author: MOORE, J.

text:
    Louie SCHEXNAYDER, Sr. and Michael J. Fernandes, Plaintiff-Appellants, v. Roy and Norma “Rena” GISH, Rhondalyn Singh Tanwar and Allstate Mortgage Corp., Defendant-Appellees.
    No. 41,819-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 7, 2007.

      Bryson Law Firm by Cary B. Bryson, Angela S. Bryson, for Appellants.

      Neupert & Associates, L.L.C. by Charles J. Neupert, Jr., Shreveport, for Appellees.
    Before STEWART, GASKINS and MOORE, JJ.
   MOORE, J.

1 plaintiffs filed this suit to recover a sales commission earned by finding a buyer for the defendants’ property in Belcher, Louisiana. The defendants responded with an exception of no right of action on grounds that plaintiffs were not licensed to sell real estate, and for that reason were barred by La. R.S. 37.T445 from initiating a suit to recover any commission earned on the sale of real estate. The trial court sustained the exception and dismissed the suit. Plaintiffs filed this appeal. We affirm the judgment sustaining the exception, but reverse the trial court’s dismissal of the suit to allow plaintiffs 15 days to amend their petition.

FACTS

Louie Schexnayder, Sr. and Michael J. Fernandes (“Consultants”) entered into a “Consultant Agreement” with Roy and Norma Gish, whereby Schexnayder and Fernandes undertook to assist the Gishes in obtaining a purchase offer on immovable property owned by them located at 9886 N. Louisiana Hwy. 169 in Belcher, Louisiana. The agreement specifically provided that if Consultants were able to procure an offer on the property acceptable to the Gishes, then the Gishes would pay Consultants a fee in an amount equal to the amount that the purchase price exceeded $3,500,000.00, or if the price did not exceed $3,500,00.00, 6% of the actual purchase price. Lastly, the agreement provided that the fee was earned once a purchase offer was accepted by the Gishes and payable at the “Act of Sale” of the property.

On July 27, 2004, the Gishes and Consultants amended the Consultant Agreement to reflect that the Consultants had procured Jack Saheid’s interest in buying the property. On July 28, 2004, Saheid, the ^eventual purchaser of the property, and the Gishes confected a purchase agreement for the property for a price of $4,300,000.00.

An Act of Sale was executed on November 2, 2004, whereby Saheid purchased the property, together with all of the buildings and improvements thereon, including interests in specifically described oil, gas and mineral leases, rights to pipelines, wells and gathering systems, and equipment leases. According to the Act of Sale, $2.5 million of the purchase price was for the immovable property being transferred and $1.5 million was for the interests in the specifically described oil, gas and mineral leases, rights to pipelines, wells and gathering systems, and equipment leases.

On November 2, 2005, Consultants filed a suit in propria persona styled, “Petition for Damages,” against the Gishes, Rhonda-lyn Singh Tanwar and Místate Mortgage Corporation to recover the contractual fee which Consultants allege they never received. The petition alleges that the defendants purposely did not inform Consultants of the scheduling of the closing and the re-negotiating of the terms of the sale. Furthermore, the petition alleges that Tanwar, as an employee of Místate Mortgage Corporation, fraudulently received and accepted a payment at closing which was due Consultants. The petition sought damages against the defendants for breach of the Consultant Agreement and fraud, including reasonable attorney’s fees and costs.

The Gishes responded by filing a peremptory exception of no right of action alleging that the plaintiffs were prohibited by Louisiana law from bringing suit for a real estate commission unless they were licensed real Restate brokers under Louisiana law. The Gishes attached a copy of a letter purportedly written by the Director of the Investigative Division of the Louisiana Real Estate Commission, Carmela Greco Collins, in which she states that she was unable to find any evidence in the Commission’s database that either of the plaintiffs were duly licensed brokers or agents.

The exception was taken up on March 27, 2006. At the hearing, the trial court asked plaintiffs’ counsel if he had any evidence that his clients were licensed realtors, to which counsel replied, “No, Your Honor.” The trial court then admitted the letter attached to the exception into evidence even though it was not formally offered into evidence nor was evidence offered laying a foundation for its admission. Plaintiffs’ counsel objected to the admission of the letter. Relying on the letter, the trial court concluded that the plaintiffs were not licensed brokers or agents and granted the exception. A judgment to that effect was signed on April 4, 2006. The instant appeal followed.

ANALYSIS

Consultants make two arguments which they set forth in three assignments of error. First, they argue that the trial court erred in admitting the Louisiana Real Estate Commission letter into evidence, without which the record is devoid of evidence as to whether they are properly licensed real estate brokers. As a result of this error, the trial court erred in concluding that they were unlicensed real estate brokers without a right to bring an action to recover a commission fee. Second, Consultants argue that the trial court erred in not finding that they had a right of action to recover |4the portion of the fee attributable to the sale of oil, gas and other mineral interests, the brokerage of which does not require a real estate license by the Louisiana Real Estate Commission.

Defendants argue that La. R.S. 37:1445 prohibits and precludes an unlicensed person from instituting a suit for recovery of a real estate license. Accordingly, they contend that the plaintiffs should have alleged in their petition that they possessed a real estate license and the trial court correctly placed the burden on the plaintiffs to show that they were licensed realtors when challenged with the defendants’ exception.

Next, defendants argue that the trial court properly considered the Louisiana Real Estate Commission letter because it is not hearsay under Article 803(8) of the Code of Evidence as a public record exception to the hearsay rule, namely as a factual finding resulting from an investigation made pursuant to the authority granted by law. La. C.E. art. 803(8)(iii). Even if it was error for the trial court to accept the letter as evidence, defendants argue that the error should not change the result because of the plaintiffs’ failure to allege at any point in the proceedings that they are licensed real estate agents.

Finally, defendants contend that because La. R.S. 37:1445 does not apply to the sale of mineral interests such as oil and gas, the exception should have been denied, upholding the petition with respect to the right to recover for the sale of the mineral interests and equipment associated with the sale.

| a Assignment of Errors 1 and 2:

Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. Industrial Companies Inc. v. Durbin, 2002-0665 (La.1/28/03), 837 So.2d 1207. The purpose of the exception of no right of action is to determine whether a plaintiff has a real and actual interest in an action or belongs to a particular class to which the law grants a remedy for a particular harm alleged. Wallace v. Nathan, 96-119 (La.App. 5 Cir. 7/30/96), 678 So.2d 595. (Emphasis supplied). The exception of no right of action is peremptory and can be brought at any time, including on appeal. Lambert v. Donald G. Lambert Constr. Co., 370 So.2d 1254 (La.1979). Further, La. C.C.P. art. 927 provides that a peremptory exception of no right of action may be noticed by either the trial or appellate court of its own motion. “The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. The exception of no right of action is directed to showing that a plaintiff has no legal right or interest in enforcing the matter asserted, based upon the facts and evidence submitted. La. C.C.P. art. 927; Dufour v. Westlawn Cemeteries, Inc., 94-81 (La.App. 5 Cir. 6/28/94), 639 So.2d 843. The determination of whether a plaintiff has a right of action is a question of law. Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00); 808 So.2d 363, writ denied 01-2546 (La.12/7/01); 803 So.2d 971. Accordingly, we review exceptions of no right of action de novo. Mississippi Land Co. v. S & A 6Properties II, Inc., 2001-1623 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200.

Unlike the exception of no cause of action, evidence is admissible on trial of an exception of no right of action in order to determine whether the plaintiff is legally invested with the right to stand in judgment. Guenard v. Key, 131 So.2d 108 (La.App. 2 Cir. 6/1/61). It is therefore proper to hear testimony on an exception of no right of action. Waterhouse v. Star Land Company, 139 La. 177, 71 So. 358 (1916). The burden of proof of establishing the exception of no right of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748. When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. La. C.C.P. art. 934

In this instance, the trial court held a hearing on the exception in which it listened to oral argument and took evidence. The only evidence submitted was a letter from the Louisiana Real Estate Commission from the exceptors that the plaintiffs were not licensed real estate brokers in Louisiana. Plaintiffs objected to the letter as hearsay. The court overruled the exception and asked plaintiffs counsel if he had evidence to offer that his clients were in fact licensed to sell real estate in this state. Counsel offered no evidence, and so the trial court granted the exception and |7dismissed the suit. Petitioners now complain on appeal that the Louisiana Real Estate Commission letter was hearsay and should not have been admitted. They also argue that the court incorrectly placed the burden on them to defeat the exception.

Because the letter was considered as proof of the matters asserted therein, the contents of the letter are clearly hearsay and admissible only if it meets one of the exceptions to the hearsay rule and the letter is properly authenticated. The trial court found that the letter was admissible “because it is a letter from an administrative body of this State, and you do not have anything to tell me that you folks are Realtors.”

Because authentication of the genuineness of a particular document must always be satisfied for it to be admissible, an exhibit that is not authenticated does not constitute competent evidence. See La. C.E. art. 901. Though the substance of the document may be considered trustworthy and clearly admissible under the exception to the hearsay rule for public documents, La. C.E. art. 803(8), “the rule of authentication evidencing the genuineness of a particular document has always to be satisfied.” State v. Martin, 356 So.2d 1370 (La.1978). “Authentication” is a process whereby something is shown to be what it purports to be. Newpark Resources, Inc. v. Marsh & McLennan of Louisiana, Inc., 96-0935, p. 5 (La.App. 1 Cir. 2/14/97), 691 So.2d 208. Evidence must either be authenticated as provided in La. C.E. art. 901, or it must be self-authenticating. See Lane v. Department of Public Safety and Corrections, 00-2010, pp. 8-9 (La.App. 1 Cir. 2/15/02), 808 So.2d 811, 816-17. Because no evidence of any kind |swas offered to authenticate the letter, the letter would have to be self-authenticating to have properly been admitted into evidence.

