author: COX, J.

text:
    SUCCESSION OF Fred Langford HOUSTON
    No. 52,181-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    PETTIETTE, ARMAND, DUNKELMAN, WOODLEY, BYRD & CROMWELL, L.L.P. By: Lawrence W. Pettiette, Jr., Joseph S. Woodley, Shreveport, Counsel for Appellant
    WIENER, WEISS & MADISON, By: John M. Frazier, R. Joseph Naus, Seth M. Moyers, Shreveport, Charles E. Tabor, Marjorie L. Frazier, Counsel for Appellee
    Before MOORE, PITMAN, and COX, JJ.
   COX, J.

This appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. A jury found Hanh Williams ("Ms. Williams") breached her fiduciary duty as trustee of the Fred L. Houston Inter Vivos Trust ("Trust") and executrix of Fred Houston's ("Mr. Houston") estate ("Estate"). The jury charged Ms. Williams with $1.1 million in damages for breach of duty to the Trust and determined she was liable to the Estate for $460,605. Ms. Williams has appealed the jury's verdict. For the following reasons, we affirm.

FACTS

Mr. Houston was the widower of Eleanor Houston. Eleanor was the only wife of Mr. Houston, and he had no children. Eleanor Houston died in 2002, leaving a life insurance policy payable to Mr. Houston. Mr. Houston took the life insurance policy to Jefferson Pilot in Shreveport, Louisiana. Ms. Williams assisted Mr. Houston in collecting the proceeds of the life insurance policy. Over time, Ms. Williams became involved in all of Mr. Houston's financial affairs, including managing oil and gas interests.

Mr. Houston gave Ms. Williams his power of attorney on September 2, 2003. On August 3, 2005, Mr. Houston formed the Trust and designated Ms. Williams as the trustee. Most of Mr. Houston's assets were placed into the Trust. The Trust would terminate if either Mr. Houston or Ms. Williams died. Under the terms of the Trust, Ms. Williams was to be compensated a "base compensation of 50% of all revenue received by the Trust from Samson Contour Energy E & P, LLC, or its successor in interest, as payment or partial payment of that working interest[.]"

Mr. Houston had an oil, gas, and mineral lease with Tenneco Oil Co. in DeSoto Parish, Louisiana, which was placed into the Trust. On April 21, 2006, George Olsen, Jr. ("Mr. Olsen"), offered to buy the DeSoto Parish mineral lease for $32,000. Mr. Houston transferred the mineral lease to Mr. Olsen for $35,000. Mr. Olsen stated he and Ms. Williams were former business associates and partners. Mr. Olsen also stated that he initially agreed to compensate Ms. Williams with a "finder's fee" or "commission" of 10 percent of the consideration paid for the lease, but ultimately agreed to transfer 50 percent of the mineral lease to Ms. Williams for $14,000. Mr. Olsen stated Ms. Williams had concerns that the documents of the transaction would show acts of self-dealing by her, as the trustee.

Ms. Williams stated that she did not agree with the transfer of the mineral lease, and she negotiated with Mr. Olsen to try to recover the lease interest for Mr. Houston. She stated that after buying the 50 percent interest from Mr. Olsen, she told Mr. Houston, and he did not want the interest back.

On January 31, 2006, Mr. Houston executed a will, which provided for the following:

(1) The sum of Five Thousand and No/100 ($5,000.00) Dollars to the town of Plain Dealing, Louisiana Cemetery Fund in memory of Leonard Collin Holland Houston, Faye Davis Houston and Gloria Houston Harris.
(2) The sum of Five Thousand and No/100 ($5,000.00) Dollars to the Northwest Louisiana Humane Society in care of Yvonne Mullinax, P.O. Box 52442, Shreveport, Louisiana 71135.
(3) One Princess style ring purchased in Thailand formerly belonging to Eleanor Holly Houston to go to Gloria Gail Breedlove.
(4) The sum of Ten Thousand and No/100 ($10,000.00) Dollars to the First United Methodist Church of Coushatta, Louisiana.
(5) One .22 Caliber semi automatic Ruger rifle to go to Grant M. Williams.
(6) A Collection of butterfly pens belonging to Eleanor Houston to go to Rachel L. Williams.
(7) The remainder of my estate is to be sold with the proceeds to go to the benefit of the Louisiana State University of Baton Rouge, Louisiana, School of Veterinary Medicine, for continued oncological research in memory of Amanda and Callie, beloved pets of Fred and Eleanor Houston. The independent Executor named hereinafter has the authority to accomplish this bequest through the establishment of a testamentary trust or a foundation in order to create a means for accomplishing the intent of this will. I do hereby appoint Hanh T. Williams as the independent Executor of my estate, with full seizin and without bond and fix her compensation for liquidating and administering the provisions of this will at 20% of the value of my estate less the seven (7) specific bequests indicated above.

Mr. Houston passed away in Caddo Parish, Louisiana, on September 23, 2008. Ms. Williams petitioned for probate on September 30, 2008, and the first six legacies under the will were distributed. LSU was made aware of its legacy through Lewis DeMoss, Mr. Olsen, and an anonymous letter.

LSU filed a motion seeking an interim accounting on July 1, 2009. On September 23, 2009, Ms. Williams filed the first accounting of the Estate, which included September 23, 2008, through September 15, 2009. On September 7, 2010, by agreement between the parties and trial court, Armand Roos ("Mr. Roos") was confirmed as Dative Independent Executor of the succession. Mr. Roos believed assets were missing from the Estate accounting provided by Ms. Williams. Mr. Roos also believed Ms. Williams had improperly distributed estate assets to herself. Mr. Roos filed suit on October 31, 2011, against Ms. Williams asserting numerous causes of action for breach of fiduciary duty in her capacities as trustee and executrix. Several motions in limine were filed by both parties. A jury trial began on October 31, 2016.

During her time working with Mr. Houston, Ms. Williams kept a log of the work she performed for him. The following log entries were presented to the jury, showing hours billed by Ms. Williams:

12/20/2006, Christmas lunch with Fred, gifts, 2 hours .
12/25/2006, Christmas Day, Fred came to Christmas dinner with my family. Everyone was here. He seemed to enjoy talking to everyone. Got his mail, talked a little about Samson. 5 hours.
5/31/2006, Fred's Birthday, call him in the A.M. Melissa called back about Fred not doing well, need to go to doctor, called doctor's office. His next appointment on the 20th of June. Having problems with Melissa. 2 hours.

In addition to these log entries, the jury was presented with evidence that Ms. Williams charged the Estate for flowers for Mr. Houston's funeral, visiting Mr. Houston's grave on his birthday, and numerous alcoholic drinks and meals at restaurants. Ms. Williams explained to the jury that she charged the meals and drinks because it was cheaper to buy those when meeting with the attorney versus the hourly rate she would have been charged by the attorney. She stated that she met with the attorney in regard to business with Mr. Houston. As to the other charges and entries into the log, Ms. Williams explained that Mr. Houston preferred to reimburse her for expenses and he wanted her to keep up with the time. She stated these were things Mr. Houston insisted on paying for while he was alive.

The jury also heard testimony from the accountants of both parties, explaining how and why transactions were attributed to Ms. Williams. Two daughters, whose father is a current client of Ms. Williams, also testified before the jury. The first daughter, Ms. Rhodes, testified that Ms. Williams was in attendance at all family gatherings, her father refused to talk to her without Ms. Williams present, she was no longer in her father's will, and she had concerns about Ms. Williams. The second daughter, Ms. Crosslin, stated Ms. Rhodes never sees her father and does not have a relationship with him. Ms. Crosslin also testified that she takes care of her father, trusts Ms. Williams with both her father's and her own finances, and believes the present suit against Ms. Williams was brought about by unhappy family members of Mr. Houston.

The jury trial lasted 2½ weeks. After deliberating approximately 50 minutes, the jury rendered the present verdict against Ms. Williams by a vote of 9-3, awarding the damages listed above. Ms. Williams filed a motion for judgment notwithstanding the verdict or in the alternative, motion for a new trial, which were both denied. Ms. Williams then filed an appeal with this court. Ms. Williams requests this court remand the case for a new trial.

DISCUSSION

Mr. Roos's testimony and actions

In her first assignment of error, Ms. Williams argues the trial court committed error in allowing Mr. Roos to testify as the plaintiff's primary witness because he was also an attorney of record. After being appointed as the Independent Executor, Mr. Roos, as a licensed attorney, elected to represent himself. He also enrolled the representation of other attorneys. Ms. Williams argues Mr. Roos shielded himself at his deposition by using attorney-client privilege. She argues that Mr. Roos's protected deposition, coupled with his ability to testify, deprived Ms. Williams of a fair trial.

Although Louisiana statutory law does not directly establish a right of self-representation in civil cases, Louisiana jurisprudence firmly establishes this right. Dixon v. Shuford , 28,138 (La. App. 2 Cir. 4/3/96), 671 So.2d 1213. The right of self-representation is provided for statutorily under federal law. 28 U.S.C. § 1654.

Rule 3.7 of the Louisiana Rules of Professional Conduct prohibits a lawyer from acting as an advocate in a trial in which the lawyer is likely to be called as a necessary witness except under certain circumstances. It provides in pertinent part:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Rule 3.7 does not address the situation where the lawyer is representing himself. However, the Louisiana Supreme Court has agreed with other jurisdictions that Rule 3.7 does not apply to the situation where the lawyer is representing himself. Farrington v. Law Firm of Sessions, Fishman , 96-1486 (La. 2/25/97), 687 So.2d 997.

