the trial judge heard the testimony of two expert witnesses, Eric Arrant (“Mr. Arrant”) and Mr. Sehmalz. Whether or not the trial judge specifically qualified Mr. Arrant or Mr. Sehmalz as experts in their respective fields is inconsequential as it is clear from the record that the trial judge allowed both Mr. Arrant and Mr. Sehmalz to testify in the field of them specialized knowledge, and the trial judge specifically stated that she would hear the expert testimony and 19afford the expert testimony the weight that it deserved. As the trial judge stated, regarding experts:

Judge Spears: Counsel what I’ve been doing as far as expert testimony awhile back is not qualifying anybody as experts. I will just rule on the objections if the [sic] come up. strategist [sic] one objection is to come up.
Mr. Favret: Okay. And then it will go to the weight, I’m assuming?
Judge Spears: Yes.
* * ⅜
Judge Spears: Let me make it clear as to what my ruling was as to experts. The way I rule in general as to experts so that you will know, I don’t qualify anybody as an expert even though they might have expert testimony to offer the court.
I rule on each individual objection, then afford the testimony of whatever weight. So I’m going to overrule that one. But I am not making any ruling on — none of your objections should be based on the fact that I didn’t qualify the witness as an expert.

* ⅜ *

Judge Spears: He can testify about the question that he just got and the question before that. I don’t know whether or not I’m going to allow him to testify about another question.
Maybe there will be questions about structural engineering damage. I don’t know what other questions are going to be posed to this witness and so I will rule on those if they come up.
None of the objections should be based on the fact that I didn’t qualify him as an expert.

|1(lThe trial judge clearly indicated that she would accept opinion testimony from these witnesses and afford the expert testimony the weight it deserved. Accordingly, we find no merit in this assignment of error.

Issue Three: Whether the trial court erred when it refused to qualify Mr. Arrant as an expert witness as a sales consultant for the installation of siding, but allowed him to give opinion testimony concerning the siding installed.

Mr. Sehmalz argues on appeal that the trial judge erred when she refused to qualify Mr. Arrant as an expert witness as a sales consultant for the installation of siding, but allowed him to give opinion testimony concerning the siding installed in this case. We find no merit in this assignment of error.

The admission of evidence — expert or otherwise — is subject to the trial court’s discretion. New Orleans Firefighters Local 682 v. City of New Orleans, 07-1475, p. 11 (La.App. 4 Cir. 3/5/08), 980 So.2d 760, 767. Further, the trial court is vested with much discretion in determining which opinion testimony shall be received into evidence and whether it will be received as “lay” or “expert” testimony. Griffin v. Tenneco Oil Co., 625 So.2d 1090, 1094 (La.App. 4 Cir. 9/30/93). La. C.E. art. 401 states that “ ‘[rjelevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” La. C.E. art. 701 allows a lay witness to testify in the form of opinions or inferences where those opinions or inferences are: (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.

As stated in the second assignment of error, the trial judge allowed Mr. Arrant to testify in the field of his specialized knowledge, and the trial judge specifically stated that she would listen to the expert testimony and afford the h testimony the weight it deserved. Further, we find both elements of La. C.E. art. 701 to be present. First, Mr. Arrant’s testimony was rationally based on his perception where he had three years of experience as a siding sales consultant with LAS and was trained in installing siding and the various products that are used. Second, Mr. Arrant’s background as a siding sales consultant, as well as his training on the various products used and the different methods of installation are helpful in determining whether Mr. and Mrs. Thaller’s siding was properly installed. Accordingly, we find no merit in this assignment of error.

Issue Four: Whether the trial court erred when it refused to qualify Mr. Schmalz as an expert witness.

On appeal, Mr. Schmalz argues that the trial judge erred by finding that he could not be qualified as an expert to rebut the testimony of Mr. Arrant. Further, Mr. Schmalz argues that when he was asked to give testimony about the impact of hurricane winds on siding, and the manner in which siding is manufactured to minimize that effect, the trial judge refused to allow his testimony and required that it be proffered. We find no merit in this assignment of error.

Mr. Schmalz was called as a fact witness in plaintiffs case. Following the testimony of Mr. Arrant, Mr. Schmalz was called back to the stand to provide expert testimony. Upon requesting the trial judge to tender Mr. Schmalz as an expert in vinyl siding installation, the trial judge stated:

Judge Spears: But you decide whether or not you are going to call somebody as an expert witness from early on. You don’t mid-stream say, “Now that they have an expert, and that you let them testify as an expert, we have an expert who is the same witness who was here before.
That’s the problem that I’m having with it. But go ahead. I’m giving you some | platitude because I’d like to give you the opportunity to present your case,—

Thereafter, Mr. Schmalz was allowed to provide expert testimony concerning the installment of the siding. Although Mr. Schmalz argues that he was told to proffer his testimony regarding the impact of the hurricane on the siding, the record indicates that he did provide his opinion on this issue. Specifically, the testimony is as follows:

Q. Do you have any expert opinion concerning the way in which the siding in these pictures was damages?
A. This looks like my house after the tree fell on me—
⅜ He H=
Mr. Favret: Your Honor, I’m going to object, because I don’t think this Witness has expertise to tell what this [sic] storm damage and what is otherwise.
I don’t think he has any more expertise than any of us sitting in this room about whether it’s storm damage or otherwise. But that’s my objection, Your Honor.
Judge Spears: Counsel, I’m going to let him — he said — his opinion is that it’s storm damage. I’m just going to let that answer stay, that he thinks it’s storm damage and I’m going to afford it whatever weight I think it deserves.

Therefore, we find that the trial judge acted within her discretion in allowing Mr. Schmalz’s to testify on rebuttal and in giving his expert testimony the weight it deserved.

Issue Five: Whether the trial court erred when it refused to allow Mr. David Cloyd to testify as an expert witness.

On appeal, Mr. Schmalz argues that Mr. David Cloyd (“Mr. Cloyd”) should have been allowed to testify as an expert witness despite the fact that he was not | ^listed as a witness in discovery responses. We find no merit in this assignment of error.

A reviewing court must defer to a trial judge’s reasonable decision on a question or matter properly within his/her discretion. Harwell v. Haspel-Kansas Investments Partnership, 598 So.2d 1284, 1287 (La.App. 4 Cir. 4/30/92) (citations omitted). In matters of discovery, such as whether a witness has been listed in a timely manner, decisions of the trial court should not be disturbed in the absence of an abuse of discretion. Id. (citations omitted)

In this case, not only was Mr. Cloyd not identified throughout discovery, but he sat in the courtroom through the entirety of Mrs. Thaller’s and Mrs. Julie Schmalz’s testimony before counsel for Mr. Schmalz identified him to the court for the first time as a potential witness. Under these facts, we find the trial judge acted within her discretion in refusing Mr. Cloyd’s testimony from the proceedings.

Issue Six: Whether the trial court erred in dismissing Mr. Schmalz’s suit to enforce lien filed against Mrs. Thaller.

On appeal, Mr. Schmalz alleges that the trial court erred when it concluded, as a matter of fact, that the evidence presented by Mr. Schmalz did not establish a prima facie case for the debt owed. Mr. Schmalz argues that although he proved the amount remaining as unpaid under the contract was $2,040.00, the issue before the court was whether the punch list items were done. We find no merit in this assignment of error.