While the letter appears to be a document from a Louisiana state agency, it does not meet the necessary requirements to be self-authenticating. Louisiana Code of Evidence article 902 identifies which documents are to be considered self-authenticating, for which no extrinsic evidence of authenticity is required as a condition precedent to admissibility. Included in this list are certified Louisiana public documents. Specifically, La. C.E. art. 902(2)(b) provides:

A purported record, book, paper, or other document of the State of Louisiana, or of a department, board, or agency thereof or of a political subdivision of the state or a department, board, or agency of such a subdivision when certified as being the original by an officer or employee who identifies his official position and who either has custody of the document or who is otherwise authorized to make such a certification.

Regarding the self-authentication of copies of public documents, La. C.E. art. 904 provides:

When an original public document is deemed authentic without proof by extrinsic evidence as provided in Article 902(1), (2), or (3), a purported copy of the document also shall be deemed authentic when certified as true or correct by the custodian or other person authorized to make that certification, by certificate complying with Article 902(1), (2), or (3).

The letter did not contain a certification as required to be self-authenticating. Accordingly, some other extrinsic evidence was necessary to authenticate these documents. Since no such evidence was offered, we are constrained to conclude that plaintiffs failed to lay a proper foundation for admission of the letter and the trial court erred in admitting it into evidence. Furthermore, even if the letter had been properly | ^authenticated, we disagree with the trial court’s conclusion that the letter comes within the public records exception to the hearsay rule.

Records and reports of a public office or agency setting forth “Effectual findings resulting from an investigation made pursuant to authority granted by law” are exceptions to the hearsay rule and are admissible at trial. La. C.E. art. 803(8)(a)(iii). However, La. C.E. art. 803(8)(b) provides in pertinent part:

Except as specifically provided otherwise by legislation, the following are excluded from this exception to the hearsay rule:
* * *
(iv) Factual findings from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based or an investigation into a similar occurrence or occurrences.

In other words, La. C.E. art. 803(8)(b)(iv) provides that factual findings made by a state agency as a result of an investigation of a particular complaint, case or incident constitute inadmissible hearsay. Thus, while factual findings from a general investigation may be admissible, factual findings from a specific or particular investigation are inadmissible under the public records exception. Cox v. Roofing Supply, Inc., 36,275 (La.App. 2 Cir. 8/14/02), 825 So.2d 1271; Green v. Connor, 94-2120 (La.10/7/94), 644 So.2d 618. The letter in the present case purports to set forth factual findings in regard to a specific inquiry as to the licensed status of the plaintiffs herein. As such, it is inadmissible hearsay and the trial court erred in admitting it into evidence.

The defendants contend that even if the Louisiana Real Estate Commission letter constituted inadmissible hearsay, the exception of no |inright of action should be granted because the plaintiffs failed to allege that they are licensed to sell real estate in this state, which they argue is essential to file an action to recover a real estate fee or commission. La. R.S. 37:1445 provides:

§ 1445. Unlicensed persons cannot recover brokerage charges

No action or suit shall be instituted, nor recovery be had, in any court of this state by any person for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provision of this Chapter to other licensed brokers or licensed salespersons unless such person was duly licensed under this Chapter as a broker or salesperson prior to the time of offering to perform any such act or service or procuring any promise to contract for the payment of compensation for any such contemplated act of service.

(Emphasis supplied). The highlighted language above constitutes part of the 1978 and subsequent amendments to the original version of the statute passed by 1920 La. Acts No. 236, § 19. The 1920 Act and statutory language read:

“Be it further enacted, etc., That any person, firm, co-partnership, association or corporation, who has not been licensed in accordance with the provisions of this act shall not be allowed to recover any fee, claim or charge for brokerage in the courts of this State.”

(Emphasis supplied).

It has long been held in cases prior to the 1978 amendment that in a suit for commissions by a real estate broker it is not necessary to allege and prove that the broker is licensed under the Louisiana Real Estate License Law. Stanford v. Bischoff, 159 La. 892, 106 So. 371 (La.1925) (C.J. O’Neill dissenting); Kaufman Agency v. Viccellio, 174 So. 709 (La.App. 1 Cir.1937). The lack of a real estate license is an affirmative defense which must be specially pleaded and proved by the defendant. Id.

Inin Stanford v. Bischoff, supra, the defendant employed the plaintiff to purchase property for him, agreeing to pay for his services. The plaintiff secured not only land for the defendant, but also mineral leases. The trial court upheld the defendant’s exception of no cause of action on grounds that the plaintiff did not allege that he had a real estate license under Act 236 of 1920. The Louisiana Supreme Court reversed, holding that

... it does not follow that, for the reason that he secured land as well as leases by purchase for plaintiff, his petition shows no cause of action, even as to compensation for obtaining the land in that it does not set out that he was licensed under the act as a real estate broker. It was not necessary that plaintiff should have made that allegation. If the nature of his services were such as to require that he be licensed, and he was not, that he was not, is a matter of defense, which defendant, in order to avail himself of, must set up and establish.

On the other hand, in the case of Rainey v. Riley, 388 So.2d 110 (La.App. 1 Cir.1980), the court reversed a confirmation of default for several legal errors, including the failure of the plaintiff to allege in the petition he was a real estate broker. Citing La. R.S. 37:1445 the court stated:

There is no allegation, even less proof, of “James F. Maxwell, d/b/a Maxwell Realty, Inc.,” being a licensed real estate broker, an essential element of any suit for commission. La.R.S. 37:1445.

Although the court did not discuss the issue further, clearly it found that the petition was legally deficient under the newly designated La. R.S. 37:1445.

It is a well-established rule of statutory construction that “[i]t is presumed that every word, sentence or provision in the statute was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used.” ABL Management, Inc. v. Board of Sup’rs of Southern University, 2000-0798 12(La.11/28/00), 773 So.2d 131; Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1 Cir.1984). Conversely, it will not be presumed that the Legislature inserted idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless. Id. The legislature is presumed to have enacted each statute with deliberation and with full knowledge of all existing laws on the same subject. Id.; Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, 186. A statute’s meaning and intent is determined after consideration of the entire statute and all other statutes on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the legislature in its enactment of the statute.

If the addition to La. R.S. 37:1445 of the phrase, “No action or suit shall be instituted,” in addition to language disallowing any “recovery” for fees or commissions or other services requiring a real estate license, does not change the prior law, the language would be superflous. Based upon these rules of construction and Rainey v. Riley, supra, we conclude that the legislature intended the new language to constitute a mandatory element of any suit for a real estate commission as defined by the statute, and therefore require that plaintiffs allege they have a license to broker real estate in conformity with Louisiana law in order to initiate an action or suit.

Because the plaintiffs do not make that allegation in their petition, the trial court correctly sustained the exception of no right of action regarding the recovery of any fees to recover a real estate commission.

| Assignment of Error No. 3

Plaintiffs contend that even if they have no right to recover the consultant’s fee for brokering the sale of land or real estate for the defendants, they are entitled to recover a commission for the sale of the mineral interests and other related items, such as pipelines, equipment and so on. However, the plaintiffs allege they are entitled to recover solely on the basis of the sale arranged by virtue of the Consultant Agreement, which does not mention any mineral interests or things of that nature. The inartfully drafted petition was filed in proper person.

It appears that the petition does not state a cause of action for recovery of a commission for the sale of the mineral interests, at least not on the basis of the original consulting agreement. We express no opinion on whether it is possible to allege a viable cause of action in this regard.

CONCLUSION

For these reasons, we conclude that the trial court correctly sustained the exception of no right of action, albeit on different grounds. However, the trial court should have granted the plaintiffs an opportunity to amend in the event they can state a cause of action for recovery of any fees for their services in acquiring the sale of the mineral interests. Accordingly, we affirm the judgment insofar as it sustains the exception of no right of action to initiate a suit to recover fees for the real estate transaction and the implicit finding that plaintiffs alleged no cause of action to recover fees for the sale of mineral interests and related items, but reverse the judgment insofar as it dismisses the suit with prejudice. We amend the judgment to allow plaintiffs to amend their petition to assert with particularity other 1 uPossible causes of action within 15 days from the date this opinion becomes final, in default of which amendment the plaintiffs’ demands may be dismissed by the trial court with prejudice. Rachal v. Peters, 28,655 (La.App. 2 Cir. 9/25/96), 680 So.2d 1280. We remand for that purpose.

JUDGMENT AFFIRMED IN PART; REVERSED IN PART; REMANDED.


source: Caselaw Access Project

author: SEXTON, J. Pro Tem.

license: Public Domain

text:
    Charles BARTON, Jr., et al., Plaintiffs-Appellants, v. U.S. AGENCIES CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 41,950-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 7, 2007.

      Travis M. Holley, Bastrop, for Appellants.
    Hudson, Potts & Bernstein, L.L.P. by Mark J. Neal, Monroe, Ethan A. Hunt, for Appellees, U.S. Agencies Casualty Ins. Co. & Damon Wade.
    Kitchens, Benton, Kitchens & Black, by Clinton C. Black, Minden, for Appellee, Matthew Dykes.
    Before DREW, MOORE & SEXTON (Pro Tempore), JJ.
   SEXTON, J. Pro Tem.

| t Plaintiffs, Charles Barton, Jr. and Glynn Farrar, Jr., appeal the trial court’s judgment granting summary judgment in favor of Defendant, U.S. Agencies Casualty Insurance Company (“U.S.Agencies”), and dismissing Plaintiffs’ claims for coverage of the damages they sustained while passengers in a vehicle insured under a U.S. Agencies policy. For the following reasons, the judgment of the trial court is hereby affirmed.

FACTS

On the evening of November 30, 2005, Plaintiffs were passengers in a 2004 Oldsmobile Alero driven by Defendant, Matthew Dykes. The vehicle was owned by Dykes’ brother, Damon Wade, and was insured through a policy issued by U.S. Agencies. Dykes had taken the car from his brother’s house while Wade was at work. He then picked up Barton and Far-rar and a third individual, Cassey Dunn. A one-vehicle accident ensued when Dykes lost control of the vehicle and it plunged into a canal.

Barton and Farrar filed a petition seeking damages from Dykes, Wade and Wade’s insurer, U.S. Agencies. The petition alleges that Dykes was driving the insured vehicle with the “full consent and permission of its owner.” Wade and U.S. Agencies each filed answers in which they denied that particular allegation.

