Opinion
2022 CW 1054
05-19-2023
REVERSE MORTGAGE SOLUTIONS, INC. v. LOUIS J. CONERLY A/K/A LOUIS J. CONERLY, SR. AND DEBORAH D. CONERLY A/K/A DEBORAH DAVIS CONERLY, AS TRUSTEE OF THE LOUIS J. CONERLY, SR. AND DEBORAH D. CONERLY REVOCABLE LIVING TRUST
Kenneth L. Blanchard, Jr. Plaquemine, Louisiana Counsel for Defendant/Appellant Deborah D. Conerly a/k/a Deborah Davis Conerly, as Independent Executrix of the Succession of Louis J. Conerly, Sr. and as Trustee of the Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust/ Ashley E. Morris Dean Morris Candace Courteau Monroe, Louisiana Counsel for Plaintiff/Appellee Reverse Mortgage Solutions, Inc.
Appealed from the 18th Judicial District Court In and for the Parish of Iberville State of Louisiana Case No. 75728 The Honorable Alvin Batiste, Jr., Judge Presiding
Kenneth L. Blanchard, Jr. Plaquemine, Louisiana Counsel for Defendant/Appellant Deborah D. Conerly a/k/a Deborah Davis Conerly, as Independent Executrix of the Succession of Louis J. Conerly, Sr. and as Trustee of the Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust/
Ashley E. Morris Dean Morris Candace Courteau Monroe, Louisiana Counsel for Plaintiff/Appellee Reverse Mortgage Solutions, Inc.
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
THERIOT, J.
This appeal arises from a foreclosure action in which summary judgment was granted in favor of the plaintiff-appellee, Reverse Mortgage Solutions, Inc. ("RMS"). For the reasons set forth herein, we convert the appeal to a supervisory writ application and deny the writ.
FACTS AND PROCEDURAL HISTORY
On March 30, 2009, Louis J. Conerly, Sr. executed an adjustable-rate home equity conversion note secured by a reverse mortgage on immovable property located in Iberville Parish at 62395 Bayou Road in Plaquemine, Louisiana. The reverse mortgage, also executed on March 30, 2009, was signed by both Mr. Conerly and his wife, Deborah D. Conerly. Mr. Conerly signed the reverse mortgage as "Borrower," while Mrs. Conerly signed "[a]s Borrower solely for the purpose of waiving dower rights without personal obligation for payment of any sums secured by this Security Instrument." Clause 33 of the reverse mortgage agreement signed by the Conerlys states, in part:
[T]o the extent that the Property is community-owned immovable (real) property, and Borrower's spouse co-signs this Security Instrument, but does not co-sign the Note, Borrower's spouse is cosigning this Security Instrument for the purpose of: (a) concurring with the granting of this Security Instrument on the community-owned Property (to the extent required under Civil Code Article 2347 ), without obligating the separate property of the Borrower's spouse; and (b) waiving any homestead rights to which Borrower's spouse may be entitled under Applicable Law. Notwithstanding the fact that Borrower's spouse did not co-sign the Note, and further notwithstanding the language of Paragraph 15 of this Security Instrument, Borrower's spouse is obligated for payment of the Note and all other sums secured by this Security Instrument to the extent of the spouse's community property interest, and to the extent that the Note is a community obligation.
Louisiana Civil Code article 2347(A) provides that the concurrence of both spouses is required for the alienation, encumbrance, or lease of community immovables.
Mr. Conerly died in 2014. Under the terms of the note and the reverse mortgage, Mr. Conerly's death triggered the acceleration of all amounts due, and RMS instituted foreclosure proceedings in 2016. RMS initially filed a petition to enforce its security interest by executory process on March 8, 2016, but the matter was later converted to an ordinary proceeding. Mrs. Conerly was named as a defendant in the foreclosure proceedings in her capacity as Independent Executrix of the Succession of Louis J. Conerly, Sr. and as trustee of The Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust, which had acquired ownership of the subject immovable property after the execution of the note and reverse mortgage.
