source: Caselaw Access Project

author: | TRAYLOR, Justice.

license: Public Domain

text:
    Cassandra ROBINSON, v. Chantelle FONTENOT and Dr. Jodi McGee.
    Nos. 2002-C-0704, 2002-C-0733.
    Supreme Court of Louisiana.
    Feb. 7, 2003.

      Timothy A. Maragos, Baton Rouge, John Edward Ortego, Lafayette, for Applicant in No. 2002-D-0704.
    Scott T. Gegenheimer, Baton Rouge, Richard W. Vidrine, Ville Platte, Donna J. Duplechian, Alexandria, Lawrence L. Parker, Bolen, Parker & Brenner; Kenny L. Oliver, David 0. Way, Lafayette, Oliver, Way & Jones, for Respondent in No. 2002-C-0704.
    Kenny L. Oliver, David 0. Way, Lafayette, Oliver, Way & Jones, for Applicant in No. 2002-C-0733.
    Timothy A. Maragos, Baton Rouge, John Edward Ortego, Lafayette, Scott T. Gegenheimer, Baton Rouge, Richard W. Vidrine, Ville Platte, Donna J. Duplechian, Alexandria, Lawrence L. Parker, Bolen, Parker & Brenner, for Respondent in No. 2002-C-0733.
   | TRAYLOR, Justice.

We granted certiorari in this matter to consider whether the district court below erred in granting a judgment notwithstanding the verdict which held that the jury award returned was “abusively low,” and whether the court of appeal erred in affirming the judgment notwithstanding the verdict. For the reasons assigned, we reverse.

FACTS and PROCEDURAL HISTORY

Cassandra Robinson was a nurse manager working in the emergency room of the Savoy Medical Center in Mamou, Louisiana. Chantelle Fontenot worked for Dr. McGee, an emergency room doctor who saw his regular patients at the hospital when he had emergency room duty. On December 18, 1997, Fontenot spilled ice on the emergency room floor, upon which Robinson slipped and fell, injuring her sacroiliac joint (SI joint).

Following her injury, Robinson missed work until March 18, 1998, at which time she returned to “light duty” work. Robinson continued to work for two months, | ¡.until May 26, 1998, when she bent over to pick up a toy and experienced pain similar to that she had suffered following the slip and fall five months earlier.

Following the second incident, Robinson did not return to work, experienced several hospitalizations due to pain, and eventually underwent an SI joint fusion. Her doctors agree that she cannot return to work as a nurse with direct patient care responsibilities.

At trial, the jury returned a verdict assessing Robinson ten percent fault and Fontenot ninety percent fault. The jury assessed the total amount of damages that Robinson had suffered as $38,107.50 for physical pain and suffering, $38,107.50 for mental pain and suffering, $12,171.08 for past medical expenses, and $11,614.00 for past loss of earnings. The jury did not award any amount for future loss of earnings or future medical expenses. The total of the jury award was $100,000.08.

The trial court, finding the jury’s award “abusively low,” granted plaintiffs motion for judgment notwithstanding the verdict (JNOV) and awarded $200,000.00 for future pain and suffering, $116,713.92 for past medical expenses, $20,000.00 for future medical expenses, $131,170.47 for past lost earnings, and $707,215.00 for loss of earning capacity. The trial court’s judgment awarded $1,174,921.39.

Defendants McGee, Fontenot, and State Farm appealed, arguing that the trial court had erred in granting the JNOV. The court of appeal affirmed the JNOV, stating that “the evidence so overwhelmingly favors the finding that Robinson’s May 1998 incident was related to her December 1997 fall that no reasonable jury could reach a contrary verdict.” Defendants then applied to this court for review of the decisions below.

DISCUSSION

Defendants argue that both the trial and appellate courts improperly substituted | stheir judgment for that of the jury, first in rendering and then in confirming the JNOV. Defendants point out that a central issue in the trial of the matter was whether or not the incident which occurred on May 26, 1998, when Robinson bent over to pick up a toy, was a new injury, or simply an aggravation of the injury she had sustained on December 18, 1997. The jury, they argue, could reasonably have determined that the May 26 injury was a new injury not related to the December injury, and that the damages from the initial injury ended when Robinson returned to work on March 18, 1998. They point out that the jury award was exact to the penny as to Robinson’s lost wages and medical expenses during the period between the December 18, 1997, injury and the May 26, 1998, injury. In support of the jury’s verdict, defendants point to medical testimony by two physicians regarding their opinions that the May 1998 injury was a new injury.

Plaintiff, on the other hand, argues that because all of the physicians who treated Robinson on more than one occasion were of the opinion that the May 1998 injury was an aggravation of the December 1997 injury, and because those physicians believed that the x-ray evidence supported that finding, the JNOV was proper. Plaintiff further argues that the jury award shows that the jury was confused, and that the verdict was based upon improper and prejudicial conduct.

Law and Analysis

As an initial matter, we take up plaintiffs argument regarding improper and prejudicial conduct by defendants. Plaintiff complains that one of defendants’ trial counsel referred to plaintiffs filing of a claim against her employer, an action contrary to Article 414 of the Code of Evidence. The reference complained of occurred during defendants’ impeachment of plaintiff, and may be found at page 768 of the record:

Q. Do you remember giving your deposition in another matter in this case?
|4A. I gave ... three depositions. You’ll have to point out which one your [sic] talking about.
Q. Well, you also gave a fourth deposition in this case in regard to a claim against Savoy Medical Center, isn’t that true?

Plaintiffs counsel immediately objected and asked for a conference outside the presence of the jury. The attorneys and the trial judge moved into the judge’s office and discussed the matter. Upon returning to the courtroom, the substance of the discussion was not entered into the record and the trial judge did not rule on the objection on the record. On July 17, 2002, after this court had granted writ of certiorari in the matter, the trial judge signed a “per curiam” order which acknowledged plaintiffs objection, the trial judge’s ruling in favor of the objection, and the trial judge’s admonishment to defendants’ counsel that they had been warned prior to trial to make no reference to the compensation claim and that any further reference to the claim would result in a mistrial. The order states that it “shall become part of the official Court record of this matter.”

Whether the trial court did or did not have jurisdiction to publish such an order is of no moment. Plaintiff apparently got the relief she asked for: plaintiffs counsel made an objection, the court granted the objection off the record and admonished defense counsel off the record. If plaintiff had wanted the trial court to admonish the jury to disregard the question, plaintiff could have done so; however, it is incumbent upon counsel to request the action he or she desires the court to take. C.C.P. art. 1635. Plaintiffs counsel requested neither a jury admonishment nor a mistrial, either on or off the record. Plaintiff does not raise an error which this court could repair, even were it inclined to do so.

Article 1811 of the Louisiana Code of Civil Procedure authorizes a trial court to grant a JNOV on either the issue of liability or of damages or of both. This court has previously explained the standard for the issuance of a JNOV, and for review of La granted JNOV:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La.11/28/00); 774 So.2d 84, 89.

Because the jury verdict awarded exactly to the penny the damages that plaintiff had proved for the period between the two incidents, we believe that it is clear that the jury determined that the May 1998 injury was a new injury and not related to the December 1997 slip and fall. Initially, then, we must examine the record to determine whether or not there was sufficient evidence in the record to support the jury’s finding that the second injury was a new injury.

Dr. Lippett, a board certified orthopedic surgeon who performed plaintiffs SI joint fusion surgery was of the opinion that merely bending over and flexing as plaintiff reportedly did to precipitate the May 1998 incident was enough to cause an SI injury and that the May 1998 injury was a new injury. He testified at trial by video deposition entered into the record. The deposition reveals the following exchanges, on page 22:

Q. When you talk about the trauma that can precipitate that kind of pain in the SI joint, it’s not necessarily some accident? I think you mentioned to us earlier that it can be from bending over and flexing and twisting, that type of motion; isn’t that also correct?
A. Well, that is an injury, and that’s a very common cause of tearing of the ligaments and problems with the SI joint, yes.

and on pages 23-4:

|fiQ. Now, in the history that she provided to you, she told you that in — that following the December 1997 slip and fall, she did bend over and pick something up that resulted in her back locking up; isn’t that correct?
A. Yes.
Q. That can also be a precipitating cause of an injury to the SI joint; isn’t that true?
A. Yes.
Q. And isn’t it correct, Doctor, that bending over to pick something up can cause the ligaments around the sacral iliac joint to tear?
A. That’s correct. And I think that’s what happened in this particular case.

The above testimony, given all inferences which tend to favor the non-movant, clearly supports a finding that the May injury was a new injury.