The trial court, in its reasons for judgment, stated in pertinent part:

Plaintiff, Square Deal Siding Company, Inc., was unable to establish a prima facie case against defendant, Stephanie Thaller. Neither of Schmalz’s witnesses was able to provide credible, clear or consistent testimony regarding the debt. Owner, Brian Schmalz’s testimony was particularly inconsistent and repeatedly by [sic] non-responsive. He also 114failed to answer direct questions directly, thereby damaging his case substantially.
Conversely, plaintiffs-in-reconvention presented credible testimony that the Court accepted. They successfully proved not only that the siding job in question was done improperly, but that the balance due was justifiably withheld and withheld in compliance with plaintiffs [Mrs. Thaller’s] agreement with Square Deal Siding Company. Most disturbingly, however, plaintiff[s]-in-re-convention proved that the lien placed on their property was a complete abuse of the lien privilege, filed maliciously and recklessly.

At trial, Mrs. Thaller and Mr. Schmalz testified that they entered into a contract to install new siding and gutters at 3221-23 Grand Route St. John for a contract price of $12,040.00. Mr. Schmalz and Mrs. Thaller testified that no money was due on the job until the job was complete. Mr. Schmalz testified that he began installing the siding and gutters towards the end of October or beginning of November, 2003. Mr. Schmalz introduced a punch list created by either he or his employees, listing various items that needed to be corrected. Mr. Thaller testified that the list introduced by Mr. Schmalz was not a final punch list but was a punch list of items that were noted by him approximately three-fourths of the way through the project and before Mr. Schmalz and his crew “pulled off’ of the job.

Mrs. Thaller testified that in the latter part of November 2003, Mr. Schmalz contacted her to inform her that the job was finished and that he wanted his check. In response to Mr. Schmalz’s request, Mrs. Thaller testified that she and Mr. Thaller inspected the work and noticed problems with the workmanship. Specifically, Mr. and Mrs. Thaller testified that Mr. Thaller prepared a punch list which included problems with the wires pulling away from the siding, unsealed window trim, uncaulked siding, soffit needing to be drawn down, scratches and dents on the gutter in the front right side of the house, and multiple seams reversed |lfiin multiple spots. Mr. and Mrs. Thaller testified that Mr. Thaller met Mr. Schmalz at the house and went through his punch list pointing out the multiple areas of workmanship and damage to the siding and gutters that needed to be addressed. According to the Thal-lers, Mr. Schmalz agreed to perform Mr. Thaller’s punch list items; however, Mrs. Thaller testified that Mr. Schmalz only completed the caulking and that the remainder of the items was never completed.

Mr. and Mrs. Thaller testified that Mr. Schmalz contacted them demanding payment and that they informed him that the punch list items were not yet complete and that once the punch list items were complete, that payment would be made in full. However, within days of Mr. Schmalz demanding payment, the Thallers testified that Fran Schmalz, the father and employee of Brian Schmalz, called Mr. Thaller informing him that Mr. Schmalz’s company was in a financial jam and asked Mr. Thal-ler if he would consider making a partial payment. Mrs. Thaller testified that on November 20, 2003, she met with Fran Schmalz at the job site and that Fran Schmalz agreed, on behalf of Mr. Schmalz, to have the job completed within the week. Mrs. Thaller then testified that, based on Fran Schmalz’s promise to complete the work that week, she issued a $10,000.00 check to Square Deal Siding Company, Inc. as a partial payment.

Mr. Schmalz testified that he sent Fran Schmalz to pick up the check. Mr. Schmalz also admitted that Fran Schmalz had the authority to agree to finish the job. Mr. Schmalz admitted that on November 21, 2003, one day after Mrs. Thal-ler issued the check for $10,000.00, he cashed the check and instructed his wife, Julie Schmalz, to issue a ten day lien notice threatening to place a lien on the Thallers’ property.

|ifiMr. Schmalz, on cross-examination, admitted that Fran Schmalz’s agreement, on behalf of Mr. Schmalz, to finish the job within the week was merely a ploy to get the money from Mr. and Mrs. Thaller. Mr. Schmalz testified that Fran Schmalz had the authority to sign the agreement just “to get a check off of them.”

The Thallers testified that in the summer months in 2004, six months following the siding installation, they began noticing numerous defects in the siding, including buckling, pulling away, and siding that appeared to be improperly installed and not properly secured. The Thallers identified the photographs identified as Exhibit No. 6a-s, which reflected the defects in the siding, which included bowing of the siding, waiving in the siding, strange stepping up of seams, siding pulling away, utilities not reattached, and other defects due to improper installation.

Mrs. Thaller testified that she contacted various companies to attempt to repair the defective siding; however, she was advised repeatedly that the project could not be repaired. Mrs. Thaller testified that she contacted Mr. Arrant with LAS Enterprises, and that he advised that the siding needed to be replaced. Mr. Arrant provided an estimate for removing and replacing the siding in the amount of $28,285.00.

The trial court heard the testimony of the Thallers and Mr. Schmalz on the issues of whether the work was ever finished and whether Mr. Schmalz properly filed a lien against the Thallers’ property for the unpaid balance. The trial court found that Mr. Schmalz was unable to establish a prima facie case against the Thallers for the amount due. Our review of the testimony indicates that the trial court was presented with two permissible views of the evidence. Our review 117further indicates that the trial court was presented with a rational basis of facts upon which it could have rendered its determination. Where a rational basis exists for the factfinder’s determination, particularly considering the two permissible views, our standard of appellate review, the manifest error or clearly wrong standard, dictates affirmation of the factfin-der’s rational assessment of the evidence. Therefore, we find no merit in Mr. Schmalz’s argument that the trial court erred in its finding that Mr. Schmalz failed to establish a prima facie case against the Thallers and in dismissing his suit to enforce the lien.

Issue Seven: Whether the trial court erred in concluding that Mr. Schmalz filed a lien against the Thallers’ property one day after Mrs. Thaller paid $10,000.00 of the contract.

Mr. Schmalz argues that the trial court erred when it stated in its reasons for judgment that a lien was placed on the property on November 21, 2003. We first note that reasons for judgment are not controlling, and form no part of trial court judgments from which appeals are taken. Homes v. Long, 2002-0950, p. 3 (La.App. 4 Cir. 12/18/02), 835 So.2d 877, 878-879. Nonetheless, the trial court’s finding, in her reasons for judgment, that Mr. Schmalz filed a lien on November 21, 2003, rather than a ten-day lien notice is harmless error as all parties testified and acknowledged that the lien ultimately was not recorded until January 21, 2004. Accordingly, we find no merit in this assignment of error.

Issue Eight: Whether the trial court eired in concluding that the lien filed by Mr. Schmalz was an abuse of the lien privilege and was filed maliciously and recklessly.

Mr. Schmalz argues on appeal that he was not attempting to harm the Thallers by filing the ten day lien notice, but rather was attempting to preserve his .claim to the balance of the contract price. The Thallers argue that Mr. Schmalz can not hide behind the requirements of the lien statute while at the same time 11scommitting fraud by lying to the Thal-lers as a way to obtain a partial payment on a job that Mr. Schmalz never intended to complete.

Again, the trial judge heard Mr. Schmalz testify to the fact that he sent his father to meet with the Thallers merely to pick up a check. The trial judge heard Mr. Schmalz testify that he never intended to finish the job and that his father agreed to finish the job merely to get the money from the Thallers. Further, Mr. Schmalz testified that he filed the ten day lien notice on the same day he cashed the $10,000.00 check, and that he filed the lien on the property in January 2004. Under these facts, we find the record supports the trial judge’s finding that Mr. Schmalz abused the lien privilege and that the lien was filed maliciously and recklessly.