In a September 4, 2012 Donation Inter Vivos, Mr. Conerly donated the Iberville Parish property, which he characterized as "his separate property" to the Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust. The donation was executed by Mr. Conerly both as donor and donee (in his capacity as trustee) and by Mrs. Conerly as donee (in her capacity as trustee).
In its petition, RMS alleged that it is owed the following amounts under the note and mortgage:
(a) outstanding principal and interest of $270,258.38 as of January 27, 2016, with interest thereon at 2.994%, subject to adjustment as specified in the note and in accordance with law, until paid; (b) additional principal resulting from Loan Advances to pay[:] (i) mortgage insurance premiums on each advance at the MIP Periodic Daily Rate of 0.001% and on the outstanding principal balance at the MIP Monthly Periodic Rate of 0.042% (ii) servicing fees at the rate of $35.00 per month (iii) taxes, hazard insurance premiums[,] and special assessments (iv) repairs to and/or for maintenance of the property (v) inspection, BPO, appraisal and other fees for the protection, preservation, repair[,] and recovery of the property (vi) amounts paid for the protection and preservation of the lien of the mortgage and for the protection and preservation of the mortgagee's interest thereunder, and (vii) interest on such Loan Advances at 2.994% per annum, all of which plaintiff is permitted to prove by affidavit filed or submitted before distribution by the sheriff of the proceeds of the judicial sale herein.
RMS further alleged that it is owed or will be owed the following charges as they accrue or are incurred:
(a) all expenses incurred in enforcing the note and mortgage including reasonable attorney's fees as allowed by the note and mortgage; and (b) all law charges, costs, fees and expenses incurred in connection or relating to this proceeding including without limitation sheriffs commission, sheriffs costs, court costs all as permitted by the note or mortgage being enforced by this proceeding.
Mrs. Conerly answered the petition and asserted as a defense that RMS did not have a valid mortgage on the Iberville Parish immovable property. Mrs. Conerly alleged that the March 30, 2009 act of donation whereby she donated her interest in the Iberville Parish immovable property to Mr. Conerly was invalid because it failed to describe the property being donated. As a result, she alleged that the Iberville Parish immovable property was community property at the time the mortgage was executed, and since the mortgage was executed only by Mr. Conerly as mortgagor, the mortgage was invalid. In support of this defense, Mrs. Conerly attached a copy of the July 15, 1986 act of sale whereby she and Mr. Conerly purchased the Iberville Parish immovable property and a copy of the March 30, 2009 Interspousal Donation Inter Vivos whereby she purportedly transferred "her full and complete interest" in the property to Mr. Conerly. The stated purpose and specific intent of the parties in executing the Interspousal Donation Inter Vivos was "to transform the character of the property . . . from the community property of [Mr. and Mrs. Conerly] to an asset of the separate property of [Mr. Conerly], making him the sole owner of the property."
According to the Interspousal Donation Inter Vivos, the property description was to be set forth in an attached Exhibit A, which is not included in the copy of the document filed in the record.
RMS filed a motion for summary judgment on December 28, 2021, seeking an in rem judgment against Mrs. Conerly as the Independent Executrix of the Succession of Louis J. Conerly, Sr. and as Trustee for The Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust. In support of its motion, RMS filed an Affidavit of Indebtedness executed by RMS representative Nicole Rosales, establishing the amounts owed under the note. Attached to the RMS affidavit were a copy of the March 30, 2009 act of mortgage and/or privilege importing a confession of judgment; the September 29, 2010 assignment of the mortgage from World Alliance Financial Corp, to RMS; and the original promissory note dated March 30, 2009, securing a maximum principal amount of $525,000.00, payable to World Alliance Financial Corp., endorsed, assigned, and/or delivered to RMS, paraphed for identification with the act of mortgage and/or privilege. RMS also filed a copy of the Donation Inter Vivos; a copy of the Oath, Order, and Letters Appointing Independent Executrix in the Succession of Louis J. Conerly, Sr.; and the Affidavit as to Military Service.
RMS also reserved its right to obtain a personal judgment against Mrs. Conerly as the Independent Executrix of the Succession of Louis J. Conerly, Sr. and as Trustee for The Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust when Mrs. Conerly "becomes amenable to service of process."