In the current case, Mr. Roos was appointed as Independent Dative Executor, and it was in this capacity that he brought suit against Ms. Williams. Mr. Roos is an attorney and elected to enroll himself as counsel in the case. The trial court allowed Mr. Roos to testify about his own actions and the allegations he made against Ms. Williams. Mr. Roos was not permitted to give an opinion because he was not qualified as an expert in the case.

Ms. Williams also argues Mr. Roos acted inappropriately by shaking hands with the trial judge and witnesses. She states that while in the presence of the jury, Mr. Roos shook hands with the judge after testifying. She also claims Mr. Roos shook hands with and clasped the shoulders of two of Ms. Williams's witnesses, attorneys Jerry Jones and Curtis Shelton. Ms. Williams moved for a mistrial, which was denied.

Mr. Roos argues the encounters with Jones and Shelton occurred in the hallway outside the courtroom. There are clear, glass doors leading into the hallway from the courtroom. Mr. Roos argues there is no evidence that the jury saw the handshakes through the glass. When the issue was raised at trial, the trial judge stated that he did not see the encounters in the hallway.

Mr. Roos concedes that he briefly shook hands with the trial judge when leaving the witness stand. When the issue was raised at trial, the trial judge stated that the handshake occurred while the jury was leaving the courtroom. He stated that only two or three members of the jury were still in the courtroom and that there was no evidence those jurors actually saw the encounter.

Because a mistrial is a drastic remedy, it should be granted only when the error results in substantial prejudice sufficient to deprive the defendant of any reasonable expectation of a fair trial. The decision to grant or deny a mistrial for prejudicial conduct rests within the trial court's discretion and will not be disturbed absent clear abuse of discretion. State v. Lawrence , 40,278 (La. App. 2 Cir. 3/15/06), 925 So.2d 727.

The record shows that the trial court did not abuse its discretion in denying Ms. Williams's motion for mistrial based on Mr. Roos's actions. The trial judge stated that based on the layout of the courtroom, the timing of the handshakes, and the fact that he did not see Mr. Roos shaking hands with witnesses through the glass door, that Ms. Williams's trial was not substantially prejudiced. Based on the complete trial record, we do not find there was a clear abuse of discretion.

Mr. Roos was permitted not only to represent himself, but also to testify about his own actions. The trial court did not abuse its discretion in denying Ms. Williams's motion for mistrial. This assignment of error lacks merit.

Significant interruptions

Ms. Williams argues that significant interruptions of the jury trial resulted in unfair prejudice. She states the start-stop nature of the trial, combined with weekends, was prejudicial to her defense.

The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done. La. C.C.P. art. 1631. The trial court has great discretion in directing the manner in which proceedings are conducted, and only upon a showing of a gross abuse of that discretion will the appellate court intervene. Youngblood v. Lee , 40,314 (La. App. 2 Cir. 11/2/05), 914 So.2d 1186, writ denied , 2006-0088 (La. 4/17/06), 926 So.2d 522.

Ms. Williams cites State v. Bowers, 42,390 (La. App. 2 Cir. 9/19/07), 965 So.2d 959, writ denied , 2007-2055 (La. 3/14/08), 977 So.2d 929, arguing it is an analogous factual circumstance in a criminal bench trial. We do not find Bowers to be in support of this argument.

The Bowers trial began on September 30, 2005, and was continued on November 14 and December 19, 2005, and January 30, and February 6, 24 and 28, 2006. The main explanation in the record for the widely spaced trial dates was that the judge was unavailable for other dates. In Bowers , this court stated, "While this procedure seems unusual, it does not strike us as an abuse of discretion. Notably, this was a bench trial, so inconvenience to the jury was not an issue, and any disruption in the flow of the evidence would seem more likely to prejudice the state than the defense." Before finding this assignment of error lacked merit, this court also noted that trial counsel did not object to the progress of the trial.

In the instant case, Ms. Williams raised this issue of interruptions before the trial and asked for a continuance. The continuance was denied. The following is a list of pertinent dates:

• 10/31/2011: Original petition for breach of duty (Mr. Roos subsequently filed two amended petitions)
• 5/8/2014: Answer to petition
• 5/13/2014: Order for trial by jury
• 10/7/2014: Jury trial set for 9/8/2015
• 8/21/2015: Motion to continue trial filed by Mr. Roos, stating he has been waiting on production of documents from Ms. Williams since March 2014.
• 8/31/2015: Opposition to continuance • 9/2/2015: Motion to continue trial granted
• 5/12/2016: Jury trial reset for 10/31/2016
• 10/31/2016 (Monday): Jury selected
• 11/1/2016 (Tuesday): All Saints Day (Courthouse Closed)
• 11/2/2016 (Wednesday): Jury trial- Plaintiff's witnesses
• 11/3/2016 (Thursday): Jury trial- Plaintiff's witnesses (Half day of court because of annual memorial services)
• 11/4/2016 (Friday): Jury trial- Plaintiff's witnesses; 1st Defense witness
• 11/7/2016 (Monday): (Clerk Holiday- No court)
• 11/8/2016 (Tuesday): Election Day (Courthouse Closed)
• 11/9/2016 (Wednesday): 11/10/2016 (Thursday): Jury trial-defense witnesses
• 11/11/2016 (Friday): Veterans Day (Courthouse Closed)
• 11/14/2016 (Monday): Jury trial- Defense witness
• 11/15/2016 (Tuesday): Jury trial- closing statements; jury deliberation 12:14 p.m. - 1:05 p.m.

After the jury was selected, the trial took about six days, spanning over two weeks. The reason for the delay was multiple court holidays. The trial judge did not have the option of holding court on holidays. The plaintiff's case was presented first, before the delays. This argument could also be used by the plaintiff because of the delays between the presentation of his case and the conclusion of the trial. Arguably, the delays provided more time to the jury to process the defense's evidence as it was presented. The trial court has great discretion in conducting the proceedings. Based on the record, we find no abuse of that discretion, and this assignment of error lacks merit.

Evidence violations

Ms. Williams argues evidence was improperly allowed, in violation of La. C.E. arts. 402, 403, and 404. Specifically, she argues testimony and evidence from Mr. DeMoss and Ms. Rhodes about her current clients and other lawsuits should not have been allowed. Ms. Williams brought this argument before the trial court in a motion in limine. The trial court held that testimony about other clients and other lawsuits would be admissible only to the extent it showed a pattern. Further, the jury was instructed that Ms. Williams could be excused from liability pursuant to La. R.S. 9:2208 if she acted "honestly and reasonably."

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed absent a clear abuse of that discretion. On appeal, the court must consider whether the complained-of ruling was erroneous and whether the error affected a substantial right of the party affected. If not, a reversal is not warranted. The determination is whether the error, when compared to the entire record, has a substantial effect on the outcome of the case, and it is the complainant's burden to so prove. La. C.E. art. 103 ; Johnson v. Tucker , 51,723 (La. App. 2 Cir. 11/15/17), 243 So.3d 1237, writs denied , 2017-2075, -2073 (La. 2/9/18), 236 So.3d 1262, 1266.

La. C.E. art. 404(B)(1) provides, in pertinent part:

Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident[.]

La. C.E. art. 404 applies to both civil and criminal trials. Generally, evidence of character, a particular character trait, or a prior or subsequent act, is inadmissible to prove that a person acted in conformity therewith on a particular occasion. La. C.E. art. 404(A) and (B) ; Williams v. Bd. of Sup'rs of Univ. of Louisiana Sys. , 48,763 (La. App. 2 Cir. 2/26/14), 135 So.3d 804, writ denied , 2014-0666 (La. 5/2/14), 138 So.3d 1249. However, La. C.E. art. 404(B) provides an exception to this general rule when the prior acts are used to show intent, plan, or the absence of a mistake or accident.

Mr. Roos introduced the testimony of Mr. DeMoss and Ms. Rhodes to show a planned pattern in Ms. Williams's work with her clients and that her actions were not accidental. Mr. DeMoss was hired by Ms. Williams as CPA for the Trust. Mr. DeMoss testified that he started an LLC with Ms. Williams. He stated he was named on the LLC paperwork and she was the silent partner. Mr. DeMoss testified that Ms. Williams helped an 80-year-old widower with his finances. She told Mr. DeMoss that they could buy some of the widower's property for what Mr. DeMoss felt was well undervalued. Mr. DeMoss, Ms. Williams, and the LLC were ultimately sued by the widower and his children for lesion beyond moiety. Mr. DeMoss also said he questioned Ms. Williams's trustee fees and asked if that was the proper amount. He stated that after he questioned her, he was no longer asked to prepare the Trust tax returns.

Mr. DeMoss's testimony was used to show that Ms. Williams helped an elderly widower with his finances, then purchased property from him, and was ultimately involved in a lawsuit over the purchased property. This scenario is similar to the current case because Mr. Houston was also an elderly widower when Ms. Williams began working with him. Ms. Williams helped Mr. Houston with his finances, as well as served as trustee of his Trust, before purchasing a mineral interest, which was initially owned by the Trust.