Issue Nine: Whether the trial court properly awarded damages to Mr. Thal-ler.

Mr. Schmalz argues that because the property was quitclaimed by Mr. Thaller to Mrs. Thaller, he has no claim for damages and that the $25,000.00 award should be cut in half. We addressed this issue when denying the peremptory exception of no right of action and found that Mr. Thal-ler was a proper party to these proceedings. As such, we find no merit in this assignment of error.

Issue Ten: Whether the trial court erred in awarding $25,000.00 in damages to the Thallers.

On appeal, Mr. Schmalz argues that because there was no evidence as to the damages occasioned to the Thallers, other than the interest on the $5,000.00 held in escrow, the damage award was excessive and must be reduced. We find no merit in this assignment of error.

The trial judge, in her reasons for judgment, found the Thallers to be credible witnesses. As stated in the reasons for judgment:

_[_i(;Conversely, plaintiffs-in-reconvention presented credible testimony that the Court accepted. They successfully proved not only that the siding job in question was done improperly, but that the balance due ivas justifiably withheld and withheld in compliance with plaintiffs [Mrs. Thaller’s] agreement with Square Deal Siding Company. Most disturbingly, however, plaintiff[s]-in-re-convention proved that the lien placed on their property was a complete abuse of the lien privilege, filed maliciously and recklessly, (emphasis added).

The Thallers testified concerning the defects appearing in the siding by the summer of 2004, six months following the siding installation. Mrs. Thaller also testified that she was given an estimate of $28,285.00 to replace the siding. Further, the Thallers’ presented photographs to demonstrate the defects in the siding caused by the improper installation. We find that the record supports a reasonable factual basis for the trial court’s award of $25,000.00 in damages to remedy the defect caused by Mr. Schmalz in improperly installing the siding.

ANSWER TO APPEAL

In their answer to appeal, the Thallers request that the judgment be amended to award attorney’s fees in the amount of their contingency fee contract with their attorney of one-third, or a total award of attorney’s fees in the amount of $8,333.33. Further, the Thallers request that additional attorney’s fees be awarded for defending the case on appeal.

It is well-established that attorney fees are not allowed except where authorized by statute or contract. State. Dept. of Transp. and Development v. Williamson, 597 So.2d 439, 441 (La.1992). We have found no statute providing for attorney fees when a party sues to recover from the wrongful filing of a lien. Although the Thallers cite to various cases whereby appellate courts have affirmed judgments of the trial court that have awarded attorney’s fees, we find no statute that gives this Court the authority to do so. Accordingly, we do not find theJ^Thallers are entitled to an award of attorney’s fees under the facts of this particular case.

Although the Thallers ask for additional attorney’s fees for work performed on appeal, an increase in attorney fees is generally awarded when a party who was awarded attorney fees in the trial court is forced to and successfully defends an appeal. See Sam v. Jhane Home Health Care Services, Inc., 95-0081 (La.App. 4 Cir. 6/07/95), 657 So.2d 559. Given the fact that the Thallers failed to recover attorney’s fees in the trial court, as well as this Court, we find no merit to their argument for additional attorney’s fees.

For these reasons, we hereby grant the motion to strike, we deny the exception of no right of action, and in all other respects the judgment of the trial court is affirmed.

MOTION TO STRIKE GRANTED; EXCEPTION OF NO RIGHT OF ACTION DENIED; JUDGMENT OF THE TRIAL COURT AFFIRMED.

BELSOME, J., concurs in part and dissents in part.

BELSOME, J., concurs in part and dissents in part.

Li dissent in the majority’s failure to award attorney’s fees.

Damages for wrongly filed liens are permissible when the lien recordation is made in bad faith or with malice. See Dickson v. Moran, 344 So.2d 102, (La.App. 2 Cir.1977) and Grover v. Carter, 498 So.2d 132 (La. App. 5 Cir.1987). This record establishes that Mr. Schmalz accepted a $10,000.00 partial payment upon the condition that all punch list items would be completed prior to the balance being paid. He testified in court that he had no intention of completing the punch list items, but agreed to those terms in order to get the $10,000.00. He subsequently filed a lien for the balance of the contract without meeting the agreed upon conditions. Clearly, Mr. Schmalz acted in bad faith.

Accordingly, attorney’s fees should have been awarded at the trial court level and additional fees at the appellate level. Therefore, a minimum amount of $15,000.00 in attorney’s fees should be awarded to the Thallers.

I join the majority in all other aspects of the opinion.

      . The suit to enforce the lien was initially erroneously filed on behalf of Square Deal Siding Company, Inc. and thereafter amended to name the proper party, Brian C. Schmalz.


author: MOON LANDRIEU, Judge Pro Tempore.

text:
    Le Anne LOTRIDGE, et al. v. Maria Hernandez ABRIL, et al. Charles Fellows, MD, et al. v. Maria Hernandez Abril, et al.
    Nos. 2007-CA-1401, 2007-CA-1402.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 30, 2008.
    Rehearing Denied Jan. 28, 2009.

      Gwendolyn M. Hanhart, New Orleans, LA, for Le Anne Lotridge and G. Brady Lotridge.
    John E. McAuliffe, Jr., Frederick A. Miller & Associates, Metairie, LA, for Charles Cecil Roberts.
    Nicholas C. Gristina, Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Kathryn F. Roberts.

      Mark S. Stein, Gregory S. Marsiglia, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Charles Fellows, M.D.
    (Court composed of Judge MAX N. TOBIAS, JR, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU).
   MOON LANDRIEU, Judge Pro Tempore.

|]The plaintiffs in these consolidated cases, LeAnne and G. Brady Lotridge (“the Lotridges”) and Charles Fellows, M.D. (“Dr. Fellows”), appeal two district court judgments dismissing their claims against the defendants, Charles Cecil Roberts (“Mr. Roberts”) and Kathryn F. Roberts (“Ms. Roberts”), on the defendants’ motions for summary judgment.

FACTS AND PROCEDURAL HISTORY

In 2004, the Lotridges were residing in Unit 9 of the Lighthouse Harbor Condominiums, located at 7300 Lakeshore Drive in New Orleans, which they had leased from Dr. Fellows, the owner. Mr. Roberts, who resided in Unit 10, directly above the Lotridges, had leased the premises from its owner, Maria Hernandez Abril, M.D. (“Dr. Abril”). On the night of April 17, 2004, between 10:00 and 11:00 p.m, the Roberts’ minor son, Kyle, flushed the toilet after using the bathroom and went upstairs to bed. Several hours later, around 4:30 a.m, Kyle awoke his father, complaining of nausea. Mr. Roberts went downstairs to the |.¿kitchen to get medicine and noticed water on the floor. Upon inspection, he discovered that the toilet in the adjacent bathroom was overflowing. He immediately turned off the water valves, went upstairs to tend to Kyle and then returned to clean up the water. The plumber who later repaired the toilet informed Mr. Roberts that a metal part of the flushing mechanism inside the tank broke due to rust, causing the toilet to malfunction.

On April 18, 2004, Mrs. Lotridge awoke at 6:30 a.m., and went into her kitchen to heat a cup of coffee. When she opened the microwave door, “water gushed out.” Upon further inspection, she discovered “water seeping out of the ceiling [and] the walls,” sheetrock hanging from the ceiling in the upstairs guest bedroom and water ankle-deep on the floor. Later that morning, the Lotridges learned from Mr. Roberts that one of his toilets had malfunctioned when Kyle flushed it the night before. As a result of the extensive water damage to Unit 9 and their personal property, the Lotridges had to vacate the premises. Eleven months later, the repairs to the condominium were completed.