Prior to Dr. Lippett’s testimony being shown to the jury, the jury had heard plaintiff admit that she had had several other back injuries and had suffered other accidents and incidents: in 1993 she slipped in IV fluid and hurt her back; she had a left SI joint injection during pregnancy; in 1994 she suffered severe upper right quadrant pain radiating into her back; in January 1997, she reported severe upper right quadrant pain radiating into her back; she suffered a trip and fall in 1996; she was involved in a car accident in February 1998; she was a victim of domestic violence in March of 2000 and was knocked down; and was again a victim of domestic violence July 2000 when she was battered and dragged across parking lot. With the preceding facts known to the jury, and admitted by the plaintiff, the following exchange likewise supports the jury verdict, on page 29:

Q. Now, given — and I’ll need you to accept this as true because you don’t have personal knowledge of it. But if you assume the 1993 fall in the hospital on that area, the 1995 injury to her left SI joint and for which she receives an injection and a fall of 1997, all of which she returned to work from, wouldn’t it make it more likely that the 1998 incident where she bent over and picked up a toy from which she was not able to return to work, was a new injury?
A. It sounds like it was, yes.

^Finally with regard to Dr. Lippett’s deposition, plaintiffs counsel tried several different questions to “rehabilitate” his testimony, but the doctor finally said on page 34 of his deposition, “I still am not clear as to the question. I’m sorry. Based on the information available to me, the incident in [May] of 1998 was a new injury. But it certainly could have been an aggravation of a significant preexisting condition.” Again, this testimony, given all reasonable inferences, supports a jury finding that the two incidents were unrelated.

There is other evidence which likewise supports the jury’s verdict. Dr. Foster, a board certified orthopedic surgeon who testified in court as an independent medical examiner, discussed in his testimony plaintiffs previous injuries, her “tough” pregnancies, and the fact that plaintiff had received a left SI joint injection in 1994. Dr. Foster testified at length about whether the May, 1998, incident was a new injury. When asked of his opinion as to whether or not the incident of May, 1998, was a new injury, he stated, “I feel that the incident of May, 1998, uh ... was another aggravation or another injury to the SI joint that was initially injured during childbirth.” R. at 1006. When asked how the May injury could be a new injury to the plaintiff, Dr. Foster explained:

I think it’s ... I think what we have to look at is cumulative trauma to this type of joint because she had degenerative changes in the two CT scans that I saw. Uh ... during childbirth uh ... when they are vaginal deliveries, not a cesarean section. The pelvis uh ... has to open up to allow the baby to pass through and by opening up, the front part of the pelvis, which is ... which is what we call the pubic symphysis. This is a cartilage rem [sic] with ligaments, so it’s allowed to spread apart so that the child can pass through the birth canal. This, also, these ligaments in the front of the SI joint must also move, in other words they must stretch to a certain extent. Now, I’ve seen in my practice women that have injured the SI joint or actually fractured their tailbone during childbirth because of the force of the pelvis spreading apart, so when | «[plaintiff] had her initial injury uh ... that required an injection into that joint, evidentially [sic] the joint had been stretched more than it was supposed to during childbirth. When she ... she had relief of that pain after the injection. When she slipped and fell again she had some type of trauma whether it was micro trauma or major trauma, but it was probably more major in the fact that, that’s a rigid joint, but it was enough to open it or move it just a millimeter or two, uh ... particularly with the fact that she already had some degenerative changes going on. It then calms down. It’s like any other joint that has arthritis in it. You can have recurrent injuries where you have swelling and tenderness, um ... and then it’ll go away. It’ll get better and it’ll calm down. Then you can do something very simple again, such as bending over, which requires the spine to move, and if that’s an abnormal joint, meaning there’s arthritis in there, if it goes to move on you then you can have a new injury to that joint, uh ... and that’s what I feel caused the need for surgery. R. at 1007.

Dr. Foster was also asked his opinion regarding plaintiffs treatment following the May incident. Having already expressed his opinion that the December 1997 and May 1998 incidents were unrelated, Dr. Foster replied, “I feel that the May incident is the reason for her continued treatment and the ultimate treatment of an SI joint fusion.”

Although plaintiffs treating physicians, with the exception of Dr. Lippett, were of the opinion that the May and December injuries were related, another of them gave testimony which would support the jury verdict. Dr. Nason, a board certified orthopedic surgeon, testified on page 17 of the transcript of his video deposition:

Q. Did she give you a history of her condition between February and that date [May 28, 1998] how she had been doing?
A. She did state that she had steadily but slowly improved with her symptoms over this three and a half (3 1/2) month period, and that for the month prior to this time, she had been doing well and was able to be fully active ...

Dr. Nason also confirmed the testimony of Doctors Lippett and Foster on page 29 of his deposition, in that he stated that a sacroiliac injury such as plaintiff suffered in May could be caused simply by bending over:

Q. But that was the type of activity— lifting something — that could cause an additional injury to her back?
A. Merely the act of bending over is enough to cause that.
Q. Okay. But picking up something, on top of that, is certainly 1gsomething that can cause her injury?
A. Yes.

Finally, Robinson herself offered testimony to support the jury verdict. On page 778 of the record, when asked if it was true that she started having problems with her left SI joint after the May injury, she stated, “Uh ... yes, sir.” When asked if she had had any problems with her left SI joint between the December and May injuries, she stated, “No.” When asked if that was a new complaint, she replied, “I think it was, yes, sir.”

It is clear that there was ample evidence adduced at trial to allow “reasonable and fair-minded men in the exercise of impartial judgment” to determine that the May 1998 injury was not related to the December 1997 injury. Apparently, by arguing that all of the physicians who treated on more than one occasion were of the opinion that the May injury was related to the December incident, plaintiff would like for this court to take into account the credibility of those witnesses. This we cannot do. As we stated in Davis, “the court should not evaluate the credibility of witnesses and all reasonable inferences should be resolved in favor of the non-moving party.”

The court of appeal quoted certain testimony by Doctors Lippett and Foster, but disagreed with defendants’ assertion that the jury could have reasonably inferred from that testimony that the May incident was a new injury. The court of appeal opined, “Neither of the statements relied on by the Defendants is definitive. In contrast, the physicians who treated Robinson on a regular basis agree unequivocally that the May 1998 incident was an aggravation of the December 1997 accident.” Robinson v. Fontenot, 2001-0975 (La.App. 3d Cir.2/6/02); 815 So.2d 904, 908. It is apparent from these statements that the court of appeal, by pointing out the testimony of the “treating physicians,” not only made its own credibility determination, but also, in requiring “definitive” assertions by Doctors Lippett and Foster, failed to resolve all 1 inreasonable inferences in favor of the non-movants. Were definitive statements required, no inferences would be needed.

Robinson further argues that the x-ray evidence provides “objective radiographic evidence” showing “that the fall caused marked sclerotic changes in the right SI joint only,” and because there are no “credibility issues with x-rays,” this evidence is enough to override the evidence supporting the jury’s verdict. The x-ray evidence at issue, however, is not as clear cut as the plaintiff maintains. The December x-ray (actually a series of CT scans)was focused on the lower back, but did show some of the upper left and right SI joints. Dr. Foster testified that the films showed “some degenerative changes of the left SI joint with some cystic changes, and also of the right SI joint was some cystic changes that were present.” R. at 998. Dr. Foster continued his testimony as to the May CT, stating, “Um ... on those they were more specific to the SI Joint, itself, uh ... I felt they showed the same degenerative changes uh ... as the one on December 18th, and then these ... because these were cuts of the SI Joint, they went further down into the joint, which did show degenerative changes of the S ... right SI joint, and also the left, but worse on the right side.” R. at 999. As to the conclusion he drew from a comparison of the scans, Dr. Foster said, “[T]he changes were essentially the same uh ... because I did not ... could not view further down the SI Joint on the December films then I knew ... could not compare them exactly. R. at 999-1000. Dr. Foster continued, “I felt that she had had an aggravation of a chronic, or ... or a chronic SI problem,” and agreed that “the December fall was an aggravation of [a] prior incident.” R. at 1000. There is, therefore, contradictory evidence regarding the “x-rays” and what they are able to prove. What all of the physicians do agree on, however, is that both the December and May scans show damage in both the left and right SI joints.

| nPIaintiff also argues that although the jury awarded the exact amounts which plaintiff proved as damages for the period from the December 1997 accident until plaintiff returned to work in March, the jury was confused because it awarded amounts- for physical pain and suffering and mental pain and suffering that plaintiff did not prove and was not entitled to. Because of this confusion, plaintiff says, the trial judge was justified in granting the JNOV in favor of plaintiff. To the contrary, there is no doubt that the jury verdict awarded to the penny the amounts for past medicals and past wages to which plaintiff was entitled prior to the second accident. The jury was not confused as to those amounts. The only confusion contained in the jury verdict seems to be with regard to physical and mental pain and suffering and the proper amount to be awarded for a three-month aggravation of a lower back injury. Because defendants have neither raised nor argued the issue, the awards for those items of recovery must stand.