Plaintiffs filed a motion for summary judgment seeking a declaration that the U.S. Agencies policy afforded liability coverage for Plaintiffs’ damages arising out of Dykes’ negligence. U.S. Agencies filed a motion for |2summary judgment seeking dismissal from the suit on the ground that coverage for liability arising out of Dykes’ use of the vehicle was excluded under the terms of the policy.

Under Part A — COVERAGE FOR YOUR LIABILITY TO OTHERS of the U.S. Agencies policy, a “covered person” includes:

1. You and any family member, and any additionally listed driver with respect to any auto accident while driving your insured auto or a non-owned auto.
2. Any other person driving your insured auto with the expressed or implied permission of the named insured while that person is driving your insured auto.

(Emphasis in original.) A “family member” is defined in the definitions portion of the policy as a person related to the named insured by blood, marriage or adoption who resides in the same household as the named insured.

Both Plaintiffs and U.S. Agencies relied almost exclusively on the deposition testimony of Wade in supporting their respective motions for summary judgment. Wade testified that he lived alone at his residence at the time of the accident, but that his girlfriend, Katrina Ford, and his brother, Dykes, would occasionally spend the night at his house. Wade stated that Dykes normally resided with their grandmother, but that, during 2005, he stayed at Wade’s home and their uncle’s home off and on as a result of friction in their grandmother’s home. The longest he had stayed with Wade was a period of three weeks. Wade, however, testified that, as of the date of the accident, he could only state with certainty that his brother had spent the night at his home within the previous week, thereby ^suggesting that the three-week stay had taken place some time prior to the date of the accident.

On the issue of whether Dykes was a permissive user of the vehicle on the night in question, Wade testified that he had left the keys to the vehicle on his bedroom dresser and then left to work the night-shift at his place of employment. After Wade had left for work, Dykes took the keys from the dresser and drove off in the vehicle. He testified that, to his knowledge, Dykes had never had a driver’s license and, thus, was not allowed to drive Wade’s vehicle. Presuming that lack of permission was sufficient to proscribe the conduct, Wade did not recall ever expressly forbidding Dykes to drive the vehicle.

Wade recalled that the only time he had allowed Dykes to operate the vehicle was to move the car in the driveway so that Dykes could wash it. The only other time Wade knew Dykes to have driven the vehicle occurred one evening after Dykes and his girlfriend had an argument outside Wade’s home. During the fight, Dykes’ girlfriend threw her keys at Dykes after which they were unable to find them. To aid them in looking for the keys, Dykes moved Wade’s vehicle to use the headlights for illumination. While doing so, Dykes put a dent in the car compelling him to admit the unauthorized use to Wade.

The only other evidence submitted to the trial court was the deposition testimony of Katrina Ford, who was at Wade’s residence on the night of November 30, 2005. She testified that, to her knowledge, Dykes had spent the night at his brother’s home before, but that he did not live | ¿there. She testified that Dykes did not keep his belongings at Wade’s house and it was her understanding that Dykes lived with his grandmother. On the night of the accident, she had gone to sleep in Wade’s bedroom and she did not notice Dykes taking the keys to the vehicle off of Wade’s dresser. The bedroom door was open and the dresser was near the door. She awoke to the sound of one of Plaintiffs’ uncles beating on the front door at approximately 4:00 a.m. He informed her that Dykes had taken Wade’s vehicle, that he had had an accident and that the occupants of the vehicle were all at the hospital. She testified that Dykes did not ask for permission to take the vehicle, nor did she give him permission to take the vehicle. She was unaware that he had done so until the following morning.

At the hearing on the cross motions for summary judgment, the parties focused their arguments on whether Dykes was a permissive driver of the vehicle without mentioning the possibility of whether coverage existed under the “family member” provision of the policy. At the conclusion of arguments, the trial court granted summary judgment in favor of U.S. Agencies. A judgment declaring that no coverage existed under U.S. Agencies’ policy was signed on July 28, 2006. The instant appeal followed.

DISCUSSION

Plaintiffs argue that the evidence regarding Dykes’ familial relationship to the named insured, Dykes’ prior use of the vehicle and the lack of an express prohibition made by the named insured established that | sDykes was a permissive user to whom coverage should be extended under the policy. We disagree.

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37. Thus, the appellate court asks the same questions the trial court asks in determining whether summary judgment is appropriate. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B) and (C). Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file and any affidavits reveal no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Marshall v. Seago, 41,138 (La.App.2d Cir.6/28/06), 935 So.2d 752. Accordingly, the policy provisions cannot conflict with the statutory requirement in Louisiana of omnibus coverage in favor of any person using an insured vehicle with the permission or consent of the named insured. La. R.S. 32:900(B)(2). This provision requires that a policy insure permissive drivers in an amount sufficient to satisfy the minimum 1 filegal requirements set forth in the Compulsory Motor Vehicle Liability Security Law. La. R.S. 32:861, et seq.

Specifically, La. R.S. 32:900 requires all motor vehicle liability policies to include an omnibus clause which insures the person named therein and “any other person, as insured, using any such motor vehicle or motor vehicles with the express or implied permission of such named insured. ...” A plaintiff who seeks to establish coverage under the omnibus clause of an automobile liability policy has the burden of proving the fact of initial use with express or implied permission of the named insured. Perkins v. McDow, 615 So.2d 312 (La.1993). The existence of permission must be proved by a preponderance of the evidence -without the aid of any presumptions. Manzella v. Doe, 94-2854 (La.12/8/95), 664 So.2d 398; Norton v. Lewis, 623 So.2d 874 (La.1993). Implied permission arises from a course of conduct by the named insured involving acquiescence in, or lack of objection to, the use of the vehicle. Manzella, supra. Furthermore, the “initial permission” rule adhered to by our courts dictates that, once permission has been established, any subsequent changes in the character or scope of the use do not require additional specific consent of the insured. Parks v. Hall, 189 La. 849, 181 So. 191 (1938); Norton, supra. Thereafter, “coverage will be precluded only where the deviation from the use consented to amounts to theft or other conduct displaying an utter disregard for the return or safekeeping of the vehicle.” Id.

After reviewing the record, we find no error in the trial court’s conclusion that no genuine issue of material fact existed on the question of 17whether Dykes had permission, express or implied, to drive the vehicle in question. Since there is no evidence of express permission, the record must evidence a genuine issue of fact as to the issue of implied permission for summary judgment to have been inappropriate. The only evidence plausibly suggestive of implied permission was Wade’s onetime consent to Dykes’ repositioning of the vehicle within the confines of the driveway to facilitate washing it.

Dykes’ unauthorized use, again within the confines of the driveway, in repositioning the car so as to use its headlights in looking for a set of keys was clearly without permission from Wade and probably would have gone unnoticed by Wade without the “dent.” There was no evidence that, prior to the accident, Dykes had ever driven his brother’s vehicle, with or without permission, on the public roadways or other private property. The limited scope of these incidents does not constitute a course of conduct indicating the named insured’s acquiescence in Dykes’ “use” of the vehicle.

The case of King v. Louisiana Farm Bureau Insurance Co., 549 So.2d 367 (La.App. 2d Cir.1989), writ denied, 552 So.2d 387 (La.1989), relied on by Plaintiffs, is factually distinguishable from the present case. In King, supra, an employee in a farming operation got into an accident while driving a farm truck that had been entrusted to his co-worker/brother. The evidence at trial established that, while the defendant’s brother had been specifically instructed by the employer not to let the defendant drive the vehicle, the employer had witnessed Defendant driving the truck on the farm on several occasions without taking any |sremedial action. This court concluded that this behavior negated the restriction previously placed on Defendant’s brother, thus allowing him to give Defendant permission to drive the vehicle, which he had done on several occasions both on and off the farm. This court, thus, concluded that Defendant had implied permission on the night of the accident, making coverage under the omnibus clause applicable. The present case presents no such second permittee issues.

Lastly, Dykes’ familial relationship to the named insured is only relevant under the terms of the policy if he was residing in the household of the named insured at the time of the accident. Both Wade and his girlfriend declared in their depositions that he was not living in the house at the time of the accident, although he occasionally spent the night there. No evidence being presented to the contrary, we find on the record before us that no genuine issue of material fact existed as to whether Dykes was residing in Wade’s home at the time of the accident.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby affirmed. Costs are assessed to Plaintiffs.

AFFIRMED.

      . The petition asserts that Plaintiffs were passengers in a 1999 Chevrolet Silverado. However, the record indicates that Plaintiffs were actually traveling in a 2004 Oldsmobile Alero.


author: PAINTER, Judge.

text:
    Tommie Mack GRANGER v. J. Ogden MIDDLETON.
    No. 2006-1351.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 7, 2007.

      Staci Knox Villemarette, Lafayette, LA, for Plaintiff-Appellant, Tommie Mack Granger.
    Richard C. Stanley, William M. Ross, New Orleans, LA, for Defendant-Appellee, J. Ogden Middleton, II.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

_JjThe Plaintiff, Tommie Mack Granger, appeals a trial court judgment dismissing as untimely his legal malpractice action against J. Ogden Middleton, II, the lawyer who handled his unsuccessful attempt to gain custody of his minor child. Finding no error in the trial court’s judgment, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1999, Granger hired the law firm of Gold, Weems, Bruser, Sues & Rundell (the Gold firm) to represent him in a child custody dispute. Middleton was, at that time, a member of the Gold firm and undertook primary responsibility for Gran-ger’s case. The trial court in that matter ruled adversely to Granger. He ended his retention of the Gold firm in March 2001. In spring 2003, Granger filed a disciplinary complaint against Middleton citing over-billing and, through a later amendment, an alleged failure to memorialize a mediated custody agreement as grounds.

On November 16, 2004, Granger filed this legal malpractice action. Middleton responded by filing a “Peremptory Exception of Prescription/Peremption.” The trial court entered judgment granting the exception and dismissing the suit with prejudice.

Granger filed a motion for new trial which the trial court denied. Granger appeals.

| .DISCUSSION

Consolidation

Granger asserts that the trial court erred in failing to consolidate this case with the suit filed by the Gold firm to collect its unpaid bill. However, the record herein contains no motion to consolidate nor any judgment concerning such a motion. Therefore, the question of the consolidation is not properly before this court at this time.