The Lotridges sued Mr. Roberts and Ms. Roberts, individually, and as natural tutors of Kyle, and Dr. Abril for the damages to their property and the expenses incurred in relocating. Dr. Fellows also sued the defendants for the damages to Unit 9 and his loss of rental income. The plaintiffs alleged in their petitions that Mr. Roberts and Ms. Roberts were solidarity liable for the negligent acts of their minor son pursuant to La. C.C. art. 2318. They also alleged that Mr. | ¡¡Roberts was negligent in failing to see what he should have seen, i.e., the overflowing toilet; failing to stop the overflow; failing to notify Dr. Abril of the deteriorated condition of the toilet; and, failing to exercise reasonable care in discovering the ruinous condition of the toilet in his residence and to remedy the defect. As to Dr. Abril, the plaintiffs alleged that she was negligent in failing to maintain the toilet and plumbing on her property; failing to inspect the toilet to prevent ruin; and failing to exercise reasonable care in discovering the ruinous condition of the toilet and to repair it timely.

After the lawsuits were consolidated for trial, Mr. Roberts and Ms. Roberts each filed a motion for summary judgment, arguing that the claims against them should be dismissed because the plaintiffs cannot prove they (Mr. Roberts, Ms. Roberts and/or Kyle) knew or should have known that the toilet flushing mechanism was corroded, broken or defective and failed to repair it. They also argue that pursuant to the terms of the Unit 10 lease agreement, Dr. Abril, the lessor, assumed and/or retained the responsibility for the plumbing in the premises.

Following a healing, the trial court granted the motions for summary judgment, dismissing Mr. Roberts and Ms. Roberts as defendants from the plaintiffs’ lawsuits.

DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. King v. Parish Nat’l Bank, 04-0387, p. 7 (La.10/19/04), 885 So.2d 540, 545. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and | ¿admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Favored in Louisiana, the summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, and should be construed to accomplish those ends. La. C.C.P. art. 966(A)(2). La. C.C.P. art. 966(C)(2) provides, in pertinent part:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he ‘,will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

(Emphasis added).

The plaintiffs’ suits present negligence claims under La. Civ.Code arts. 2315, 2317 and 2317.1, which provide:

La. Civ.Code art. 2315

A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.
|.-,La. Civ.Code art. 2317
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
La. Civ.Code art. 2317.1 The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise or reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Article 2317.1, enacted in 1996, effectively eliminated the concept of “strict liability” in cases involving defective things and imposed a negligence standard based on the owner or custodian’s knowledge or constructive knowledge of the defect. See Lasyone v. Kansas City Southern R., 00-2628, p. 6 (La.4/3/01), 786 So.2d 682, 689, at fn. 9. The concept of constructive knowledge imposes a reasonable duty to discover apparent defects in things under the defendant’s garde. Hagood v. Brakefield, 35,570 (La.App. 2 Cir. 1/23/02), 805 So.2d 1230, 1233.

In support of the motions for summary judgment, the defendants offered deposition testimony from Mr. Roberts, the Lo-tridges and Elizabeth Fellows, Dr. Fellows’ daughter, as well as a copy of the Unit 10 residential lease agreement signed by Dr. Abril and Mr. Roberts.

According to Mr. Roberts, he never had any problems with or complaints about the toilet prior to the April 2004 incident. Neither Dr. Abril nor anyone with Rthe condominium association had ever suggested to him that the toilet needed to be repaired or replaced. Mr. Roberts said that Kyle was the last person to use the toilet prior to bedtime the night of April 17, 2004, and never reported any type of problem with it. When Mr. Roberts discovered the overflow several hours later, nothing was clogging the toilet. The plumber who fixed the toilet told Mr. Roberts that a part of the flushing mechanism inside the tank broke, causing the water to overflow.

The Lotridges acknowledged that they were unaware the toilet in Unit 10 had malfunctioned until Mr. Roberts informed them of such later that morning. Neither were they aware of water ever coming from Unit 10 prior to the date of the incident. The Lotridges admitted that while they resided at the Lighthouse Harbor Condominium complex plumbers had not done any repair work on the toilets in their unit nor were they aware of any work done on the toilets in Unit 10.

Ms. Fellows stated that she handled her eighty-year-old father’s rental property affairs and no one had ever reported any problem to her regarding water leaking from Unit 10 into Unit 9 prior to the incident on April 17-18, 2004.

The residential lease agreement for Unit 10, signed by Mr. Roberts and Dr. Abril, provided:

CONDITION, REPAIRS, ADDITIONS AND ALTERATIONS OF PREMISES

Lessor warrants that the leased premises are in good condition, unless otherwise noted. Lessor shall be responsible for the repair of electrical, plumbing, air conditioning and heating system provided the repair is not caused by misuse or neglect by the lessee. Lessee agrees to use the same with care, and to perform the usual cleaning and household maintenance customarily required. Air conditioning and heating filters are the responsibility of the Lessee. The running of the unit with dirty filters is not permitted. Lessee acknowledges that he has been provided the opportunity to inspect the premises and |7accepts it in its current condition and agrees to keep it in same condition during the term of this lease at his expense and return it to Lessor in the same or better condition at termination of this lease, normal decay, wear and tear excepted. The only exceptions to this are repairs/improvements that Lessor specifically agrees to perform on the premises as may be outlined in the “SPECIAL CONDITIONS” section of this lease.

It is undisputed that Ms. Roberts was not a lessee or a resident of Unit 10 on April 17-18, 2004, and, thus, did not have custody of the faulty toilet. Furthermore, in opposition to the motions for summary judgment, the plaintiffs offered no evidence to show Ms. Roberts knew or should have known the toilet flushing mechanism was defective or that Kyle had flushed the toilet negligently. Thus, we find the trial court properly granted the motions for summary judgment, dismissing her as a defendant in the plaintiffs’ lawsuits.

Pursuant to La. Civ.Code arts. 2817 and 2817.1, Mr. Roberts, as the lessee and resident of Unit 10 on the date of the incident, was the custodian of the defective toilet. The plaintiffs, however, offered no evidence to dispute his testimony that, pri- or to the incident, he had no actual knowledge that the toilet flushing mechanism was defective. Therefore, the issue is whether Mr. Roberts, in the exercise of reasonable care, should have known of the ruinous condition of the flushing mechanism.

Pursuant to the lease agreement, Dr. Abril, the lessor, was responsible for the repairs to plumbing system provided they were not caused by the misuse or neglect of the lessee. Mr. Roberts, however, was to perform the usual cleaning and household maintenance customarily required. The plaintiffs contend that Mr. Roberts would have discovered the corroded metal piece of the flushing mechanism by simply removing the top of the toilet tank. They point out that he | shad the air conditioning system serviced while a tenant in Unit 10, although it was not his responsibility under the lease. Likewise, the plaintiffs argue that if Mr. Roberts had exercised reasonable care while he lived in Unit 10 by either lifting the toilet tank lid or having a plumber inspect the toilet, then he would have discovered the corroded flushing mechanism and could have repaired it, preventing the malfunction.

In opposing the motions for summary judgment, the plaintiffs submitted an affidavit from Thomas Borland, a licensed home improvement contractor, who averred that he had installed and repaired numerous residential toilets.. He stated that the metal part of the flushing mechanism inside the tank was clearly visible upon removal of the tank cover. Mr. Bor-land also averred that the corrosion, extensive enough to cause the metal part to break, occurred over an extended period of time. The plaintiffs also submitted the copy of an invoice dated May 8, 2003 from Southland Heating & Air Conditioning, Inc., evidencing that Mr. Roberts had the heating and ah- conditioning system in Unit 10 fully serviced.