DECREE

For the foregoing reasons, the ruling of the court of appeal is reversed. The matter is remanded to the trial court for entry of judgment in accordance with the jury verdict and this opinion.

REVERSED AND REMANDED

      . The transcript of Dr. Lippett's video deposition indicates that he said "... the incident in March of 1998 was a new injury.” There having been no March incident, apparently the doctor was referring to the May incident.


author: |, DECUIR, Judge.

text:
    SUCCESSION OF Patrick Cleveland WINTERS.
    No. 02-0961.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Silas B. Cooper Jr., Cooper, Woodruff & Robicheaux, Abbeville, LA, for: Larry Winters and Sandra Winters.
    Royale L. Colbert, Lafayette, LA, for: Patrick Prejean.
    Court composed of NED E. DOUCET, JR., Chief Judge, and OSWALD A. DECUIR and MARC T. AMY, Judges.
   |, DECUIR, Judge.

On November 19, 2001, Patrick Prejean filed a claim in the succession proceedings of Patrick Winters who died on November 22, 2000. Prejean contends he is the illegitimate son of Winters and has asserted a claim for a portion of his estate. The succession representative, Larry Winters, brother of the deceased, filed an exception of prescription in response to Prejean’s claim. Relying on the provisions of La. Civ.Code art. 209, the trial court maintained the exception and dismissed Preje-an’s claim. We affirm.

Patrick Prejean was born on August 15, 1966 to Mary Jane Provost. His father’s name was not listed on his birth certificate, but Prejean asserts that he was informally acknowledged by various acts of Winters throughout his lifetime. In particular, he was the named beneficiary of a life insurance policy Winters purchased in 1994. Prejean argues that the family of Winters was fully aware of his relationship to the deceased and, in fact, they attested to that relationship in affidavits used for Prejean’s collection of the life insurance proceeds after Winters’ death.

In his brief to this court, counsel for Prejean attached several documents showing various acts of acknowledgment, none of which were offered as evidence at trial. The documentation, however, is inconsequential to our decision, as we find no error in the trial court’s conclusion that Prejean’s claim has prescribed. Although Prejean characterized his claim as one in tort, the trial court viewed it as simply a suit to establish filiation. His claim was essentially to establish himself as an heir, a claim which may have merit but has not been filed timely.

La.Civ.Code art. 209 provides:

A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
|pB. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.
D. The right to bring this proceeding is heritable.

Given this statutory language, we conclude the claim asserted by Prejean has prescribed. Although Prejean’s claim was filed within one year of Winters’ death, the claim was filed long after Prejean reached his nineteenth birthday; therefore, based on the language in Paragraph C, the asserted claim has prescribed. A similar result was reached in Bennett v. Bennett, 511 So.2d 1280 (La.App. 2 Cir.1987), a case in which three illegitimate children asserted a claim for mismanagement of the succession by the administratrix and the attorney. The court construed the claim as an action to establish filiation and found, as to two of the children who were over the age of nineteen, that the claim had prescribed.

Similarly, as in the Bennett case, we make no determination as to Prejean’s claim for tort damages against the succession for the alleged fraud perpetrated by the succession representative. This claim is essentially one of filiation. The trial court was not presented with the question of whether the Article 2315 exception to the prescriptive period specified in Article 209 includes a claim for tort damages owed by the succession. Accordingly, the question of the succession’s liability for alleged fraud is not properly before us.

|«Finally, in his brief to this court, Preje-an argues that he should be recognized as a creditor of the succession because he paid the funeral expenses for the deceased. Insurance proceeds later covered those expenses, and Prejean contends that the succession owes him reimbursement. This issue was not before the trial court and no evidence was adduced on these allegations; we are, therefore, not at liberty to render a determination as to Prejean’s right to reimbursement.

For the foregoing reasons, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: |,CARTER, C.J.

text:
    CERTIFIED FINANCE, INC. v. Rebecca CUNARD, A. Gill Dyer, Hillary Thomas Murphy and an Unnamed Partnership/Joint Venture Composed of Rebecca A. Cunard, A. Gill Dyer and Hillary Thomas Murphy.
    No. 2001 CA 0797.
    Court of Appeal of Louisiana, First Circuit.
    April 17, 2002.
    Rehearing Denied May 30, 2002.
    Writ Denied Oct. 14, 2002.
    Keith P. Richards, Baton Rouge, Counsel for Plaintiff/Appellant Certified Finance, Inc.
    A. Shelby Easterly, III, Connie M. Ev-ersberg, Denham Springs, Rick A. Caballero, Baton Rouge, Counsel for Defendant/Appellee Rebecca A. Cunard.
    Frank P. Simoneaux, Baton Rouge, Counsel for Amicus Curiae Simoneaux Carlton Dunlap & Olinde, L.L.P.
    Before: CARTER, C.J., CLAIBORNE  and LANIER, JJ.

      . Honorable Ian W. Claiborne, Judge (retired), is serving pro tempore by special order of the Louisiana Supreme Court.

      . Honorable Walter I. Lanier, Jr., Judge (retired), is serving pro tempore by special order of the Louisiana Supreme Court.

   |,CARTER, C.J.

Certified Finance, Inc. (Certified) appeals from a summary judgment dismissing its action against Rebecca A. Cunard (Cunard). We granted leave to the law firm of Simoneaux Carlton Dunlap & Olinde, L.L.C., to appear as amicus curiae.

FACTS AND PROCEDURAL HISTORY

On June 28, 2000, plaintiff filed its Petition on Promissory Note and For Unjust Enrichment against Cunard, A. Gill Dyer (Dyer), Hillary Thomas Murphy (Murphy), and an unnamed partnership/joint venture (“joint venture”) composed of Cunard, Dyer, and Murphy. Certified’s petition alleges that on August 17, 1992, Cunard, Dyer and Murphy formed the joint venture to pursue products liability actions on behalf of breast implant recipients, and that, in order to fund the prosecution of legal actions on behalf of the joint venture clients, Dyer approached Certified to lend money to the joint venture for the significant medical expenses and court costs associated with the joint venture’s breast implant cases. The petition further alleges that from 1992 through September 1995, Certified lent money to the joint venture, which funds were used for the benefit of the joint venture. Each time Certified lent money to the joint venture, either Dyer or Dyer and Murphy signed a new promissory note representing the total indebtedness to Certified. The last note Dyer and Murphy signed on behalf of the joint venture is dated September 11, 1995, in the principal amount of $1,676,153.44, bearing interest at a rate of 21.03% per annum. It provided for 25% attorney fees if placed in the hands of an attorney for collection and is payable on demand. Certified further alleged that despite amicable demand, defendants have failed to pay the balance.

|3Cunard responded to the petition by filing a motion for summary judgment, asserting that she did not execute the promissory note and, as a matter of law, no debt exists under the promissory note sued upon. Cunard further asserted the doctrine of res judicata because Certified’s claim under the promissory note had been reduced to judgment in the matter entitled “Certified Finance, Inc. v. A. Gill Dyer and Hillary Thomas Murphy,” docket number 2000-1251, on the records of the Civil District Court for the Parish of Orleans. Following a hearing, the motion for summary judgment was granted, and judgment was rendered in favor of Cunard and against Certified, dismissing Certified’s suit. Certified appeals.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo. Doerr v. Mobil Oil Corp., 2000-0947, p. 27 (La.12/19/00), 774 So.2d 119, 136, corrected on rehearing, 2000-0947 (La.3/16/01), 782 So.2d 573. It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. LSA-C.C.P. art. 966C(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966C |4(2). Shelton v. Standard/700 Associates, 2001-0587, pp. 5-6 (La.10/16/01), 798 So.2d 60, 65.

DISCUSSION

Louisiana Revised Statute 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment. (Emphasis added).

Res judicata is an objection usually raised by a peremptory exception. It is an issue preclusion device found both in federal law and in state law. Prior to the amendments to Louisiana res judicata law, effective in 1991, Louisiana law on res judicata was substantially narrower than federal law. The purpose of both federal and state law on res judicata is essentially the same — to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654, pp. 11-12 (La.1/16/96), 666 So.2d 624, 631.

I/The original Louisiana doctrine of res judicata was based on a presumption of correctness rather than an extinguishment of the cause of action. A decided case precluded a second suit only if it involved the same parties, the same cause of action and the same object of demand as the prior suit. However, under LSA-R.S. 13:4231, as amended in 1990, effective January 1, 1991, res judicata bars relitigation of a subject matter arising from the same transaction or occurrence as a previous suit. Thus, the chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. Terrebonne Fuel, 666 So.2d at 632.