Prescription/'Peremption

Granger asserts that the trial court erred in finding his action prescribed or perempted. Louisiana Revised Statutes 9:5605 provides the prescriptive and per-emptive periods for legal malpractice actions, as follows:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

In this case, it is clear that Granger knew in May 2003 about the actions or inactions which allegedly constituted malpractice on the part of Middleton more than a year before he filed suit. Granger claims that Middleton’s failure to confect a judgment memorializing a mediated settlement in November 2000 constituted malpractice. However, Granger complained of this in his disciplinary complaint against Middleton filed in the spring of 2003 and consulted three other attorneys |sabout his alleged problems with Middleton. This action was not filed until November 16, 2004, more than a year after that complaint and more than a year after the record shows that he was aware of the failure to confect the judgment. Therefore, the action is prescribed on its face.

Granger, however, asserts that the ten year prescriptive period applicable to contract claims should be applied because the claim for excess billing is a contract claim. To the contrary, La.R.S. 9:5605 specifically states that it is applicable to all actions against attorneys arising out of an engagement to provide legal services “whether based upon tort, or breach of contract, or otherwise.” Accordingly, the one and three year periods provided by La.R.S. 9:5605 are applicable to both the tort and contract claims raised by the action sub judice. It is clear from the record that Granger began disputing his bill and ended his retention of the Gold firm in March 2001. He did not file this suit until November 16, 2004. Therefore, the prescriptive period of La.R.S. 9:5605 applies to extinguish Granger’s claim for over billing.

Granger further asserts that, under the provisions of La.R.S. 9:5605(E), the allegations of fraud prevent the application of the prescriptive period set out in that statute. This court in Marsh Engineering Inc. v. Parker, 04-0509 (La.App. 3 Cir. 9/29/04), 883 So.2d 1119, writ denied, 893 So.2d 73 (La.1/28/05), found that allegations of fraud did not change the applicability of La.R.S. 9:5605, in spite of the language of La.R.S. 9:5605(E). This court found that:

As explained by this court in Dauterive Contractors v. Landry & Watkins, 01-1112, p. 29 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1260-61:
Subsection E of La.R.S. 9:5605 states that the existence of fraud operates to make Subsection A’s peremptive period inapplicable. Earlier in this opinion, we held that in cases of fraud, the singular “peremptive period” referenced in Subsection E refers to the |4three-year peremptive period only. Contra Coffey, 762 So.2d 1181 at 1187 (“Because the one and three-year limitations of La.R.S. 9:5605(A) are per-emptive, the fraud exception [⅜ *19] of La.R.S. 9:5605(E) is applicable to both.”). Therefore, if fraud is proven, the three-year peremptive period will be inapplicable; the claim can be brought at any time after the act of malpractice, subject still, however, to the one-year peremptive period, to which the fraud exception is inapplicable. In Broussard v. Toce, 99-555, p. 5 (La.App. 3 Cir. 10/13/99), 746 So.2d 659, 662, we said that “Broussard’s argument that his fraud claim has not prescribed fails to recognize that this claim is still subject to the one-year prescriptive [peremptive] period from the date of discovery. La.R.S. 9:5605(A). Subsection E of La.R.S. 9:5605 carves out an exception for the three-year peremptive period only.” See also Broussard v. F.A. Richard & Assoc. Inc., 732 So.2d 578 (the fraud claim, while not subject to the three-year peremptive period, is still subject to the one-year period).

Id. at p. 1126.

Thus, the provisions of La.R.S. 9:5605(E) do not operate to suspend prescription indefinitely where fraud is alleged. Rather, it lifts the three year per-emptive period, giving the claimant one year from the date of the discovery of the actions which allegedly constitute malpractice. Since more than a year passed between the date on which the record shows that Granger discovered both the failure to memorialize the result of the mediation and that he discovered the alleged over billing, the matter is prescribed under La. R.S. 9:5605. Accordingly, we find no error in the trial court’s determination that Granger’s action is prescribed.

Class Action

Granger asserts that the trial court erred in failing to allowing the matter to proceed as a class action. Apparently, Granger feels that the prescriptive period for his action would be extended to match that of other class members, because La. Code Civ.Proc. art. 596 provides that: “Li-berative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is ^suspended on the filing of the petition as to all members of the class as defined or described therein.” However, we find nothing in this language or in the jurisprudence, and Plaintiff has cited nothing, which suggests that the filing of a class action revives an action already prescribed at the time the class action was filed. As we have stated, this action was prescribed and/or perempted at the time the original petition herein was filed. Accordingly, the trial court correctly refused to allow Granger’s action to proceed as a class action.

New Trial

Granger further argues that the trial court erred in denying his motion for new trial. He asserts that he is entitled to a new trial under the mandatory provision of La.Code Civ.P. art. 1972(1) in that the judgment was contrary to the law and the evidence. Having already found that the judgment was not contrary to the law or the evidence, we find no error in the trial judge’s denial of the motion.

CONCLUSION

Having found no error in the trial court’s dismissal of Granger’s claims as prescribed, we affirm the trial court’s judgment. Costs of this appeal are assessed against the Plaintiff-Appellant, Tommie Mack Granger.

AFFIRMED.

      . Granger’s failure to pay the amount billed to him by the Gold firm resulted in a collection suit. The trial court ordered him to pay the entire outstanding bill, and this court affirmed that ruling in the recent case of Gold, Weems, Bruser, Sues & Rundell v. Granger, 06-859 (La.App. 3 Cir. 12/29/06), 947 So.2d 835.

      . The date of the complaint cannot be ascertained from the record herein. However, a response was filed on behalf of Middleton on May 27, 2003.


author: GASKINS, J.

text:
    Tanya Darlene George COIE, Plaintiff-Appellee v. Dennis Wade COIE, Defendant-Appellant.
    No. 42,077-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 21, 2007.
    S. Lynn Walker, New Orleans, for Appellant.
    John R. Joyce, New Orleans, for Appel-lee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

_JjThe father, Dennis Wade Coie, appeals from trial court judgments granting ex parte motions by the mother, Tanya Darlene George Coie, to maintain the status quo of a protective order against the father and to enforce an order directing that the father have only supervised visitation with the parties’ two minor children. We reverse in part and affirm in part.

FACTS

The parties were married in February 1990. They had two children: a son who was born in 1995 and a daughter who was born in 1998.

On January 12, 2006, the mother filed a petition for protection from abuse in the Fourth Judicial District Court (JDC) in Ouachita Parish. The matter was designated # 06-0176 and assigned to Civil Section 1; Judge Jimmy Dimos was the judge presiding over that section. The mother alleged that the father physically abused her and the children. She also requested child support and spousal support. A temporary restraining order (TRO) was issued on January 12, 2006, prohibiting the father from abusing or contacting the mother and children. It also granted the mother temporary custody of the children. The father was ordered to show cause on January 19, 2006, why the TRO and other relief should not be made protective orders. The TRO was set to expire on January 20, 2006.

On January 19, 2006, a protective order was issued by Judge Dimos; the terms of the order were to be effective until July 20, 2006. The father was directed not to contact the mother except through counsel or his mother. Temporary custody of the children to the mother was continued. The father was granted specific visitation with the children to be supervised by the 12paternal grandmother, who was ordered to be present at all times and not to leave the children alone with the father. The father was prohibited from physically punishing either child. It was noted in the order that contact with Child Protection Services (CPS) established that it had validated physical abuse by the father in October 2005; however, no action was taken because the mother took the children and moved out.

On March 3, 2006, the father filed a petition for a divorce under La. C.C. art. 102 in the Fourth JDC. This suit was designated as #06-0957 and assigned to Judge Dimos in Civil Section 1. The father requested joint custody with him being named the primary custodial parent and the mother having supervised visitation. He alleged that the mother had alcohol and prescription drug abuse problems. He asserted that the 10-year-old son was old enough to express a preference and that the boy wished to live with him. Pursuant to Fourth JDC rules, the parties were ordered to attend a hearing officer conference (HOC) on April 20, 2006; it was later reset to June 22, 2006. A custody rule was set for May 18, 2006, but was later continued without date.

On April 12, 2006, the mother filed an ex parte motion in # 06-0957 to vacate supervised visitation as a result of allegations of abuse against the father and the paternal grandmother during March 2006 visitations. Judge Dimos signed an ex parte order vacating the supervised visitation. A rule to show cause was initially set for April 19, 2006; it was later continued without date.

|aA HOC hearing was held on June 22, 2006, with the parties’ counsel. Because a report by Dr. E.H. Baker on his custody evaluation was not yet ready, the parties agreed that, while a HOC report would issue, the HOC and trial should be continued pending receipt of that information. On June 30, 2006, Judge Dimos signed an order resetting the HOC to August 17, 2006, and the rule to August 31, 2006.

The HOC report rendered on June 22, 2006, recounted that, as to the allegations of abuse against the paternal grandmother supervising the father’s visitation, Judge Dimos had reviewed the CPS records and found no relevant information. The hearing officer had also reviewed the records and found no relevant evidence other than that an investigation was conducted and the complaint against the grandmother was found to be groundless. In her report, the hearing officer recommended that joint custody be continued with the mother being domiciliary parent and that visitation with the father supervised by the paternal grandmother be reinstated. The weekend visitation was expanded to include overnight visitation on the weekend instead of blocks of time on Saturday and Sunday. As a condition of the father’s visitation, the paternal grandmother was ordered to not leave the children alone with him at any time. As an addendum, the hearing officer directed that neither the father nor the paternal grandmother physically punish or discipline either child. Judge Dimos accepted the hearing officer’s recommendations, and in an interim order signed July 11, 2006, ruled that the recommendations be made the order of the court.

l4On July 20, 2006, the protective order was modified to provide that all conditions of the existing order of January 19, 2006, were to remain in effect until the HOC hearing on August 17, 2006. The order was filed into the record of # 06-0176 on July 20, 2006, and it had an expiration date of August 18, 2006.