Ms. Rhodes testified that Ms. Williams began working with her father, Mr. Madden, after his wife died. Ms. Rhodes stated that Ms. Williams became increasingly involved in her father's finances and was a "fixture" in his personal life as well. She testified that Ms. Williams was present at family gatherings, including Christmas and Thanksgiving. She stated that her father transferred his investments over to Ms. Williams. Ms. Rhodes stated that she attempted to discuss with her father the concerns she had regarding Ms. Williams's involvement in his life, but was not able to because her father insisted Ms. Williams be present anytime they spoke. Ms. Rhodes stated it was her understanding that she is no longer a part of his estate.

Ms. Williams was able to rebut the testimony of Ms. Rhodes with Mr. Madden's other daughter, Ms. Crosslin. Ms. Crosslin testified that she trusted Ms. Williams with her father's investments, as well as her own. She stated Ms. Williams had done a good job with their investments and helping to organize care for her father. Ms. Crosslin also stated that it was her understanding that the instant case involved a will and that Mr. Houston "had some family that wasn't happy and all this came about because of that[.]"

Other acts are admissible to prove intent, plan, or lack of mistake. Because Ms. Williams argued she had a father-daughter relationship with Mr. Houston, her intentions in managing his finances was at issue. Both of these witnesses were used to demonstrate a pattern of relationships between Ms. Williams and elderly widowers, of whom she arguably took advantage. Under these circumstances, the trial court did not err in admitting the evidence of Ms. Williams's pattern of relationships and acts regarding elderly widowers. This assignment of error lacks merit.

Restricted testimony

Ms. Williams argues her own testimony was improperly restricted. Mr. Roos's counsel objected when Ms. Williams testified as to what Mr. Houston told her or the reason Mr. Houston took certain actions. Mr. Roos's counsel also objected to Ms. Williams's answers on cross-examination as unresponsive to the question. The following is an example of counsel's objection for a nonresponsive answer:

Q: Ms. Williams, can you show the jury or the Court the receipts for those expenses that you were reimbursing yourself the $30,000?
A: I don't have a receipt. I don't ask Fred to write a receipt when I give him cash, and I'm really not wanting to sit here and talk about his bad habits with prostitutes and substance habit, but you brought that up in the autopsy report. Now, do I want to go and ask him every time I give him cash or receipt, absolutely not.
MR. TABOR: Your Honor --
THE WITNESS: He made it understood this was his money.
THE COURT: Hold on, Ms. Williams. Yes?
MR. TABOR: I haven't asked her about any of this substance abuse and prostitution.
THE WITNESS: You asked me -
THE COURT: Sustained. Hold on. Hold on. Wait a minute.

As stated above, the trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed absent a clear abuse of that discretion. Johnson, supra .

We have thoroughly read the trial transcript and find these objections by plaintiff's counsel were properly sustained as either hearsay under La. C.E. art. 803 or unresponsive to the question asked.

Ms. Williams further argues that because English is not her first language, the interruptions and rulings were unfair, frustrating, and an impediment to her ability to tell the jury what happened. According to Ms. Williams's testimony, she has been in the United States for over 30 years, graduated from Caddo Magnet High School, studied business at LSU in Shreveport, speaks five languages, is a Certified Financial Planner, and obtained the following professional licenses: insurance license, Louisiana Underwriter Training Council Fellow license, Chartered Life Insurance license, and securities licenses. Although English may not be Ms. Williams's first language, she has been successful in obtaining an education and professional licenses in the United States while using the English language. This assignment of error lacks merit.

Jury verdict clearly erroneous

Ms. Williams argues the jury verdict was clearly erroneous based upon the evidence, particularly a finding of gross negligence. She argues that the testimony of her defense witnesses, who had personal knowledge of Mr. Houston and Ms. Williams, should not be trumped by the testimony of the plaintiff's witnesses, who had no personal knowledge of Mr. Houston.

A court of appeal's review of a trial court's or jury's finding of fact is well settled, as detailed by the Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840 (La. 1989) :

It is well settled that a court of appeal may not set aside a trial court's or a jury'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 evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong[.]
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. (citations omitted)

The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. This policy requires an appellate court to presume a jury will not disregard its sworn duty and be improperly motivated, and will render a decision based on the evidence and the totality of the instructions provided by the judge. Adams v. Rhodia, Inc. , 2007-2110 (La. 5/21/08), 983 So.2d 798 ; Goldsby v. Blocker Through Dep't of Transp. & Dev. , 51,584 (La. App. 2 Cir. 9/27/17), 244 So.3d 703.

The jury heard ample testimony from witnesses from both sides regarding Ms. Williams's actions. Ms. Williams presented evidence from two accountants, Tom Chavanne and Larry Porter, each of whom performed work for either the Trust or Estate. The plaintiff offered testimony from Elizabeth Killough, an accountant who performed forensic accounting of the Trust and Estate.

As discussed above, the plaintiff presented testimony from Mr. DeMoss and Ms. Rhodes regarding other clients and a consequential lawsuit. To counter that testimony, Ms. Williams offered testimony herself, as well as testimony from Ms. Crosslin.

Ms. Williams offered testimony herself of the father-daughter relationship she had with Mr. Houston. Jerry Jones, Fred Yost, and Pam Branagan also gave personal accounts of the relationship between Mr. Houston and Ms. Williams. Jerry Jones, the attorney who drafted the Trust, testified at trial:

I was concerned whether Ms. Williams was taking advantage of Mr. Houston or not, so I asked her to leave the room. I spent maybe an hour with him just one on one, and it became very clear to me that he had a very sincere fear that his own destructive habits were going to diminish his income[.] In his words, she's like the daughter I never had[.]

The jury listened to all of these testimonies, some of which were in conflict. The jury had a choice between two permissible views of the evidence. Either Ms. Williams breached her fiduciary duty to the degree of gross negligence, or she did not. The jury chose the view that she breached her duty. The jury is permitted to credit the testimony of Mr. Roos's witnesses over the testimony of Ms. Williams's witnesses. After reviewing the entire record, we conclude it was reasonable for the jury to find that Ms. Williams breached her fiduciary duty to the level of gross negligence.

Misleading testimony

Ms. Williams argues the misleading testimony of Mr. Roos's retained accountant, Ms. Killough, was significant enough to justify a mistrial. Ms. Killough is an accountant who was hired by Mr. Roos to perform forensic accounting of the Trust and Estate. At the trial, Ms. Killough stated that she did not receive Ms. Williams's personal bank account statements, which she stated would have been helpful. Later in the trial, Mr. Roos's counsel introduced Ms. Williams's bank account statement.

Ms. Williams moved for mistrial, arguing the testimony that Ms. Killough was not given the statements and the later production of the statements was prejudicial. The trial court denied the mistrial and stated, "She made a statement that was misrepresentation, that's not a grounds for mistrial because a witness gets on the stand and makes a misrepresentation is not grounds for mistrial[.]"

The court on its own motion, or on the motion of any party, after hearing, may grant a mistrial. La. C.C.P. art. 1631. Because a mistrial results in the discharge of one jury and the impaneling of another to try the case anew, it is a drastic remedy. Burks v. McKean , 559 So.2d 921 (La. App. 2 Cir. 1990), writ denied , 566 So.2d 398 (La. 1990). The trial judge is vested with broad discretion to grant a motion for mistrial where no other remedy would afford relief or where circumstances indicate that justice may not be done if the trial continues. This Court should not disturb the trial court's determination unless there is an abuse of discretion. Denton v. Vidrine , 2006-0141 (La. App. 1 Cir. 12/28/06), 951 So.2d 274, writ denied , 2007-0172 (La. 5/18/07), 957 So.2d 152.

The trial court did not err in refusing Ms. Williams's motion for mistrial. On cross-examination, Ms. Killough stated, "Oh, do you know what, I did see some, some statements that were bank accounts for her, I want to say I did now that I remember, but it was not helpful at all. It didn't change my report. It didn't show any payments to Mr. Houston." Under the circumstances of this case, the trial court's denial of the mistrial was not an abuse of discretion.

Prescription of trust claims

Ms. Williams argues that all claims from the Trust prescribed and should not have been presented to the jury. She claims the breach of fiduciary duty is governed by the two- and three-year peremptive periods set forth in La. R.S. 9:2234.

La. R.S. 9:2234 provides, in pertinent part:

A. An action for damages by a beneficiary against a trustee for any act, omission, or breach of duty shall be brought within two years of the date that the trustee renders, by actual delivery or mail to the beneficiary, ... an accounting for the accounting period in which the alleged act, omission, or breach of duty arising out of the matters disclosed therein occurred. However, such actions shall in all events, even as to actions within two years of disclosure, be filed within three years of the date that the trustee renders an accounting for the accounting period in which the alleged act, omission, or breach of duty occurred.
B. Any action by a beneficiary against a trustee other than those described on Subsection A of this Section is prescribed by two years beginning from the date that the trustee renders his final account to the beneficiary.

The trust accounting is governed by La. R.S. 9:2088, which provides, in pertinent part:

A. A trustee is under a duty to a beneficiary to keep and render clear and accurate accounts of the administration of the trust. If the trust is revocable, the trustee has a duty to account to the settlor only.
B. A trustee shall render to a beneficiary or his legal representative at least once a year a clear and accurate account covering his administration for the preceding year... Each annual account shall show in detail all receipts and disbursements of cash and all receipts and deliveries of other trust property during the year, and shall set forth a list of all items of trust property at the end of the year.
* * *
D. A written approval by a beneficiary or his legal representative of an account rendered by a trustee shall be conclusive against the beneficiary with respect to all matters disclosed in the account[.]