Based on our de novo review of the record, we find that the plaintiffs have not offered any evidence sufficient to dispute the evidence that Mr. Roberts did not have constructive knowledge of the corroded flushing mechanism. Furthermore, the plaintiffs failed to submit any evidence that Mr. Roberts did not exercise reasonable care as the lessee and custodian of Unit 10. To the contrary, the evidence indicates that, in February 2003, while leasing the premises, Mr. Roberts contemplated purchasing the unit and had a contractor do some renovations. As a result of the work, sand and sawdust infiltrated the air conditioning and heating system. Mr. Roberts spent $545.00 to have Southland service the system, which included cleaning the air ducts, condensers, vaporizer coils and adding freon. | ^Although Mr. Roberts acknowledged that, during the nearly three years he leased Unit 10, he never removed the toilet tank lid or had a plumber inspect the toilet, the plaintiffs have not demonstrated that his failure to do so was unreasonable or not an exercise of reasonable care. Absent any evidence that Mr. Roberts either knew or had been warned of a problem with the toilet prior to the incident, we find no genuine issue of material fact as to whether Mr. Roberts exercised care in failing to discover and remedy the defective flushing mechanism. Thus, we find the trial court correctly granted the motion for summary judgment dismissing Mr. Roberts as a defendant in the plaintiffs’ lawsuits.

DECREE

Accordingly, for the above reasons, the trial court judgments of May 31, 2007 and June 18, 2007, granting motions for summary judgments in favor of Mr. Roberts and Ms. Roberts, are affirmed.

AFFIRMED.

      . The Lotridges appeal from a judgment rendered and signed on June 18, 2007, while Dr. Fellows appeals from a judgment rendered and signed on May 31, 2007.

      . In April 2004, Mr. and Ms. Roberts were separated and shared custody of their two minor sons. They have since divorced. At the time of the incident in question, Mr. Roberts was exercising his scheduled weekend visitation with the children at his home.

      .La. C.C. art. 2318 provides:

        The father and the mother and, after the decease of either, the surviving parent, are responsible for the damage occasioned by their minor or unemancipated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.


author: CARLSON, Justice,

text:
    Danny HOLLAND v. The PEOPLES BANK & TRUST COMPANY.
    No. 2007-CA-02023-SCT.
    Supreme Court of Mississippi.
    Dec. 11, 2008.
    Certiorari Denied March 5, 2009.

      Robert Q. Whitwell, Ashland, attorney for appellant.
    Scott R. Hendrix, Tupelo, L. Bradley Dillard, attorneys for appellee.
    Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
   CARLSON, Justice,

for the Court.

¶ 1. Danny Holland filed suit against Renasant Bank f/k/a Peoples Bank & Trust Company on or about November 20, 1998, in the Circuit Court for the Second Judicial District of Panola County, alleging negligent and fraudulent misrepresentation, breach of fiduciary duty and breach of covenants of good faith and fair dealing. Holland sought compensatory damages in the amount of $5,000,000 and punitive damages in the amount of $10,000,000. Upon the trial court’s grant of summary judgment in favor of the Bank, Holland appealed to us. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. The business relationship between Danny Holland and Renasant Bank fik/a Peoples Bank & Trust Company began in February 1996. Between February and April 1996, the Bank made various loans to Holland at a total of more than two million dollars, all of which were collateralized with real estate, equipment, cattle, and horses, as well as property in Lafayette County. This included a $500,000 revolving line of credit that Holland sought to use for expenses associated with his cotton brokerage business. The parties dispute whether the Bank by and through its employee, William Jeffreys, also promised to loan Holland additional funds for the purpose of covering margin calls in commodities trading. Holland contends he informed William Jeffreys that in the event cotton prices dropped below eighty cents a pound, he would need an additional $200,000, for a total line of credit in the amount of $700,000, for the purpose of covering margin calls, and that Jeffreys orally promised to extend the line of credit for that purpose. On the other hand, the Bank maintains that Holland asked for an extended line of credit in the amount of $100,000 for the purpose of covering margin calls, which the Bank denied due to Holland not being able to produce more collateral. Additionally, the Bank contends that Jeffreys did not have loan authority for such an amount and that a loan in this amount would have had to have been approved by the Bank board.

¶ 3. Holland desired to sell his Yocona Bottom Lafayette County property (hereinafter the “Lafayette County property”). The breach-of-fiduciary-duty allegations stem from the sale of this property. Holland had hoped to arrange with the bank a section 1031 tax benefit land swap wherein he would find replacement property for the Yocona Bottom property to avoid a capital gains tax. William Jeffreys, on behalf of the Bank, was to act as escrow agent for the transaction. The Bank contends that this agreement was negotiated, but was never finalized because the Bank asked for, but never received, more collateral from Holland to cover the additional loan he needed to secure the replacement property. The Bank further contends that the sale proceeds were received by the Bank, but never deposited in an escrow account because there was no agreement to that end. According to the Bank, it held the check to give Holland opportunity to produce more collateral for the proposed escrow exchange. When additional collateral did not materialize, the Bank offset the $237,000 against debt owed to them by Holland, and Holland claims that this action by the Bank was a breach of fiduciary duty because these loans were not in default. The Bank contends that the Lafayette County property was its collateral, and that the Bank was merely offsetting the proceeds to release the collateral. Holland asserts that with no extended line of credit and no proceeds from the Lafayette County sale, he was unable to cover his margin calls, which led to significant financial losses and loss of goodwill in his cotton brokerage enterprise.

¶ 4. Holland thus sold collateral (i.e., cattle) which the Bank held. The Bank, in turn, considered Holland to have defaulted on the terms of his loans. Subsequently, Holland entered into a workout agreement with the Bank to extend the loans to give him time to liquidate his assets to pay down the debt. Holland, by and through counsel, negotiated and entered into a workout agreement with the Bank, signed an amended promissory note, and then later signed a second amended promissory note. Holland eventually paid off the Bank.

¶ 5. Holland subsequently filed suit against the Bank, alleging in his complaint negligent misrepresentation, fraudulent misrepresentation, and breach of fiduciary relationship. This Court appointed Senior Status Judge Robert Kenneth Coleman as Special Judge to preside and conduct all proceedings in this case. The Bank filed a motion for summary judgment, which was denied by Judge Coleman by way of an order dated February 24, 2006, and entered on March 3, 2006. The Bank petitioned this Court for an interlocutory appeal, which was denied by a three-justice panel of this Court by order entered on March 29, 2006. Renasant Bank v. Holland, 2006-M-00436 (Miss. June 29, 2006). Thereafter, the Bank filed a Motion for Reconsideration of Denial of Petition for Permission to Appeal Interlocutory Order, which motion for reconsideration was denied by the en banc Court by order entered on June 29, 2006. On October 12, 2006, Judge Coleman recused himself from the proceedings. By order entered on January 8, 2007, this Court appointed Judge L. Joseph Lee, Presiding Judge of the Court of Appeals of Mississippi, as Special Judge to preside and conduct all proceedings in this case. On March 20, 2007, Judge Lee entered an order setting this case for trial on March 3, 2008. The Bank, on July-19, 2007, filed another motion asking the trial court to reconsider the previously-entered order denying summary judgment. Holland objected to the Bank’s motion for reconsideration, asserting: (1) the case presented genuine issues of material fact; (2) the Bank’s motion was untimely filed pursuant to Mississippi Rule of Civil Procedure 59(e); and (3) a successor judge was precluded from overruling a prior order entered by a predecessor judge.