Mrs. Conerly opposed RMS's motion for summary judgment on the grounds that the mortgage was null because it encumbered community property and was not executed by both spouses. In support of her opposition, Mrs. Conerly filed the affidavit of her attorney, Kenneth L. Blanchard, stating that in the course of his representation of Mrs. Conerly in this suit, he examined the conveyance and mortgage records in Iberville Parish and found the original acquisition of the mortgaged property by the Conerlys and the purported Interspousal Donation Inter Vivos from Mrs. Conerly to Mr. Conerly, but "did not find any writing signed by Louis and Deborah Conerly which purported to be an act of correction of the purported Interspousal Donation Inter Vivos in the said conveyance and mortgage records." Attached to Mr. Blanchard's affidavit were copies of the original acquisition and Interspousal Donation Inter Vivos filed in the Iberville Parish conveyance records. Mrs. Conerly also filed her own affidavit in opposition to RMS's motion for summary judgment, in which she attested that the mortgage on the subject property was created by the mortgagee and that Clause 33 of the mortgage was not brought to her attention at the time she "signed to waive her dower rights."
RMS filed a timely reply memorandum and objected to the filing of Mr. Blanchard's affidavit in accordance with La. C.C.P. art. 966(D)(2) on the grounds that the affidavit violates the Advocate Witness Rule set forth in Rule 3.7 of the Louisiana Supreme Court Rules of Professional Conduct.
At the hearing on RMS's motion for summary judgment, the trial court heard argument of counsel regarding the objection to Mr. Blanchard's affidavit and declined to consider Mr. Blanchard's affidavit in opposition to summary judgment. Thereafter, the court granted RMS's motion for summary judgment. A judgment in accordance with the trial court's ruling was signed on June 1, 2022. The June 1, 2022 judgment was rendered in rem against Mrs. Conerly as Independent Executrix of the Succession of Louis J. Conerly, Sr. and as trustee for The Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust in the following amounts: (a) principal of $205,377.59 with interest of $117,300.86 through October 31, 2021 and thereafter at 2.84% per annum, until paid; (b) the following amounts accrued through October 31, 2021: mortgage insurance premiums of $24,016.58, monthly servicing fees of $5,250.00, advances of $600.00 for property inspections, $470.00 for title abstract, $1,015.00 for property appraisals, and $6,783.00 for the payment of hazard insurance, and any such additional amounts accruing thereafter through the date of sale; (c) all expenses incurred in enforcing the note and mortgage including reasonable attorney's fees as provided for by the note and mortgage; and (d) all law charges, costs, fees, and expenses including Sheriff s commission. The judgment also recognized the mortgage securing the above-described debt and declared it enforceable against the mortgaged property.
Mrs. Conerly appealed, arguing that the trial court erred in excluding her attorney's affidavit and the exhibits attached thereto offered in opposition to summary judgment and in granting summary judgment. After examination of the record, which revealed that the June 1, 2022 judgment at issue appeared not to be a final appealable ruling, this Court, ex proprio motu, issued a rule to show cause as to why the appeal should or should not be dismissed. The rule to show cause was referred to the panel hearing the merits of the appeal. Reverse Mortgage Solutions, Inc. v. Conerly, 2022-1054 (La.App. 1 Cir. 12/22/22) (unpublished action).
DISCUSSION
Rule to Show Cause
Appellate courts have a duty to examine their subject matter jurisdiction and to determine sua sponte whether such subject matter jurisdiction exists, even when the issue is not raised by the litigants. This court's appellate jurisdiction only extends to "final judgments." State in Interest of Kirkland v. Kirkland, 2022-0790, pp. 5-6 (La.App. 1 Cir. 3/3/23), ___ So.3d ___, __; see also La. C.C.P. art. 2083(A). A final judgment must be precise, definite, and certain. Advanced Leveling &Concrete Solutions v. Lathan Company, Inc., 2017-1250, p. 4 (La.App. 1 Cir. 12/20/18), 268 So.3d 1044, 1046. In addition to naming the parties in favor of and against whom the ruling is ordered, a final judgment must state the relief that is granted or denied. Moreover, the specific relief granted should be determinable from the judgment without reference to extrinsic sources. Advanced Leveling &Concrete Solutions, 2017-1250 at p. 4, 268 So.3d at 1046. To be legally enforceable as a valid judgment, a third person should be able to determine from the judgment the specific nature and precise amount of damages owed without reference to other documents in the record. Wachovia Mortgage Corporation v. Hoover, 2019-1520, p. 4 (La.App. 1 Cir. 9/21/20), 314 So.3d 42, 45.