Furthermore, the doctrine of res judica-ta is not discretionary and mandates the effect to be given final judgments. Leon v. Moore, 98-1792, p. 5 (La.App. 1 Cir. 4/1/99), 731 So.2d 502, 504-05, writ denied, 99-1294 (La.7/2/99), 747 So.2d 20.

In addition to LSA-R.S. 13:4231, LSA-C.C.P. art. 425 provides that a party “shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” The comments to this article, also amended in 1990, effective January 1, 1991, state that the amendment “expands the scope of this Article to reflect the changes made in the defense of res judicata and puts the parties on notice that all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation must be raised.” LSA-C.C.P. art. 891 was also amended and provides that a petition “shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.” The comments explain:

This Article is amended to reflect the changes made in the defense of res judi-cata. Except as otherwise provided by law, the|fiplaintiff is required to set forth the facts of the transaction or occurrence that is the subject matter of the litigation, and not merely the facts supporting the cause of action asserted, because all causes of action arising out of that transaction or occurrence are considered to have been submitted for adjudication and will be barred or merged in the judgment.

After a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. LSA-R.S. 13:4231; LSA-C.C.P. art. 425; Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079; Leon, 731 So.2d at 504. Implicit in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but failed to do so. Jackson v. Iberia Parish Gov’t, 98-1810, p. 9 (La.4/16/99), 732 So.2d 517, 524; Terrebonne Fuel, 666 So.2d at 634. Once a final judgment acquires res judicata status, no court has jurisdiction to change the judgment. Avenue Plaza, L.L.C., 676 So.2d at 1079.

Louisiana Revised Statute 13:4231 embraces the broad usage of the phrase “res judicata” to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). Under claim preclusion, a res judicata judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relit-igation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: 1) foreclosure of relitigating matters that have never been litigated but should have been advanced in the earlier suit; and 2) foreclosure of relit-igating matters that have been previously litigated and decided. Hudson v. City of Bossier, 33,620, p. 7 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, 743, writ denied, 2000-2687 (La.11/27/00), 775 So.2d 450.

|7Res judicata cannot be invoked unless all its essential elements are present and each necessary element has been established beyond all question. The res judi-cata doctrine must be strictly construed, and any doubt concerning its applicability is to be resolved against the party raising the objection. Berrigan v. Deutsch, Kerri-gan & Stiles, LLP, 2001-0612, p. 5 (La. App. 4 Cir. 1/2/02), 806 So.2d 163, 167.

Certified initially asserts that the trial court erred in granting summary judgment based on res judicata because there was no “identity of parties” between the Orleans Parish suit and the instant action. Identity of the parties does not mean that the parties must be the same physical or material parties, but they must appear in the suit in the same quality or capacity. Hudson, 766 So.2d at 743. The parties are required to be the same “only in the legal sense of the word.” Berrigan, 806 So.2d at 167.

Following the federal law from which our new res judicata statute was taken, Louisiana courts have held that the preclu-sive effect of a judgment binds the parties to an action and the nonparties who are deemed the “privies” of the parties in three limited circumstances: 1) the non-party is the successor in interest of a party; 2) the nonparty controlled the prior litigation; and 3) the nonparty’s interests were adequately represented by a party to the action who may be considered the “virtual representative” of the nonparty because the interests of the party and the nonparty are so closely aligned. Thomas v. Janzen, 35,288, pp. 12-13 (La.App.2d Cir.10/31/01), 800 So.2d 81, 89; Condrey v. Howard, 28,442, p. 5 (La.App. 2 Cir. 8/21/96), 679 So.2d 563, 566-67, writ denied, 96-2335 (La.11/22/96), 683 So.2d 281, citing Meza v. General Battery Corp., 908 F.2d 1262 (5th Cir.1990). The concepts of control and virtual representation are narrowly construed and are |snot satisfied merely by showing that the party and the nonparty have common or parallel interest in the factual and legal issues presented in the respective actions. Thomas, 800 So.2d at 89.

Certified sued Dyer and Murphy in Civil District Court on the same promissory note for the same debt as in the present case. Judgment was signed on April 4, 2000, in Civil District Court in favor of Certified. But the present suit against Cunard alleges she is liable under an unjust enrichment theory because the funds that Certified provided “inured to [defendants’] benefit and made it possible for them to pursue lucrative breast implant claims at Certified’s expense.”

While the present action arises out of the occurrence that was the subject matter of the prior action, we agree with Certified that Cunard was not a privy to the Orleans Parish suit. She is not Dyer and Murphy’s successor in interest, she certainly did not control the Orleans Parish litigation, and Dyer and Murphy were not Cunard’s virtual representatives. While their interests were aligned from the standpoint that all three now seek to prevent being cast in judgment to Certified, Dyer and Murphy had no reason to take steps in the Orleans Parish suit to defend an unjust enrichment claim against Cunard.

Cunard was not named in the prior suit, nor was an unjust enrichment claim raised in that suit. She was not sued as a comaker of the note. Had she been sued as a co-maker in the original suit, and had the unjust enrichment claim not been raised, the result today would likely be different. Cunard was not sued in the Orleans Parish suit, nor was she virtually represented, i.e., there was no one in that suit in the same capacity or quality as Cunard. Thus, we find that Certified has failed to carry its burden of establishing beyond all question the necessary element of identity of the parties.

| flFinding merit in Certified’s first assignment of error, that the trial court legally erred in granting summary judgment because there was no identity of parties, we need not address Certified’s remaining assignments of error.

CONCLUSION

For the foregoing reasons, the January 16, 2001 judgment of the trial court in Cunard’s favor, dismissing Certified’s suit, is reversed, and this case is remanded to the trial court for further proceedings. Costs of this appeal are assessed against Cunard.

REVERSED AND REMANDED.

      . See LSA-C.C.P. art. 927. In this case, however, it was raised as part of a motion for summaiy judgment.


author:
I,KUHN, J.
      1, GONZALES, J.,

text:
    AMERICAN INTERNATIONAL GAMING ASSOCIATION, INC. v. The LOUISIANA RIVERBOAT GAMING COMMISSION and the Riverboat Gaming Enforcement Division of the Gaming Enforcement Section of the Office of State Police, Public Safety Services, Department of Public Safety and Corrections
    No. 2000 CA 2864.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2002.

      Benjamin R. Slater, III, New Orleans, Counsel for Plaintiff/Appellant Alvin C. Copeland.
    Michael A. Patterson, Baton Rouge, Counsel for Appellee The Louisiana Riverboat Gaming Commission and the Riverboat Gaming Enforcement Division of the Gaming Enforcement Section of the Office of State Police, Public Safety Services, Department of Public Safety and Corrections.
    Paul S. West, Baton Rouge, Counsel for Intervenor Treasure Chest Casino, L.L.C.
    Before: GONZALES, KUHN, and CIACCIO
       JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court. The Honorable Douglas M. Gonzales, Judge (retired), First Circuit Court of Appeal, is serving as judge ad hoc by special appointment of the Louisiana Supreme Court.

   I,KUHN, J.

In this appeal, we examine whether the trial court properly dismissed various claims asserted against the State of Louisiana by Alvin C. Copeland, the sole shareholder of a corporation that unsuccessfully applied for a riverboat gaming license. We also address whether the trial court properly sustained exceptions and a motion to dismiss raised by a competing applicant, Treasure Chest Casino Inc. (“Treasure Chest”), who intervened because this suit challenged the validity of the license issued to it. We affirm in part, vacate in part, and render. We also remand this matter to afford Copeland the right to amend Ms petition in a limited manner.

I. FACTUAL AND PROCEDURAL BACKGROUND

A.Louisiana Riverboat Gaming Act Enacted

Pursuant to Acts 1991, No. 753, § 1, the Louisiana Legislature enacted the Louisiana Riverboat Economic Development and Gaming Control Act, La. R.S. 4:501 et seq. (“the Riverboat Gaming Act” or “the Act”) This legislation set forth a licensing process for those who sought authorization to conduct gaming activities on riverboats in Louisiana. The Act created two separate bodies within the Department of Public Safety and Corrections and vested each with separate duties and responsibilities to further the Act’s purposes. The Riverboat Gaming Enforcement Division (“Division”), created by La. R.S. 4:515, was vested with the responsibility of issuing and denying licenses and investigating the qualifications of each license applicant. La. R.S. 4:518. The Division was authorized to issue tip to fifteen licenses to conduct gaming activities upon a riverboat and up to six licenses could be granted for riverboats that operated from any one parish. La. R.S. 4:525. The Riverboat Gaming Commission (“Commission”), created by La. R.S. 4:510, was a rule and policy-making body comprised of seven members appointed by the governor and confirmed by the Louisiana State Senate. The Act gave |3the Commission the power to promulgate rules and to determine riverboat sailing routes, minimum insurance levels for licensees, riverboat design specifications, and procedures for negotiable instruments transactions. Beyond that, the Act vested the Commission with oversight authority over the Division by giving the Commission the power to “hear and determine all appeals relative to the granting, suspension, revocation, condition, or renewal of all licenses, permits, and applications.” La. R.S. 4:511(1).