¶ 6. Judge Lee relied on Mauck v. Columbus Hotel Co., 741 So.2d 259 (Miss. 1999), as the basis for his reconsideration of Judge Coleman’s previous denial of the Bank’s motion for summary judgment insomuch as Maude stood for the premise that a denial of summary judgment is not a final judgment on the merits, nor is it binding upon successor courts. Maude, 741 So.2d at 268. The trial judge further ruled that Holland had no basis for relief under the law given that the promise to lend money in the future is not a past or present fact and thus “not such a representation as will support recovery under a theory of negligent misrepresentation” (quoting Bank of Shaw v. Posey, 573 So.2d 1355, 1360 (Miss.1990)). As to Holland’s claim that the Bank’s loan officer, William Jeffreys, promised him money beyond the terms of Holland’s written contract with the Bank, the trial court found that Holland’s claim failed under Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991), because written contracts cannot be altered by prior oral agreements and because any parol evidence submitted to vary the written contract terms is inadmissible. The trial court further cited Austin Development Co. v. Bank of Meridian, 569 So.2d 1209 (Miss.1990) in support of the Bank’s argument that Holland had waived any cause of action against the Bank by executing the workout agreements and amendments to his promissory notes. Additionally, the trial court noted that Holland was unable to produce any evidence of damages to his business which could be attributed to the Bank’s actions.

¶ 7. In its opinion, the trial court did not specifically address the claim of breach of fiduciary duty relating to the failed escrow agreement.

DISCUSSION

¶ 8. Holland presents to this Court five issues for our review: (1) whether the trial court erred in granting the Bank’s motion for summary judgment; (2) whether the trial court erred in ruling that Holland had waived his claims by signing renewal notes; (3) whether the successor trial judge erred in granting the Bank’s motion for reconsideration of a predecessor judge’s previous order denying summary judgment; (4) whether the Bank waived the claims in its motion for reconsideration; and (5) whether the trial court erred in granting summary judgment because other genuine issues of material fact were present and should have been resolved by a jury. Today’s discussion combines Holland’s first assignment of error with his fifth assignment of error, since the issue of damages discussed therein relates back to the elements of both fraudulent and negligent misrepresentation.

I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE BANK’S MOTION FOR SUMMARY JUDGMENT.

¶ 9. In reviewing a trial court’s decision to grant summary judgment, this Court uses a de novo standard of review. Franklin County Mem’l Hosp. v. Miss. Farm Bureau Mut. Ins. Co., 975 So.2d 872, 874 (Miss.2008) (citing Callicutt v. Prof'l Servs. of Potts Camp, Inc., 974 So.2d 216, 219 (Miss.2007)). The evidence must be viewed in the light most favorable to the non-moving party and if, in this view, the moving party is entitled to a judgment as a matter of law, then summary judgment should be granted in his favor. Otherwise, the motion should be denied. Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995) (citing Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983)).

¶ 10. Mississippi Rule of Civil Procedure 56(e) states in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

A fact is material if it “tends to resolve any of the issues properly raised by the parties.” Simpson v. Boyd, 880 So.2d 1047, 1050 (Miss.2004) (quoting Palmer, 656 So.2d at 794). Even where the trial court finds that there is nothing before it that indicates a genuine dispute of material fact and finds that the movant is otherwise entitled to summary judgment, the trial court may “nevertheless be justified in denying summary judgment when, in its view, a full exposition of the facts may result in a triable issue or is warranted in the interest of justice.” Great Southern Nat’l Bank v. Minter, 590 So.2d 129, 135 (Miss.1991) (quoting Brown v. McQuinn, 501 So.2d 1093, 1095 (Miss.1986)).

¶ 11. Holland contends he informed Jeffreys that, in the event cotton prices dropped below eighty cents a pound, he would need an additional $200,000 (for a total of a $700,000) line of credit, for the purpose of covering margin calls in Commodities trading. He further claims that Jeffreys orally promised to extend the line of credit an additional $200,000 to cover margin calls. Holland maintains that when cotton prices did drop, his business suffered losses due to the Bank’s negligent and fraudulent misrepresentations regarding his line of credit. On the other hand, the Bank maintains that Holland asked for an extended line of credit in the amount of $100,000 for the purpose of covering margin calls, which the Bank denied due to Holland not being able to produce more collateral. The Bank further contends that Jeffreys did not have the authority to either grant or deny a $200,000 extended line of credit and that such action had to be presented to the Bank board for consideration. Additionally, the Bank contends that Holland knew or should reasonably have known that Jeffreys lacked this authority. Furthermore, the Bank contends that Holland cannot recover based on future promises for an extended line of credit, nor can any oral agreement alter the four corners of the written contract under the parol evidence rule.

¶ 12. The trial court ruled that Holland’s claim of negligent misrepresentation failed because a promise to lend money is not a past or present existing fact but a “promise of future conduct” and as such is “not such a representation as will suppoi’t recovery under a theory of negligent misrepresentation.” Bank of Shaw v. Posey, 573 So.2d 1355, 1360 (Miss. 1990); see also Moran v. Fairley, 919 So.2d 969 (Miss.Ct.App.2005). Although the trial court did not specifically address the claim of fraudulent misrepresentation, the rule is the same. In cases of fraud, relief cannot be based on future promises, “except in some cases when a contractual promise is made with the present undisclosed intention of not performing it.” Bank of Shaw, 573 So.2d at 1360. Holland cites Kidd v. Kidd, 210 Miss. 465, 49 So.2d 824, 827 (1951), for the same premise in support of his argument that Jeffreys promised him the extended line of credit with the undisclosed intent not to perform.

¶ 13. In order to recover under a theory of fraudulent misrepresentation, a plaintiff must prove, by clear and convincing evidence, the following elements:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.

Bank of Shaw v. Posey, 573 So.2d 1355, 1362 (Miss.1990) (citing Ezell v. Robbins, 533 So.2d 457 (Miss.1988); Martin v. Winfield, 455 So.2d 762, 764 (Miss.1984); Franklin v. Lovitt Equip. Co., Inc., 420 So.2d 1370, 1373 (Miss.1982)). Even if the facts as espoused by Holland were accepted as true, the record reveals that Holland is unable to make a clear and convincing showing that Jeffreys was aware that there would be no extended line of credit, yet promised Holland the $200,000. As to the alleged misrepresentation, Holland’s contention that Jeffreys promised him the $200,000 is flatly denied by Jeffreys and the Bank. Holland admits that there was never an actual agreement to extend the line of credit by $200,000. He states that he told Jeffreys he might need the money at a future date based on the cotton market. Furthermore, Holland would have to prove that he had a right to rely on such a falsehood. However, Holland should have reasonably known that Jeffreys lacked authority to lend that amount of money and that any loan proposals would have to be brought before the Bank’s board.

¶ 14. Absent a showing of fraud, the trial court was eminently correct in finding that the written loan agreement could not be altered by prior oral agreements. See Godfrey, Bassett, & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss.1991); see also Franklin v. Lovitt Equipment Co., 420 So.2d 1370, 1372 (Miss.1982). Furthermore, this Court has held: “[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract.” Stephens v. Equitable Life Assurance Soc’y of the United States, 850 So.2d 78, 82 (Miss.2003) (quoting Godfrey, 584 So.2d at 1257) (citations omitted). The loan agreement provided for a $500,000 line of credit, and the trial court did not err in finding that any prior oral agreement that attempts to alter this written agreement is inadmissible.