The two- and three-year periods of limitation provided for in La. R.S. 9:2234 are peremptive periods that are triggered by an accounting rendered and delivered by the trustee. The burden is on the trustee to show when he made an accounting sufficient to trigger the commencement of the time periods. Cook v. Cook , 2004-0422 (La. App. 4 Cir. 11/10/04), 888 So.2d 1061.

Ms. Williams and Mr. Chavanne, the Trust's accountant, both testified that they met with Mr. Houston to discuss the Trust's transactions and bank statements. Ms. Williams also stated that tax returns were filed at the end of every year. Neither Ms. Williams nor Mr. Chavanne testified that Mr. Houston was given a copy of the accounting, as required by La. R.S. 9:2088. When the issue of prescription was brought before the trial court, the trial court stated prescription had not begun to run because the requirement of actual delivery or delivery by mail means it has to be in writing. The trial court further stated, "[I] read numerous cases dealing with this and what I've heard does not amount to an accounting. Sitting down and going over his accounts, periodically going over expenditures and stuff that I heard, that doesn't amount to an accounting to me under the statute. It doesn't."

La. R.S. 9:2088 requires an annual accounting be personally given or mailed to the beneficiary of the trust. The annual accounting is required to show in detail all cash receipts and disbursements, all receipts and deliveries of trust property, and must set forth a list of all items of trust property. This accounting must be delivered to the beneficiary, not simply discussed. The testimony of financial discussions and going over bank statements with Mr. Houston does not show that an accounting of all cash transactions, trust property transactions, and list of all trust property was delivered to Mr. Houston. We find no error in the trial court's reasoning and conclude that Mr. Roos's claims against Ms. Williams for breach of fiduciary duty as trustee are not prescribed.

DeSoto Parish property

Ms. Williams argues that despite a pretrial ruling on the issues pending in DeSoto Parish, improper evidence and testimony was still presented to the jury resulting in undue prejudice. The transfer of a mineral interest in DeSoto Parish was declared a nullity because Mr. Houston transferred the property in his individual capacity, when the mineral interest had already been placed into the Trust. J-W Operating Co. v. Olsen , 48,756 (La. App. 2 Cir. 1/15/14), 130 So.3d 1017, writ denied , 2014-0313 (La. 4/11/14), 137 So.3d 1217.

In ruling on the motion in limine regarding the DeSoto Parish suit, the trial court stated:

I understand that the transfer is a nullity, because of his - him executing, I guess, the transfer in his individual capacity. He's trying to show that she did some acts, including this sale, that these acts were a breach of her duty. That has not been litigated. That, in fact, was indicated by the judge in the wrong court.
* * *
But it was not addressed, and the Court would not even address it. The Court said you're in the wrong place, so I'm going to give the plaintiffs a chance to address whether or not she breached her duty. It was never addressed in DeSoto Parish[.]

An individual trustee shall not directly or indirectly buy or sell property for the trust from or to himself or his relative, employer, employee, partner, or other business associate, unless the trust instrument provides otherwise, or unless specifically authorized by a court of competent jurisdiction, after a contradictory hearing. La. R.S. 9:2085. A violation by a trustee of a duty he owes to a beneficiary as trustee is a breach of trust. La. R.S. 9:2081.

As stated previously, the trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed absent a clear abuse of that discretion. Johnson, supra.

Mr. Roos alleged Ms. Williams breached her fiduciary duty to the Trust. Part of that allegation included evidence of self-dealing. Mr. Roos presented evidence that Mr. Houston sold a mineral interest to Mr. DeMoss. Ms. Williams agreed to buy half of the interest from Mr. DeMoss. Ms. Williams was then able to testify that she bought the interest in order to put it back in the Trust.

The purpose of this testimony was not to declare the sale a nullity, which had already occurred in DeSoto Parish, but to show evidence of a breach of fiduciary duty. The trial court was within its discretion by allowing the evidence to be presented. The ruling was not erroneous. The evidence was relevant to Mr. Roos's case in alleging Ms. Williams was engaging in self-dealing. The testimony regarding the DeSoto Parish property was in accordance with the motion in limine ruling. This assignment lacks merit.

Improper jury charges

Ms. Williams argues that improper charges to the jury warrant a new trial. She claims there was confusion regarding the instructions on when to close a succession, whether there was a duty to file accountings with the court, and whether Ms. Williams had a heightened duty because of special skill or expertise.

Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems appropriate. The charge must correctly state the law and be based on evidence adduced at trial. Jeff Mercer, LLC v. State through Dep't of Transp. & Dev. , 51,371 (La. App. 2 Cir. 6/7/17), 222 So.3d 1017, writ denied , 2017-1442 (La. 12/5/17), 231 So.3d 625, cert. denied , --- U.S. ----, 138 S.Ct. 1566, 200 L.Ed.2d 746 (2018).

The relevant jury charges are as follows:

As a result of Ms. Williams' actions as executrix of the Estate of Fred L. Houston, Roos claims that:
1. She breached her fiduciary duty by failing to close the succession as soon as advisable.
2. She breached her fiduciary duty by failing to file accurate and complete accountings of the estate.
* * *
The trustee must exercise reasonable care and skill, considering the purposes, terms, distribution requirements, and other circumstances of the trust. A trustee who has special skills or expertise, or has held herself out as having special skills or expertise, has a duty to use those special skills or expertise.
A trustee has a duty to a beneficiary to keep and render clear and accurate accounts of the administration of the trust. A trustee shall render to the beneficiary or his legal representative at least once a year a clear and accurate account covering her administration for the preceding year. This annual account must show in detail all receipts and disbursements of cash and all receipts and deliveries of other trust property during the year, and shall set forth a list of all items of trust property at the end of the year.
* * *
A succession representative has a duty to close the succession as soon as advisable[.] An independent succession representative shall file an account on the application of any interested person or when ordered by the court.

We find no confusion in these instructions, whether read separately or in conjunction with the remainder of the instructions. The jury charge did not state the succession had to be closed within a particular time period. Ms. Williams admits that the trial court correctly recited the provision of La. C.C.P. art. 3197 concerning the duty to close a succession as soon as advisable . Mr. Roos's claim was worded in the same manner, "as soon as advisable." The fact that Mr. Roos's claim was labeled as a "fiduciary" duty, when Ms. Williams argues it should have been labeled as a "general" duty, does not rise to the level of jury confusion.

Ms. Williams argues it was an erroneous charge regarding the claims of Mr. Roos that Ms. Williams, as Independent Executrix of the Estate, owed a fiduciary duty to file a complete and accurate accounting with the court. Again, Ms. Williams admits the trial court correctly stated the law regarding the duty to file an accounting. Mr. Roos claimed Ms. Williams failed to file the accounting. The jury was given the correct law to apply. It was up to the jury to apply the evidence to the law and decide whether or not Ms. Williams breached her duty. There is no confusion between the claim and law.

Ms. Williams also admits the trial court correctly recited La. R.S. 9:2090 in regards to special skill or expertise. She argues there was no evidence that she ever made any representations to Mr. Houston regarding any special skills or expertise.

When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written. La. C.C. art. 9. La. R.S. 9:2090(B) states, "A trustee who has special skills or expertise, or has held himself out as having special skills or expertise, has a duty to use those special skills or expertise." (Emphasis added.) The law is clear. Ms. Williams was not required to hold herself out as having a special skill in order to have a duty to use her special skills or expertise. The jury charge regarding special skill was not improper. This assignment of error lacks merit.

New trial or judgment notwithstanding the verdict

Ms. Williams argues the trial court erred by not granting a new trial or judgment notwithstanding the verdict. A new trial shall be granted, upon contradictory motion of any party, in the following cases:

(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

La. C.C.P. art. 1972.

A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. La. C.C.P. art. 1973. A new trial is mandated only upon a showing of jury misconduct which is of such a grievous nature as to preclude the impartial administration of justice. Otherwise, the granting of a new trial is left to the sound discretion of the trial court. Goldsby, supra.

The motion for a judgment notwithstanding the verdict ("JNOV") may be granted on the issue of liability or on the issue of damages or on both issues. La. C.C.P. art. 1811. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes reasonable persons could not arrive at a contrary verdict. Goldsby, supra.

As already discussed, the verdict reached by the jury in this case was reasonable based on the evidence presented at trial. The evidence did not point so strongly in favor of Ms. Williams that a reasonable jury could not reach a different conclusion. The trial court did not abuse its discretion in denying the motion for a JNOV or new trial.

Unreasonable expenses and attorney fees

Ms. Williams argues the executor charges to the Estate with accompanying expenses and attorney fees were unreasonable. As noted above, Mr. Roos served as Independent Executor of the Estate, as well as an attorney in the litigation on behalf of the Estate.

It has long been recognized in Louisiana law that an executor of a succession may obtain an attorney to aid in the carrying out of the executor's duties and to defend the succession against adverse claims made against it. Succession of Jenkins, 481 So.2d 607 (La. 1986). Courts have also recognized that the costs of such legal representation may be charged to the succession. Atkins v. Roberts, 561 So.2d 837 (La. App. 2 Cir. 1990). The courts have made the distinction, however, that where the legal representation is primarily for the personal benefit of the executor and not the estate, such fees may not be paid from the property of the succession. Succession of Haydel, 606 So.2d 42 (La. App. 4 Cir. 1992). Whether or not an attorney's work was for the benefit of the succession estate is a question of fact that cannot be set aside absent manifest error. In re Succession of Brazan , 07-566 (La. App. 5 Cir. 12/27/07), 975 So.2d 53.