In this matter, the judgment awards RMS unpaid principal, interest, and other fees in specific amounts, as well as "any such additional amounts accruing thereafter through the date of sale," "all expenses incurred in enforcing the note and mortgage including reasonable attorney's fees as provided for by the note and mortgage," and "all law charges, costs, fees and expenses including Sheriffs commission" without delineating any specific amounts or interest rates to be applied. This Court has previously considered similar language and ruled that awards for "any such additional amounts," "all expenses incurred," and "all . . . fees" are not precise, definite, or certain. See Wilmington Sav. Fund Society, FSB as Trustee of Stanwich Mortgage Loan Trust A v. Davis, 2021-1456, p. 4 (La.App. 1 Cir. 7/29/22), 2022WL3009748, *2; see also U.S. Bank National Association as Trustee for RFMSI2005S7 v. Dumas, 2021-0585, p. 7 (La.App. 1 Cir. 12/22/21), 340 So.3d 246, 250 (a judgment that awards the costs of additional expenses yet to be calculated is not a final judgment subject to appellate jurisdiction); Wachovia Mortgage Corporation, 2019-1520 at p. 4, 314 So.3d at 45 (the entire judgment was rendered non-appealable by indefinite awards for "additional amounts accruing thereafter," "all expenses," and "fees" that could not be determined from the judgment). The precise amount of the awards cannot be determined from the judgment at issue herein without reference to extrinsic sources. A judgment that awards a sum to which the costs of additional expenses - yet to be fixed - must be added is not a final appealable judgment. Wilmington, 2021-1456 at p. 4, 2022WL3009748 at *2. Accordingly, the judgment in the instant case is not a final judgment over which this court has appellate jurisdiction. Further, the judgment does not fall within any category of partial judgments immediately appealable under La. C.C.P. art. 1915(A) and also lacks a certification that it is immediately appealable pursuant to La. C.C.P. art. 1915(B). Thus, there is no final appealable judgment before us, and this court lacks subject matter jurisdiction.
This Court has discretion to convert an appeal of a non-appealable judgment to an application for supervisory writs when the motion for appeal was filed within the thirty-day time period allowed for the filing of an application for supervisory writs of review under Rule 4-3 of the Uniform Rules, Courts of Appeal. State in Int. of Kirkland, 2022-0790 at p. 7, ___ So.3d ___, ___; Simon v. Ferguson, 20180826, pp. 4-5 (La.App. 1 Cir. 2/28/19), 274 So.3d 10, 14. In this matter, the judgment and notice of judgment are dated June 1, 2022 and June 9, 2022, respectively. The motion for appeal was filed on June 30, 2022. In light of the fact that the appeal would have been timely had it been filed as a supervisory writ application, this court will exercise its discretion to convert the appeal to an application for supervisory writs of review. We now turn to the merits of the writ application.
Exclusion of Affidavit of Kenneth L. Blanchard
Mrs. Conerly first argues that the trial court erred in excluding the affidavit of her attorney, Kenneth L. Blanchard, and the exhibits attached to his affidavit, filed in opposition to RMS's motion for summary judgment.
The trial court may only consider those documents filed in support of or in opposition to a motion for summary judgment. La. C.C.P. art. 966(D)(2). The only documents that may be filed in support of or in opposition to a motion for summary judgment are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4). Other documents that are not included in this exclusive list, such as photographs, pictures, video images, or contracts, are not permitted unless they are properly authenticated by an affidavit or deposition to which they are attached. Successions of Millet, 2021-0355, pp. 7-8 (La.App. 1 Cir. 12/22/21), 340 So.3d 252, 257; See also La. Code Civ. P. art. 966, Comments - 2015, Comment (c). Any objection to a document must be raised in a timely filed opposition or reply memorandum, and the trial court shall consider any documents to which no objection is made. La. C.C.P. art. 966(D)(2). The trial court shall consider all objections prior to rendering judgment and shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. Id.