After a status conference with counsel on August 7, 2006, the hearing officer— after reviewing Dr. Baker’s report and a report from the Wellspring therapist— concluded that the matter could not be resolved without trial and the taking of evidence. As a result, the HOC on August 17, 2006, was dispensed with and the matter was set for trial before Judge Dimos on August 31, 2006. In a document captioned “Second Hearing Officer Conference Report” and rendered on August 7, 2006, the hearing officer directed that “[a]ll provisions of the HOC’s currently in force shall remain in force until Judge Dimos make[s] his ruling herein.” Judge Dimos signed an order on August 8, 2006, making the recommendations in the second HOC report the interim order of the court “pending the final disposition of issues by the Court.”

Additionally, another modified order of protection was filed into the record of # 06-0176 on August 9, 2006. It provided, in two places, that all existing conditions of the January 19, 2006 protective order were to remain in effect until the HOC hearing on August 31, 2006. However, on the last page, it stated that the date of the order was July 20, 2006, and the expiration date of the order was August 18, 2006.

| ^According to the minutes in # 06-0957, on August 31, 2006, counsel agreed after a pre-trial conference to continue the matter to December 26, 2006.

On November 3, 2006, the mother filed a motion to maintain the status quo of the protective order filed on August 9, 2006, due to the continuation of the case .until December 26, 2006. On November 3, 2006, Judge Dimos signed an order directing that the status quo of the protective order be maintained and remain in effect until December 26, 2006. The mother also moved to enforce supervised visitation based upon reports by the children that they were left alone with their father. Judge Dimos signed an order on November 3, 2006, directing the father to comply with the July 11, 2006 interim order or face contempt charges.

On November 15, 2006, the father was granted a judgment of divorce.

On December 11, 2006, in # 06-0957, the father filed a motion to consolidate # 06-0176 and # 06-0957, as well as to secure documents for trial and obtain a continu-anee. The order for consolidation was signed on December 12, 2006. Following a hearing on December 20, 2006, the trial set for December 26, 2006, was continued until April 16, 2007. The case was set before Judge C. Wendell Manning, who rotated into Civil Section 1 after Judge Dimos’ retirement at the end of 2006.

|fiThe father appeals from the ex parte orders signed on November 3, 2006, to maintain the status quo of the protective order and to enforce supervised visitation.

DISCUSSION

According to the father, the protective order issued on January 19, 2006, was modified on April 12, 2006, and July 11, 2006. It was continued until August 18, 2006, by a modified order of protection dated July 20, 2006, and then continued again by an interim order on August 8, 2006. In preparation for an anticipated trial on August 31, 2006, the protective order was continued until the trial and Judge Dimos signed an interim order. However, no form LPOR 5 for a Louisiana Uniform Abuse Prevention Order was prepared or signed. The father argued that the protective order was not continued beyond August 31, 2006, and that it expired on its face on August 18, 2006. Thus, there was no protective order to maintain when the mother filed her ex parte motion to maintain the status quo of the protective order on November 3, 2006, and the court’s granting of the motion was improper. He also contended that the trial court erred in granting the ex parte motion to enforce supervised visitation, which was “bootstrapped” to the improper resurrection of the lapsed protective order.

In her brief, the mother quoted the language in the second HOC report which provided that the provisions of the HOC’s then in force would remain in force until Judge Dimos ruled, and she noted that the trial judge signed an order on August 8, 2006, making the recommendations in that Ureport the interim order of the court. The mother also argued that the protective order was extended by agreement.

The protective orders in the instant case were issued pursuant to the Domestic Abuse Assistance Act, La. R.S. 46:2131, et seq. They are subject to registration with the Louisiana Protective Order Registry. La. R.S. 46:2136.2. Any final protective order or approved consent agreement shall be for a fixed period of time, not to exceed eighteen months, and may be extended by the court, after a contradictory hearing, in its discretion. La. R.S. 46:2136(F). A review of the protective orders in the instant case demonstrates that they expired, by their own terms, at the latest on August 31, 2006. As a result, the trial court erred in granting the mother’s November 2006 motion to maintain the status quo of the protective order filed on August 9, 2006.

However, the granting of any relief authorized under the Domestic Abuse Assistance Act shall not preclude any other relief authorized by law. La. R.S. 46:2139. While the mother sought and obtained protective orders against the father under the Domestic Abuse Assistance Act, there were other orders issued by the trial court in which the recommendations of the hearing officer were adopted as interim orders of the trial court. These provided for the father to have only supervised visitation with the children. Courts have inherent power to determine a child’s best interest and to tailor a custody order, including visitation, that minimizes the risk of harm to the child. Clark v. Clark, 550 So.2d 913 (La.App. 2d Cir.1989); Norris v. Norris, 604 So.2d 107 (La.App. 2d Cir.1992); Oglesby v. Oglesby, 25,974 8(La.App.2d Cir.8/17/94), 641 So.2d 1027; Harper v. Harper, 33,452 (La.App.2d Cir.6/21/00), 764 So.2d 1186; Hollingsworth v. Semerad, 35,264 (La.App.2d Cir.10/31/01), 799 So.2d 658; Gaskin v. Henry, 36,714 (La.App.2d Cir.10/23/02), 830 So.2d 471; Murphy v. Murphy, 2004-1053 (La.App. 3d Cir.12/8/04), 889 So.2d 417.

While the protective orders had expired by their own terms, we find that the trial court’s interim order of August 8, 2006, is still viable and serves to protect the children by imposing supervised visitation with the father. Consequently, the trial court did not err in granting the mother’s motion to enforce supervised visitation.

CONCLUSION

The trial court erred in granting the mother’s motion to maintain the status quo as to the protective order, and that judgment is reversed. However, because the trial court’s interim order was still viable, the trial court did not err in granting the mother’s motion to enforce supervised visitation; accordingly, that judgment is affirmed.

Costs of this appeal are assessed against the appellant.

REVERSED IN PART, AFFIRMED IN PART.

      . The allegations of abuse were made by the children to their therapist at the Wellspring Alliance for Families, who reported it to the authorities.

      . We note that, at various earlier points, the two matters were treated as though they were already consolidated — the June 22, 2006 HOC report, the August 9, 2006 minute entries in both records, and the mother's November 3, 2006 pleadings.


author: SMITH, Chief Justice, DICKINSON, Justice,

text:
    Clair DINET and Roldin Dinet v. Robert L. GAVAGNIE and City of Waveland, Mississippi.
    No. 2005-CA-01438-SCT.
    Supreme Court of Mississippi.
    Feb. 15, 2007.
    William Chad Stelly, attorneys for appellants.
    Matthew Stephen Lott, Robert W. Wilkinson, Pascagoula, attorneys for appel-lees.
   SMITH, Chief Justice,

for the Court.

¶ 1. This case is on appeal from the Circuit Court of Hancock County, by Plaintiffs Clair and Roldin Dinet. Plaintiffs seek review of the trial court’s order, which granted the Defendants’ Motion to Strike All Pleadings and dismissed the entire matter without prejudice. We find that the failure of their foreign counsel James Shields to obtain admission pro hac vice in the instant proceedings does not warrant the harsh sanction of dismissal of the Dinets’ claims in this case. We conclude that, on remand, the trial court may impose sanctions upon Shields as the trial court deems proper, including reporting to the appropriate association(s) of an apparent violation of Rule 5.5(a) of the Louisiana Rules of Professional Conduct.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 27, 2001, Plaintiffs filed a Complaint for damages arising out of a traffic accident between Clair Dinet and Waveland Police Officer Robert Ga-vagnie. Attorney James Shields signed and caused the Complaint to be filed, listing his Louisiana business address and listed the name of Leigh Triche Janous, a member of the Mississippi Bar, under his signature. Between March 7, 2003, and September 12, 2003, Shields appeared at several depositions taken in this case. Shields filed subsequent pleadings with the court, but Janous never made any appearances nor signed any of these pleadings. In the summer of 2004, in preparation for the August 2004 trial, Defendants’ counsel became suspicious that Shields was not licensed in this state and placed a call to the Mississippi Bar Association, which confirmed their suspicions. Defendants claim that the fact that Shields was not licensed in Mississippi was not readily ascertainable because he signed all pleadings without a bar number and spoke often of trying cases in Mississippi. In July 2004, counsel for Defendants informed Shields of the need for an attorney licensed in Mississippi to take the next deposition. Shields appeared at the deposition, where he was informed of his need to obtain admission pro hac vice in Mississippi courts. He was also told that local counsel would need to sign all pleadings and appear for depositions if he failed to obtain admission.

¶ 3. On January 5, 2005, Defendants filed their Motion to Strike All Pleadings, alleging that the pleadings in the case were invalid and should be stricken from the record as a result of Shields’ failure to obtain admission pro hac vice despite several warnings from defense counsel. Notice of this hearing was sent to Shields on January 10, 2005. On January 31, 2005, Janous was replaced by Chad Stelly, a Mississippi attorney, as local counsel, but Shields did not withdraw as counsel nor seek admission pro hac vice. On February 4, 2005, defense counsel sent Stelly and Shields a letter informing them that the Motion to Strike All Pleadings would be withdrawn if Shields were to file for admission pro hac vice or withdraw from the proceedings. Notice of the hearing on Defendants’ Motion to Compel, Motion for Summary Judgment and Motion to Strike All Pleading filed by Plaintiffs was again sent to Shields and Stelly on February 4, 2005. On February 22, 2005, the trial court heard the Motion to Strike All Pleadings, but Shields did not appear. At this time, Shields had not yet filed for admission nor had he withdrawn from the proceedings. Defendants’ motion was granted, and the court signed an Order for Dismissal without prejudice on February 25, 2005. On March 4, 2005, Plaintiffs filed a Motion for a New Trial on the Motion to Strike All Pleadings, and, having been denied, Plaintiffs bring this appeal asserting the following issues for review. We repeat them here verbatim:

I. Whether the trial court abused its discretion in granting Defendants’ Motion to Strike all Pleadings, which was not filed until the expiration of over three years from the date of the filing of the Original Complaint for Damages and after substantial discovery has been conducted, and no evidence of any improprieties was presented warranting striking of any of the pleadings.
II. Whether the trial court abused its discretion in granting Defendants’ Motion to Strike All Pleadings which may have effectively administered the unduly and unwarranted harsh result of dismissal of Plaintiffs’ cause of action with prejudice.