La. C.C.P. art. 3351.1 states, in pertinent part:

B. Unless expressly stated in the testament appointing the succession representative, if the succession representative serves as an attorney for the succession or for the succession representative, the succession representative shall not receive compensation both as a succession representative and as an attorney for the succession or for the succession representative; however, the compensation of a succession representative shall be reduced by the amount of compensation received and which was attributable to the performance of the duties as attorney for the succession or for the succession representatives.
C. The provisions of Paragraphs A and B of this Article limiting compensation received by a succession representative may be waived upon written approval by the heirs and legatees of the decedent owning a two-thirds interest in the succession.

La. C.C.P. art. 3351 states, in pertinent part:

In the absence of a provision in the testament or an agreement between the parties, the administrator or executor shall be allowed a sum equal to two and one-half percent of the amount of the inventory as compensation for his services in administering the succession. The court may increase the compensation upon a proper showing that the usual commission is inadequate.
A provisional administrator or an administrator of a vacant succession shall be allowed fair and reasonable compensation by the court for his services.
The compensation of a succession representative shall be due upon the homologation of his final account. The court may allow an administrator or executor an advance upon his compensation at any time during the administration.

Mr. Roos was appointed executor of Mr. Houston's succession on September 17, 2010. Mr. Roos enrolled attorneys from the law firm of Wiener, Weiss, and Madison ("WWM"). The trial concluded on November 15, 2016. At the time the trial concluded, Mr. Roos, and his legal representation, had been involved in this litigation for just over six years. He brought this suit for the benefit of the succession, not for the benefit of himself individually.

When Mr. Roos was appointed, the trial court executed a joint motion and order, with the consent of Mr. Roos and Ms. Williams. It was agreed Mr. Roos would be compensated $365 per hour and his attorneys "shall be billed at the hourly rates customarily charged by WWM for services rendered with respect to succession matters[.]" Mr. Roos filed with the trial court notices of the intent to distribute funds before any legal fees were ever paid. LSU is the universal legatee of Mr. Houston's Estate and did not oppose Mr. Roos's requests for payment. The trial court found the attorney fees to be reasonable. Having reviewed the extensive record in this matter, we find no abuse of discretion in the trial court's findings.

CONCLUSION

For these reasons, the jury verdict and judgment of the trial court are affirmed. Costs of this appeal are cast to appellant, Hanh Williams.

AFFIRMED.

      Instead of having Ms. Williams pay 50% of the 35,000, Mr. Olsen still gave her a 10% "finder's fee" and reduced her cost to 40% of the 35,000 (35,000 x 0.4=14,000), which meant she paid $14,000 for her interest.

      Mr. DeMoss stated the LLC was named HLM, LLC and that the "H" stood for Hanh. Ms. Williams confirmed she was involved in the LLC in the following exchange with the trial court:
      THE COURT: Were you the H. in HLM?
      MS. WILLIAMS: That's the name -
      THE COURT: I'm asking you were you. Did that H. stand for Hahn?
      MS. WILLIAMS: That's what he just said, yes.

      Mr. Tabor is counsel for the Estate.


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Mildred DECKER, Plaintiff-Appellant v. Merrill MELTON and Paul Holloway, Defendants-Appellees
    No. 52,213-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LANGLEY, PARKS, HORTON & MAXWELL, LLC, By: Parker W. Maxwell, Shreveport, Wendy B. Horton, M. Lauren Lock, Counsel for Appellant
    CHARLES NEUPERT & ASSOCIATES, LLC, BY: Charles J. Neupert, Jr., Shreveport, Counsel for Appellees
    Before BROWN, WILLIAMS, and GARRETT, JJ.
   BROWN, C.J.

Plaintiff, Mildred Decker, appeals from a judgment partially dismissing her claims of fraud and redhibition related to the sale of a home that Decker purchased from Defendants, Merrill Melton and Paul Holloway. Plaintiff alleges that Defendants did not disclose that part of the home was susceptible to flooding prior to her purchase of the home. Decker sought reduction of the purchase price, damages, and attorney fees. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On April 17, 2014, Plaintiff and Defendants executed a cash sale deed whereby Plaintiff purchased Defendants' home at 2003 Chase Crossing, Shreveport, Louisiana ("the Property"). The sale was made with warranties. Defendants completed a property disclosure document prior to the sale wherein they answered "No" to the following questions:

(5) Has any flooding, water intrusion, accumulating, or drainage problem been experienced with respect to the land? If yes, indicate the nature and frequency of the defects at the end of this section.
(12) Has any structure on the property ever taken water by flooding (rising water or otherwise)? If yes, please give the nature and frequency of the defect at the end of this section.
(31) Has there been property damage related to the land or improvements thereon, including, but not limited to, fire, windstorm, flood, hail, lightning, or other property damage?

Plaintiff purchased the property for $315,000. Plaintiff discovered in the spring of 2015 that the Property had allegedly previously "flooded" during Defendants' ownership of the Property.

Plaintiff alleged that she experienced "flooding" on the Property on five occasions after the sale. According to Plaintiff, the flooding would occur in the enclosed patio area, which Plaintiff referred to as her "den," "TV room," "sunroom," and/or "enclosed patio." Plaintiff filed a petition alleging redhibition and fraud, claiming that she spent significant sums of money to repair damage caused by the flooding. Plaintiff also alleged that there were defects in the swimming pool that Defendants did not disclose and were not apparent by visible inspection. In the petition, Plaintiff sought rescission of the sale and an award of damages, attorney fees, and costs associated with the suit. Plaintiff later sought a reduction in the purchase price.

Plaintiff amended her petition to allege two further "flooding events" at her home, and Plaintiff included a list of repairs and costs associated with the March, May, and June 2015 "flooding events." Plaintiff also alleged that the swimming pool leaked and had a broken heater, and that the pool sweep and sweep motor were broken. Defendants denied the allegations in their answer.

A three-day trial was held on April 25, 26, and 27, 2017, which included extensive testimony from Plaintiff, and the trial judge visited the Property the morning after a rainfall. The trial court provided extensive oral reasons for judgment on May 23, 2017. The trial court found in favor of Plaintiff with regard to the defective pool heater, granting her damages and attorney fees. The trial court dismissed the remaining claims. Plaintiff lodged the instant appeal.

DISCUSSION

Plaintiff's assignments of errors on appeal are: 1) whether the trial court erred in finding that the Property did not suffer from a redhibitory defect; 2) whether the trial court erred in finding that the Property was fit for its intended use; and, 3) whether the trial court erred when it failed to award damages. Defendants argue that the trial court correctly applied Louisiana laws on redhibition to the facts in this case.

The standard of review in cases regarding findings of fact is manifest error. In order to reverse the fact finder's determination of fact, the reviewing court must review the entire record and find that a reasonable factual basis does not exist for the finding, and determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bailey v. Delacruz , 49,032 (La. App. 2d Cir. 06/16/14), 143 So.3d 1220.

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price. La. C.C. art. 2520. The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things. La. C.C. art. 2521.

Apparent defects that could have been discovered by simple inspection are not redhibitory. McCarthy v. E & L Dev., Inc., 45,683 (La. App. 2d Cir. 11/10/10), 54 So.3d 1143, writ denied, 10-2739 (La. 02/04/11), 56 So.3d 979. A simple inspection is more than a casual observation; it is an examination of the article by the buyer with a view of ascertaining its soundness. Hancock v. Lauzon , 49, 535 (La. App. 2d Cir. 01/14/15), 161 So.3d 957. Whether an inspection is reasonable depends on the facts of each case and includes such factors as the knowledge and expertise of the buyer, the opportunity for inspection, and the assurances made by the seller. Stuck v. Long , 40,034 (La. App. 2d Cir. 08/17/05), 909 So.2d 686, writ denied , 05-2367 (La. 03/17/06), 925 So.2d 546.

The buyer must give the seller notice of the existence of a redhibitory defect in the thing sold. That notice must be sufficiently timely as to allow the seller the opportunity to make the required repairs. A buyer who fails to give that notice suffers diminution of the warranty to the extent the seller can show that the defect could have been repaired or that the repairs would have been less burdensome, had he received timely notice. Such notice is not required when the seller has actual knowledge of the existence of a redhibitory defect in the thing sold. La. C.C. art. 2522. The thing sold must be reasonably fit for its ordinary use. When the seller has reason to know the particular use the buyer intends for the thing, or the buyer's particular purpose for buying the thing, and that the buyer is relying on the seller's skill or judgment in selecting it, the thing sold must be fit for the buyer's intended use or for his particular purpose. La. C.C. art. 2524.

Susceptibility to flooding can be a redhibitory defect. Hancock, supra . Susceptibility to flooding is determined by the particular circumstances of each case and not solely by the fact of flooding. Id. While a house's susceptibility to flooding is a redhibitory defect, the mere fact that a house has flooded under extraordinary rainfall is not a redhibitory defect. Susceptibility, as that term is used, means a propensity, proneness or predisposition to flooding under normal conditions. Milazzo v. Harvey , 51,653 (La. App. 2d Cir. 01/10/18), 245 So.3d 346 ; Braydon v. Melancon , 462 So.2d 262 (La. App. 1st Cir. 1984). Redhibitory vices are those vices or defects which render a thing unfit for its intended use and which would have caused the buyer not to purchase the thing had he known of them. Benoit v. Ryan Chevrolet , 428 So.2d 489 (La. App. 2d Cir. 1982).