When an objection to an affidavit in support of or in opposition to a motion for summary judgment is made in accordance with La. C.C.P. art. 966(D)(2), the only issue to be determined is whether that affidavit complies with the provisions of La. C.C.P. art. 967. Mariakis v. N. Oaks Health System, 2018-0165, p. 9 (La.App. 1 Cir. 9/21/18), 258 So.3d 88, 95.
Article 967(A) provides, in pertinent part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts' opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
The trial court's ruling on an objection to a document filed in support of or in opposition to a motion for summary judgment is subject to the abuse of discretion standard of review on appeal. Lucas v. Maison Insurance Co., 20211401, p. 12 (La.App. 1 Cir. 12/22/22), 358 So.3d 76, 88-89.
Rule 3.7 of the Louisiana Supreme Court Rules of Professional Conduct prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be 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.
Thus, part of the general "advocate-witness rule" is that counsel should avoid appearing as both advocate and witness except under extraordinary circumstances. Franklin Credit Mgmt. Corp. v. Gray, 2007-1433, p. 8 (La.App. 4 Cir. 1/14/09), 2 So.3d 598, 603, writ denied, 2009-0476 (La. 4/17/09), 6 So.3d 795.
One reason for the advocate-witness rule is that it is unfair to the client that his case be presented through a witness whom the trier of fact would necessarily view as interested because of the witness' zeal of advocacy and likely interest in the result of the case. The second, perhaps most important, reason is one of public policy: permitting an attorney who is trying a case to also be a witness in establishing its facts will visit public distrust and suspicion on the legal profession arising from the attorney's dual role. The public will be apt to think that the lawyer, whether he is an active partner in the conduct of the trial and also a material witness, or an inactive partner and a material witness, will be inclined to warp the truth to the interest of his client. The third reason for the advocate witness rule is to avoid the appearance of wrongdoing. Farrington v. Law Firm of Sessions, Fishman, 96-1486 (La. 2/25/97), 687 So.2d 997, 1000.
In Franklin, the fourth circuit noted that only a few cases in Louisiana exist where the court has been presented with extraordinary circumstances and allowed the lawyer of a party to the litigation to testify on behalf of his client. In Jordan v. Intercontinental Bulktank Corp., 621 So.2d 1141, 1148 (La.App. 1 Cir.), writ denied, 623 So.2d 1336 (La. 1993), the plaintiffs lawyer was allowed to testify concerning numerous attempts to collect maintenance and cure from the defendant when no other witness was available to provide such testimony. In so ruling, the court reasoned that to disallow the testimony of counsel would work a substantial hardship on the plaintiff. Similarly, in Nicholas v. Nicholas, 04-2176, pp. 8-9 (La.App. 1 Cir. 9/23/05), 923 So.2d 690, 695-696, the plaintiffs lawyer was allowed to testify on the plaintiffs behalf regarding the defendant's continued failure to make court-ordered payments when the plaintiff unexpectedly became ill and was unable to attend the hearing. The court allowed the representing lawyer to testify specifically because the lawyer had firsthand knowledge concerning the defendant's failure to abide by the court's order, and because to disallow the Hines v. Garrett, 2004-0806, p. 1 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is one as to which reasonable persons could disagree. However, if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 2004-0806 at p. 1, 876 So.2d at 765-66. A fact is "material" when its existence or nonexistence is essential to the plaintiff's cause of action under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. Any doubt as to a dispute regarding an issue of material fact must be resolved against granting the motion and in favor of a trial on the merits. Id.
The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1). Although factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Guillory v. The Chimes, 2017-0479, p. 4 (La.App. 1 Cir. 12/21/17), 240 So.3d 193, 195. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Larson v. XYZ Insurance Company, 2016-0745, p. 7 (La. 5/3/17), 226 So.3d 412, 417.