B.The Commission Promulgates Rules

The Commission promulgated rules to implement the Act. Commission Rule § 303 provided that “each person seeMng approval of riverboat plans” must “submit for advance approval by the Commission an application for a certificate of preliminary approval.” Commission Rule § 315 provided that the Commission “shall evaluate each application” and “shall approve those applications ... it deems to be in the best interest of the state and locale of the proposed operation ....”

C.Copeland Files Suit

This litigation arises from the following factual scenario set forth in Copeland’s petition. American International Gaming Association, Inc. (“AIGA”) submitted an application for a certificate of preliminary approval (“Certificate”) on December 11, 1992, and another application with supplemental information on February 22, 1993. AIGA proposed a riverboat route and other operations at the Kenner Laketown Harbor Park (“Laketown”) on the shores of Lake Pontchartrain. Along with its application, AIGA |4submitted its application and evaluation fees. On February 14, 1993, AIGA also applied for a gaming license from the Division and submitted the filing fee required for its background investigation.

AIGA further alleged that Treasure Chest submitted an application for a Certificate on March 8,1993. It also proposed locating its gaming riverboat at Laketown. The Commission held a public hearing on the Treasure Chest application. On April 29, 1993, Treasure Chest modified its application, proposing that its riverboat would be located at Rivertown, U.S.A. on the banks of the Mississippi River in Ken-ner. On June 4, 1993, the Commission held a public hearing at which AIGA made a presentation on its application for a Certificate.

According to AIGA’s allegations, the Commission received a total of 43 applications for Certificates, with six of those seeking preliminary approval to operate a riverboat in Kenner, Louisiana. Prior to a June 18, 1993 Commission meeting, the Commission had approved eight applications but none of those approved involved proposals to locate a riverboat in Kenner. During the meeting, the Commission approved seven more applications. The Commission granted Treasure Chest’s application for a Certificate for its Rivertown location as one of these seven but did not grant AIGA’s application.

AIGA submits that several months later, Treasure Chest sought permission to modify its Certificate to move the site of its proposed operations back to Lake Pontchartrain as called for in the original Treasure Chest application. On November 13, | R1993, the Commission granted Treasure Chest’s request despite AIGA’s objection. On November 23, 1993, AIGA filed suit in the Nineteenth Judicial District Court seeking the reversal of the Commission’s decisions to grant Treasure Chest a Certificate and to grant its request to modify the location of its proposed operations. Both the Commission and the Division were named as defendants.

In response, the Commission and the Division filed numerous exceptions. Before the trial court ruled on these exceptions, however, the Division issued a license to Treasure Chest on May 17, 1994. AIGA ultimately did not receive either a Certificate or a license.

C. Gaming Legislation Revised

While this suit was pending, the Louisiana legislature addressed the status of the various entities charged with oversight of gaming. By Act 7 of the First Extraordinary Session of 1996, the legislature enacted the provisions of La. R.S. 27:1 et seq., the Louisiana Gaming Control Law (“the Gaming Control Law”), which established the Louisiana Gaming Control Board (“the Board”). The Gaming Control Law became effective May 1, 1996. In accordance with its' provisions, the Board became the sole and exclusive regulatory and supervisory board for gaming operations and activities | ^authorized by the Riverboat Gaming Act. La. R.S. 27:31 The Gaming Control Law abolished the Commission and transferred its powers, duties, functions and responsibilities to the Board. 27:31A(2) and 27:31B.

E. Certificate Process Abrogated

During 1996, in an unrelated proceeding, this court ruled that the Commission’s regulations that required a potential gaming riverboat licensee to obtain a certificate of preliminary approval from the Commission were null and void. This court concluded that the Commission had exceeded its statutory authority under the Riverboat Gaming Act when it adopted these particular regulations and assessed fees because the Act had granted licensing authority to the Division rather than the Commission. State of Louisiana v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355 (La.App. 1st Cir.8/21/96), 694 So.2d 316, 319.

F. Copeland’s Litigation Moves Forward

In July 1998, the trial court granted Copeland’s motion to substitute himself as plaintiff because AIGA had been dissolved and he was the sole shareholder. Thereafter, on January 21,1999, Copeland filed an amended petition that named the Board, as successor-in-interest to the Commission, as a defendant. Based on the provisions of the amended petition, Copeland no longer sought reversal of the Commission’s action. Rather, he challenged the Division’s action of issuing the license to Treasure Chest and asserted that he had been constructively denied a license (Count One). He further claimed that he was entitled to a judgment declaring that the license issued to Treasure Chest was null because the Division had awarded licenses to the applicants that had previously received Certificates from the Commission without independently determining which applicants deserved licenses (Count Two). Copeland also advanced claims for monetary damages, alleging that the Division’s actions violated his due process and equal protection |7rights and constituted a violation of 42 U.S.C. § 1983 (Count Three). He also sought the return of fees paid to the commission (Count Four) and the return of fees paid to the division (Count Five).

On June 4, 1999, Treasure Chest intervened urging that Counts One and Two should be dismissed. It filed exceptions urging the objections of prescription and failure to exhaust administrative remedies. Treasure Chest alternatively raised a motion to dismiss these counts.

Copeland opposed Treasure Chest’s exceptions and motions with respect to Count Two, the request for declaratory judgment relief, but conceded that Count One, his appeal of the grant of the original Treasure Chest license, was moot. The term of Treasure Chest’s initial license was five years, and it expired on May 17, 1999. Then, in June 1999, Treasure Chest filed a motion to stay discovery that was granted by the trial court “pending consideration of [Copeland’s] constitutional claim .... ”

In January 2000, the State, through the Board, the Division and the Department of Public Safety and Corrections (“the State”) filed a motion for partial summary judgment, |sseeking dismissal of Counts Two and Three of Copeland’s amended petition. Copeland responded by filing a motion for summary judgment on his constitutional claims.

The Court held a hearing to dispose of: 1) the State’s partial motion for summary judgment; 2) Copeland’s motion for summary judgment on the constitutional claims; and 3) the exceptions and motion filed by Treasure Chest. By judgment dated May 31, 2000, the trial court sustained Treasure Chest’s exceptions raising the objections of prescription and failure to exhaust administrative remedies and granted Treasure Chest’s motion to dismiss. The trial court further granted the State’s motion for partial judgment and denied Copeland’s motion for summary judgment with respect to the constitutional claims.

Copeland has appealed, urging that the trial court erred by not maintaining his constitutional claims (raised in Count Three). First, he asserts that his petition alleges “cognizable constitutional claims” based on his allegations that the Division’s actions violated his equal protection and procedural and substantive due process rights. Based on these constitutional violations, Copeland asserts he is entitled to a declaratory judgment (Count Two), monetary damages (Count Three), and a return of all monies AIGA paid to the Division (Count Five). Second, he asserts that despite the abrogation of the Commission’s rules and the legislative revision of the statutes governing the Commission and the Division, his claims against the State present a justiciable claim because he has alleged that he is entitled to monetary relief. Third, he asserts that he did not fail to exhaust administrative remedies by not first presenting his constitutional claims to the | gCommission rather than the district court because the Commission did not have authority to dispose of these claims. Based on these contentions, Copeland prays for reversal of those portion's of the trial court's judgment that sustain Treasure Chest’s exceptions, grant Treasure Chest’s motion to dismiss, and grant the State’s motion for partial summary judgment.

II. ANALYSIS

A. Claims involving Treasure Chest

When Treasure Chest intervened, it challenged only the counts of Copeland’s amended petition that could potentially impact its license, Counts One and Two. Because Copeland did not seek compensatory relief from Treasure Chest, Copeland’s remaining claims did not impact Treasure Chest. During the proceedings below, Copeland acknowledged that Count One of his amended petition, which challenged the Division’s action of issuing the license to Treasure Chest, was moot. We also conclude that Copeland’s claim for a declaratory judgment, asserted in Count Two, is moot. Assuming, as Copeland alleges, that the Division issued a license to Treasure Chest on May 17, 1994, the license issued to Treasure Chest would have expired on May-17, 1999. The provisions of former La. R.S. 4:534 (redesignated as La. R.S. 27:74) provided that the term of an initial license to conduct gaming operations is five years. Thus, the license, which Copeland seeks to have declared invalid, has already expired. At this point, there is no practical significance to rendering a judgment on the issue of the validity of the original license. Cat’s Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1193.

l1f)The trial court should have dismissed the claims asserted in Count Two as moot. Accordingly, we find that the trial court erred in sustaining the exceptions raised by Treasure Chest, and we vacate those rulings. But because the matters raised in both Counts One and Two are moot, we conclude the trial court properly granted Treasure Chest’s motion to dismiss.