DISCUSSION

¶ 4. When reviewing a trial court’s decision to dismiss under Miss. R. Civ. P. Rule 41(b), the Court may reverse only if it finds the trial court was manifestly wrong. Walters v. Patterson, 531 So.2d 581, 583 (Miss.1988). The standard for reviewing a trial court’s decision of involuntary dismissal under Rule 41(b) is abuse of discretion. Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990).

¶ 5. The first issue that Plaintiffs assert on appeal is that the trial court erred in granting Defendants’ Motion to Strike All Pleadings, since the motion was filed more than three years after the filing of the original complaint in 2001, after substantial discovery had been conducted. While Plaintiffs admit that Shields is not a member of the Mississippi Bar, nor was he admitted pro hac vice in connection with the instant proceedings, they assert he has appeared in state and federal courts of Mississippi on a number of prior occasions. Additionally, in January 2005, Plaintiffs enrolled Stelly, a member of the Mississippi Bar, as undersigned counsel to the instant proceedings. Defendants argue that they timely filed the motion to strike, and that they notified Shields of his need to obtain admission pro hac vice many months prior to filing such motion. Defendants argue that when a party timely acts prior to trial of the case, and the trial court properly strikes the pleadings due to a Miss. R.App. P. 46 violation, the Motion to Strike All Pleadings will not be deemed waived.

¶ 6. In Terrell v. Tschirn, Tschirn, a Louisiana attorney, did not follow the appropriate rules to appear pro hac vice, as he never filed an affidavit as required by Rule 46(b)(4). 656 So.2d 1150, 1152 (Miss.1995). The Court said that because of counsel’s Rule 46 violation, upon proper motion by Terrell, the pleading in the case would be stricken from the record. However, Terrell did not make this motion until after an adverse verdict was returned against him. Id. This reflects the view addressed in Buchanan v. Buchanan, in which the Court held that a party who knew of grounds for a judge’s recusal should not be allowed to take his chances with the jury and then, after he loses, file a motion for that judge’s recusal. Buchanan, 587 So.2d 892, 897 (Miss.1991). However, in the instant case, Defendants filed their motion to strike before the case went to trial, and thus do not fall in the same situation as the parties in these cases. Therefore, relying on the Court’s reasoning in Terrell, Defendants Motion to Strike All Pleadings was not waived.

¶ 7. Secondly, Plaintiffs assert that the trial court abused its discretion in granting the defendants’ motion to strike all pleadings, which they claim could effectively administer an unwarranted result of dismissal with prejudice because of the running of the statute of limitations. Citing Wallace v. Jones, Plaintiffs assert that dismissal should be granted only when lesser sanctions would not serve the best interests of justice. 572 So.2d 371 (Miss.1990). As such, Plaintiffs suggest that the interests of justice warrant reconsideration of the trial court’s decision, arguing that the decision to dismiss their claims without prejudice based on Shield’s failure to seek admission pro hac vice is too harsh a penalty. Citing Taylor v. General Motors Corp., Defendants counter that the trial court was completely within its authority when it struck the pleadings and dismissed the case without prejudice. 717 So.2d 747 (Miss.1998). Specifically, Defendants assert that the trial court’s ruling was proper because Plaintiffs failed to meet the requirements of Rule 11 of the Mississippi Rules of Civil Procedure and Rules 46(a) and 46(b) of the Mississippi Rules of Appellate Procedure. Defendants argue that as a foreign attorney, Shields violated Miss. R.App. P. 46 by failing to obtain admission pro hac vice, and that this failure requires striking any pleadings filed in violation of this rule. Defendants also cite Miss. R. Civ. P. 41(b), which states that the court may dismiss an action involuntarily for failure to comply with the rules of the court or any order by the court. Miss. R. Civ. P. 41(b) (2006).

¶ 8. The admission of a foreign attorney to practice pro hac vice in Mississippi is governed by the requirements of Miss. R.App. P. 46. Rule 46(a) states that “attorneys who have not been admitted to practice in the Supreme Court or the Court of Appeals shall not be permitted to argue orally, or file briefs or any paper in any cause in either Court.” Rule 46(b)(2) states that a foreign attorney shall not appear in any cause except as allowed pro hac vice under Rule 46(b). Rule 46(b)ll(i) mandates that “any pleadings or other papers filed in violation of this rule shall be stricken from the record upon motion of any party or by the court....” Miss. R. Civ. P. 11 requires the signature of regularly admitted attorneys on all pleadings and motions. The portion of the rule which is applicable to this case states:

The signature of an attorney who is not regularly admitted to practice in Mississippi, except on a verified application for admission pro hac vice, shall further constitute a certificate by the attorney that the foreign attorney has been admitted in the case in accordance with the requirements and limitations of Rule 46(b) of the Mississippi Rules of Appellate Procedure.

Miss. R. Civ. P. 11(a). Therefore, Shields did not comply with Miss. R. Civ. P. 11 or Miss. R.App. P. 46, as he was not regularly admitted in this State nor was he admitted pro hac vice pursuant to the procedures outlined in Miss. R.App. P. 46(b) when he signed the pleadings in this case.

¶ 9. Rule 5.5(a) of the Louisiana Rules of Professional Conduct states that “a lawyer shall not practice law in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” La. St. Bar art. XVI, R. 5.5(a). The Supreme Court of Louisiana disbarred two attorneys for unauthorized practice of law during their employment in North Carolina before either person had passed the Louisiana or North Carolina bar exam. In re Stamps, 874 So.2d 113, 125 (La.2004) In addition to other violations, the Disciplinary Board found that the defendants violated Rule 5.5 by engaging in the unauthorized practice of law in North Carolina. Id. at 120. The Court stated:

We further find that the record convincingly demonstrates that respondents’ failure to disclose their employment prevented this court from obtaining access to information which had a significant bearing on their character and fitness— namely, whether they engaged in the unauthorized practice of law while working in the law office of Mr. Locklear. The evidence suggests an investigation would have clearly revealed both Mr. and Mrs. Stamps engaged in the unauthorized practice of law in North Carolina.

Id. at 124.

¶ 10. We find that Shields violated Rule 5.5(a) when he engaged in the unauthorized practice of law in this State. We remand this issue to the trial court with instructions to notify the Louisiana State Bar of this unauthorized activity and for imposition of such other sanctions as the trial court deems proper due to the violations of Miss. R. Civ. P. 11 and Miss. R.Ápp. P. 46.

¶ 11. With regard to whether the trial court’s order to strike Plaintiffs’ pleadings and dismiss their case was proper, Plaintiffs assert that they are properly before the court as they associated Stelly as local counsel in January 2005. They state that Stelly has been a member of the Mississippi State Bar since 1996 and is familiar with the instant proceedings. This Court has previously affirmed the dismissal of a plaintiffs case without prejudice for the failure of plaintiffs counsel to comply with the court rules governing the admission of foreign attorneys to appear pro hac vice. Taylor, 717 So.2d at 750. In Taylor, the Court stated that “the result of [Plaintiff counsel’s] failure to properly comply with M.R.A.P. 46 was for the trial court to strike [Plaintiffs’] complaint as stated in M.R.A.P. 46(b)(8)© [now Rule 46(b)(ll)ffi] and pursuant to 41(b) to dismiss the case.” Id. at 749. However, in Taylor, the plaintiffs were represented by only a foreign attorney, who had not been properly admitted pro hac vice. In the present case, Plaintiffs also are represented by Stelly, a member of the Mississippi Bar who made an appearance as counsel for the Plaintiffs in this action prior to the dismissal of the ease. Therefore, the factual situation in this case is distinct from Taylor. Janous, who is also licensed in Mississippi, was originally listed as counsel for the Plaintiffs on the original complaint filed on September 27, 200L On January 28, 2005, Plaintiffs filed a motion to substitute Stelly in the place of Janous as counsel of record. After considering the motion, the trial court issued an order on January 31, 2005, providing that Stelly be substituted in connection with the instant proceedings. All pleadings filed by Plaintiffs after the order substituting Stelly as counsel of record are signed by Stelly. We find that Stelly’s appearance effectively cured the failure of Plaintiffs’ foreign counsel (Shields) to comply with Miss. R.App. P. 46, because Stelly was counsel for Plaintiffs before the Order for Dismissal was issued on February 25, 2005.

¶ 12. Furthermore, this Court has previously reversed the ruling of a trial court, which dismissed a case with prejudice after the plaintiff failed to answer questions under oath after being instructed to do so by the trial court. Wallace v. Jones, 572 So.2d at 376-77. The Court held that dismissals should be granted only when less drastic alternatives have been considered and such lesser sanctions would not serve the best interest of justice. Id. The Court also stated that dismissal with prejudice is “an extreme and harsh sanction that deprives a litigant of the opportunity to pursue his claim, and any dismissals with prejudice are reserved for the most egregious cases.” Wallace, 572 So.2d at 376. In light of Wallace, we find that the dismissal of Plaintiffs’ case is too harsh a result.

¶ 13. Finally, Plaintiffs argue that as a result of the trial court’s dismissal without prejudice, they may have had their case dismissed without the opportunity of ever being heard, as the applicable statute of limitations may have expired. Since Plaintiffs’ association of local counsel cured their foreign counsel’s noncompliance with Miss. R.App. P. 46 and thus determines the outcome of this issue, we need not address this argument. We find that the trial court erred in striking Plaintiffs’ pleadings and dismissing their case without prejudice.

CONCLUSION

¶ 14. Based on the foregoing reasons, we find that the trial court abused its discretion in granting Defendants’ Motion to Strike All Pleadings. We remand to the Circuit Court of Hancock County with instructions to reinstate the Plaintiffs’ case.

¶ 15. VACATED AND REMANDED.

WALLER, P.J., DIAZ, EASLEY, CARLSON, GRAVES AND RANDOLPH, JJ., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION. COBB, P.J., NOT PARTICIPATING.

DICKINSON, Justice,

Dissenting:

¶ 16. My dissent is as simple as ABC.