Mrs. Conerly's first argument that summary judgment was improperly granted is based on the premise that the trial court erred in excluding her attorney's affidavit and the exhibits attached thereto. As we have determined that the trial court did not abuse its discretion in refusing to consider the affidavit of Mrs. Conerly's own attorney in opposition to summary judgment, this argument has no merit.
Mrs. Conerly next argues that the trial court erred in granting summary judgment because genuine issues of material fact remained concerning the capacity in which she signed the mortgage agreement. The only evidence before the court in support of Mrs. Conerly's opposition was her own affidavit stating that the mortgage agreement was created and supplied by the mortgagee and that Clause 33 of the mortgage agreement (stating that, to the extent the mortgaged property is a community-owned immovable, her signature on the mortgage is for the purpose of concurring with the granting of the mortgage to the extent required by La. C.C. art. 2347) was not brought to her attention at the time she signed the mortgage agreement.
A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he/she did not read it, or that it was not explained, or that he/she did not understand it. Wagner v. DA Exterminating Co. of St. Tammany, Inc., 2020-0876, p. 9 (La.App. 1 Cir. 4/16/21), 324 So.3d 105, 111. The presumption is that parties are aware of the contents of writings to which they have affixed their signatures, and the burden of proof is upon them to establish with reasonable certainty that they have been deceived. If a party can read, it behooves him/her to examine an instrument before signing it. Id.
Mrs. Conerly's affidavit, taken alone, is insufficient to create a genuine issue of material fact so as to defeat summary judgment. This assignment of error also lacks merit.
CONCLUSION
For the reasons set forth herein, the appeal is converted to an application for supervisory writ and the writ is denied. Costs of this matter are assessed to defendant-appellant, Deborah D. Conerly as Independent Executrix of the Succession of Louis J. Conerly, Sr. and as Trustee of The Louis J. Conerly, Sr. and Deborah D. Conerly Revocable Living Trust.
APPEAL CONVERTED TO WRIT; WRIT DENIED.
HESTER, J., agrees in part and dissents in part and assigns reasons.
HESTER, J., agreeing in part and dissenting in part.
While I agree that the June 1, 2022 judgment is not final and that this appeal should be converted to an application for supervisory writ, I respectfully dissent in part.
The majority correctly states that when an objection to an affidavit used in support or opposition to a motion for summary judgment is made, the only issue to be determined is whether the affidavit complies with the provisions of La. Code Civ. P. art. 967. However, the majority adds an additional requirement to the affidavit by overlaying the restrictions of Rule 3.7 of the Professional Rules of Conduct, which prohibit a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness. I do not believe that analysis should come into play in ruling on the objection to the affidavit.
The only issue to be determined is whether the affidavit complies with the provisions of La. Code Civ. P. art. 967. I find that the affidavit herein so complies. The affidavit was made on personal knowledge, sets forth facts that would be admissible at trial, and shows that the attorney is competent to testify. See Jordan v. Intercontinental Bulktank Corp., 621 So.2d 1141, 1148-49 (La.App. 1st Cir.), writs denied, 623 So.2d 1335 and 1336 (La. 1993) (Rule 3.7 does not prohibit attorneys from testifying at a trial about facts essential to the case, and there is nothing in the Rules of Professional Conduct or the Louisiana Code of Evidence providing that an attorney is not a competent witness in a trial in which he represents a party to the litigation.). Additionally, I do not find the Fourth Circuit case of Franklin Credit Mgmt. Corp. v. Gray, 2007-1433 (La.App. 4 Cir. 1/14/09), 2 So.3d 598, 603-05, writ denied, 2009-0476 (La. 4/17/09), 6 So.3d 795, persuasive.
Nothing in La. Code Civ. P. art. 967 prohibits the use of the attorney's affidavit in this case, which should be our sole focus in reviewing an affidavit submitted in support of a motion for summary judgment. I would reverse the trial court's ruling to exclude the attorney's affidavit and overrule the objection. Thereafter, I would conduct a de novo review of the motion for summary judgment in view of all the evidence.