B. Claims against the State

Copeland contends the State violated his procedural due process and equal protection rights by failing to promulgate ascertainable standards to determine who would receive a license and by arbitrarily issuing licenses. Copeland also asserts that the Division’s failure to hold a “meaningful hearing” to address AIGA’s application and its failure to give notice that its application would be denied violates his procedural due process rights. In addition, he claims the arbitrary denial of his license violated his substantive due process rights.

1. Jurisdiction of the Trial Court

The State argues that Copeland’s appeal of the action of the Division’s action was not properly raised before the district court. The State urges that former La. R.S. 4:547A required that Copeland appeal the Division’s action to the Commission, as follows:

Any person whose application for a license or permit has been denied by the division or any person adversely affected by an action, order or decision of the division may appeal the action, order, or decision of the division to the commission by filing a notice of appeal with the commission within seven days of certified mailing of notice of the action, order, or decision by the division.
(Italics added.)

| ^Neither AIGA nor Copeland filed an appeal with the Commission before presenting their claims to the district court. The State emphasizes that although the action of the Division that Copeland challenges occurred on May 18, 1994, he did not challenge that action until January, 1999, over four years after the Division’s initial decision. And when he did take action, Copeland amended AIGA’s original petition that appealed the Commission’s action of issuing the license, which had been filed since 1993.

Copeland counters that his failure to appeal the Division’s action to the Commission did not affect the validity of Counts Two and Three. He maintains that these claims are based on the Division’s violations of his constitutional rights, which could not have been asserted through an administrative appeal under La. R.S. 4:547. He further claims that an appeal to the Commission would have been a vain and useless act since the Division simply awarded licenses to those firms that had previously received Certificates from the Commission.

We find no merit in Copeland’s arguments with respect to Count Two, the claim for declaratory relief regarding the validity of Treasure Chest’s license. As stated above, since Treasure Chest’s license has expired, Count Two is moot. The trial court properly granted the State’s partial motion for summary judgment with respect to Count Two.

But we find that the constitutional claims raised in Count Three were properly presented to the trial court. The Commission, which functioned as an administrative agency in the executive branch of state government, did not have the authority to determine these questions of constitutionality. See ANR Pipeline Company v. Louisiana Tax Commission, 2001-2594 to 2001-2600 (La.App. 1st Cir.3/20/02), 815 So.2d 178, | ii>184. Judicial power is vested in Louisiana courts by Article V, Section 1 of the Louisiana Constituion. While administrative agencies have rulemaking authority that shadows the powers of the legislature, they are not authorized to exercise “judicial power” under Art. 5, § 1, unless authorized by the Constitution. La. Const. Art. II, § 2; Albe v. Louisiana Workers’ Compensation Corp., 97-0581 (La.10/21/97), 700 So.2d 824, 828.

La. Const, art. V, § 16A grants original jurisdiction in all civil matters to the district courts, unless otherwise authorized by the constitution. And since the Louisiana Constitution fixes the original jurisdiction of the district courts, that original jurisdiction cannot be changed by legislative act. The power to decide these constitutional claims was not and could not be conveyed to the Commission pursuant to La. R.S. 4:547, or any other provision of the River Boat Gaming Act. See ANR Pipeline Company v. Louisiana Tax Commission, 2001-2594, 815 So.2d at 184.

Accordingly, when Copeland amended AIGA’s timely-filed original petition to assert his constitutional claims, he invoked the court’s original jurisdiction, and the requirements of La. R.S. 4:547 did not apply. Because the State asserts no other basis for challenging the timeliness of Copeland’s amendment, we conclude that the trial court properly considered Copeland’s constitutional claims.

2. Procedural Context of the Constitutional Claims

The State challenged Copeland’s constitutional claims via its motion for partial summary judgment. The State urges that Copeland is not entitled to recover because he has not demonstrated a taking of a constitutionally-protected property interest. Technically, the State has raised an exception of no cause of action but has labeled it as a motion for summary judgment. If we were to determine that the petition fails to state a cause of action regarding these constitutional claims, we would preclude a determination on the motion for partial summary judgment with respect to the claims asserted in Count 113Three. Thus, on our own motion, we raise the objection of no cause of action. La. C.C.P. art. 927; Treen v. Republican Party of Louisiana, 99-2073 (LaApp. 1st Cir.9/26/00), 768 So.2d 273, 277. Also see Noble v. Armstrong, 93-841 (LaApp. 5th Cir.3/16/94), 635 So.2d 1199, 1203 (holding that a motion for summary judgment based on insufficiency of allegations cannot be used as a substitute for an exception of no cause of action).

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Cleco Corp. v. Johnson, 2001-0175 (La.9/18/01), 795 So.2d 302, 304. La. Code Civ. P. art. 1915, as amended by 1997 La.- Acts No. 483, § 2, now allows a partial judgment sustaining an exception of no cause of action. See Graf v. Jim Walter Homes, Inc., 97-1143 (La.App. 1st Cir.5/15/98), 713 So.2d 682, 685 n. 2. The exception is tried on the face of the pleadings and the court accepts the facts alleged in the petition as true, determining whether the law affords relief to the plaintiff if those facts are proved at trial. Cleco Corp. v. Johnson, 795 So.2d at 304.

3. Due Process Claims

The Fourteenth Amendment to the United States Constitution provides, in pertinent part, “[n]or shall any State deprive any person of life, liberty or property, without due process of law....” Similarly, Article I, § 2 of the Louisiana Constitution provides that no person shall be deprived of life, liberty, or property, except by due process of law. To claim the protections of due process, a claimant must show the existence of some property or liberty interest which has been adversely affected by state action. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330, 334 (La.1980); Johnson v. Southern University, 2000-2615 (La.App. 1st Cir.12/28/01), 803 So.2d 1140, 1144-1145. Property interests are not created by the constitution. Rather they are created and 114their dimensions are defined by existing rules or understandings that stem from an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). To have a property interest protected by due process, a person must clearly have more than an abstract need or desire for it. He must have a legitimate claim of entitlement to it rather than a unilateral expectation of it. Id.

It is true that a license, once issued, may create a property interest in the holder that is traditionally protected by due process notions. Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971); Montecino v. Louisiana, 55 F.Supp.2d 547 (E.D.La.1999). But our state law affords a license applicant no individual entitlement to a license that he seeks. Durham v. Louisiana State Racing Com’n, 458 So.2d 1292, 1295 (La.1984). Accepting all of the allegations of the petition as true, we find no due process violation because neither AIGA nor Copeland had a protected property interest in the benefits conferred by a license that they did not actually hold. Absent a protected property interest, AIGA was not entitled to notice and a hearing before the denial of its application. Board of Regents v. Roth, 92 S.Ct. at 2710; Durham v. Louisiana State Racing Com’n, 458 So.2d at 1295. Likewise, Copeland’s allegation that he was denied substantive due process rights by being arbitrarily denied a license fails due to the lack of a protected property interest.

Copeland further complains that the Division acted arbitrarily in granting a license to Treasure Chest and not AIGA. Again, we recognize that the State’s action of granting a license to a competitor did not deprive AIGA or Copeland of a property interest. See Delta Bank & Trust Company v. Lassiter, 383 So.2d at 334 (La. 1980). Although the Division was authorized to issue only fifteen licenses, Copeland fails to even contend that |15it was precluded from obtaining a license due to the Division’s issuance of a license to Treasure Chest. We note also that Copeland does not allege that the license issued to Treasure Chest provided for its exclusive authorization to operate a gaming riverboat in the Lake Pontchartrain area.

Accordingly, we conclude that the amended petition fails to allege a violation of state or federal due process rights.

4. Equal Protection Claim

Both the Fourteenth Amendment to the U.S. Constitution and La. Const, art. I, § 3 provide that all persons are entitled to equal protection of the law. These provisions mandate “that persons similarly situated receive like treatment.” Whitnell v. Silverman, 95-0112 (La.12/6/96), 686 So.2d 23, 29-30. But the equal protection provisions of the state and federal constitutions do not require absolute equality or precisely equal advantages. Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974); Frederick v. Ieyoub, 99-0616 (La.App.2d Cir .5/12/2000), 762 So.2d 144, 148, writ denied, 2000-1811 (La.4/12/2001), 789 So.2d 581.