In its oral reasons for judgment, the trial court described its on-site visit to the Property, highlighting certain features of the Property. The visit was made the morning after a rainfall. The court observed neither standing water on the Property nor any evidence that water had entered the patio area. The trial court noted that the Property "slopes drastically" downward from the rear of the Property toward the home, and that the swimming pool is "considerably higher" than the slab upon which the home sits. The trial court observed a channel drain cut into the sidewalk leading to the door of the patio, which appeared to the court to be the lowest point in the yard.

The trial court found that it would appear to any reasonably prudent person that the enclosed area is a patio. The original walls of the patio are covered in exterior brick, the doors leading into the master bedroom and office are exterior doors, and there is an elevation of a few inches at the threshold of each door. There is an outside water spigot protruding from the brick wall near the door leading to the master bedroom. The ceiling is plywood, not drywall. The walls enclosing the patio are made of brick on the bottom portion with sliding doors on the top portion.

The patio slopes down away from the doors to the master bedroom and office, and the patio floor is on the same level as the sidewalk leading to the outside patio and pool area. The trial court stated, "[Those] observations were done quickly and easily without moving anything [and] without the advice of an expert." The trial court found that the patio had originally been an uncovered patio. Plaintiff produced the original blueprints for the home which show that the area was originally built as an uncovered patio.

According to Defendants and Malcolm McMillan, who owned the Property prior to Defendants (from 2001 to 2011), there was no history of flooding on the Property. Plaintiff testified that she did not permanently move into the home until ten months after she purchased the home from Defendants, and she was unaware of any water intrusion issues during that time. Plaintiff testified that for the first several "flooding events" she did not open the wastewater valve on the pool, which was designed to drain the pool into the city sewerage system during a rainstorm and prevent the pool from overflowing. Plaintiff eventually learned how to engage the valve after the first several instances of water coming into the patio area.

McMillan testified that opening the valve was easy to do, it was obvious the pool was above the patio, and that a heavy rain would cause the pool to overflow into the patio if the valve was not engaged. The trial court found McMillan to be a credible and disinterested witness. The trial court also pointed out that Plaintiff testified that water had never entered the home past the enclosed patio area.

Plaintiff made much of the fact that Defendants experienced one incident during their ownership of the Property in which, while Defendants were out of town, the indoor/outdoor carpet near the outside door to the patio got wet. Melton testified that he believed the dampness was caused by wind blowing rain under the door to the patio. That incident does not amount to a flooding or drainage problem. As can be seen in submitted photos, the outside door to the patio is a glass door, the bottom of which is level with the sidewalk directly outside the door. The door is clearly not designed to keep water out of the patio area. The trial court found that the obvious intended purpose and design of the enclosed patio was just that of a patio, an area that was not designed to be watertight.

Joey French, Plaintiff's expert in civil engineering and drainage, testified that there were two 100-year storm events in March and April of 2016. The trial court took judicial notice that the Shreveport area had experienced an unusual amount of rainfall in the past few years, and Plaintiff did not use the wastewater valve during some of those heavy storm events.

Further, Plaintiff testified that she had filed suit against two of her neighbors, alleging that they changed the natural flow of storm water, which caused excess water to flow onto the Property. The neighbors made alterations to their properties to restore the natural flow of water, and Plaintiff dismissed her suit against them. The trial court found that those alterations seemed to limit the flow of water onto the Property.

We see no reason to disturb the trial court's findings of fact regarding the alleged redhibitory defects related to water coming into the patio area of Plaintiff's home. Plaintiff's testimony was self-contradictory and hyperbolic at times. At one point in her testimony, Plaintiff suggested that Defendants should be held liable for the pool overflowing during her ownership of the Property. As the trial court found, it is clear to a reasonably prudent person that the patio was enclosed after the home was built, and that the patio floor slopes away from the home, with the sidewalk at the same level as the patio. The patio was designed so that rainwater would drain off the patio. The fact that water entered the patio once in 13 years neither renders the patio unfit for its intended purpose, nor does it amount to a redhibitory defect.

CONCLUSION

For the reasons stated, the judgment of the trial court is affirmed. All costs of appeal are assessed to Plaintiff.

AFFIRMED.

      The dates for the five flooding events are March 12, 2015, May 18, 2015, May 21, 2015, June 18, 2015, and November 17, 2015.

      The dates for these events are March 8, 2016, and March 9, 2016. Plaintiff also alleged that there were an additional three flooding events at trial. The dates for those events are April 18, 2016, April 19, 2016, and April 30, 2016.


author: STEPHENS, J.

text:
    SUCCESSION OF Elizabeth Jeane Toms PERRITT
    No. 52,210-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    JOHN W. MONTGOMERY, Minden, RICHIE, RICHIE, & OBERLE, LLP, By: Charles Vernon Richie, Margaret Richie Gaskins, Shreveport, Counsel for Appellant Carroll H. Toms
    WIENER, WEISS & MADISON, APC By: John M. Madison, Jr., Shreveport, Counsel for Appellee Stephanie Spangler, Executrix
    AYERS, SHELTON, WILLIAMS, BENSON & PAINE, LLC By: Curtis Ray Shelton, Shreveport, Counsel for Appellees Melissa Richard Susan Hinton
    STEVE TOMS, In Proper Person
    KAREN TOMS, In Proper Person
    Before WILLIAMS, STONE, and STEPHENS, JJ.
   STEPHENS, J.

Carroll Toms appeals a judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, wherein Melissa Richard, Susan Hinton, Steve Toms, and Karen Toms (the "Residuary Legatees") were named the owners of two deposit accounts formerly owned by Elizabeth Jeane Toms Perritt, the decedent, which were part of her succession. For the following reasons, we affirm the trial court's judgment.

FACTS

Elizabeth Perritt died on January 15, 2017, leaving a notarial testament dated February 9, 2016 (the "testament"). In that testament, she named Stephanie Spangler the executrix of her succession, the Succession of Elizabeth Jeane Toms Perritt, with powers of independent administration. In Article III of the testament entitled "Particular Legacies," Elizabeth articulated several particular legacies, naming the specific item subject to the bequest as well as the legatee by name. Provision 3.7 of that article stated the following:

I own certain certificates of deposits, bank accounts and related items. On certain of those items, I have designated beneficiaries pursuant to "payable on death" provisions authorized by La. R.S. 6:314 and other Louisiana statutory authorizations. Should any of those designations be deemed insufficient because statutory or other formalities were not followed then, in that event, I leave to the person(s) designated in such "payable on death" directions the account or other item identified.

In Article IV entitled "Residual Legacy," she makes the following bequest: "I leave the remainder of my property to Steve Toms, Karen Toms, Susan Hinton and Missy Richard[.] "

During the course of succession proceedings, Spangler filed a rule to show cause to determine the ownership of two deposit accounts (the "deposit accounts") at Home Federal Bank ("Home Federal"), which had previously been owned by Elizabeth. Carroll and the Residuary Legatees were named as defendants on the rule, because each claimed ownership of the deposit accounts. Carroll and two of the Residuary Legatees, Melissa and Susan, appeared at the trial court in response to Spangler's rule to show cause. Specifically, Carroll asserted to be the full owner of the deposit accounts and Melissa and Susan asserted ownership of one-quarter each to the deposit accounts.

A hearing on the matter was held, after which the trial court determined that "a will cannot be made by mere reference to another document that is not itself a [valid] will ... in proper form," and "you cannot look outside of the will to make a definite determination" of the testator's intent. The trial court ruled that the Residuary Legatees were the owners of the deposit accounts, each receiving a one-fourth interest in both accounts, and designated the ruling a final judgment for purposes of appeal. This appeal by Carroll ensued.

DISCUSSION

In Carroll's first assignment of error, he maintains the trial court erred by finding provision 3.7 of the testament to be invalid because the legacy was made by "mere" reference to another document that is not itself a will in proper form. Carroll's second assignment of error is related, and he maintains the trial court erred by finding the same provision to be invalid on the basis that a testator's intent regarding the identity of a legatee and the identity of the object bequeathed cannot be determined without looking outside of the testament. Specifically, Carroll maintains the trial court erroneously misinterpreted Succession of Ledet , 170 La. 449, 128 So. 273, 274 (La. 1930), and the principle that a "will cannot be made by mere reference to another document not itself a will, or to a former will that is invalid because of want of form." Instead, Carroll argues that subsequent jurisprudence has determined that a legacy contained in a will is not necessarily invalid if it references another non-testamentary document in any way. He argues the legacy will only be invalid if the testator's intent cannot be ascertained without looking to that non-testamentary document. Here, Carroll states we need not look to the deposit accounts' "payment on death" instructions in order to determine Elizabeth's intent because the testament is sufficiently clear to determine her intent. Finally, Carroll generally argues that the trial court erred in naming the Residuary Legatees owners of the deposit accounts. On that point, we disagree.

The fundamental rule of interpreting wills is La. C.C. art. 1611, which states in pertinent part: "The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit." The intent of the testator is the "paramount consideration" in determining the provisions of a will. Succession of Williams , 608 So.2d 973 (La.1992) ; Succession of Henderson , 50,475 (La. App. 2 Cir. 2/24/16), 191 So.3d 9, 14, writ denied sub nom. In re Succession of Henderson , 2016-0575 (La. 5/13/16), 191 So.3d 1056 ; Succession of Davis , 35,217 (La. App. 2 Cir. 10/31/01), 799 So.2d 1194.