(A)

¶ 17. Miss. R.App. P. 46(b) requires foreign attorneys to be admitted pro hac vice before they are allowed to sign pleadings in a case in our courts.

(B)

¶ 18. In this case, a Louisiana attorney not admitted in Mississippi violated Miss. R.App. P. 46(b) by signing pleadings without obtaining pro hac vice admission.

(C)

¶ 19. Miss. R.App. P. 46(b) clearly, unambiguously, and without provision within the rule of any exception, provides that “any pleadings or other papers filed in violation of this rule shall be stricken from the record upon motion of any party or by the court.” (Emphasis added).

¶ 20. One of the parties in this case has moved the Court to enforce its own rule and strike the pleadings. The majority’s refusal to do so seems to me difficult to defend. Can this Court in fairness expect attorneys to have respect for-and comply with-our rules, when we don’t consistently require it?

¶ 21. Although further analysis and discussion might be provided, I think for purposes of setting forth my position, I have said enough. I respectfully dissent.

      . On February 22, 2005, Stelly appeared before the circuit court as counsel for the Plaintiffs for a hearing on the Defendants’ motion to strike all pleadings.

      . “Leigh Triche Janous (Mississippi Bar No. 10130)” appears under Mr. Shield's signature on the original complaint.

      . Miss. R. Civ. P. 11 requires "an attorney who is not regularly admitted to practice in Mississippi” to comply with the "requirements and limitations of Rule 46(b) of the Mississippi Rules of Appellate Procedure.

      . The majority opinion acknowledges that James Shields, a Louisiana attorney neither licensed to practice law in Mississippi nor admitted pro hac vice, failed to comply with the unambiguous requirements of Miss. R.App. P. 46 and Miss.R.Civ.P. 11 when he signed every pleading filed in this case.

      .We could easily enforce the rule and strike the pleadings, and allow the plaintiff sufficient time to file pleadings in compliance with the rules.


author: CARLSON, Justice, DICKINSON, Justice,

text:
    Lealue “Annette” COUSIN and Richie Cousin v. ENTERPRISE LEASING COMPANY-SOUTH CENTRAL, INC. and Jana Kellems.
    No. 2006-CA-00478-SCT.
    Supreme Court of Mississippi.
    Feb. 15, 2007.

      Chynee Allen Bailey, Orlando Rodriquez Richmond, Sr., Jackson, attorneys for appellants.
    Luther T. Munford, Jackson, James Grady Wyly, III, Thear Jules Lemoine, Gulfport, attorneys for appellees.
   ON MOTION FOR REHEARING

CARLSON, Justice,

for the Court.

¶ 1. Motion for rehearing is denied. The original opinions are withdrawn and these opinions are substituted therefor.

¶ 2. From the Chickasaw County Circuit Court’s grant of summary judgment in favor of Enterprise Leasing Company- — ■ South Central, Inc., and Jana Kellems, Lealue “Annette” Cousin and Richie Cousin appeal to us. Finding no error in the trial court’s grant of summary judgment, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 3. On March 22, 2002, Schiquita Rogers rented a 2002 Pontiac Grand Am from the Tupelo, Mississippi, branch of Enterprise Leasing Company — South Central, Inc (Enterprise). Enterprise employee Jana Kellems rented the car to Rogers. Rogers produced an unexpired license to Kellems that had been issued by the State of Mississippi. However, unbeknownst to Kellems, Rogers’s license had been suspended.

¶ 4. Enterprise has a standard procedure for renting cars. Kellems’s affidavit states the following:

5. The Enterprise rental procedures include a requirement that the employee inspect and check a potential customer’s driver’s license, and compare and verify the signature of the customer written in the employee’s presence with that on the customer’s driver’s license.
6. Each and every time I rented a vehicle while employed at Enterprise, I followed these procedures and required that the potential customer provide me with a driver’s license. I then would enter the customer’s vital statistics, including his/her name and date of birth, as well as his/her physical address, driver’s license number, state of issuance and expiration date, into the Enterprise computer. After printing the rental agreement and having the renter sign the agreement, I compared the signature thereon with the signature on the renter’s driver’s license, and verified that the signatures matched.

Kellems correctly followed Enterprise’s procedure when she leased the car to Rogers.

¶ 5. On March 23, 2002, Rogers ran a stop sign in Chickasaw County while driving her rented car. Rogers collided with a vehicle driven by Lealue “Annette” Cousin, who suffered leg injuries requiring surgery that cost $40,000. The officer who investigated the accident cited Rogers for driving with a suspended license. Due to her injuries and damages suffered as a result of this accident, Cousin and her husband, Richie Cousin, sued Enterprise and Kellems in the Circuit Court for the Second Judicial District of Chickasaw County, alleging negligence per se for renting a car to a person who was not then duly licensed according to Miss.Code Ann. § 63-1-67 (Rev.2004). In due course, Enterprise filed a motion for summary judgment. In support of its motion for summary judgment, Enterprise attached to the motion, inter alia, copies of the complaint; the accident report; the Rogers/Enterprise car-rental agreement; the sworn affidavit of Jana Kellems (Eakes); a State of Mississippi, Department of Public Safety, motor vehicle report on Rogers; and, an itemization of undisputed facts. The plaintiffs responded to Enterprise’s motion for summary judgment asserting that summary judgment was inappropriate and attaching to them response copies of the complaint; the accident report; the rental agreement; Lealue Cousin’s deposition; Rogers’s motor vehicle report; and a Chickasaw County justice court document entitled “Uniform Traffic Citation.” The plaintiffs also responded to Enterprise’s itemization of undisputed facts. On February 22, 2006, the Chickasaw County Circuit Court, Judge Henry L. Lackey, presiding, entered an order granting summary judgment in favor of Enterprise. In his order, Judge Lackey stated, inter alia:

Rogers presented a facially valid, unexpired driver’s license to Kellems at the time the vehicle was leased. Kellems properly recorded Rogers’ driver’s license information on the Rental Agreement, recorded the required information, inspected Rogers’ drivers license, compared Rogers’ signature on her driver’s license to her signature on the Rental Agreement and complied with Section 63-1-67, MCA, therefore, defendants, Enterprise and KELLEMS are entitled to judgment as a matter of law.

It is from Judge Lackey’s grant of summary judgment and entry of a judgment of dismissal, with prejudice, that the plaintiffs now appeal to us.

DISCUSSION

¶ 6. We employ a de novo standard of review of a trial court’s grant or denial of summary judgment and, pursuant to Miss. R. Civ. P. 56(c), we examine all the evidentiary matters before us, such as admissions in pleadings, answers to interrogatories, depositions, affidavits, etc. Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss.2005); Davis v. Hoss, 869 So.2d 397, 401 (Miss.2004) (citing Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003)). The evidence is viewed in the light most favorable to the party opposing the motion. If there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in the movant’s favor. The burden of demonstrating that no genuine issue of material fact exists is on the moving party. Id. (citing Moore ex rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 663 (Miss.2002)). The party opposing the motion must be diligent and “may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial.” Harrison v. Chandler-Sampson, Ins., Inc., 891 So.2d 224, 228 (Miss.2005) (citing Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000)).

¶ 7. There is only one issue for this Court to decide. This case presents a matter of first impression for this Court.

WHETHER ENTERPRISE WAS NEGLIGENT PER SE ACCORDING TO MISS. CODE ANN. § 63-1-67 WHEN RENTING A CAR TO A DRIVER WHOSE LICENSE HAD BEEN SUSPENDED.

¶ 8. Cousin argues that, according to Miss.Code Ann. § 63-1-67 (Rev. 2004), Enterprise was negligent per se by renting a car to a person who was not “then duly licensed.” Cousin argues that but for Enterprise’s unlawful action, Cousin would not have been injured. Miss. Code Ann. § 63-1-67 states:

(1) No person shall rent a motor vehicle to any other person unless the latter person is then duly licensed under the provisions of this article, or, in the case of a nonresident, then duly licensed under the laws of the state or country of his residence except a nonresident whose home state or country does not require that an operator be licensed.
(2) No person shall rent a motor vehicle to another until he has inspected the license of the person to whom the vehicle is to be rented and compared and verified the signature thereon with the signature of such person written in his presence.
(3)Every person renting a motor vehicle to another shall keep a record of the registration number of the motor vehicle so rented, the name and address of the person to whom the vehicle is rented, the number of the license of said latter person and the date and place when and where said license was issued. Such record shall be open to inspection by any police officer or officers or other employee of the commissioner.

Id. (emphasis added). However, Enterprise argues that since it complied with the statute by checking Rogers’s facially valid license according to the procedures set forth in subsections (2) and (3), Enterprise was not guilty of negligence per se.

¶ 9. The parties in essence argue over the meaning of the phrase “then duly licensed.” Cousin urges this Court to interpret the statute literally and require that rental car companies request the status of each potential renter’s driver’s license from the Mississippi Department of Public Safety before renting the car. Cousin states that rental car companies could receive this information “within a couple of days” after the request.

¶ 10. On the other hand, Enterprise urges this Court to interpret the statute as a whole. It argues that “then duly licensed” means that the potential renter must produce a facially valid, unexpired driver’s license. Further, Enterprise argues that the statute sets forth the procedure for checking a facially valid driver’s license. First, the company must check the signatures of the renter.

(2) No person shall rent a motor vehicle to another until he has inspected the license of the person to whom the vehicle is to be rented and compared and verified the signature thereon with the signature of such person written in his presence.

Miss.Code Ann. § 63-1-67(2). Then, the company must record the data from the license.

(3) Every person renting a motor vehicle to another shall keep a record of the registration number of the motor vehicle so rented, the name and address of the person to whom the vehicle is rented, the number of the license of said latter person and the date and place when and where said license was issued. Such record shall be open to inspection by any police officer or officers or other employee of the commissioner.

Miss.Code Ann. § 63-1-67(3). In other words, in order to fulfill their obligations and responsibilities under section 63-1-67(1), rental car companies must comply ■with the provisions of subsections (2) & (3). Enterprise argues that, because the Legislature set out in such detail the process for checking a potential car renter’s driver’s license, the Legislature would have included a requirement of a rental car company’s checking with the Department of Public Safety if it had intended for rental companies to do so as a prerequisite for renting a car. The Legislature has had numerous opportunities to amend the statute if it wished to do so, and yet the statute has remained virtually unchanged since 1938.