While equal protection claims may be subject to a different analysis under the federal and state guarantees, a minimal standard of review applies under both provisions where, as here, there is no fundamental right, suspect class, or enumerated characteristic alleged as the basis for discrimination. Progressive Security Ins. Co. v. Foster, 97-2985 (La.4/23/98), 711 So.2d 675, 685-87. Absent a “suspect class” of persons or a “fundamental right,” classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the state’s goals and only if no grounds can be conceived to justify them. Frederick v. Ieyoub, 762 So.2d at 148 (quoting Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)).

| ^Copeland’s equal protection argument is premised on the assertion that AIGA was treated differently than Treasure Chest because the Division issued a license to Treasure Chest but did not issue one to AIGA. He asserts the Division had no ascertainable rules to distinguish between these two license applicants and, accordingly, there was no justification for treating them differently.

Former La. R.S. 4:530 (redesignated as La. R.S. 27:70 by Acts 1996, 1st Ex.Sess. No. 7, § 3) set forth suitability requirements for those seeking a license to conduct gaming operations on a riverboat. Section 530(A) provided that an applicant must be “a person of good character, honesty, and integrity” and “a person whose prior activities, ... habits, and associations do not pose a threat to the public interest of this state or to the effective regulation and control of gaming .... ” Section 530(B) also mandated that a license could not be issued to a person unless the division found that: 1) the applicant was capable of operating a gaming casino; 2) the proposed financing of the riverboat and its operations was adequate and was from a suitable source; 3) the applicant was able to operate a vessel comparable to a riverboat; 4) the applicant had submitted a detailed plan of the riverboat’s design; 5) the applicant had designated the docking facilities to be used; 6) the applicant showed adequate financial ability to construct and maintain a riverboat; and 7) the applicant had a good faith plan to recruit, train, and upgrade minorities in all employment classifications.

In determining suitability pursuant to La. R.S. 4:530, the Division was required to consider numerous factors, many of which were subjective in nature. Thus, in order to state an equal protection claim, we find that Copeland must specifically allege how it was similarly situated to Treasure Chest based on those factors. Copeland’s petition broadly contends that AIGA was treated differently than Treasure Chest. Yet, he makes no specific allegations addressing how AIGA was similarly situated to Treasure Chest, or |17that AIGA was as suitable as Treasure Chest, based on the factors addressed in La. R.S. 4:530.

Additionally, to state an equal protection claim, the petition must specifically allege how the Division treated AIGA differently or less favorably than Treasure Chest during the licensing process and how that unjustified disparate treatment resulted in the constructive denial of a license to AIGA. The petition fails to do so.

Accordingly, we conclude that the amended petition also fails to allege a violation of state or federal equal protection rights.

C. Amendment of the Petition

La. C.C.P. art. 934 directs that a judgment sustaining a peremptory exception shall permit amendment of the petition when the grounds of the objection may be removed by amendment, and when the grounds of the objection cannot be removed by amendment, the action shall be dismissed. Amendment is not permitted when it would constitute a vain and useless act. Mercan, Inc. v. City of Baton Rouge, 2000-0600 (La.App. 1st Cir.5/11/2001), 797 So.2d 722, 724, writ denied, 2001-1685 (La.9/21/2001), 797 So.2d 676 (quoting Premier Games, Inc. v. State through Ieyoub, 99-1297 (La.App. 1st Cir.6/7/99), 739 So.2d 852, 855, writ denied, 99-1710, 99-1679 (La.6/14/99), 745 So.2d 15 and 604, cert. denied, 528 U.S. 1062, 120 S.Ct. 617, 145 L.Ed.2d 512 (1999)). We can not contemplate any amendment that Copeland can make insofar as his due process claim is concerned. Any attempt to allege a deprivation of a property right would constitute a vain and useless act. However, with respect to Copeland’s equal protection claim, we acknowledge that, after further discovery, it is possible that he will be able to state a valid claim. Accordingly, we remand this matter for the limited purpose of allowing Copeland the opportunity to amend his petition in order to state an equal protection claim.

11SD. Propriety of the Partial Summary Judgment in favor of the State

Pursuant to its motion for partial summary judgment, the State sought dismissal of Counts Two and Three of Copeland’s amended petition. As explained above, the trial court properly granted the State’s partial motion for summary judgment with respect to Count Two because the claim for declaratory judgment was moot. With respect to the claims asserted in Count Three, the petition fails to state a cause of action based on a violation of due process and equal protection rights. Thus, the trial court should have dismissed these constitutional claims on that basis and precluded a ruling on the State’s motion for partial summary judgment. Accordingly, we vacate that portion of the trial court’s judgment.

III. CONCLUSION

That portion of the judgment granting Treasure Chest’s exceptions raising the objections of prescription and failure to exhaust administrative remedies is vacated. That portion of the judgment granting Treasure Chest’s motion to dismiss is affirmed.

We affirm that portion of the trial court’s judgment that granted the State’s motion for summary judgment as it relates to Count Two. We render judgment finding that the petition fails to state a cause of action with respect to Copeland’s constitutional claims, and we vacate that portion of the trial court’s judgment that granted the State’s motion for partial summary judgment as it relates to Count Three. We also affirm that portion of the judgment that denied Copeland’s motion for summary judgment on his constitutional claims. Otherwise, the judgment is affirmed. We remand this matter for the limited purpose of allowing Copeland the opportunity to amend his petition to set forth a claim based on a violation of his equal protection rights.

JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND RENDERED. MATTER REMANDED FOR LIMITED FURTHER PROCEEDINGS.

GONZALES, J., concurs and assigns reasons.

1, GONZALES, J.,

concurring.

As far back as 1892, in a famous opinion by Justice Oliver Wendell Holmes, the second class status of a mere governmental privilege was engrained into our procedural due process concepts in the case of McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892). The case involved a police officer that had been fired. The Supreme Court dismissed his complaints, holding that a governmental job was a mere privilege. The following excerpt 2 Kenneth C. Davis and Richard J. Pierce, Jr., Administrative Law Treatise § 9.3, at 11-13 (1994) summarizes the evolution of a mere privilege to the status of a constitutionally protected entitlement:

Before 1970, due process applied only to deprivation of “rights,” determined primarily with a reference to the common law. Anything else government provided was a mere “privilege,” outside the scope of due process protection. Justice Holmes’ opinion in McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892), illustrates this approach. The Mayor fired a policeman for expressing views on an issue of public importance contrary to those of the Mayor. The court dismissed the policeman’s complaint that the action violated both due process and the First Amendment because a government job is a mere privilege unprotected by the Constitution.
Before 1970, the Court paid little attention to the nature of the decisionmak-ing procedure required by due process. Typically, the Court held only that due process required a “hearing,” without describing the nature of the hearing required. In some cases, the Court’s language seemed to imply that due process required an oral evidentiary hearing of the type routinely provided by courts. In ICC v. Louisville & Nashville Railroad, 227 U.S. 88, 93, 33 S.Ct. 185, 57 L.Ed. 431 (1913), for instance, the Court specifically referred to “opportunity to cross-examine witnesses.” In other cases, however, the Court’s language suggested that due process might be satisfied by a “hearing” less formal than the oral evidentiary hearing routinely available in a court. In Londoner v. Denver, 210 U.S. 373,1 «383, 28 S.Ct. 708, 52 L.Ed. 1103 (1908), for instance, the Court stated only that “a hearing in its very essence requires that he who is entitled to it shall have the right to support his allegations by argument however brief, and, if need be, by proof, however informal.”
The Court abandoned both of these approaches to due process decisionmak-ing in 1970. It rejected traditional distinction between protected rights and unprotected privileges, holding that at least some statutory entitlements are within the scope of due process protection. At the same time, the Court announced its intention to address explicitly and in detail the issue of how much process is due in each decisionmaking context to which due process applies. The opinions that best explain the Court’s transition to its present approach to application of the Due Process Clause are Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), and Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Goldberg involved a claim by recipients of Aid to Families with Dependent Children (AFDC) that the procedures of the agency charged with responsibility to implement the AFDC program in New York violated the Due Process Clause. The agency provided an opportunity for an oral evidentiary hearing to determine a recipient’s continued eligibility for AFDC payments, but that hearing was available only after the payments were discontinued. The agency first decided on the basis of less formal procedures that the recipient was ineligible and terminated benefits based on that initial decision. If the Court had followed its traditional approach to defining property rights, it would have dismissed the complaint of the welfare recipients in a brief opinion stating that welfare benefits are mere privileges that are entitled to no due process protection. Instead, the Court held that welfare payments are property interests within the scope of the Due Process Clause.
The Court reasoned that AFDC payments “are a matter of statutory entitlement for persons qualified to receive them.” 397 U.S. at 262, 90 S.Ct. 1011. It quoted from an article by Professor Reich in which he argued that (1) a high proportion of property in the United States consists of intangible entitlements to continuing benefits, (2) a high proportion of those entitlements flow from government, and (3) the traditional legal approach to property protects the entitlements of the rich but not the poor. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245 (1965). See also Reich, The New Property, 73 Yale L.J. 733 (1964). Thus, for instance the Court had long extended due process protection to the governmental benefit of a license to practice law, characterizing that benefit as a “right.” Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Ex Parte Garland, 71 U.S. (4 Wall) 333, 379, 18 L.Ed. 366 (1866). Yet, until Goldberg, the Court had declined to extend due process protection to benefits like welfare or most forms of government employment. The Court found Reich’s thesis persuasive, and used it as the basis for its holding in Goldberg that welfare benefits conferred by statute are “property” subject to due process protection. In later cases, the Court stated that it had “fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges.’ ...” Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

In the present case, the majority opinion correctly determines that the petition fails to allege a violation of state or federal due process. The opinion is correct when it points out that “[o]ur state law affords a license applicant no individual entitlement to a license that he seeks.”