In the interpretation of a testament, the first and natural impression conveyed to the mind on reading the pertinent clause is entitled to great weight. Succession of La Barre , 179 La. 45, 153 So. 15 (1934) ; Succession of Henderson, supra . Moreover, "A disposition should be interpreted in a sense in which it can have effect, rather than one in which it can have none." La. C.C. art. 1612. The will must be interpreted in a way that furthers, rather than frustrates, the testator's lawful intent. Succession of Waldron , 323 So.2d 434 (La. 1975) ; Succession of Henderson, supra .

In suits contesting a testament, the factual findings of the trial court are afforded great weight and will not be disturbed on appeal in the absence of manifest error. Succession of Davis , supra at 1196,.

As the trial court noted in Succession of Ledet, supra at 273 , "A will cannot be made by mere reference to another document not itself a will." In fact, the Succession of Ledet court explained, "All the French authorities agree on that." Id. But, that case has been further explained and expanded by subsequent jurisprudence holding that extrinsic evidence indeed may be considered to resolve ambiguity in a will. See e.g., Succession of Toney , 2016-1534 (La. 5/3/2017), 226 So.3d 397, 408 ("While extrinsic evidence may be used to resolve ambiguity in a testament, extrinsic evidence cannot cure a testament which is materially defective on its face."); Succession of Henderson, supra at 13 ("Courts may look to extrinsic evidence to clarify ambiguity in a will[.]").

In Hessmer v. Edenborn , 196 La. 575, 199 So. 647 (1940), the court was charged to consider the validity of an olographic revocation by a decedent of his previous last will and testament. The plaintiffs in that case, contesting the revocation and wishing to probate the original will, contended it was necessary to consider a separate writing in order to find the substance of the decedent's intent regarding the revocation. The Hessmer court acknowledged:

[w]here a written instrument purporting to be a last will expresses the intent and substance of the testator's wish but is vague, indefinite, obscure, or ambiguous in the description of a legatee or in the description of the thing bequeathed or of any object referred to in the will, extrinsic testimony is admissible to make clear that which is uncertain. (Emphasis added).

Id. at 649. The supreme court ultimately determined no extrinsic evidence was needed to conclude what the decedent's wishes were, because the substance of his plain, unambiguous words expressed his absolute intent. However, in dicta , the Hessmer court noted, "where a testator refers to another writing for the purpose of manifesting the substance of his wish or desire, and where that wish cannot be ascertained without referring to such writing, the testament ... is invalid." Id. at 650. The court elaborated: "It is permissible for a testator to make reference in his will to another writing for the purpose of rendering certain the object to which the will refers. By doing so he does not incorporate the other writing into his will." Id. (Emphasis added).

Presumably, provision 3.7 of Elizabeth's testament was an attempt to avoid a situation where La. R.S. 6:314 was not strictly adhered to, the pertinent part of that statute providing:

A. Upon the death of a depositor who has deposited a sum in any bank account evidencing an intention that upon the death of the depositor, the funds shall belong to one or more named beneficiaries of the depositor, the bank may pay the deposit, together with the dividends or interest accruing thereto, to the named beneficiaries for whom the deposit was made. The depositor shall give to the depository bank an affidavit in authentic form or an act under private signature executed in the presence of an officer or a branch manager of the depository bank and two additional persons, stating the names of one or more beneficiaries. The bank may conclusively rely on this affidavit or act for the disbursal of funds. Upon receiving a death certificate, the bank may disburse funds to the named beneficiaries.
B. The title of such an account must include the terms "in trust for", "as trustee for", or "payable on death to", such beneficiary or beneficiaries. Such beneficiaries must be specifically named in the deposit account records of the bank.
....
F. The provisions of this Section shall apply notwithstanding the fact the decedent designates a beneficiary by last will and testament. The provisions of this Section shall not prohibit any right of forced heirship or the collation or collection of funds due any spouse, heir, legatee, creditor, or other person having rights or claims to funds of the deceased depositor.

Although Elizabeth did complete the requisite documents for other Home Federal accounts she owned and the beneficiaries were put into ownership of those accounts, she did not complete the requisite affidavits that would have served to transfer these particular deposit accounts to Carroll as a "payable on death" ("POD") beneficiary. Because the statutory requirements were not adhered to for these deposit accounts, it is necessary to look to the testament to determine her intent.

We acknowledge that consideration of extrinsic evidence is not necessarily impermissible; outside documents might be necessary to render clear bequests which on their face might be ambiguous. However, in this case the substance of Elizabeth's bequest can only be acted upon by looking outside of her testament to extrinsic evidence-which itself is unclear. Only by looking to a non-testamentary document can her intent be ascertained, i.e. , the purported POD instructions on the disputed deposit accounts. Therefore, the provision is invalid. In other words, her testament is not sufficiently clear to determine her intent regarding either a legatee or property bequeathed, because the substance of the provision cannot and does not stand alone. Initially, we observe that the testamentary provision does not name a legatee (or class of legatee) to whom the bequest is made or the particular bank account(s) subject to her bequest. Further, the testamentary provision requires the examination of extrinsic evidence of indeterminate certificates of deposit or bank accounts Elizabeth might have owned. We do not contend that all testamentary provisions that require some extrinsic evidence are invalid, because clearly the jurisprudence allows such. However, this particular provision does not sufficiently determine the substance of Elizabeth's intent, and the necessary extrinsic evidence is not simply used for the purpose of rendering clear her intent.

Taken one more step, the bank documentation relied on by Carroll is questionable itself because if we look at the deposit accounts in question, they do little to illuminate further Elizabeth's intent. We acknowledge that Home Federal's internal records seemingly indicate what looks to be a POD designation in Carroll's favor-a notation in the bank records. But what is certainly unclear is who actually made that designation-and provision 3.7 of the testament pertains to those "... items, I have designated beneficiaries[,]" with the "I" being Elizabeth (emphasis added). There is no evidence that Elizabeth actually made that designation of Carroll as the beneficiary on Home Federal's bank records. In fact, the extrinsic evidence tends to show she did not intend to make him the beneficiary.

Keith Dauzat, a senior branch manager with Home Federal who was familiar with Elizabeth's business at the bank, testified in deposition that Elizabeth actually completed and returned to Home Federal the requisite affidavits for other accounts she had on deposit with the bank and payment of those accounts was made to the beneficiaries. However, Dauzat explained that Elizabeth did not complete and return the requisite documents for the disputed deposit accounts, even though documents for those two accounts had been sent to her along with the other accounts. The evidence shows that Elizabeth assigned POD designations on other accounts at Home Federal, but specifically not for the two in question; thus the extrinsic evidence Carroll relies on does not conclusively prove Elizabeth's intent as to those two accounts. Notably, given that she returned to Home Federal completed forms for some accounts but not the subject deposit accounts, it is reasonable to conclude Elizabeth's intent was not to designate POD status to Carroll.

The facts of this case are not analogous to those in Succession of Baskin , 349 So.2d 931 (La. App. 1 Cir. 1977), writ denied sub nom. Matter of Succession of Baskin , 350 So.2d 1211 (La. 1977), relied upon by Carroll on appeal because in that case the extrinsic evidence considered in conjunction with the will's provisions at issue indicated, without further speculation, the proper legatee. Such is not the case here-the testament's questionable provision along with the extrinsic evidence do not conclusively tell, without further speculation, that Carroll was the intended legatee.

The jurisprudence on this issue is clear. "Where a testator refers to another writing for the purpose of manifesting the substance of his wish or desire, and where that wish cannot be ascertained without referring to such writing, the testament ... is invalid." Hessmer, supra at 650 (emphasis added). Further, Hessmer instructs that the outside writing "render[s] certain" the object of the bequest. Here, the substance of Elizabeth's wishes cannot be ascertained without referring to another writing, which writing does not conclusively indicate or "render certain" the legatee. Thus, we hold this particular provision is invalid, although not necessarily for the precise reasons articulated by the trial court. We determine the final judgment was not in error, and the Residuary Legatees are owners of the deposit accounts.

CONCLUSION

Considering the foregoing, the trial court's judgment in favor of Melissa "Missy"

Richard, Susan Hinton, Steve Toms, and Karen Toms is affirmed. All costs of these proceedings are assessed to Carroll Toms.

AFFIRMED.

WILLIAMS, J., concurs with written reasons.

STONE, J., concurs.

I am writing separately because I do not agree that provision 3.7 of the will is invalid.

The testator's intent controls the interpretation of the testament. In the interpretation of a will, when the testator's intent cannot be ascertained from the language of the testament, the court may be aided by any competent evidence. La. C.C. art. 1611. A testator may make reference to another writing in his will for the purpose of making certain the object to which the will refers. Hessmer v. Edenborn , 196 La. 575, 199 So. 647 (1940).

Although the trial court correctly stated that a person cannot make a will by mere reference to another document not itself a will, we do not have that situation in this case. Here, the testator has a valid will with an ambiguous bequest leaving bank accounts owned at death to the persons who she previously had designated as beneficiaries in documents submitted to the bank. Under Article 1611 and Hessmer , I think a court can refer to the bank documents to determine the intended recipients of the specific accounts that the testator sought to bequeath in the will. Thus, even though provision 3.7 of the will is ambiguous and requires reference to extrinsic documents to make certain the identity of the legatees, such a will provision is valid. I note that with three other accounts, reference was made to the extrinsic bank documents to determine the legatees of those accounts.