¶ 11. Since this is an issue of first impression for this Court, we find it helpful to look to the decisions of other states. In U-Haul Co. v. Rutherford, 10 Md.App. 373, 270 A.2d 490 (Md.Ct.Spec.App.1970), the Maryland Court of Special Appeals held that Maryland’s statute concerning rental cars, Md.Code Ann. Art. 66½ § 114, which contained three sections similar to Mississippi’s statute, should be interpreted as a whole. Further, that court held that U-Haul did not violate section (a) of the statute, which stated that one could only rent a vehicle to a person who was then duly licensed, if one complied with the procedure for checking that license in subsection (b). However, the statute was repealed on July 1,1977.

¶ 12. We also look to Cowan v. Jack, 922 So.2d 559 (La. Ct.App. 4 Cir.2005) and Dortch v. Jack, 2005 WL 1279025, 2005 U.S. Dist. LEXIS 41115 (S.D.Miss.2005). In these cases, the Court of Appeal of Louisiana, Fourth Circuit, and the United States District Court for the Southern District Court of Mississippi, interpreted North Carolina’s statute as placing no duty on the part of rental car companies to conduct a background check of driver’s licenses. N.C. GemStat. § 20-34 states:

No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven by any person who has no legal right to do so or in violation of any of the provisions of this Article.

Id. (emphasis added).

¶ 13. We turn to Massachusetts. In Nunez v. A & M Rentals, 63 Mass.App.Ct. 20, 822 N.E.2d 743 (2005). John Patten presented A & M with a facially valid driver’s license that had in fact been suspended. Patten rented a 1999 Chevrolet Corvette. While driving 100 miles per hour, Patten collided with Jose Valentin’s 1998 Ford Escort, killing Valentin and seriously injuring his companion. Valentin’s estate sued on a theory of negligent en-trustment based on Mass. Gen. Laws ch. 90, § 32C, which states in relevant part:

No lessor shall lease any motor vehicle until the lessee shows that he or his authorized operator is the holder of a duly issued license to operate the type of motor vehicle or trailer which is being leased.

Id. (emphasis added). The Nunez court held that A & M had no duty to verify the status of Patten’s driver’s license because Patten presented a duly issued license. Further, the court held that since the Massachusetts legislature was silent on the issue, the court would not impose a further duty on A & M.

¶ 14. Cousin argues that “duly issued license” is not the same as “then duly licensed,” and further argues that the language of Mississippi’s statute, unlike Massachusetts’s statute, places a much higher burden on rental car companies to only rent cars to drivers with currently valid driver’s licenses. Cousin also argues that, unlike North Carolina’s statute, a knowledge requirement is absent from Mississippi’s statute; therefore, Enterprise should be held liable.

¶ 15. We find Cousin’s argument to be wholly unpersuasive and thus hold that Enterprise was not negligent per se because the statute only places a burden on rental car companies to accept facially valid, unexpired driver’s licenses. We are satisfied that the intent of the statute was that rental car companies were to comply with section 63-1-67(1) by fulfilling their responsibilities as mandated under subsections (2) and (3). The Mississippi Legislature set forth its required procedure in the statute, and Enterprise complied with that procedure. We thus find this issue to be without merit.

CONCLUSION

¶ 16. Because Enterprise complied with the procedures set forth by statute, the trial judge did not err in granting summary judgment in favor of Enterprise. We thus affirm the final judgment of the Circuit Court for the Second Judicial District of Chickasaw County.

¶ 17. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., AND EASLEY, J., CONCUR. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, GRAVES AND RANDOLPH, JJ.

DICKINSON, Justice,

dissenting:

¶ 18. Mississippi law clearly and unambiguously prohibits the rental of a motor vehicle to any person who is not “then duly licensed.” This case requires the Court to decide whether a vehicle rental company may escape the consequences of renting an automobile to a person with an invalid driver’s license by demonstrating that the invalid license was “facially valid.” Because the statute neither contains nor implies any such exception, I respectfully dissent.

¶ 19. Prior to casting my dissenting vote, I carefully searched the Mississippi Code for any provision of law suggesting that a “facially valid” license could qualify a person as being “then duly licensed.” I found no such exception. The majority, on the other hand, holds that Enterprise did not violate Miss.Code Ann. Section 63-1-67 since the statute “only places a burden on rental car companies to accept facially valid, unexpired driver’s licenses.” The majority reaches this conclusion despite the following clear, precise language employed by the Legislature: “No person shall rent a motor vehicle to any other person unless the latter person is then duly licensed under the provisions of this article....” Miss.Code Ann. § 63-1-67(1) (Rev.2004) (emphasis added). Thus, the majority ipso facto considers a person who possesses an invalid driver’s licence that appears valid to be “then duly licensed.”

¶ 20. It seems to me this Court should simply look at the words of the statute and apply the meaning of those words in deciding this case. The statute’s key three-word phrase, “then duly licensed,” is not overly complicated.

“Then”

¶21. The only time period or event referred to by, or associated with, the statute is the time a person rents a motor vehicle to another person. Thus, the word “then,” as used in the statute, refers to— and can only modify — the time of the rental. In other words, the requirement of the statute must be met at the time of the rental.

“Duly”

¶ 22. The word “duly” is in every dictionary and thesaurus I was able to locate. The definitions include inter alia “in a proper manner,” The American Heritage Dictionary of the English Language (4th ed.2004); “in a due manner or time,” Merriam-Webster’s Dictionary of Law (2006); and “in accordance with legal requirements,” Black’s Law Dictionary 407 (7th ed.2000). Synonyms of “duly” include “appropriately,” “fitly,” “properly,” and “suitably.” Roget’s New Millennium Thesaurus (1st ed.2006). I found no reference in any dictionary or thesaurus that remotely relates the word “duly” with anything appearing to be what it is not. Given these definitions and synonyms, I fail to follow the majority’s logic in finding that a person who does not hold a valid driver’s license is nonetheless “duly licensed” simply because that person presented an invalid license that was “facially valid.”

¶ 23. The distinction is important in this case because by renting a motor vehicle to a person who was not “then duly licensed,” Enterprise violated the statute and thus might be found liable for Cousin’s damages under the doctrine of negligence per se. “Mississippi recognizes the doctrine of negligence per se, which in essence provides that breach of a statute or ordinance renders the offender liable in tort without proof of a lack of due care.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 796 (Miss.1995). “To prevail in an action for negligence per se, a party must prove that he [or she] was a member of the class sought to be protected under the statute, that his [or her] injuries were of a type sought to be avoided, and that violation of the statute proximately caused his [or her] injuries.” Snapp v. Harrison, 699 So.2d 567, 571 (Miss.1997) (citing Thomas v. McDonald, 667 So.2d 594, 597 (Miss.1995)). “When a statute is violated, the injured party is entitled to an instruction that the party violating is guilty of negligence, and if that negligence proximately caused or contributed to the injury, then the injured party is entitled to recover.” Gallagher Bassett Servs. v. Jeffcoat, 887 So.2d 777, 787 (Miss.2004).

¶ 24. In my view, Cousin should be allowed to proceed with her action. She is certainly within the class of persons sought to be protected by Section 63-1-67 (persons who share the road with people who rent cars and might suffer injury due to the careless driving of an unlicensed person). Also, Cousin suffered injuries of the type sought to be avoided by the section’s requirement that only duly licensed drivers be allowed to rent cars (injuries sustained in a car crash with a renter who had a suspended license.) Whether she can prove that Enterprise’s negligence proximately caused or contributed to her injuries is for a jury to decide.

¶ 25. With all due respect to the majority, its decision today injects an exception into Section 63-1-67(1), and thus represents an amendment to, rather than an interpretation of, the statute. I acknowledge the difficulty visited upon rental car companies by the language of the statute and the consequences of its application. However, the decision of whether to alleviate that difficulty rests with the Legislature, not us. We must respect the wording selected by the Legislature, even though we might believe the statute to be impractical, unworkable, or unwise. Our privilege and duty to amend or invalidate statutes ends at the line which separates constitutional statutes from those which are not. There being no suggestion in this case that Enterprise has a constitutional right to rent a motor vehicle to a person with a license which is invalid, but appears to be valid, I must respectfully dissent.

¶ 26. For these reasons, I would reverse and remand.

DIAZ, GRAVES AND RANDOLPH, JJ., JOIN THIS OPINION.

      . Schiquita Rogers is sometimes referred to in the record as Shaquita Rogers.

      . The rental contract that Rogers signed also had a clause where Rogers warranted that she possessed an unsuspended driver’s license.

      .The plaintiffs reached a settlement with Rogers’s insurer for the maximum policy limits of $10,000. Cousin reached a settlement with her insurer for underinsured coverage benefits in the amount of $30,000.

      . Rogers later pled guilty to driving with a suspended license in Chickasaw County Justice Court.

      . Richie Cousin asserted a loss of consortium claim. We will sometimes refer to the plaintiffs as "Cousin.”

      . Cousin sued Kellems as an agent of Enterprise. Thus, we will refer to Enterprise and Kellems collectively as "Enterprise” for the sake of clarity.

      . Cousin also claimed negligent entrustment, but she did not brief this Court on the issue. Therefore, we will only discuss negligence per se.

      . The plaintiffs also asserted a negligent en-trustment claim, but have failed to offer any argument or citation to authority in support of this claim; therefore, we need not consider this issue on appeal. In re Adoption of a Minor Child, 931 So.2d 566, 578 (Miss.2006).

      . Miss.Code Ann. § 63-1-69 sets forth the penalty for violating section 63-1-67, which is "a fine of not less than five dollars ($5.00) and costs and not more than two hundred fifty dollars ($250.00) and costs, or by imprisonment in the county jail for a period of from one to six months, or by both the fine and imprisonment at the discretion of the court.”

      . Mass. Gen. Laws ch. 90, § 12 sets forth the penalty for knowingly violating Mass. Gen. Laws ch. 90, § 32C.