The majority opinion says that “[ajbsent a protected property interest, AIGA was not entitled to notice and a hearing before the denial of its application,” citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The inference I take issue with is the fact that only a vested property right would be entitled to the full protection of due process. Here the claim |3was neither vested nor a property right, however a vested privilege when and if it arises, under the gaming statutes should be entitled to the same constitutional protection. The Gaming Board argues, as many have in similar settings, “The Louisiana legislature has clearly and explicitly stated that no property interests are created in conjunction with gaming licenses, contracts and permits,” relying on the language of La. R.S. 27:2(B), which states in part that:

Any license ... or thing obtained or issued pursuant to the provisions of this Title or any other law relative to the jurisdiction of the board is expressly declared by the legislature to be a pure and absolute revocable privilege and not a right, property or otherwise, under the constitution of the United States or of the State of Louisiana.

This seems to indicate that because the license is a privilege, it somehow escapes the protection of due process. Apparently, the drafters of the gaming statutes were some twenty years behind in their constitutional law research and were under the impression that Justice Holmes’ relegation of mere privilege to a second-class status somehow still controlled federal due process concepts.

I think the cases as cited in Professor Davis’ treatise make it clear that a license, once issued, albeit a privilege cannot be withdrawn by state action without affording the holders of that license the full procedural protection of due process. The majority opinion in its analysis of the due process claim cites the case of Roth, 92 S.Ct. 2701, but omits any reference to the rejection of “the wooden distinction between ‘rights’ and ‘privileges.’ ” The Supreme Court opinion in Roth provides an answer for both a property right analysis and a mere privilege analysis when it says: “The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits.” Roth, 92 S.Ct. at 2708. Although this license by legislative pronouncement is a mere privilege, the protection afforded to that privilege only exists once it has been acquired. The United States Supreme Court has recently addressed the issue that an unissued riverboat gaming license is not property (or by inference not yet a privilege) in the case of Cleveland v. U.S., 531 U.S. 12, 121 S.Ct. 365, 368, 148 L.Ed.2d 221(11/7/00), finding “We conclude that permits or licenses of this order do not qualify as “property” within § 1341’s compass.”

      . These rales were designated as Title 42, Part XIII.101, et seq. of the Louisiana Administrative Code (published in Volume 19, No. 7 of the Louisiana Register at pp. 851-61.) These rules were promulgated as emergency rules on June 18, 1993, and became finally effective on July 20, 1993.

      . The rules providing for the issuance of the certificates were later declared to be null and void on the basis that the Commission had exceeded its authority in promulgating them. State of Louisiana v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355 (La.App. 1st Cir.8/21/96), 694 So.2d 316, 319.

      .American International Gaming Association Inc. (“AIGA”) actually filed the initial petition but Copeland, the sole shareholder of AIGA's assets, was later substituted as plaintiff.

      . Commission Rule § 303 required each applicant to remit a $25,000 application fee and $5,000 to defray the expenses of the commission in analyzing and evaluating a Certificate.

      . Former La. R.S. 4:532 (redesignated by Acts 1996, 1st Ex.Sess., No. 7, § 3, eff. May 1, 1996, as La. R.S. 27:89) provided that an applicant was required to submit an initial application fee of $50,000.

      . Since the Division was authorized to issue only fifteen licenses, the Commission apparently decided to likewise limit the number of Certificates it issued.

      . AIGA's petition alternatively sought a declaratory judgment that the Gaming Commission Rules prohibited the modification of the Certificate.
      At that time the petition was filed, former La. R.S. 5:548 provided:
      Any person adversely affected by an action, order, or decision of the commission may appeal to the nineteenth Judicial District Court in accordance with the provisions of the Administrative Procedure Act, except that notice of appeal shall be given to the commission and petition for appeal shall be filed with the district court within ten days of the action, order, or decision of the commission.
      Acts 1996, 1st Ex.Sess., No. 7, § 3, eff. May 1, 1996, redesignated the former La. R.S. 4:548 as La. R.S. 27:89. Effective July 7, 2001, La. R.S. 27:89 was repealed by Act No. 1222 of 2001.

      . According to the allegations of the petition, the Division issued licenses to the same 15 entities that had previously been issued Certificates by the Commission.

      . AIGA had previously amended its petition in June 1998 to request a refund of all fees paid to the Commission and in September of 1998, to request a refund of all fees that had been paid to the Division.
      We note that the January 1999 supplemental and amending petition raised claims that attempted to invoke both the trial court's original and appellate jurisdiction. See Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 2001-0185 (La.10/16/2001), 797 So.2d 656, 660, where the court distinguished between the “judicial review of the decision of an administrative agency” as the "exercise of a court's appellate jurisdiction pursuant to La. Const, art. V, § 16(B)” and “judicial adjudications in the first instance” pursuant to La. Const, art. V, § 16(A), which grants "original jurisdiction in all civil matters” to the district courts. Pursuant to the provisions of La. R.S. 4:547, Copeland was required to seek review of the division’s issuance of the license to Treasure Chest by filing a notice of appeal with the Commission. But Copeland did not appeal the Division’s action to the Commission before challenging the Division's action in the trial court. Thus, although Copeland postured his claims pertaining to the Division's action as an "appeal,” the trial court actually had no appellate jurisdiction over the claims asserted in Count One because the Commission had not reviewed the claim. Id.

      .Treasure Chest asserted in its opposition memorandum that the Division had conditionally renewed Treasure Chest’s license on March 16, 1999. But Copeland did not amend his petition to contest the renewal. Also, Copeland’s appeal counsel stated during oral arguments that Copeland waives his claim regarding the constructive denial of a license (addressed in Count One).

      . The State had also previously filed a motion for summary judgment.

      . Although Copeland’s motion for summary judgment addressed only the constitutional claims, the judgment also granted his motion for summary judgment in part and directed the Clerk of Court to release to Copeland the amount of $20,873, which had been deposited into the Court's registry by the Division. This amount represented the $50,000 application fee minus the costs of the Division's background investigation. The trial court granted the State's motion for partial summary judgment "except as to the reimbursement of the $50,000 fee paid by [AIGA] to the ... [Division] ...” although the state's partial motion did not address Copeland’s claims for reimbursement of the fees paid to the Division. The judgment also denied Copeland's motion to file a fourth supplemental and amending petition.

      . The collateral consequences exception to the mootness doctrine does not apply to the claims asserted against Treasure Chest because Copeland has not sought damages or other monetary relief from Treasure Chest. Cat's Meow, Inc. v. City of New Orleans Through Dep’t. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1196.

      . As previously addressed, Copeland conceded in the proceedings below that Count One, his appeal of the grant of the original Treasure Chest license, was moot. Copeland asserts no arguments on appeal with respect to Count Four, his claim for return of fees paid to the Commission. The State asserts that it has refunded all funds that AIGA paid to the Commission in conjunction with the Certificate process. Otherwise, we note that Copeland's claims against the State are not moot because he seeks compensatory relief. Although the Commission and the certificate process it used no longer exists and the original Treasure Chest license has expired, Copeland's claims for damages are viable under the collateral consequences exception. Cat’s Meow, Inc. v. City of New Orleans Through Dep't of Finance, 720 So.2d at 1196.

      . Copeland also refers to Count Five but the State's partial motion for summary judgment only addressed Counts Two and Three, and Copeland’s motion for summary judgment only addressed his due process and equal protection constitutional claims, which were raised in Count Three. Thus, the issue of whether Copeland is entitled to receive a return of the fees paid to the Division is not properly before us. Also, it was not specifically raised as an assignment of error on appeal.