¶ 15. In the alternative, Holland argues that, if not fraudulent, then Jeffreys’s misrepresentation was negligent. This Court has distinguished fraudulent representation and negligent representation:

The basis for damages resulting from negligent misrepresentation is the lack of care; the basis for damages resulting from fraud is the want of honesty. See Restatement of the Latv of ToHs (Second) sections 549 and 552 (1977). The lack of care in negligent misrepresentation and the want of honesty in fraudulent misrepresentation in business transactions give rise to distinct causes of action, the one in tort, the other in fraud.

Bank of Shaw, 573 So.2d at 1360 (quoting First Money, Inc. v. Frisby, 369 So.2d 746, 750 (Miss.1979)). In order to establish negligent misrepresentation, the following elements must be proven:

(1) a misrepresentation or omission of a fact; (2) that the representation or omission is material or significant; (3) that the person/entity charged with the negligence failed to exercise that degree of diligence and expertise the public is entitled to expect of such persons/entities; (4) that the plaintiff reasonably relied upon the misrepresentation or omission; and (5) that the plaintiff suffered damages as a direct and proximate result of such reasonable reliance. Horace Mann Life Ins. Co. v. Nunaley, 960 So.2d 455, 461 (Miss.2007) (citing Skrmetta v. Bayview Yacht Club, Inc., 806 So.2d 1120, 1124 (Miss.2002)).

Hazlehurst Lumber Co. v. Miss. Forestry Comm’n, 983 So.2d 309, 313 (Miss.2008). The aforementioned elements must be proven by a preponderance of the evidence. Bank of Shaiv, 573 So.2d at 1360. As was the case with the fraudulent-misrepresentation allegation, Holland was unable to show that he reasonably could have relied on any assertions by Jeffreys that an additional $200,000 line of credit would be forthcoming, given that Jeffreys lacked actual and apparent authority to approve a loan agreement of such financial magnitude.

¶ 16. On the issue of damages, the trial court held that Holland failed to produce documentation in support of his claim that the Bank’s refusal to grant his loan resulted in losses to his cotton and farming business. Holland argues that the testimony of his accountant would establish that the Bank’s alleged misappropriation of the $237,000 in proceeds from the Lafayette County land sale caused him to suffer severe monetary damages. Holland further argues that causal connection is a question of fact to be determined by a jury. See e.g., Glover v. Jackson State Univ., 968 So.2d 1267, 1277 (Miss.2007). Causation and damages are but two elements of Holland’s claims. As discussed previously, Holland has failed to establish reasonable reliance on any assertions by Bank employee William Jeffreys. Therefore, the trial court did not err in finding as a matter of law that Holland was not entitled to recovery of monetary damages.

¶ 17. As to the claim of breach of fiduciary duty, Holland fails to show that there was an escrow agreement that would impose a fiduciary duty on the Bank or its agent. This Court has stated the following regarding fiduciary relationships:

Although every contractual agreement does not give rise to a fiduciary relationship, in Mississippi such a relationship may exist under the following circumstances:
(1) the activities of the parties go beyond their operating on their own behalf, and the activities [are] for the benefit of both; (2) where the parties have a common interest and profit from the activities of the other; (3) where the parties repose trust in one another; and (4) where one party has dominion or control over the other.

Robley v. Blue Cross/Blue Shield, 935 So.2d 990, 995 (Miss.2006) (citing Univ. Nursing Assocs., PLLC v. Phillips, 842 So.2d 1270, 1274 (Miss.2003); Carter Equip. Co. v. John Deere Indus. Equip. Co., 681 F.2d 386, 391 (5th Cir.1982)). The Bank argues that this escrow agreement was merely a proposed agreement that the Bank rejected on the basis that Holland could not produce more collateral. This Court is unable to find from the record before us any of the requisite elements for a fiduciary relationship where Holland has failed to produce evidence that the agreement existed. It is undisputed that Holland sold property that was the Bank’s collateral, and that the Bank offset Holland’s debt owed to them with the sales proceeds. Under the holding in Wise v. Valley Bank, 861 So.2d 1029 (Miss.2003), unless there was an agreement to the contrary, the relationship between Holland and the Bank was one of debtor/creditor. As to the duty owed by banks, this Court held in Wise:

“The relationship between a bank and a depositor, without an agreement to the contrary, is simply one of debtor and creditor, and a deposit is not, ordinarily, a trust fund.” Deposit Guar. Bank & Trust Co. v. Merchants’ Bank & Trust Co., 171 Miss. 553, 158 So. 136, 137 (1934) (citing Moreland v. People’s Bank of Waynesboro, 114 Miss. 203, 74 So. 828 (1917)). Furthermore, we have found that the relationship between a bank and its depositor is generally not a fiduciary one. Merchants & Planters Bank of Raymond v. Williamson, 691 So.2d 398, 403 (Miss.1997).

Wise, 861 So.2d at 1033. Logically, “[t]he existence of a fiduciary duty must be established before a breach of that duty can arise.” Merchants & Planters Bank v. Williamson, 691 So.2d 398, 403 (Miss.1997) (citing Lowery v. Guar. Bank and Trust Co., 592 So.2d 79, 83 (Miss.1991)).

¶ 18. Assuming arguendo that Holland could establish a prime facie case of fraudulent or negligent misrepresentation or breach of fiduciary duty, those claims would be deemed waived based on Holland’s signing the renewal notes and participating in the workout agreement with the Bank, as discussed infra in Holland’s second assignment of error.

¶ 19. For the reasons discussed, we find these combined assignments of error to be without merit.

II. WHETHER THE TRIAL COURT ERRED IN RULING THAT HOLLAND HAD WAIVED HIS CLAIM BY VIRTUE OF SIGNING RENEWAL NOTES.

¶ 20. Holland argues that the workout agreement pertained to other loans and did not relate to the Bank’s alleged misappropriation of the $237,000 from the Lafayette County land sale. Therefore, according to Holland, the trial court erred in granting summary judgment based on its view that Holland had waived his claims by participating in the workout agreement, because only a jury could make a factual finding as to the agreement’s terms. The Bank argues that all possible defenses and claims relating to the notes and otherwise available to Holland were waived at the time Holland renewed the promissory notes and signed the workout agreement.

¶ 21. The trial court cited Austin Development Co., Inc. v. Bank of Meridian, 569 So.2d 1209 (Miss.1990) in support of its granting the Bank’s motion for summary judgment on this issue. In Austin, Austin D. Check was indebted to Bank of Meridian for approximately $400,000. Id. at 1210. Check requested a $50,000 loan from the Bank to finance a real estate development that was to be financed by Ronald Evans. The Bank requested more collateral, and Evans provided Check with a letter of credit in the amount of $50,000 drawn on Valley View Bank. Id. Check assigned the letter of credit to the Bank so that it could be collected on should the loan ever be in default. Id. Eventually Check’s loan amount increased to $110,000, as did the letter of credit provided by Evans. When the loan matured on September 3, 1985, it went unpaid. The letter of credit was set to expire September 9,1985; however, Bank of Meridian failed to collect on the letter of credit until September 12, 1985. Id. Valley View Bank refused to pay on the expired letter of credit, and Bank of Meridian threatened collection unless Check renewed the note in the principal amount of $110,000. Id. When the loan was again in default, the Bank of Meridian brought suit against Check and his company. Bank of Meridian was granted summary judgment by the trial court on the basis that the defendants had legally waived any defense to the notes and any other possible causes of action available at the time the renewal notes were executed and the interest was paid. Id. at 1211. Summary judgment in the Austin ease was affirmed by this Court based on the rule promulgated in Citizens National Bank v. Wattman, 344 So.2d 725 (Miss. 1977), Brickell v. First National Bank, 373 So.2d 1013 (Miss.1979), and Turner v. Wakefield, 481 So.2d 846 (Miss.1985), that renewal of the note constituted a waiver of all claims against the bank, including the claim of negligent impairment allegedly caused by the Bank of Meridian’s loss of the $110,000 collateral entrusted to it by the defendants. Id. at 1212. In Austin, the Court also cited Gay v. First National Bank, 172 Miss. 681, 160 So. 904 (1935), which stood for the premise that “[wjhere a party has full knowledge of all defenses to a note and executes a new note payable at a future date, he then waives all his defenses and becomes obligated to pay the new note.” Id. (quoting Gay, 172 Miss, at 686,160 So. at 905).