The problem for appellant is that the decedent did not sign the affidavits to designate him as a pay-on-death beneficiary for accounts # 0466 and # 9901. Consequently, the record supports a finding that provision 3.7 of the will does not leave those accounts to him. Thus, based on the will language, the trial court did not err in concluding that these accounts are owned by the residual legatees.

      Those accounts are specifically numbered 0201029901 and 1000000466.


author: STONE, J.

text:
    SUCCESSION OF Rosie Lee WATSON
    No. 52,199-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    WILLIAM HARRISON WATSON, Pro Se
    RICE & KENDIG By: William F. Kendig, EDWARD F. JONES, Shreveport, Counsel for Appellee
    Before BROWN, STONE, and COX, JJ.
   STONE, J.

The trial court denied William Watson's petition to have the last will and testament of Rosie Lee Watson declared invalid for failure to meet the requirements of La. C.C. art. 1578. William Watson now appeals. For the following reasons, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Rosie Lee Watson ("the decedent") died testate on February 26, 2016. Her will was admitted to probate on June 15, 2016, and a judgment of possession was rendered on the same date. On March 30, 2017, the decedent's son, William Watson ("Watson") filed a petition to have the will, dated January 28, 2011, annulled. Watson argued the will was not valid under Louisiana law because it did not contain the sufficient attestation clause as required by La. C.C. art. 1578 (" Article 1578"). The hearing on Watson's petition was held on July 31, 2017. At the hearing, Watson opted to not present any evidence, but instead elected to rest on the pleadings and the will itself. Thereafter, the trial court determined the decedent's testament was valid because it met the requirements of La. C.C. art. 1577 (" Article 1577"). The trial court rendered a final judgment denying Watson's petition. Watson now appeals.

DISCUSSION

The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. La. C.C. art. 1573. The purpose of prescribing formalities for the execution of wills is to guard against mistake, imposition, undue influence, fraud or deception, to afford a means of determining the will's authenticity, and to prevent substitution of some other writing in its place. Succession of Roussel , 373 So.2d 155, 158 (La. 1979).

Article 1577 provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of _________, ___."

In order for a notarial testament to be valid as to form, (1) the testator must declare in the presence of a notary and two witnesses that the instrument is his testament, (2) the testator must sign his name at the end of the testament and on each separate page, and (3) the notary and two witnesses must sign a declaration in the presence of each other and the testator attesting that the formalities of Article 1577 have been followed. Succession of Dawson, 51,005 (La. App. 2 Cir. 11/16/16), 210 So.3d 421, 424-25.

For a valid notarial will, there must be an attestation clause or clause of declaration. However, its form is not sacrosanct. Successions of Toney , 2016-1534 (La. 5/3/17), 226 So.3d 397, 409 ; Succession of Morgan , 257 La. 380, 242 So.2d 551, 552 (La. 1970) ; Succession of Dawson , supra at 425. The attestation clause may use the form suggested in the statute or use language substantially similar thereto. The attestation clause is designed to demonstrate that the facts and circumstances of the execution of the instrument conform to the statutory requirements. Successions of Toney, supra at 409-10 ; Succession of Morgan, supra ; Succession of Dawson, supra . Courts liberally construe and apply the provisions of Article 1577, maintaining the validity of the will if at all possible, as long as the will is in substantial compliance with the statute. In re Succession of Holbrook, 2013-1181 (La. 1/28/14), 144 So.3d 845, 851 ; Succession of Dawson, supra .

Article 1578 provides:

When a testator knows how to sign his name and to read, and is physically able to read but unable to sign his name because of a physical infirmity, the procedure for execution of a notarial testament is as follows:
(1) In the presence of the notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament, that he is able to see and read but unable to sign because of a physical infirmity, and shall affix his mark where his signature would otherwise be required; and if he is unable to affix his mark he may direct another person to assist him in affixing a mark, or to sign his name in his place. The other person may be one of the witnesses or the notary.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator has declared or signified that this is his testament, and that he is able to see and read and knows how to sign his name but is unable to do so because of a physical infirmity; and in our presence he has affixed, or caused to be affixed, his mark or name at the end of the testament and on each other separate page, and in the presence of the testator and each other, we have subscribed our names this _____day of ____, _____."

In his first assignment of error, Watson argues the trial court erred in failing to find the will was absolutely null as a matter of law. The first page of the decedent's will stated that she wished to take advantage of the provisions of Article 1578, which allows an individual who can read and write to make a mark when physical infirmity prevents her from signing her name to a will. Specifically, Watson claims the will is absolutely null because the attestation clause did not include the language that the decedent "declared or signified that this is [her] testament, and that [she] is able to see and read and knows how to sign [her] name but is unable to do so because of a physical infirmity."

Under Louisiana law, there is a presumption in favor of the validity of testaments and evidence of the nonobservance of formalities must be exceptionally compelling to rebut that presumption. In re Succession of Holbrook, supra at 853 ;

Succession of Dawson, supra at 423. In construing the attestation clause of a notarial will, the court does not require strict, technical, and pedantic compliance in the form or in the language of the will, but examines the clause to see whether there is substantial adherence to form and whether it shows facts and circumstances which show compliance with the formal requirements for testamentary validity. Succession of Morgan, supra at 553 ; In re Succession of Hebert , 2012-281 (La. App. 3 Cir. 10/3/12), 101 So.3d 131, 140.

We find that though the attestation clause in the decedent's will does not contain the declaration found in Article 1578, the will is valid because it substantially complied with the requirements of Article 1577. At the end and on each separate page of the will, the decedent fully signed her name. The decedent certified in the first attestation clause that she signed her name at the end and on each separate page and declared the instrument to be her testament in the presence of the notary and two witnesses. In the second attestation clause, the notary and witnesses certified that in their presence the decedent signed her name at the end and on each separate page and declared the instrument to be her testament. As such, it was unnecessary for the decedent to take advantage of the provisions of Article 1578, and any reference in the will to Article 1578 was an error by the drafter of the will. We do not find the error to be significant or material as to render the instrument absolutely null.

Having filed his claim to annul more than three months after probate of the will, Watson had the burden of proving the invalidity of the will. La. C.C.P. art. 2932 ; Succession of Harvey, 573 So.2d 1304 (La. App. 2 Cir. 1991). Watson chose to introduce neither evidence nor witnesses, despite there being witnesses present during the hearing. The trial court gave Watson ample opportunities to present witnesses and evidence, to which Watson repeatedly declined. However, Watson did cite Succession of Maquar, Jr. , 2003-0041 (La. App 4 Cir. 6/4/03), 849 So.2d 773, writ denied 2003-1873 (La. 11/21/03), 860 So.2d 544 to support of his argument that the will is invalid.

In Maquar , the Fourth Circuit Court of Appeal held that the testator, who was physically unable to sign his name, but allegedly could see and read, was required to declare before, or signify to, a notary and witnesses that he could see and read. We find this case to be in stark contrast from the matter sub judice in that Marquar could not sign his own name and instead signed with an "X." Therefore, he was required to comply with the attestation requirements of Article 1578. Here, the decedent could sign her full name, and in fact, did. We find Watson failed to meet his burden of proof, the will is valid pursuant to Article 1577, and the trial court did not err in denying Watson's petition.

Next, Watson argues the trial court erred in searching for new interpretations of statutes that are clear and unambiguous. We find there is no indication in the record that the trial court took any such action. This assignment lacks merit.

Watson next contends the trial court erred in "changing" his argument from the failure to comply with proper notarial form to an "unrelated and unexplained" burden of proving the lack of testamentary capacity. Watson complains he should not have been required to present evidence to prove the decedent could not sign her name because the improper form of the will was a question of law, not fact. As previously stated, pursuant to La. C. C. P. art. 2932, Watson had the burden of proof in this case since he instituted the action to annul the will more than three months after it had been probated. As shown by the transcript of the hearing, the trial court gave Watson ample opportunities to call witnesses and introduce evidence, which Watson declined. The trial court did not err in requiring that Watson present evidence to satisfy his burden. This assignment lacks merit.

Watson also asserts the district court erred in using repealed statutes and/or outdated case law to judicially alter his cause of action and burden of proof. Again, there is no indication of any such conduct in the record. All applicable laws were current and adequately applied. This assignment lacks merit.

Watson argues the trial court erred by hearing Appellee's motion for summary judgment without proof in the record that he had received the required statutory notice. Notably, there was never a motion for summary judgment filed in this case; Watson simply believed Appellee's exception of no cause of action was mistitled. Appellees were only provided with the address listed on Watson's filings, and the record indicates Appellees mailed every pleading and letter to that address. Moreover, the trial court gave Watson time to review any documents he claimed to have not received and even gave Watson the option for a continuance, which he declined. This assignment lacks merit.

Watson alleges the trial court erred by allowing the Appellee's allegations to overrule, replace, or alter the desires of the decedent. We find the record does not support Watson's allegation and we find the trial court did not err in its application of the law to the decedent's will.

Finally, Watson contends the trial court erred in refusing to answer his request for findings of fact and conclusions of law. The trial court did not respond to Watson's request, stating that it had already given a very detailed ruling in open court when Watson was present. The trial court did however give Watson the option to obtain a copy of the transcript at his expense, if he wished to review the reasons. We therefore find this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court judgment denying Watson's petition to have the decedent's last will and testament declared invalid is affirmed. Costs of this appeal are assessed to Watson.

AFFIRMED.