¶ 22. Under the holdings in Austin and its progeny, assuming arguendo that the true facts are as asserted by Holland, the trial court did not err in finding that Holland had waived his claims by entering into the workout agreement and by signing the renewal notes. The language in Austin is clear that by signing renewal notes, the defendants in that case had waived not only defenses to the notes but “any possible causes of action otherwise available to the defendants” against the Bank, including the negligence claim. Austin, 569 So.2d at 1211. Austin is applicable to today’s case insomuch as all possible claims that Holland could have had against the Bank, including the negligence claim, were waived by the workout agreement and renewal notes.

¶ 23. We thus find, for the reasons stated, that this assignment of error has no merit.

III. WHETHER THE SUCCESSOR TRIAL JUDGE ERRED IN GRANTING THE BANK’S MOTION FOR RECONSIDERATION OF AN EARLIER JUDGE’S ORDER DENYING SUMMARY JUDGMENT.

¶ 24. Holland contends that the trial court erred in granting the Bank’s Motion for Reconsideration of Order Denying Summary Judgment, given that Judge Coleman already had entered an order denying summary judgment and given that Judge Lee already had set the date for trial. In support of this argument, Holland points to Mississippi Rule of Civil Procedure 60(b)(6), which states in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representation from a final judgment, order, or proceedings for the following reasons:

(6) any other reason justifying relief from the judgment.

Holland claims that since no other subpar-agraph of Rule 60(b) applies (i.e., fraud, accident or mistake, etc.) and no new evidence was put forth by the Bank that would justify relief, the original order denying summary judgment entered by Judge Coleman should stand.

¶ 25. The Bank contends that Judge Lee was not bound by Judge Coleman’s previous denial of its motion for summary judgment. This issue is laid to rest based on our prior case law. “An order denying summary judgment is neither final nor binding upon the court or successor courts.” Mauck v. Columbus Hotel Co., 741 So.2d 259, 268 (Miss.1999) (citing Great So. Nat’l Bank v. Minter, 590 So.2d 129, 133, 135 (Miss.1991)). Moreover, “[a]t the point of final decision on the merits [the trial judge] was duty bound to apply the law to the record then before the court, regai’dless of any prior ruling denying summary judgment.” Id. at 268-69. In other words, the law-of-the-case doctrine, wherein a successor judge is precluded from correcting errors of law made by the predecessor judge or from revising the predecessor judge’s order or judgment on its merits, has no applicability where the order or judgment is not of a final character. Mauck, 741 So.2d at 268. This is true even where there has been an intervening denial of a petition for permission to file an interlocutory appeal, given that this Court’s denial of an interlocutory appeal is not a final judgment on the merits. Id.

¶ 26. Thus, Holland’s reliance on Mississippi Rule of Civil Procedure 60(b)(6) is misplaced in that the rule applies only where the judgment or order is final. In accordance with Mauck, an order denying a motion for summary judgment is not a final judgment. For the reasons stated, Judge Lee was acting within his authority as trial judge in considering and granting the Bank’s Motion for Reconsideration of Order Denying Summary Judgment. Accordingly, this assignment of error is without merit.

IV. WHETHER THE BANK PREVIOUSLY HAD WAIVED THE CLAIMS PRESENTED IN ITS MOTION FOR RECONSIDERATION.

¶ 27. Finally, Holland argues that it was error for Judge Lee to take up the Bank’s motion for reconsideration because the motion was filed seventeen months after the entry of Judge Coleman’s order denying the Bank’s previous motion and eleven months after this Court denied the Bank’s interlocutory appeal. Furthermore, Holland contends that the Bank was dilatory in filing its motion and that such delay should be held to constitute a waiver of claims by the Bank (citing East Mississippi State Hospital v. Adams, 947 So.2d 887, 891 (Miss.2007) (failure to timely pursue affirmative defense, together with active participation in the litigation, served as a waiver of the affirmative defense)). See also MS Credit Ctr., Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006) (“absent extreme and unusual eircumstances-an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.”) (n. 9 omitted).

¶ 28. The Bank gives the following timeline in support of its assertion that it timely filed a motion for reconsideration. On January 8, 2007, an order was entered replacing Judge Coleman with Judge Lee. Renasant first discussed the motion for reconsideration via telephone conference with Judge Lee and Holland in January 2007. On January 23, 2007, a completed, bound set of all prior pleadings was prepared for Judge Lee for the purpose of reconsideration of the motion for summary judgment. Renasant caused two fact depositions to be conducted on April 26 and 27, 2007, at its expense. In March 2007, there was a second telephone conference among the parties and the trial judge, with an order setting the case for trial immediately following. The Bank’s Motion for Reconsideration of Order Denying Summary Judgment was filed on July 19, 2007. MS Credit Center, Inc. v. Horton, 926 So.2d 167, 181 (Miss.2006), also stands for the premise that whether a motion is timely is to be a discretionary determination and is left to the trial court on “a case by case basis” considering the facts and circumstances. Thus, Judge Lee was well within his authority to consider and grant the motion. This Court has held that only “[t]he commencement of trial closes the season for granting motions for summary judgment.” Hurst v. Sw. Miss. Legal Servs. Corp., 610 So.2d 374, 384 (Miss. 1992) (overruled on other grounds). Even in a case where trial was a few weeks away, this Court upheld a trial court’s grant of summary judgment as being within the trial court’s discretion where the threshold under Rule 56(c) was satisfied. Noxubee County Sch. Dist. v. United Nat’l Ins. Co., 883 So.2d 1159, 1163 (Miss.2004). Accordingly, based on our discussion of this issue, we find this issue to be without merit.

CONCLUSION

¶ 29. For the aforementioned reasons, the grant of summary judgment in favor of Renasant Bank f/k/a Peoples Bank & Trust Company and against Danny Holland by the Circuit Court for the Second Judicial District of Panola County is affirmed.

¶ 30. AFFIRMED.

SMITH, C.J., WALLER, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, P.J., NOT PARTICIPATING.

      . Sometimes spelled "Jeffries" in the record.

      . See 26 U.S.C.A. § 1031 (Supp.2008).

      . The parol evidence rule “seeks to preserve [the] integrity of written agreements by refusing to permit contracting parties to attempt to alter [the] import of their contract through [the] use of contemporaneous oral declarations.” Black's Law Dictionary 1006 (5th ed.1979). See also HeartSouth, PLLC v. Boyd, 865 So.2d 1095, 1107-08 (Miss.2003).